Her Majesty the Queen - v. -, 2019 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 51 Date: September 6, 2019 Information: 991052259 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - RC Appearing: Adam Breker For the Crown Alan McIntyre, Q.C. For the Accused RESTRICTION ON PUBLICATION: AN ORDER HAS BEEN MADE IN ACCORDANCE WITH

SECTION 486.4(1) OF THE CRIMINAL CODE DIRECTING THAT ANY INFORMATION THAT COULD IDENTIFY THE VICTIM SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY. SENTENCING DECISION J. RYBCHUK , J INTRODUCTION

[1] RC was convicted following trial of sexual interference and sexual assault contrary to sections 151 and 271 of the CriminalCode. A Pre-Sentence Report [PSR] containing Gladue factors was obtained. Sentencing submissions were made on July 11, 2019. These are my reasons for sentence. CIRCUMSTANCES OF THE OFFENCES [2] I set out the facts surrounding the commission of the offences in considerable detail in my trial decision R v RC, 2019 SKPC1.

I will not repeat them all here again except to summarize that the physical acts consisted of RC touching the victim, JM, on her legand stomach, rubbing his penis on her cheek and ejaculating on her face. JM was nine years old at the time of the offences. RULE AGAINST MULTIPLE CONVICTIONS [3] The Supreme Court of Canada has ruled that no offender should be convicted and punished twice for two offences that arethe same or contain substantially the same elements (R v Kienapple, (SCC), [1975] 1 SCR 729). Here, the facts of thesetwo offences are equally serious. There is one incident of sexual misconduct.

The entire circumstances of the event constitute a singletransaction or criminal delict. There is both a legal and factual nexus with respect to the two offences. [4] The maximum penalty for each offence is the same, although the mandatory minimum penalty for the

section 151 offence isthree months whereas the mandatory minimum penalty for the

section 271 offence is six months. There is authority to suggest that thesexual interference offence should be judicially stayed as the “lesser” of the two offences (R v R.J.H., 2011 NLTD 143 , 2011NLTD143, 314 Nfld & PEIR 336; R v J.F., 2008 SCC 60, [2008] 3 SCR 215). However, there is also authority that maintains theCrown has the discretion to decide which of the two offences should be stayed.

See R v Djadoune, 2017 ABPC 70 where Fraser J.stated: [22] However, as I analyzed the authorities in R v Tschetter (2009), 84 M.V.R. (5th) 267, at pages 292 ̶ 294, the Crown has thediscretion with respect to which offence to prosecute and if both offences are proven, the discretion as to which offence a convictionshould be entered and which offence should be judicially stayed based on the Kienapple principle. [5] I agree with the Crown’s submission that the sexual interference offence contains a more accurate description of the criminalact that was committed in this case and therefore enter a conviction for it contrary to

section 151 of the Criminal Code and judicially staythe sexual assault offence contrary to

section 271 of the Criminal Code. CIRCUMSTANCES OF THE OFFENDER [6] RC was 39 years old at the time of the offence and 42 years old at the time of sentencing. His personal circumstances are setout in detail in the PSR. He has never met his biological father and his mother abandoned him at the very young age of six. He wasforced to live in foster care and with various relatives until he was 13 years of age. He eventually left home at age 14. His mother spenttime in jail and suffered from alcohol abuse and addictions issues. She continues to suffer from these issues to this day.

His mother wasalso violent and abusive towards RC. He endured this physical abuse until he left home. [7] RC had no stability in his life until he met and married his spouse, Megan, when he was in his late 20’s. Together they havefive children ranging in age from four to eleven. Megan is the most influential person in his life and his support system. They have bothbeen gainfully employed over the years. Since being charged with these offences RC has isolated himself, associating only with hisfamily of aunts, uncles and cousins who are all positive supports and describe him as a good father.

He actively participates in hisAboriginal culture. [8] RC admits that alcohol has caused problems for him over the years both with completing his schooling and maintainingemployment. He was extremely intoxicated having consumed both marijuana and alcohol on the night of the offence. He has not drankany alcohol since. RC has never received any treatment or programming for alcohol or drugs. He does not feel he needs treatment orprogramming but that he could benefit from it since he acknowledges having an addictive nature when it comes to hard drugs.

[ 9 ] RC is well educated. He attended the First Nations University of Canada and the University of Regina for three years and the University of Saskatchewan for two years where he completed a program in Indigenous People’s Resource Management Training. He was self-employed doing contract work for various Aboriginal Bands located throughout Western Canada working as an Indigenous People’s Resource Manager. [ 10 ] RC is assessed as being a medium risk for general recidivism and average risk for sexual recidivism.

CRIMINAL RECORD [ 11 ] RC has a criminal record consisting of 18 convictions – seven as a youth and eleven as an adult. The youth offences are mostly property-related while the adult offences are mostly administrative in nature with four offences for violence (three common assaults and one assault of a peace officer). He has received fines, community and custodial sentences. However, his record is dated with most of the adult offences having occurred during a ten year period between 1995 and 2005 and before he met Megan, settled down and started a family.

There is therefore a considerable gap in his record from 2005 to the dates of his most recent offending. [ 12 ] RC denies being guilty of the subject offence. He therefore takes no responsibility for it and is unable to provide any insight into his offending behaviour or identify any realistic intervention strategies to deal with his risk factors or provide pro-social alternatives to his behaviour. This is neither an aggravating nor a mitigating factor, but merely a neutral factor, in sentencing him.

IMPACT ON VICTIM [ 13 ] The victim did not wish to complete a victim impact statement [VIS] but her mother, SM, provided one. SM’s VIS and the PSR both indicate that her daughter has been seriously impacted and traumatized by this offence. JM is suffering with depression and self-harm behaviours. She has also had suicidal thoughts. These behaviours have only increased since the trial. In fact, her mother would not have put JM through the court process had she known beforehand the impact it would have on her. [ 14 ] Prior to the offence JM was a bubbly, happy and cheeky girl.

Since the offence she has become isolated. She does not celebrate her birthday anymore as the incident occurred on her birthday. JM does not hug, kiss or show any affection and continues to cover her body. She does not sleep well and hates her bedroom where the incident occurred. She has withdrawn from her family, friends and activities. She is uneasy and shuts down in uncomfortable social situations. SM feels that RC has “ruined her daughter’s life”.

JM does not trust and has a fear of male relatives which has adversely affected her relationships with her father and her Mushum. [ 15 ] JM’s school has spoken to the parents regarding her emotional well-being and offered supports. JM was connected with counselling prior to the trial but does not appear to have benefitted from counselling since the trial happened. I sincerely hope that both JM and her parents are able take the school up on its offer of support and continue to connect with professional counselling. The treatment they receive can still help them through this process.

This incident occurred through no fault of their own. Professional counselling can help deal with their emotions. JM recently showed signs of improvement herself when she began participating in activities again such as track and field after school. PRINCIPLES OF SENTENCING [ 16 ] In determining the appropriate sentence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code . The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society.

In order to achieve this, the sentence I impose must be a just sanction. It must be a sentence that fits the particular offence and the individual offender before the Court. [ 17 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the most important of the principles codified in sections 718 to 718.2 of the Criminal Code ( R v Arcand , 2010 ABCA 363 , 264 CCC (3d) 134 ) .

It is central to the sentencing process ( R v Nasogaluak , 2010 SCC 6 , [2010] 1 SCR 206 ; R v Solowan , 2008 SCC 62 , [2008] 3 SCR 309 [ Solowan ] ) . In R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] LeBel J.

described proportionality as the “sine qua non” of a just sanction. A sentence which properly respects the principle of proportionalityinevitably ensures that the secondary goals of sentencing are met. [18] A just sanction will also pursue one or more of the following objectives: denunciation of unlawful conduct; deterring theoffender and others from committing offences; separation of the offender from society if necessary; rehabilitation; providing reparationto the victim and community; and promoting a sense of responsibility and acknowledgment of the harm done.

The relative emphasis tobe placed on each of these objectives must be appropriate for the circumstances of each case. However, the resulting sentence must stillalways respect the principle of proportionality. [19]

Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence involving the abuse of aperson under age 18, it shall give primary consideration to the objectives of denunciation and deterrence. The victim here is elevenyears of age and had just turned nine on the date of the offence. I therefore place primary emphasis on these sentencing objectivesfollowed by separation of the offender from society and promotion of a sense of responsibility in him and an acknowledgment of theharm he has done to the victim and her family. [20] I must also have regard for the secondary principles of sentencing listed in

section 718.2 of the Criminal Code, including anyaggravating and mitigating circumstances, parity and the need to consider all available reasonable sanctions other than imprisonment,with particular attention to the circumstances of Aboriginal offenders. [21] Parity means the sentence I impose must be similar to the sentences imposed on similar offenders for similar offencescommitted in similar circumstances. Consideration needs to be given to similar cases, especially those decided in Saskatchewan.

TheSupreme Court of Canada noted in R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 92: Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in the country, as the “just and appropriate” mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred.

REQUESTED SENTENCE [22] The Crown seeks a sentence of two years less one day imprisonment to be followed by three years of probation. The Crownalso seeks a mandatory DNA order (section 487.051 of the Criminal Code) and a mandatory Sexual Offender Information RegistrationAct, SC 2004, c 10 [SOIRA] order for 10 years (sections 490.012 and 490.013 of the Criminal Code). The defence requests a sentence of12 to 15 months imprisonment followed by probation for a period of two years or more with the offender also being subject to thestandard ancillary orders following a conviction for a

section 151 offence. RANGE OF SENTENCE [23] Both the Crown and defence filed cases which suggest a broad range of sentences for this offence of anywhere between ninemonths to three years imprisonment. I will not go through the details of all of these cases as there are many of them. Most arecatalogued in the Court of Appeal Sentencing Digests and are generally well known in the legal community. [24] The Crown elected to proceed by

summary conviction in this matter. As such, the mandatory minimum legal sentence thatmust be imposed is 90 days imprisonment and the maximum legal sentence that can be imposed is two years less one day imprisonment. [25] The defence suggested that it was not appropriate for RC to receive the maximum legal sentence in this case. However, themaximum legal sentence is not reserved only for the worst offenders committing the worst offences in the worst circumstances.

Theworst offender principle was laid to rest by the Supreme Court of Canada in Solowan, which followed R v Cheddesingh, 2004 SCC 16,[2004] 1 SCR 433, which was followed by the Saskatchewan Court of Appeal in R v Akapew, 2009 SKCA 137, 343 Sask R 155. [26] The maximum legal sentence can be more readily justified in

summary conviction matters than indictable proceedings. Thefact that the Crown prosecuted this matter summarily should have no bearing on sentence other than the codified legal limits. It shouldnot be taken as a sign that the Crown viewed this offence as less serious. There are many reasons why the Crown might make theelection it did. It does not affect the facts as found nor does it affect the gravity of the offence. The facts are what matter and any similarfactual cases are important and relevant to my analysis regardless of the election the Crown made in those other cases. [27] As Konkin J. stated in R v Dumais, 2008 SKQB 207, 315 Sask R 268:

[43] I find that the trial judge made no error in considering cases that proceeded by indictment when finding the appropriate sentence in this case. … The decision to proceed summarily does not impact on the gravity of the facts but only on the possible sentence that could be imposed. … Had Crown proceeded by indictment, one must assume the sentence would be greater. The trial judge was confined by the maximum sentence of 18 months, chose that sentence and made no error in doing so. ANALYSIS A.

Proportionality [ 28 ] The Crown argued that the offence RC committed was a major sexual assault which attracts a starting point sentence of 3 years in prison. I do not propose to classify this offence as “major” or something “other than major”. Recent legal authority has made clear that this distinction does not serve a valuable purpose in the context of child sexual abuse cases. Richards C.J.S. expressed reservation with this approach and its emphasis on the concept of foreseeability of psychological harm in R v L.V. , 2016 SKCA 74 , 480 Sask R 181 [ L.V. ] at para 57 .

He then went on further to state: [63] As noted, the three-year starting point sentence for major sexual assaults established by Bird was introduced in connection with offences against adult victims. However, since that time, this three-year mark has sometimes also been used as a reference point when assessing the fitness of a sentence imposed for an offence against a child. R v Revet , 2010 SKCA 71 , 256 CCC (3d) 159 [ Revet ], is an example.

However, the Court has never expressly endorsed the idea of a three-year starting point sentence, or indeed any starting point sentence, for use in the context of sexual assaults against children. [64] The Court has taken this approach because of the inherent difficulties involved in crafting appropriate sentences for offences where children are the victims.

This was very recently explained as follows in R v Leroux : [74] Indeed, in the circumstances of sexual abuse of children, this Court has been steadfastly determined not to fetter the discretion of sentencing judges by establishing a range of sentences, preferring that they craft their sentences after giving full consideration to the aggravating and mitigating circumstances of the case .

This is so because of the wide range of variables in respect of the nature of the offence and the circumstances of the offender and of the victim in child abuse cases: R v Revet at para. 16 ( per Sherstobitoff J.A.). [Emphasis added] [ 29 ] Therefore, artificially forcing this offence into one category or another serves little useful purpose as the broad results of this approach have been unsatisfactory. Richards C.J.S. stated further in L.V .: [100] As explained above, the Court established a three-year starting point sentence almost 25 years ago for sexual assaults against adults.

Since that time, the three-year mark has been the standard reference point for sentencing judges when imposing sanctions on offenders who have sexually assaulted adults. Nonetheless, it has also sometimes served as a touchstone in sentencing those who have assaulted children. In this latter context, sentences have not infrequently been imposed with little or no real analysis of the nature or the circumstances of the offence.

In other words, even though the Court has never formally endorsed a starting point sentence for sexual offences against children, sentencing decisions in relation to such offences have reasonably often simply defaulted to the three-year mark. [101] The broad results of this approach are unsatisfactory.

We now have a situation where there is often little, if any, difference between the sentences imposed on offenders who engage in a single act of sexual assault on an adult victim and offenders who, as parents or persons in positions of trust or authority, sexually abuse a child either just once or multiple times over an extended period.

In other words, and generalizing substantially of course, both kinds of offences are tending to yield the same sentence even though, on any meaningful measure, assaults against a child should normally warrant a stronger sanction. [ 30 ] See also the review of other appellate case law in Canada and the comments made by Kalmakoff J. in R v T.F. , 2019 SKCA 82 at paras 81-85 , that further emphasize the imposition of heavier sanctions for sexual offences committed against children by a parent or other person in a position of trust. [ 31 ] In L.V. , Richards C.J.S. cautioned sentencing judges to exercise care when reading the prior cases in this area.

He made clear that the sexual abuse of children is by its very nature serious, violent and tragic involving a violation of the victim’s sexual integrity. He

then set out the various factors a sentencing judge should consider in a case of this sort: [105] Sentencing judges need only remember that their analyses must involve the thoughtful case-by-case weighing of all the factors bearing on a fit sentence. In relation to sexual assault, these factors include: (

a) the physical severity of the assault; (

b) whether, and the extent to which, the offending was ongoing; (

c) the nature of the relationship between the victim and the offender; (

d) the harm, physical or psychological, suffered by the victim; (

e) the victim's age and level of vulnerability; (

f) whether the offending involved grooming, degradation, threats or violence; (

g) the offender's relevant criminal record, if any; (

h) the offender's post-offence conduct (contrition, guilty plea, entry into treatment programming, apology and so on, if applicable); (

i) the number of victims; and (

j) any other circumstances of the offender and the crime. Taking all of these factors into account, along with the purposes and principles of sentencing as set out in ss. 718 to 718.2 of the Code , appropriate sentences for sexual assaults against children can be fashioned … [ 32 ] All sexual offences against children are odious crimes of considerable gravity.

The facts here of RC touching JM above and beneath her clothes on her leg and stomach may not be as grave as those contained in many of the cases I have reviewed, but placing his penis on her face and ejaculating is a denigrating and deplorable act not found in most of the cases either. The sexual abuse of a child by a family friend is self-evidently a crime of repugnance involving a violation of trust by an out-of-town guest who was invited to stay overnight at a friend’s house.

It occurred in a young child’s own bedroom in the basement of her family home where she is supposed to feel safe and protected while the rest of her family slept upstairs. [ 33 ] The act of sexual interference was an unplanned and isolated incident of brief duration without penetration. Both families lived hours apart and they would visit with each other from time to time.

But there was no suggestion RC was able to, or did in fact, groom the victim for this one-time event which presented itself through a combination of factors that had not occurred in the past and was unlikely to reoccur. [ 34 ] The victim is a young Indigenous girl. Indigenous females are three times more likely than non-Indigenous females to be the victims of sexual assault.

The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls recommends recognition of this vulnerability and calls for action to reform the justice system to protect Indigenous girls from violent crime (see for example: Calls for Justice 5.3, 5.16 and 5.18). Parliament recently passed legislation requiring sentencing courts to place emphasis on denunciation and deterrence where the offence involves abuse of a female person of Indigenous origin. This law comes into effect in a couple of weeks.

The Supreme Court of Canada also recently recognized in R v Barton , 2019 SCC 33 at paras 198-201 , that Indigenous women have been historically victimized, continue as victims of cultural and social biases that manifest in the justice system and have endured high rates of sexual violence. This is the law of the land followed by all lower courts across the country. [ 35 ] The lasting emotional and psychological injury or harm to the victim is severe with her being traumatized, depressed and self- harming. It has ruined her young life. The incident occurred in the victim’s own bedroom where she was vulnerable.

She clearly did not understand everything that was happening to her given her young age. The offender also did not stop touching the victim when she asked him to stop; instead saying “I can if I want to.” This may not be a form of threatening violent behaviour but it is a form of authoritative or domineering behaviour directed by an adult towards a child. The overall gravity of the offence is sizeable. [ 36 ] RC has a dated criminal record with no history of this type of sexual offending behaviour.

He insists he is innocent of this offence and therefore does not benefit from the effects of a guilty plea, contrition, entering into treatment or programming or having apologized for this offence. As such, RC bears real responsibility for this offence. However, his tragic background and upbringing has an ameliorating effect on his overall moral culpability, but not enough to make sanctions other than imprisonment reasonable in the circumstances of this case. His moral culpability remains elevated. B.

Parity [ 37 ] The Crown filed cases containing a range of sentence of anywhere between two to three years in prison. However, all of these cases generally involved greater degrees or severity of abuse than this one. For example, R v Revet , 2010 SKCA 71 , 350 Sask R 292 involved two acts of full sexual intercourse with a lower functioning victim and the offender received a sentence of three years. R v Kane , 2002 SKCA 58 and R v H.G. , 2003 SKCA 88 , 238 Sask R 147 [ H.G. ] both included acts of digital penetration of the victim with the offender also removing all of the victim’s clothing in H.G .

The former received a sentence of 2.5 years while the latter received a sentence of two years. Likewise, in R v Bighetty , 2005 SKCA 94 , 269 Sask R 108 the offender removed the victim’s underwear and dry humped her with

an act of attempted penetration. He received a sentence of two years. R v Bird , 2008 SKCA 65 , 310 Sask R 222 [ Bird ] also involved the offender removing all of the victim’s clothing and making death threats to kill the victim. In Bird the offender also had a prior conviction for sexual violence and he received a sentence of 2.5 years.

[ 38 ] The defence filed cases from Ontario and British Columbia where the courts imposed sentences of 90 days and one year incarceration. However, I view the Ontario decision in R v T.M.B. , 2013 ONSC 4019 , 299 CCC (3d) 493 [ T.M.B. ] as an outlier containing extraordinary circumstances. Indeed, the

summary conviction appeal court noted that the original eight month custodial sentence imposed by the trial judge was situated squarely within the range of appropriate sentences for that offender for that offence, which involved a 53 year old grandfather touching his penis to his five year old granddaughter’s vagina for about two minutes. T.M.B. was also largely a constitutional case dealing with the mandatory minimum sentence under the Canadian Charter of Rights and Freedoms .

The Court expressly noted that there were exceptional reasons for reducing the sentence to 90 days, including two material changes in circumstances since the sentencing at trial. The first being fresh evidence of the offender’s acceptance of shame and commitment to change, as well as a willingness to engage with the Aboriginal community in counselling programs which strengthened the Gladue approach to sentencing. The second material change was the six year delay during the appeal period in which time the offender remained on bail throughout and had not re-offended or breached any of the terms of his bail.

I therefore view this case as a one-off situation. [ 39 ] In R v R.S., 2014 BCPC 227 [ R.S. ] and R v William, 2014 BCSC 1639 [ William ] the Courts in British Columbia imposed one year jail terms in fact situations arguably more severe than the case at bar. William involved non-consensual intercourse with a sleeping victim and R.S. involved four occasions of sexual interference involving primarily oral sex. However, in both of these cases the offenders were not in positions of trust relative to the victims who were also older. In William , the victim was 15 years old and in R.S. the victim was 14 years old.

The offender in R.S. had significant Gladue factors while the offender in William made significant progress in dealing with his addictions, counselling and therapy with the support of a First Nation. [ 40 ] The defence cases I find most persuasive and legally binding are from the Saskatchewan Court of Appeal and they contain a range of sentence of anywhere between nine months to 18 months incarceration.

All these cases involve broadly parallel facts to the case at bar with the exception of R v McLean , 2016 SKCA 93 [ McLean ] and R v T.(J.L.), 2012 SKCA (SentDig) 1 [ T.(J.L. )] where the offenders were considerably younger (18 years old in McLean and 23 years old in T.(J.L) ) and had no criminal records. [ 41 ] The offender also had no criminal record in R v S.(M.), 2003 SKCA 33 , 232 Sask R 28 [ S.(M.) ], which case involved more severe abuse by a father lying down to go to sleep with his adopted daughter and sexually touching and masturbating himself against her four to seven times over the course of two years.

He was sentenced to nine months incarceration. [ 42 ] The focus of the sentencing decision in McLean was on other more serious offences of child luring, extortion, and possession and making of child pornography such that totality was a significant factor in sentencing. The jail sentence for sexual interference was varied by the Court of Appeal to one year and one day in order to conform with the one year mandatory minimum sentence and was made consecutive to all the other sentences for a total combined sentence of three years (see para 85 of McLean ).

The facts in McLea n were also less severe involving no genitalia or penetration. [ 43 ] In T.(J.L.) the offender received a jail sentence of 18 months but the facts were more severe involving two separate victims with a combined seven separate incidents of the offender putting his hand in the victims’ pants and rubbing their genitals while babysitting them. [ 44 ] In R v Lindsay , 2008 SKCA 44 [ Lindsay ] the Court imposed a 16 month custodial sentence (after having allowed credit for time spent on remand) but in totality, 12 months of this sentence was attributable to the offender having also breached his condition of release not to have any contact with children under the age of 16 while out on bail.

The Court viewed this breach as egregious, troubling and grave. Lindsay is the most factually similar case involving a married 54 year old university educated male who visits the home of a friend and sexually assaults the friend’s nine year old niece by putting his hands down her pants and fondling her vagina. However, the offender in Lindsay also had a prior conviction for sexual assault whereas RC does not. [ 45 ] I also considered case law from the Saskatchewan Court of Queen’s Bench. Two decisions bear mentioning.

In R v S.C. , 2009 SKQB 272 , 335 Sask R 311 Zarzeczny J. imposed a low-end range of sentence of nine months prison for a 33 year old stepfather found guilty of touching over the clothing the vagina of his nine year old stepdaughter on more than one occasion, perhaps as much as five times over a seven month period. The offender was an abuser of alcohol and drugs and had Gladue factors. He also did not apologize or demonstrate any remorse to the victim.

He was in a stable relationship and did not have any significant or related criminal record. [ 46 ] R v G.G. , 2018 SKQB 169 was a case where a 23 year old educational assistant plead guilty to five charges of sexual interference under

section 151 of the Criminal Code against five victims who were all eight or nine year old students at the school at the time. The facts included touching the girls variously over and under their clothes on their bum, breasts and vagina over the course of a school year. The incidents had a range of impacts on the victims from some becoming quiet and withdrawn to others undergoing a significant change in personality, reclusiveness and suicidal thoughts. Psychiatric and psychological reports diagnosed G.G. with a mild

intellectual disability. He suffered from pronounced cognitive deficits and impaired adaptive functioning resulting in an extremely low I.Q. range. He did not have a previous criminal record and was assessed as a low risk to re-offend. He plead guilty, apologized to the victims and had Gladue factors. In G.G. , Gabrielson, J. determined that a fit sentence would exceed the mandatory minimum of one year incarceration and could be as high as three years because of the multiple victims and totality.

He went on to impose a sentence of two years’ incarceration in a federal prison as had been specifically requested by G.G. ’s legal counsel. [ 47 ] I would be remiss if I did not mention that in many of the cases I have cited the courts also imposed lengthy terms of probation following the jail sentences. C. Aggravating Factors [ 48 ] I have already mentioned most of the aggravating circumstances in this case. However, there are some other statutorily aggravating provisions contained in the Criminal Code that bear consideration as well: (

a) Section 718.2(a)(ii.1) provides that the abuse of a person under the age of 18 must be treated as an aggravating consideration. Here, the offender was much older (39) than the victim of tender years (9). It is not a situation though where RC was around the victim a lot and knew her well which would have created an opportunity for grooming and made this a much more aggravating factor in sentencing him. (

b) Section 718.1(a)(iii) provides that if an offender abuses a position of trust or authority it is an aggravating consideration. In this case, RC was not a blood relative and did not occupy a legal position of trust relative to the victim. He was a trusted friend of the family whom the father referred to as a brother and the children referred to as their uncle. The families had known each other for approximately ten years since their days at university. However, they did live in separate communities hours away from each other and would visit as families from time to time.

Therefore, while the victim would have grown up knowing and been familiar with RC, I do regard it more as a distant relationship where no greater trust would have been placed in RC by the victim than other acquaintances and friends of the family. I therefore carefully measured the weight to be placed on this as an aggravating consideration in sentencing RC. (

c) Section 718.2(a)(iii.1) provides that evidence that the offence had a significant impact on the victim, including an impact on her health, must be treated as an aggravating factor. As discussed above, RC’s conduct significantly affected the victim’s mental health and caused her psychological harm. D. Mitigating Factors [ 49 ] I have also already set out most of the mitigating circumstances in this case, but some others bear mentioning: (

a) RC has successfully complied with strict bail conditions of release requiring him to move out of his home and be away from his family for well over a year now. RC is married with five children. Since being charged with this offence he has had to vacate the family home and live elsewhere with his aunt on the Key First Nation. This has been very difficult on him and his family as he only has limited supervised access to his own children and is unable to attend public parks, swimming areas, care centers, school grounds, playgrounds, community centers or any locations where persons under the age of 16 are present.

Since being charged with these offences his community has pulled away from him. He has been unable to find work in any Aboriginal communities which is causing financial strain on him and his ability to provide financial support for his family. In R v Lever, 2014 SKCA 58 , 438 Sask R 181 the Saskatchewan Court of Appeal recognized that it is within the discretion of a sentencing judge to determine the extent to which the terms and duration of pre-sentence release might mitigate a sentence.

These stringent release conditions have had a considerable impact on RC’s ability to carry on normal personal relationships and to provide financial assistance and support to his family. This constitutes meaningful hardship and important limitations on the offender’s liberty that do not mimic the ordinary conditions of life. (

b) RC has significant community supports as demonstrated in the many reference letters he filed with the court and Megan’s presence throughout these proceedings. These reference letters describe RC as a responsible, loving person whose children and foster

children long for him to return to his family. They also describe him as a good man, a loyal person and a hard worker who will do what ittakes to do right by his family. He is a loyal and dedicated husband and father who is always willing to lend a hand to help them outthrough many difficult times. RC is passionate about his First Nation’s Culture. He is a valued member of the family and communitywho are both fully prepared to support him following his release from jail. RC’s wife, Megan, is the most influential and supportiveperson in his life. She works as finance director at the Key First Nation Band.

RC has a loving and stable relationship with her. He is aproductive, contributing member to his family and the community and will continue to be so when he is allowed to return to her. (

c) RC is educated and has been gainfully employed doing consulting work ever since marrying Megan in 2008. He believes he willcontinue to be able to do so once he has dealt with these matters. (

d) RC co-operated fully with police without the benefit of legal counsel when informed of the charges and submitted to a video-recorded interview with them. E. Gladue Factors [50] RC is a Saulteaux male who is a member of the Key First Nation located in eastern Saskatchewan.

Section 718.2(

e) of theCriminal Code must be taken into consideration when determining a fit sentence for him. That

section states that, “all availablesanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to thecommunity should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and Ipeelee provide that the purpose of

section 718.2(

e) is to ameliorate the seriousproblem of over-representation of Aboriginal people in prison and to encourage sentencing judges to have recourse to restorativeapproaches to sentencing. [51] The Saskatchewan Court of Appeal has on numerous occasions explained the importance of Gladue factors when determiningan appropriate sentence. In R v Chanalquay, 2015 SKCA 141, 472 Sask R 110 [Chanalquay] Richards C.J.S. stated that whensentencing judges apply Gladue factors it is necessary to first examine both the nature of the relevant factors and the particulars of thecrime in issue.

Richards C.J.S. called for a “more demanding” individualized analysis that recognizes that while Gladue factors are notunvarnished calls to impose shorter jail terms, restorative justice approaches should be utilized when appropriate. Further, in R vSlippery, 2015 SKCA 149, 472 Sask R 181 Richards C.J.S. indicated that a judge must recognize that different or alternative restorativejustice-type sanctions may effectively achieve necessary sentencing objectives.

Richards C.J.S. went on to say that an offender is notrequired to establish a causal link between the systemic background factors and an offence for the Gladue factors to become relevant inthe sentencing process. [52] In R v Delorme, 2017 SKCA 4 Wilkinson J.A. agreed that although the link between considerations and offending behaviourneed not be causal, it must be comprehensible, shedding light on moral blameworthiness.

In R v Whitehead, 2016 SKCA 165, 344 CCC(3d) 1 [Whitehead] Caldwell J.A. added that the analysis must also include an examination of the link between the Gladuecircumstances and the actualization of other sentencing objectives such as rehabilitation.

Whitehead was recently considered favourablyby the Ontario Court of Appeal in R v F.H.L., 2018 ONCA 83, 360 CCC (3d) 189 where Epstein J. stated at para 46: I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach sentencing judgesshould follow: The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causativereasoning.

Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencingjudge … [53] The fact that the victim is Indigenous is also relevant. The Saskatchewan Court of Appeal stated in Chanalquay: [43] I note that this means a sentencing judge must attempt to understand not just the situation and background of the offender and theparticulars of the crime in issue. He or she must also, to the extent reasonably possible, attempt to understand the relevant dynamics ofthe community and the circumstances of the victim.

After all, the victims of crimes committed by Aboriginal offenders are all too

frequently other Aboriginals, often ones with precisely the same backgrounds as the offenders. They must not be overlooked. [ 54 ] The Alberta Court of Appeal expanded on the approach that is to be taken in R v Swampy , 2017 ABCA 134 , 347 CCC (3d) 105: [ 32] We hasten to emphasize that the appellant's moral culpability is affected no less and no more by the fact that the victim, too, was from a First Nations community.

The analysis allows not only for assessment of moral culpability but for full appreciation of the gravity of this offence: a young woman lost her life in tragic circumstances; her family and community are the victims of this same convergence of systemic factors, whatever her community of origin. [ 55 ] While JM is also Indigenous, there is little information before the Court about her or her family’s background.

Further, the Gladue analysis is focused on the circumstances of the offender, the offender’s systemic and background factors and the types of sanctions which may be appropriate in light of these circumstances. The fact the victim is Indigenous is understood more relevantly in the gravity of the offence and its impact which was discussed earlier in this decision. [ 56 ] For the purposes of sentencing, the Gladue analysis will focus on RC’s moral culpability and how his systemic and background factors are relevant to his culpability. JM’s background has not been overlooked.

It was considered earlier under the broader principle of proportionality in sentencing. It is not a feature that adds to, nor detracts from, the Gladue analysis in this case. [ 57 ] RC’s Gladue factors are detailed in the PSR. Some of the most important features are: - He is a registered member of the Key First Nation who has resided with his wife and children there for the last 13 years. He did grow up and live in many different urban settings throughout his life but every summer he would return to the Key First Nation where he had a connection to his extended maternal family.

He also lived on the Oneida First Nation in Ontario for one year when he was 12-13 years of age. - RC’s Aboriginal status comes from his mother who is status and registered to the Key First Nation. His mother, grandparents, aunts and uncles on his mother’s side are all residential school survivors. - RC has been impacted by family breakdown and dislocation. He has never known his biological father.

His mother was not able to care for him and left him to foster care in Ontario. - RC’s mother suffered from alcohol abuse and continues to struggle with this addiction to this day. - RC suffered physical, emotional and mental abuse from his mother which forced him to leave home and turn to the streets at a very young age. - RC is still struggling with abandonment issues and with forgiving his mother. - RC experienced a lot of violence growing up and became a bully in school as he tried to solve his problems with his fists. - RC has been the victim of family and community dislocation, loss of identity and racism.

He was made to feel unwelcome in his own community and on the streets where he was either “too white to be Indian and too dark to be white”. - He felt lost, hurt and lonely for positive First Nation role models to connect him to that missing piece of himself - RC was always on welfare and lacked for basic food and clothing growing up. - He grew up in poverty, with addictions, abuse and violence in neighborhoods which normalized this situation. [ 58 ] Fortunate for RC, his Kokum was a chief of the Key First Nation. She was big on education and a strong supporter for him.

It was her family lineage that taught him pride in his Indian heritage and purpose in his life. He now participates in his Indigenous heritage by attending sweats, suppers and rain dances in his community. [ 59 ] Although RC did struggle growing up, it is important to recognize his strengths and what he has been able to overcome and achieve in his life. He was motivated to complete his education as a youth and continued with his education as an adult. He attended the First Nations University of Canada and the University of Regina and graduated from the University of Saskatchewan. He has

employable skills and was able to gain and maintain employment throughout most of his adult life. As one of his family members noted, RC has “a drive to survive”. [ 60 ] RC’s systemic history provides context to his offending behaviour and diminishes his overall moral culpability. His parents did not care for him. He never knew his father and has had no positive male First Nation role models in his life. He grew up in an abusive and violent household with his mother where he watched her struggle with addictions and abuse. She would leave him for long periods of time and failed to care for him.

She eventually turned him over to Children’s Aid in Ontario at a very young age when she went to prison for welfare fraud. He suffered physical, emotional and mental abuse from his mother. He became violent and abusive himself in school. Substance and physical abuse were normalized in his life. It followed him as a teenager onto the streets and into his adult life. [ 61 ] RC still suffers from issues of abandonment, addictions and violence. He has an addictive nature and alcohol has adversely affected his schooling and work.

On the date of this incident, RC began drinking and smoking marijuana early in the day when he came to town to visit AM. He eventually became extremely intoxicated and was “trashed” or in “drunken stupor” later that night when he committed the subject offence. There is no dispute that alcohol, drugs and violence played a major role in this offence. There is a connection with his backstory. It is not unfathomable how RC’s individual background contributed to his offending behaviour, even if he may not recognize it yet.

Let us not also forget the history and effects of more distant matters such as colonialism, residential schools and the displacement of the Key First Nation from Swan River to the Fort Pelly district to its current location because of perennial flooding over the years. [ 62 ] In R v Charles , CRM 52 of 2017 [ Charles ] the offender’s Gladue factors included considerable alcohol and physical abuse in his background and community. He was also sexually abused as a child while in the residential school system for a period of about ten years.

All of this did not seem to interfere with his ability to maintain employment or other relationships and did not contribute to other criminal activity in the recent past. In Charles Meschishnick J. found the Gladue factors present in Mr. Charles’ background did not bear significantly on his offending behavior or otherwise reduce his moral culpability. [ 63 ] However, the Indigeneity of each person is a unique combination of background and systemic factors that may explain or provide insight into the behaviour of one offender but may not in the case of another. Mr.

Charles was also convicted of a major sexual assault on an unconscious victim.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing ( Gladue , at para 79 ). [ 64 ] I also find it particularly revealing and distinguishing in Charles that Meschishnick J. emphasized several times throughout his decision the offender’s criminal record, including in particular his prior conviction for a sexual assault that was very serious and similar in nature and had warranted a previous three year jail sentence.

This obviously did not act as a deterrent for the offender and did not provide Meschishnick J. with restorative justice options that would reduce or limit what would otherwise be an appropriate sentence in that case. [ 65 ] RC was exposed to the type of systemic and background factors contemplated in Ipeelee and Gladue that help explain and provide insight into his level of moral blameworthiness. There is a comprehensible link between these factors and his offending behaviour. His degree of responsibility is diminished by his violent and abusive (both substance and physical) upbringing and living conditions.

He did have a very strong support and positive role model in his Kokum who made sure he got an education and a job. This enabled him to have a family and temporarily escape from his troubled background for the past decade.

However, he still suffers from the lingering effects of the inter-generational trauma he experienced as a child, which was triggered or set-off when he came to town and engaged in binge drinking and drugs with a friend on the date of the offence. [ 66 ] RC’s failure to accept responsibility for this offence and lack of remorse can make it difficult to actualize other restorative justice options ( R v Lemaigre , 2018 SKCA 47 ). This is compounded by his poor attitude towards the justice system as demonstrated in some of the comments he made in the PSR and police interview.

However, he is still relatively young and has been largely successful overcoming his past challenges for most of the last decade since getting married and having a family. He possesses a prospect for rehabilitation to address his ongoing substance and physical abuse issues, which he has never sought or received any treatment or programming for in the past.

Sentencing outcomes other than incarceration can and should be actualized in his individual circumstances. [ 67 ] I believe that an appropriate sentence for RC should include a restorative justice component which would allow him to regain and continue with his employment and financial support of his family. It will also allow him to continue practicing his Indigenous customs while also receiving programming and counselling for his substance abuse and sexual offending that will promote a sense of responsibility and acknowledgment of the harm he has done to the victim, her family and the community.

A rehabilitative disposition will also allow the Court to monitor him for success and prevent him from coming into contact with the victim or her family for a longer

period of time. [ 68 ] Given RC’s Gladue factors and that he has no history of this type of behaviour, he does not require an overly lengthy term of imprisonment to address his issues. Imprisonment is still necessary to meet legitimate objectives of sentencing such as denunciation, deterrence and separation, but it should be limited in order to allow for this restorative justice approach.

CONCLUSION [ 69 ] Arriving at a just and appropriate sentence requires a balancing of the relevant principles of sentencing, keeping in mind the overall sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Having considered all of the sentencing principles outlined in the Criminal Code , the circumstances of the offence and the offender, aggravating and mitigating circumstances, as well as other sentences given to other offenders in similar circumstances I find that a period of incarceration is warranted. [ 70 ] RC’s conduct was serious and violated the sexual integrity of the victim. It was a one-time, unplanned event fueled by alcohol and drugs. RC has no history of this type of criminal behaviour and is assessed as a medium risk to re-offend.

A Gladue restorative justice approach to rehabilitation can be actualized by a term of probation requiring treatment for his substance abuse and sexual offending so that an event like this will never happen again. [ 71 ] As such, I sentence RC to imprisonment in a Provincial Correctional Facility for a period of 18 months. This will be followed by a period of probation for 24 months so that he can receive sexual offending treatment as the PSR indicates there is presently no programming available for sexual offenders in the Provincial Correctional Facility.

The terms and conditions of his probation will follow the recommendations contained in the PSR, namely: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation. 4. Report to a probation officer at 72 Smith Street East, Yorkton, Saskatchewan, 306-786-1475 within two working days of your release from jail and after that as told to do so by the probation officer or designate. 5.

Not possess or consume alcohol, marijuana or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of marijuana or alcohol, such as cannabis dispensaries, bars or liquor stores. 6. Participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer. 7. Participate in assessments and complete programming for sexual offending and counselling as directed by your probation officer. 8.

See a medical doctor, psychiatrist, and/or psychologist, as directed, follow directions as to appointment, counselling, treatment, and prescriptions and authorize the release of information about appointment times and prescriptions to the probation officer. 9. Have no contact of any kind, in any way, directly or indirectly, with JM. 10. Not be at the residence, work place or place of education of JM. [ 72 ] I also make the mandatory SOIRA order that for a period of 10 years pursuant to

section 490.012 and 490.013 of the Criminal Code and the mandatory DNA order pursuant to

section 487.051 of the Criminal Code . [ 73 ] I have considered but decline to make either of the ancillary discretionary orders under sections 110 or 161 of the Criminal Code as they were not requested by the Crown or necessary given the isolated nature of the incident, RC is an average risk to re-offend and he will be on probation for a lengthy period of time.

____________________ J. Rybchuk, J