R v Sulub, 2023 ABKB 431

Court of King’s Bench of Alberta Citation: R v Sulub, 2023 ABKB 431 Date: 20230719 Docket: 210615605Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Abdi Sulub Offender 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 By Court Order, information that could identify the Victim must not be published, broadcast, or transmitted in any way.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. Leonard _______________________________________________________ I. INTRODUCTION [ 1 ] The Offender was found guilty of one charge of sexual assault contrary to s 271 of the Criminal Code arising out of an offence committed against KG on September 14, 2020.

I found the Offender guilty of sexual assault in relation to biting KG’s breast, but not in relation to touching KG’s vagina. II. FACTS [ 2 ] The circumstances of this offence are contained in my decision, marked as Exhibit 5 in these proceedings. [ 3 ] In

summary, KG was 18 years old at the time of the offence. She has autism, functions at the level of a 6-to-8-year-old and is subject to a Guardianship Order with her parents as guardians. [ 4 ] On the evening of September 14, 2020, at approximately 9:00 p.m., KG left her home without her parents’ knowledge. KG

was walking near a gas station and waived down the Offender. The Offender stopped his vehicle and KG asked if she could get in. He agreed. He asked where KG wanted to go, and KG gave him directions. KG asked the Offender to buy her some food. They went to a McDonald’s drive thru, KG ordered food, and the Offender paid. They left McDonald’s and the Offender continued to drive in the direction of KG’s home. At some point, KG said she did not want to go home and asked if there was a place where she could go to eat her food.

The Offender drove KG to a nearby apartment building and parked in the parking lot. [ 5 ] While the vehicle was parked, KG began eating and then engaged the Offender in conversation. KG suggested to the Offender that she could make him happy in exchange for $20. The Offender agreed. KG got out of the front passenger seat and got back into the backseat of the vehicle. KG took off her pants and underwear and laid down on the seat with her head against the vehicle door. The Offender removed his pants, which exposed his penis to KG.

The following sequence of events then occurred: the Offender touched KG’s vagina with either his finger or his penis; KG told the Offender “no” to the vaginal touching; the Offender stopped touching KG’s vagina. The evidence was insufficient for me to determine the sequence of those events. However, I was able to determine that there was no conversation between the Offender and KG before the Offender touched KG’s vagina. [ 6 ] Either before or after the vaginal touching, the Offender touched KG’s breast. The evidence was insufficient for me to determine when the breast touching occurred in the sequence of events.

However, I did find that no conversation occurred about breast touching prior to it occurring, and KG’s actions of consent did not involve communicating consent to breast touching. The Offender bit KG’s breast and it hurt. Biting is an inherently aggressive act. The Offender took no steps whatsoever to ascertain whether KG was communicating consent to touching of her breasts or biting of any kind.

The Offender either actually knew that, or was reckless, as to whether KG did not consent to breast touching or biting. [ 7 ] After the Offender touched KG’s vagina, the Offender stopped touching KG, put his pants back on and returned to the front driver’s seat and KG returned to the front passenger seat of the vehicle. No further touching occurred. The Offender drove KG towards her home and, at the request of KG, dropped her off at a location near her home. [ 8 ] Defence counsel characterizes the breast touching as a non-consensual act within a series of consensual acts. I do not characterize it this way.

I found that the Crown had not proved beyond a reasonable doubt that the Offender committed a sexual assault when he touched KG’s vagina. However, this finding does not result in the conclusion that KG consented to the vaginal touching . III. THE PARTIES’ POSITIONS A. Position of the Crown [ 9 ] The Crown argues that a fit and proper sentence is 3 to 4 years incarceration.

Given the range sought by the Crown, the Crown’s position is that a conditional sentence order is not available for the Offender. [ 10 ] The Crown also seeks various ancillary orders, which include a mandatory DNA order, a mandatory weapons prohibition pursuant to s 109 of the Criminal Code , and a mandatory order directing the Offender to comply with the Sex Offender Information Registration Act ( SOIRA ) for 20 years. The Crown argues the Offender has not met the threshold required to be granted a SOIRA exemption. B.

Position of the Defence [ 11 ] Defence counsel argues that a sentence of 90 days gaol, followed by a period of probation, is a fit and proper sentence. Aside from the imposition of a SOIRA order, Defence counsel does not take issue with the ancillary orders sought by the Crown. [ 12 ] While Defence counsel seeks a sentence of 90 days gaol, with respect to a conditional sentence order, Defence counsel argues the Offender is at low risk to offend and his antecedents are positive. As such, serving a sentence in the community would not endanger the community.

He also argues a conditional sentence order is consistent with the fundamental purpose and principles of sentencing. [ 13 ] The Defence has brought an application pursuant to ss 7 and 24(1) of the Charter seeking a constitutional exemption from the imposition of the mandatory SOIRA order. IV. VICTIM IMPACT [ 14 ] I thank the victims for participating in this process. Their words have given me some insight into the harm they have suffered, which helps inform the seriousness of the offence. [ 15 ] KG’s mother prepared a victim impact statement.

She described how this offence has caused her to fear for KG’s safety and to feel helpless. Her worry has taken a toll on her relationships, including her relationship with her husband. She experienced personal trauma by having to witness her special needs child participate in the significant investigatory and health steps that follow an allegation of sexual assault. [ 16 ] KG does not have the ability to communicate how this offence affected her, but KG did add a sentence to her mother’s victim impact statement.

KG wrote, “I feel hurt from the bad man who took off his pants naked to see his penis.” KG’s mother also described KG’s behaviour after this offence was committed. She described KG’s outbursts of rage, which included yelling, screaming, damaging her bedroom, and punching their vehicle. [ 17 ] While victim involvement is essential to the sentencing process, the focus of a sentencing hearing is necessarily on the

individual responsible for the crime. I now turn to the circumstances of the Offender. V. MITIGATING AND AGGRAVATING FACTORS A. Mitigating Factors [ 18 ] Defence counsel acknowledges that there are no mitigating factors in this case. B. Aggravating Factors 1) The Victim was in a Vulnerable Position [ 19 ] The Crown argues that KG was in a vulnerable position because once she entered the Offender’s vehicle, she was at the Offender’s behest.

KG was walking alone at night when she waived the Offender down and asked for a ride, after which she was alone with the Offender in his vehicle. [ 20 ] Defence counsel argues that KG was not vulnerable because the Offender complied with all of KG’s requests. It was KG that waived the Offender down and asked for the ride.

Once KG was in the Offender’s vehicle, the Offender responded to KG’s requests by taking her to McDonald’s, buying her food, stopping so that she could eat, and dropping her off at a location near her home. [ 21 ] The evidence is not sufficient for me to conclude whether the Offender’s actions demonstrate respect for KG’s wishes or whether they were designed to lure KG into a false sense of security. However, I accept that being alone at night in a stranger’s vehicle created a situation of vulnerability for KG.

This is an aggravating factor. 2) The Victim is a Vulnerable Person [ 22 ] KG’s personal circumstances make her particularly vulnerable to harm. KG is an adult with autism who functions at the level of a 6- to 8-year-old and is under the guardianship of her parents. I found that KG did not have the capacity to understand that what occurred between her and the Offender was a sexual act. Even though she may have invited the Offender to engage in sexual touching, she did not have the capacity to consent to that sexual touching.

This is an aggravating factor. 3) Harm to the Victim and her Family [ 23 ] It is evident from the Victim Impact Statement prepared by KG’s mother that the Offender’s conduct has caused harm to KG individually and to KG’s family. The fact that KG is an adult but requires the active involvement of her parents to ensure her safety, heightens the impact that this offence had on KG’s family. 4) The Nature of the Sexual Contact [ 24 ] The sexual contact involved the Offender aggressively biting KG’s breast and causing her pain.

Though there is no evidence of lasting physical harm, biting is an inherently aggressive act. This aggravates the circumstances of this offence. VI. CIRCUMSTANCES OF THE OFFENDER A. Background Factors [ 25 ] As an aide to sentencing for the Offender, a pre-sentence report (PSR) was prepared. The Offender was born in Somalia where his parents worked as farmers. In the 1990s, a civil war started in Somalia, leading to the death of some of the Offender’s family members and friends. The Offender left Somalia and relocated to a refugee camp in Kenya where he lived for approximately 10 years.

In 2004, the Offender entered Canada as a refugee. In 2009, the Offender became a Canadian citizen. [ 26 ] The Offender has previously worked in the oil field and in construction. He also drives truck but has been unable to work in this capacity due a back injury. At the time of the offence, the Offender was working as an Uber food driver. He is currently unemployed and living off of his savings. [ 27 ] The Offender is married and has four children. His wife and three daughters live in the United States where his wife moved to care for her elderly parents. His adult son lives in Edmonton.

Defence counsel advises that because of this conviction, the Offender will not be able to travel to the United States to visit his family. [ 28 ] The Offender’s English language skills are limited, but he has a desire to improve his English. The Offender has goals of becoming a mechanic and rejoining his family, either in Canada or the United States. The Offender is a religious person. He prays five times a day and attends Mosque every Friday. He does not drink alcohol or use non-prescribed drugs. [ 29 ] Two of the Offender’s cousins and one friend were interviewed by the PSR writer.

All describe the Offender as being hardworking and kind. They were aware of the charges before the Court and have remained supportive. They confirm that the Offender is actively involved in the Somalian community and assists new arrivals to Edmonton. They also confirm that he has a large support network of friends and family.

[ 30 ] According to the PSR writer, the Offender demonstrated minimal insight into his offending behaviour but was apologetic and ready to accept the repercussions of his actions. B. Criminal Record [ 31 ] The Offender does not have a criminal record. He has been on release with conditions for this offence since June 9, 2021. There are no allegations that he has failed to comply with his conditions of release. VII. PRINCIPLES AND OBJECTIVES OF SENTENCING A. Fundamental Purpose [ 32 ]

Section 718 of the Criminal Code outlines the fundamental purpose of sentencing, which is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that meet the objectives of denunciation, deterrence, separation, rehabilitation, reparation, and to promote a sense of responsibility in an offender. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. B.

Principles of Sentencing [ 33 ] Pursuant to s 718.2(iii.1) of the Criminal Code , the Court is required to consider evidence that the offence had a significant impact on the victim considering their age and other personal circumstances. I accept that this offence had a significant impact on KG, as demonstrated by the behaviour that her mother has observed since this offence was committed. Although it is not possible to predict or assess the potential for future harm, I accept that KG’s mental deficits make her a vulnerable victim. C.

The Offender’s Moral Blameworthiness [ 34 ] Moral blameworthiness is assessed not only by reference to an offender’s mental state but also with reference to the nature of the unlawful act itself. [ 35 ] I found that KG is a vulnerable person who lacked the capacity to consent to the sexual activity in question. However, I also found that the Crown did not prove beyond a reasonable doubt that the Offender was aware of KG’s incapacity to consent. I did not believe the Offender’s evidence that the way KG presented in the Offender’s vehicle was different from the way KG presented in Court.

However, based on the evidence that I did accept, I was unable to conclude beyond a reasonable doubt that the Offender was aware of KG’s mental deficits. As such, the level of the Offender’s moral blameworthiness is not increased because he offended against a person that he knew was vulnerable and had a mental deficit. The Offender’s moral blameworthiness is informed by the fact that he aggressively bit KG’s breast in circumstances where he knew she did not consent or was reckless as to whether she consented to that act. D.

Parity [ 36 ] Both Crown and Defence counsel acknowledge that the circumstances of this case are unique. Neither were able to provide a reported decision with similar facts. [ 37 ] Defence counsel relied on R v Ta , 2020 ABPC 114 [ Ta ]. In that case, the offender pleaded guilty to one charge of sexual assault and was sentenced to a one-year conditional sentence. The offender was with the victim, her boyfriend, and other friends at a bar. The group consumed alcohol throughout the night. The group returned to a residence shared by the victim and two others. The victim went to bed.

She woke up to what she thought was her boyfriend attempting to wake her up by putting his hands down her pants and touching and penetrating her vagina with his fingers. The victim told him to stop. She then became fully awake and realized it was actually the offender and not her boyfriend. The victim told him to stop but he did not listen. She called out to her boyfriend, at which point the offender stopped and left the room. The offender was heavily intoxicated at the time of the offence, which the Court found reduced the offender’s moral blameworthiness to some extent.

The offender was indigenous with Gladue factors and was remorseful. The Court commented that if actual incarceration was imposed, a sentence of four to six months would be appropriate. [ 38 ] Ta is not factually similar to the circumstances of this case. It involved a case of mistaken identity, intoxication, and a guilty plea. The offending conduct is likewise very different.

While the Court’s analysis in Ta is instructive, the ultimate disposition does not assist in establishing a range of sentence for this case. [ 39 ] The Crown relied on two decisions involving victims with mental or physical limitations: R v CC , 2013 ONSC 654 [ CC ], and R v Rusk , 2007 ABCA 189 [ Rusk ]. [ 40 ] In CC , the offender was sentenced to three years gaol after he was found guilty of sexually assaulting an adult woman that functioned intellectually like a child between the age of three to five. The parties engaged in sexual intercourse.

The Crown urged the Court to use cases involving children to determine an appropriate range of sentence. The Court found that there was a trust aspect to the relationship between the victim and the offender, the victim did not have the capacity to consent to the sexual act, and the offender knew that the victim was developmentally delayed. [ 41 ] In Rusk , the offender pleaded guilty to sexually assaulting a victim who was a wheelchair-bound spastic quadriplegic who

suffered from cerebral palsy. The victim was shopping at a grocery store and met the offender who accompanied the victim toward her residence. When they arrived at the victim’s apartment building, she thanked the offender and said she would continue on her own. The offender refused to leave and followed the victim up the ramp leading to her apartment. The offender made suggestive comments, felt the victim’s breast, pulled up her shirt, kissed her lips, and bit her breast. As the offender reached for the victim’s groin, a passerby intervened and stopped the assault.

The Court characterized this as a serious sexual assault, refused to accept counsels’ joint submission of three years, and imposed a sentence of six years. The Court of Appeal reduced the sentence to four years. [ 42 ] In both Rusk and CC , the offender was not only aware of the victim’s mental or physical limitations but took advantage of them in furtherance of the offending conduct. Those circumstances are inherently more serious than the circumstances in this case.

While they do assist in understanding the harm to the victim, the sentences imposed in those cases are significantly aggravated because of the offenders’ knowledge and reliance on the vulnerability of their victims. [ 43 ] The Court has located two cases involving breast touching: R v Long , 2015 ONSC 4509 [ Long ], and R v Hall , 2010 ABCA 165 [ Hall ]. In Long , the offender was sentenced to 90 days (intermittent) + probation for sexually assaulting his employee. The victim was a part-time office assistant at the offender’s health food store.

Over the course of a few hours during a workday, the offender kissed the victim, touched her breasts over her clothing and licked her breasts. The victim was 29 years old and had a learning disability, which caused her some communication difficulty, anxiety, and problems focusing on multiple tasks. Her disability was significant enough to qualify for the Ontario Disability Support Program. She obtained employment at the offender’s health food store through a program that placed people with disabilities in compatible job placements.

The offender was 62, a permanent resident of Canada, and had no criminal record. [ 44 ] In Hall , the offender had been sent by his employer to the 81-year-old victim’s home to assemble some furniture purchased by the victim. The offender claimed to be a massage therapist and offered to help the victim with her back problem. During the massage, the offender put a hand on each of the victim’s breast. The offender was 35 years old with a minor criminal record and some significant background factors.

The Court of Appeal overturned the trial judge’s imposition of an illegal conditional sentence and determined that six months actual incarceration would not have been inappropriate. However, since the offender had served three of the five months of house arrest, completed half of the community service ordered, and set up appointments to deal with his mental health issues, the Court of Appeal substituted a sentence of time served followed by one year probation. [ 45 ] The decisions in Hall and Long both involve breast touching but do not involve aggressive biting.

They assist in demonstrating sentencing for offences that are similar but less serious than this case. E. Sentence [ 46 ] While the Supreme Court of Canada’s decision in R v Friesen , 2020 SCC 9 [ Friesen ] does not call for an increase in sentences for sexual offences against adult victims, as noted by the Court in R v Pettitt , 2021 ABQB 773 , Friesen helps inform the proper approach to understanding the gravity of sexual offences. The Court stated at para 44: …[ Friesen ] makes reference to the jurisprudence and literature respecting adult offenders.

The gravity and blameworthiness of sexual offending is magnified by offending against a child victim but the fundamental wrongfulness, harm and blameworthiness of sexual offences persists regardless of the victim’s age. [ 47 ] The Crown urges the Court to classify this offence as a “serious” sexual assault. The Court in Friesen cautions against categorizing sexual offences based on the degree of physical interference or the specific type of sexual activity.

Focusing on the physical act “…can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause”: para 142. Further, at para 144, the Court stated: …we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio or cunnilingus, but instead touching or masturbation.

There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be “relatively benign.’” [ 48 ] This offence involved breast touching. The offending conduct is aggravated by the fact that the Offender aggressively bit KG’s breast, causing her pain. There is no evidence that the pain was long-lasting, nor is there evidence of injury. [ 49 ] KG was in a vulnerable position vis-à-vis the Offender by virtue of her being alone with him in his vehicle late at night and the fact that the Offender was a stranger.

I accept that KG suffered harm from the offending conduct, which was described by KG’s mother. This harm is aggravated by KG’s mental deficits, which make her a vulnerable victim. KG’s ability to express how this offence made her feel is significantly diminished. F. Proportionality [ 50 ] As I have previously explained, the Offender’s moral blameworthiness is not heightened by the existence of KG’s mental deficits. The existence of KG’s mental deficits makes the offence more serious because those deficits made KG vulnerable.

However, the Crown has not proven beyond a reasonable doubt that the Offender was aware of KG’s mental deficits. Nonetheless, the Offender committed a sexual assault in his vehicle late at night on a woman that was previously unknown to him by aggressively biting the woman’s breast. [ 51 ] The Offender will suffer a significant collateral consequence from this conviction. Because of the conviction, the Offender is likely unable to travel to the United States where his family resides. This collateral consequence results from the conviction itself, not from the ultimate sentence imposed.

However, it is a relevant factor that forms part of the circumstances of the Offender. G. Other Considerations

[ 52 ] Sentencing is an individualized process that must take into account the circumstances of this offence and the circumstances of this Offender. While denunciation and deterrence are the primary sentencing objectives in cases of sexual assault, the remaining principles and objectives of sentencing cannot be ignored. Restraint, parity, rehabilitation, and proportionality remain important sentencing principles. H. Conclusions on range of sentence [ 53 ] I set the range of sentence in this case at between nine and twelve months incarceration.

This range takes into account the aggressive nature of the biting, the vulnerability of the victim both in terms of the physical situation and her mental capacity, and the moral blameworthiness of the Offender. I. Conditional Sentence [ 54 ] Pursuant to sections 742.1 , 742.2 and 742.3 of the Criminal Code , where a sentence of less than two years is imposed, the Court may order an offender to conditionally serve the sentence in the community.

Prior to imposing a conditional sentence, the Court must be “satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentence.” [ 55 ] There is nothing to suggest that the Offender would endanger the community by serving his sentence in the community. He has been on conditions of release while awaiting trial and has not breached those conditions. As will be discussed further in these reasons, I am unable to conclude that the sexual recidivism risk for this Offender is in the bottom 10%.

However, for the purpose of considering whether the Offender can safely serve his sentence in the community, his conduct while on release demonstrates a willingness to abide by court conditions. This attenuates the risk. [ 56 ] Further, the Offender does not have a criminal record. He is active in the Somalian community and maintains a large and stable network of family and friends. [ 57 ] I must therefore consider whether serving the sentence in the community would be consistent with the fundamental purpose and principles of sentence.

In this case, the sentence must emphasize denunciation and deterrence. [ 58 ] In R v Proulx , 2000 SCC 5 [ Proulx ], the Court outlined the principles applicable to conditional sentences, including the objectives of denunciation and deterrence, and their relationship to a conditional sentence. At para 127(8) – (10), the Court summarized:

(8) A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

(9) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

(10) Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved.

However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. [ 59 ] Defence counsel argues that the stigma of being subject to a conditional sentence order is a source of denunciation and deterrence. He relies on Proulx at para 105 : The stigma of a conditional sentence with house arrest should not be underestimated.

Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. [ 60 ] Further, although an exemption to the mandatory SOIRA order is being sought, Defence counsel asserts that being placed on the Sexual Offender Index Registry also contributes to denunciation and deterrence: R v Jensen , 2019 ABQB 873 at para 37 . [ 61 ] Defence counsel has provided the Court with the decision in R v Simkins , 2023 ABPC 30 , where the Court reviewed several sexual assault cases and concluded that a conditional sentence order can be consistent with the fundamental principles of sentence in cases involving offences of sexual assault.

In that case, non-consensual fellatio occurred following other consensual sexual acts. The offender did not have a criminal record. He suffered from significant ongoing medical issues following surgery for ulcerative colitis, depression, stress, and insomnia. The Court found that the offender’s conduct amounted to a major sexual assault and acknowledged the three-year starting point, which was sought by the Crown.

The Court noted several mitigating factors including that the offender was remorseful, was at low risk to reoffend, was employed, had a supportive family, had suffered collateral consequences, and had a strong prospect of rehabilitation.

The offender was sentenced to two years less a day to be served in the community, followed by 18 months of probation, which was sought by Defence counsel. [ 62 ] In this case, the offence can be effectively denounced and deterred by imposing a conditional sentence at the higher end of the appropriate range and including restrictive conditions that emphasize the custodial nature of the sentence. The conditional sentence will

be followed by a period of probation to further reinforce rehabilitation. A conditional sentence followed by probation balances the seriousness of the offence as informed by its aggressive nature, the vulnerability of the victim, and the harm caused to the victim, with the moral blameworthiness of the Offender and his individual circumstances. VIII. SOIRA EXEMPTION [ 63 ] Relying on the authority of R v Ndhlovu , 2022 SCC 38 [ Ndhlovu ], the Offender brings an application for an order granting a constitutional exemption from the mandatory application of SOIRA .

Defence counsel argues that requiring the Offender to register under SOIRA bears no connection to the purpose of assisting police in preventing and investigating sexual offences: Ndhlovu at para 68 . Defence counsel submits that the Offender is at low risk to reoffend, and he is a first-time offender. Further, the facts of this case are unique in that the victim initiated the sexual interaction and consented to all but one aspect of the sexual contact that occurred. [ 64 ] The Crown argues that the Offender has not met the high threshold required to be granted a SOIRA exemption.

The Offender does not have personal circumstances that negate the increased statistical sexual recidivism risk associated with a conviction for a sexual offence such as advanced age or disability, nor does the Offender fall within the group of sexual offenders with the lowest sexual recidivism risk.

Further, there is no evidence indicating certainty that it is not “remote or implausible” that the Offender’s information in SOIRA will serve the purpose of police investigations. [ 65 ] I acknowledge that there is conflicting Court of King’s Bench of Alberta authorities as to whether I have jurisdiction to deal with a request for a constitutional exemption from SOIRA : see R v KS , 2023 ABKB 363 and R v Lepki (unreported) 200698983 (February 23, 2023).

In this case, both parties take the position that I have authority to consider the Offender’s application for an exemption from mandatory SOIRA registration pursuant to sections 7 and 24(1) of the Charter . Relying on the reasons outlined in KS , I accept that I have authority to consider the application. [ 66 ] The Offender benefits from the findings in Ndhlovu that s 490.012 of the Criminal Code deprives the Offender of his life, liberty, or security of the person. This satisfies the first step of the analysis under s 7 of the Charter .

Defence counsel lists the significant obligations that are associated with a SOIRA order but does not allege any particular impact that a SOIRA order would have on the Offender other than what is generally found to exist in Ndhlovu . [ 67 ] The next inquiry is whether in the Offender’s individual case the deprivation is in accordance with the principles of fundamental justice.

Defence counsel argues that because the Offender is a first-time offender and at low risk to reoffend, subjecting him to the onerous conditions associated with a SOIRA order would bear no relation to the purposes of mandatory SOIRA registration. [ 68 ] Defence counsel argues that the Offender is at low risk to reoffend because of his age, lack of criminal record, compliance with release terms, solid work history, and his familial and community supports in the Somalian community in Edmonton.

He also argues that the circumstances of this offence are unique given that the offence occurred in the context of other consensual activity.

The Offender does not have an expert assessment of risk to reoffend. [ 69 ] The PSR writer notes that the Offender “demonstrates minimal insight into his behavior,” and “does not believe he committed any misdeeds on the night of the offence because he feels there was no indication from the victim to suggest otherwise.” According to the Offender, “he is here now because of how [the victim] felt about what happened.” Despite this, the Offender “was apologetic and verbalized a readiness to accept the repercussions of his actions.” [ 70 ] On the record before me, I am unable to conclude that this Offender comes within the bottom 10% in terms of sexual recidivism risk.

The Offender’s comments to the PSR writer are troubling. While I do not in any way treat his comments as being an aggravating factor in terms of his right to assert his innocence and have a trial, his comments do not lead me to conclude that he is in the bottom 10% of risk profiles for convicted sex offenders. I am therefore left with the presumption that the Offender has the risk profile of an average sex offender.

Applying the reasoning in Ndhlovu , the Offender would therefore have a higher risk of reoffending than the comparator group of non-sexual offenders. [ 71 ] For the Offender to obtain the benefit of a SOIRA order exemption, it is not absolutely necessary that he demonstrate that he falls within the lowest 10% in terms of sexual recidivism risk or otherwise have personal characteristics that make him less likely to reoffend. These are simply examples used in Ndhlovu to establish overbreadth. The question is whether, for the Offender, the deprivation is in accordance with the principles of fundamental justice.

In other words, is a mandatory SOIRA order for the Offender arbitrary or overly broad? [ 72 ] I recognize that the Offender is a first-time offender with community support and the ability to maintain employment. However, the circumstances of this offence give rise to concern. The Offender and the Victim were previously unknown to each other. The sexual occurred late at night in the Offender’s vehicle after KG randomly waved down the Offender. This is not a situation where the parties were known to each other.

It is this type of offence that goes to the very heart of the purpose of SOIRA – to assist police in preventing and investigating sexual offences. [ 73 ] Defence counsel characterizes the sexual assault as a non-consensual act within a series of consensual acts. I do not agree with this characterization. I found that the Crown had not proved beyond a reasonable doubt that the Offender knew that KG was not consenting when he touched KG’s vagina. This finding does not result in the conclusion that KG consented to the vaginal touching. Comments from the Offender to the PSR writer also raise concerns.

The PSR writer noted that the Offender “claims he is afraid to interact with females, and he indicates he is not as outgoing as he used to be. The subject reports he is uncertain what normal behavior versus abnormal behavior is with females now.” [ 74 ] If the Offender were to reoffend, it might well occur during a first encounter with a stranger. That risk is heightened given the Offender’s apparent lack of understanding as to what normal versus abnormal behavior towards females.

There is nothing on the record before me to establish that the impact of a SOIRA order would be grossly disproportionate to the objective of capturing information that

would assist police in preventing and investigating sexual offences. Further, the stated purpose of SOIRA includes a prevention component. Being subject to a SOIRA order can have a deterrent effect on an offender, which is consistent with the SOIRA ’s purpose: see Jensen at para 37 . For these reasons, I find that the Offender has not demonstrated that a SOIRA order deprives him of his life, liberty or security of the person through arbitrariness or overbreadth so as to contravene principles of fundamental justice. The Charter application is therefore dismissed. IX.

CONCLUSION [ 75 ] I find that a fit an appropriate sentence this offence committed by this Offender is a period of 12 months imprisonment, to be served in the community by way of a Conditional Sentence Order, followed by 12 months of probation. I also impose the following ancillary orders:

a) A mandatory DNA Order pursuant to s 487.051(1) of the Criminal Code ;

b) A SOIRA Order for a duration of 20 years pursuant to s 490.013(2)(

b) of the Criminal Code ; and

c) A mandatory firearms prohibition for life pursuant to s 109 of the Criminal Code . Heard on the 7 th to 9 th days of September, 2022. Dated at Edmonton, Alberta this 19 th day of July, 2023. S. Leonard J.C.K.B.A. Appearances: Dawn MacDonald Crown Prosecutor for the Crown Michael Sparks Pringle Chivers Sparks for the Offender