R v T.J.H., 2022 YKSC 45

SUPREME COURT OF YUKON Citation: R v T.J.H. , 2022 YKSC 45 Date: 20220926 S.C. No. 22-AP001 Registry: Whitehorse BETWEEN: REX RESPONDENT AND T.J.H. APPELLANT Publication, broadcast or transmission of any information that could identify the complainant or a witness is prohibited pursuant to s. 486.4 of the Criminal Code . Before Chief Justice S.M. Duncan Counsel for the Respondent William McDiarmid Counsel for the Appellant David C.

Tarnow REASONS FOR DECISION Introduction [ 1 ] The appellant appeals the sentence of 18 months’ imprisonment and three years’ probation after guilty pleas to two counts of sexual interference under s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 (“ Criminal Code ”). Facts [ 2 ] The convictions resulted from two separate incidents with two different victims. In the spring of 2018, a ten-year-old Indigenous girl was sleeping over at a friend’s house where the appellant was visiting the friend’s older brother.

The victim was woken in the night by the appellant, who was intoxicated, getting into bed with her and her friend. The appellant groped the victim under her clothes and underwear, touching her chest, legs, vaginal area, and buttocks. The appellant left the room when the victim sat up. [ 3 ] In the summer of 2018, a seven-year-old Indigenous girl was visiting a friend’s house when the appellant asked her to come into the laundry room. He was intoxicated.

He pulled down the victim’s pants and underwear, lifted and bent her over on a chest freezer, and rubbed his clothed body against the victim’s buttocks and vaginal area with his hips while he masturbated inside his pants with one of his hands. [ 4 ] The Crown proceeded summarily with the charges under s. 151 . An agreed statement of fact was filed and the appellant pleaded guilty to the two counts at the earliest opportunity, before any trial dates were scheduled.

The court adjourned the matters to obtain sentencing documents, including a Gladue report and pre-sentence report. [ 5 ] The sentencing hearing occurred on March 30, 2022. Crown counsel submitted the appropriate sentence was in the range of 18- 22 months’ custody and probation. Appellant’s counsel submitted a four-month conditional sentence and probation was appropriate. [ 6 ] Documents submitted at the sentencing hearing included: a pre-sentence report; a Gladue report; a report from an intake meeting the appellant had with a psychologist; a treatment program

summary report; a letter from the appellant’s sister; a letter from a mental wellness and substance use services counsellor; a letter from the appellant’s girlfriend; and two victim impact statements from the mothers of the victims. The judge had not seen the Gladue report before the sentencing hearing. [ 7 ] The judge sentenced the appellant to 8 months’ custody on the first count and 10 months’ custody on the second count, to be served consecutively, for a total of 18 months’ custody. In addition, the judge sentenced the appellant to three years’ probation at the conclusion of his custodial sentence. Issues on Appeal

1) Did the sentencing judge err in principle in a manner that impacted the sentence by failing to consider thoroughly the Gladuereport and the appellant’s Gladue factors? 2) Did the sentencing judge err in principle in a manner that impacted the sentence by failing to consider properly or at all certainmitigating factors such as the appellant’s age, the absence of a criminal record, and his early guilty plea? 3) Did the sentencing judge err in failing to consider Yukon precedent cases in similar situations? Standard of Review [8] Sentencing judges are entitled to significant discretion by appellate courts.

The standard of review on a sentence appeal hasrecently been restated in R v Friesen, 2020 SCC 9 (“Friesen”): 25 Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and thesubmissions in person (Lacasse, at para. 48; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46). The sentencingjudge has regular front-line experience and usually has experience with the particular circumstances and needs of the community wherethe crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 91).

Finally, toavoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge’s forgood reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). 26 As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors inprinciple include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.The weighing or balancing of factors can form an error in principle "[o]nly if by emphasizing one factor or by not giving enough weightto another, the trial judge exercises his or her discretion unreasonably" (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [emphasis added] [9] In either circumstance justifying intervention, “the appellate court may set aside the sentence and conduct its own analysis todetermine a fit sentence in the circumstances” (R v Suter, 2018 SCC 34 at para. 24).

Issue #1 – Failure to consider Gladue report and factors [10] The appellant argues the sentencing judge gave insufficient weight to the significant Gladue factors set out in the 20-pageGladue report. The appellant notes the judge did not have the Gladue report before the hearing and did not recess or adjourn the hearingor reserve his decision in order to review the report thoroughly.

The appellant says the sentencing judge made only a passing commentabout the appellant’s background and did not “give attention to the unique background and systemic factors which may have played apart in bringing the particular offender before the courts” (R v Gladue, (SCC), [1999] 1 SCR 688 at para. 69). Theappellant says the sentencing judge did not undertake the appropriate analysis in determining the sentence. [11] The respondent argues the record shows the judge did consider the Gladue factors.

Many of the most salient features of theGladue report were read into the record by the appellant’s counsel during the hearing. The trial judge made specific reference to theappellant’s background twice in his reasons and acknowledged he had the benefit of a very thorough Gladue report. This was sufficientto show he was familiar with its contents and he considered it in his decision. [12] Gladue factors or principles arise from s. 718.2(

e) of the Criminal Code, which has been described as a remedial section. Itmandates that a sentencing judge take into consideration: “all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particularattention to the circumstances of Aboriginal offenders.” The purpose of the

section is to respond to the problem of disproportionateincarceration of Aboriginal people and to encourage the sentencing judge to apply the principles of restorative justice alongside or inplace of other more traditional sentencing principles. [13] A fundamental principle of sentencing is proportionality, meaning the sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender.

Courts have stated “[t]here can be no sound proportionality analysis in the caseof an Aboriginal offender without considering the impact of the offender’s Aboriginal heritage on his moral culpability” (R v Swampy,2017 ABCA 134 at para. 36). [14] The Gladue factors provide a necessary context for understanding and evaluating case-specific information provided by counsel.The Court in R v Ipeelee, 2012 SCC 13 (“Ipeelee”) at para. 60, said that a judge must take judicial notice of matters such as the history ofcolonialism, displacement and residential schools and how that history continues to translate into lower educational achievement, lowerincomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of imprisonment.

These matters do notimpose a particular result – in other words, the intent of considering Gladue factors is not automatically to justify a reduced sentence or adifferent sentence. The need to consider these factors does however impose a particular process and is indispensable to a judge infulfilling their duties under s. 718.2(e): R v Elliott, 2015 BCCA 295 at para. 17; Ipeelee at para. 60. [15]

Section 718.2(e) “calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders”(Ipeelee at para. 59). This analysis involves considering the “unique systemic and background factors which may have played a

part inbringing the particular Aboriginal offender before the courts” (Ipeelee at para. 72). These factors “may bear on the culpability of the

offender, to the extent that they shed light on his or her level of moral blameworthiness” ( Ipeelee at para. 73 ). [ 16 ] Here, the sentencing judge made reference to the Gladue factors in two places in his reasons.

The first was: 14 I have the benefit of a very thorough Gladue Report which details many of the circumstances of the background of T.J.H. and how his heredity and upbringing have been impacted by the residential school system and details how it has very specifically impacted the living conditions that T.J.H. was raised in and in which he, to some extent, still resides. [ 17 ] The second reference was when he set out the appellant’s probation conditions, that is, after he had issued the custodial sentence.

The reference was made in the context of encouragement to the appellant to seek help to address the issues in his background: [28] …the abuse you suffered is not your fault, just like what has happened to these poor girls is not their fault. What happened to you is not your fault, sir, but it is part of your background. If you are going to have a productive, happy life, you are going to have to deal with these issues and deal with them in a way that finally puts them behind you. You can only do that with help. [ 18 ] There are two questions that arise in the determination of this first issue.

The first question is whether the failure of the sentencing judge to recess, adjourn, or reserve before rendering his decision due to his inability to review the Gladue report before the hearing creates or contributes to a reviewable error. The second question is whether the judge engaged in the analysis mandated under s. 718.2 (

e) in determining a fit sentence for an Aboriginal offender. [ 19 ] In considering the first question, I note appellant’s counsel referred extensively to the Gladue report in his submissions at the sentencing hearing, including quoting directly from it (pp. 6, 7, 8, 9, 10, 11, 12, 13, 14 and 17). The judge may have read the full report during those submissions.

The judge paused twice before rendering his decision; it is not clear from the transcript how long those pauses were or what he was doing during those pauses. [ 20 ] A trial judge is not required in their reasons “to itemize every conceivable issue, argument or thought process” ( R v O’Brien , 2011 SCC 29 at para. 17 ). It is necessary to assess whether the reasons, read in context and as a whole, explain what the judge decided and why they decided in a way that permits effective appellate review. Did the reasons respond to the case’s live issues?

It is also necessary to look at the full record before the judge to determine if the what and why questions are answered there ( R v GF , 2021 SCC 20 at paras. 69-71 ). [ 21 ] Here, while the sentencing judge’s reference to the Gladue factors was minimal (paras. 14 and 28 of the reasons), he heard many of the salient points during the hearing from defence counsel and stated in his decision that he had “the benefit of a very thorough Gladue Report”. Judges are entitled to be taken at their word ( O’Brien at para. 18).

I do not give any weight to the appellant’s argument that the judge did not take the time to review the entire Gladue report. [ 22 ] What is important though is the second question: the assessment of how the judge considered and applied the Gladue factors in determining the sentence. Here, there is no evidence of any consideration by the judge of the systemic, background and personal factors and their potential effect on the appellant’s moral blameworthiness. For example, the judge did not refer to: a. the specific history of Mr.

H.’s family: in particular the attendance of his father, grandparents and great-grandparents at residential schools; and growing up in a home full of drinking and violence, with the father often beating the mother and the children; b. Mr.

H.’s parents’ alcoholism when he was a child resulting in child protection concerns of physical and emotional abuse and neglect, and including such things as the community members finding him and his siblings wandering the streets; c. his being placed in temporary care and foster care, and the negative experiences he had there, including being picked on and beaten; d. his difficulties in school, including not learning to read until Grade 6 and at age 14 reading at a Grade 3 level, resulting from low cognitive functioning (bottom end of the borderline range) behaviour problems (inattention, hyperactivity, oversensitivity, anxious-passive, a-social) and significant absences; e. his sexual molestation by two uncles while he was a child; f. his frequent witness to abuse of his mother and sister by his father; and g. his difficulty in finding employment. [ 23 ] The sentencing judge’s reasons note specifically the significance of the following factors in the determination of the sentence – the age of the victims; the victim impact statements and the concern expressed by one victim’s mother that the “system” protects the appellant’s rights but not the victim’s rights; and the concern in the community about the appellant. [ 24 ] The judge rejected the imposition of a conditional sentence.

He wrote: … I am not satisfied that imposing a conditional sentence is either practical, in your living circumstances, or that it would send the right message of deterrence and denunciation for these types of offences ( R v TJH, 2022 YKTC 15 at para. 21 ). [ 25 ] The appellant lives at home with his parents in a community of approximately 400 people. The victims live in the same

community. [26] The judge does not explain what he means by a conditional sentence being impractical in the appellant’s living circumstances. Itwould be improperly speculative to suggest a meaning here.

I note that the judge is not a resident Yukon judge and that he indicatedduring the sentencing hearing that he was not familiar with the appellant’s community, having only driven through it once in 1960. [27] In the recent Yukon decision of R v GK, 2021 YKTC 17 (“GK”) at para. 57, the judge, a Yukon resident judge, stated: I take judicial notice of the fact that serving a conditional sentence in the Yukon attracts a substantial level of supervision andintervention, especially in the smaller communities. [emphasis added] [28] In R v Pye, 2019 YKTC 21 (“Pye”), the judge, another Yukon resident judge, wrote at para. 46 when considering whether a jailsentence was the only way to send a clear denunciatory and deterrent message: In my view, it is not.

Deterrence can take many forms, including the imposition of criminal charges, a criminal record, and the stigmathat flows from the very public nature of criminal justice proceedings, particularly in the smaller communities one finds in theYukon, where such offences rarely go unnoticed by the media and are regularly debated in the court of public opinion. [emphasis added] [29] As required by s. 718.01 of the Criminal Code, in this case the sentencing judge gave primary consideration to the objectives ofdenunciation and deterrence because the offences involved the abuse of victims under the age of

Section 718.2(a)(ii.1) was alsoconsidered by the sentencing judge – it provides that abuse of a victim under the age of 18 is an aggravating circumstance. Thesentencing judge found a further aggravating circumstance under s. 718.2(a)(iii) that the appellant abused a position of trust with respectto the seven-year-old victim because he invited her into the laundry room, away from her friends. [30] However, the sentencing judge did not engage in the necessary analysis required by Gladue.

As the court in R v RS, 2021 ONSC2263, stated at para. 183: “Even in grave cases of sexual violence, the Gladue principles must be applied [Friesen, at para. 92]”. The RSdecision is an example of how the Gladue factors, both specific to the accused and general in the sense of inter-generational effects ofthe collective experiences of Indigenous peoples, are considered as part of the context underlying the offences before the court.

The courtin RS said at paras. 183-184: … bringing these strands of analysis together, I find that they significantly reduce your moral blameworthiness for these offences.Basically, you are a decent person with good prospects of rehabilitation whose crimes are partially a product of a combination of factorsconnected to the injustices committed against Indigenous people, some of which is beyond your control. …The reality is that your unique personal circumstances, viewed contextually, diminishes your moral culpability. [31] I refer to this passage as an example of the application of the Gladue factors analysis or process, not for its outcome.

It is possiblethat a judge could consider Gladue factors, as was done in detail in RS, and conclude as provided for in Gladue (para. 79) and R v Wells,2000 SCC 10, that the more violent and serious the offence, the more likely the appropriate sentence will be similar between Aboriginaland non-Aboriginal offenders. This is a result of the increase in significance of the sentencing goals of denunciation and deterrence inthese circumstances. The point is that the analysis needs to occur.

In this case, even with the caveat that judges are presumed to know theobjectives of sentencing and are not required to state every thought process in their reasons, the sentencing judge did not engage in thatanalysis. His stated reason for rejecting the conditional sentence as impractical and not sufficient to address denunciation and deterrence,without specifically referring to any Gladue factors is insufficient to demonstrate that the proper analysis was done. [32] There was no evidence from his reasons that the sentencing judge assessed the impact of the Gladue factors on the appellant’smoral culpability.

In R v Neepin, 2020 MBCA 55, the Manitoba Court of Appeal concluded at para 69: As for the accused’s personal circumstances, the trial judge correctly stated that the Gladue factors were mitigating, however, I see noevidence in his reasoning that he addressed these factors in the context of their impact on the accused’s moral culpability. Tellingly, hestated they were mitigating after he found the accused’s level of moral culpability was high. [33] In R v Martin, 2018 ONCA 1029, the Ontario Court of Appeal wrote at para. 13: The failure to give adequate weight to Gladue factors is an error of law: R. v.

Kakekagamick (2006), (ON CA), 81O.R. (3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34. In this case the error had an impact on the sentenceimposed and appellate intervention is required. [34] Here, the judge’s failure to engage in a proper analysis of the Gladue factors had an impact on the sentence. The significantGladue factors existing in this case, if considered contextually, should have led to an analysis of an option other than a custodialsentence. [35] There was no attempt by the judge to explain why the objectives of deterrence and denunciation could not be achieved other than

through a significant custodial sentence. For example, in the case of R v Proulx, 2000 SCC 5 (“Proulx”) the Supreme Court of Canadastated at para. 100: Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorativeobjectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need forpunishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be themore attractive sanction.

However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferableto incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively asincarceration. This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarcerationwhere appropriate in the circumstances. [36] The Supreme Court of Canada also held in Proulx (paras. 80-82) that it would be “unwise and unnecessary to establish judiciallycreated presumptions that conditional sentences are inappropriate for specific offences.” Presumptions do not accord with the principle ofproportionality and the value of individualization in sentencing.

Thus, although a sexual offence against a child is serious matter, it doesnot result in a presumption that a conditional sentence is inappropriate, or incapable of addressing deterrence and denunciation. [37] Further, the sentencing judge’s failure to consider the effect of Gladue factors on the appellant’s moral culpability affected thesentence. [38] As a result, I find that the sentencing judge erred in principle and this error had a material impact on the sentence imposed.

Issue #2 – Failure to consider mitigating circumstances [39] The appellant says the judge failed to consider several mitigating factors such as the appellant’s age of 20 at the time of theoffences, the absence of any criminal record, and his early guilty plea. [40] The respondent acknowledges the judge did not specifically refer to these factors but states they were clear on the record fromthe pre-sentence report and the submissions of counsel.

Indication that the judge took the factors into account came from the probationorder through which he acknowledged the appellant’s rehabilitative potential. [41] The judge’s failure to refer to the absence of the appellant’s criminal record, youth, and early guilty plea constituted an error inprinciple with an impact on sentence. Once again, it is the judge’s analysis that is problematic. While the weight to be given tomitigating factors is within the discretion of the trial judge, the failure to consider certain factors is a different matter.

This is not asituation where the finding is the sentencing judge gave too much weight to one relevant factor or not enough weight to another, as thatwould be an improper abandonment of deference (see R v Lacasse, 2015 SCC 64 (“Lacasse”) at para. 49, quoting from R v McKnight(1999), (ON CA), 119 OAC 364).

This is instead a case where by emphasizing certain factors and not giving enoughweight to others, the sentencing judge exercised his discretion unreasonably. [42] The sentencing judge referred specifically to the aggravating factors (required to be considered by statute) but made no referenceto any mitigating factors.

Section 718.2(

a) specifically states that a court shall take into consideration the principle that “a sentenceshould be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or theoffender”. Here, the imposition by the judge of a significant custodial sentence of 18 months plus three years’ probation on a youngappellant without a criminal record who provided an early guilty plea, even in a case with statutory aggravating factors and wheredeterrence and denunciation are the primary considerations, was not balanced by an assessment of the above mitigating factors.

Thefailure to consider those mitigating factors led to an unreasonable exercise of discretion and was an error in principle that affected thesentence. Issue #3 – Failure to consider Yukon precedent cases [43] The appellant argues the law in the Yukon is clear and has provided for conditional sentences in similar circumstances. Theappellant specifically referenced GK, Pye, and R v DAD, 2021 YKTC 20 (“DAD”). In Pye, the judge imposed a 12-month conditionalsentence and 18 months’ probation on Mr.

Pye, a 23-year-old Yukon First Nations man, who pled guilty to sexual intercourse with a 14-year-old girl on two occasions. Mr. Pye had no criminal record and a difficult upbringing. In GK, the judge imposed a six-monthconditional sentence on GK, a 59-year-old Yukon First Nations man, who kissed and sexually touched a 17-year-old girl. In DAD, theonly one of the three Yukon decisions that the sentencing judge referenced in this case, the judge, following Pye, imposed a six-monthconditional sentence on DAD, a 28-year-old Yukon First Nations man, who pled guilty to sexually touching a 15-year-old girl.

The judgereferred to his age and lack of criminal record, among other things, as mitigating factors. [44] The respondent notes the codification of the parity principle in s. 718.2(b), stating that a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances.

The respondent further notes the Supreme Courtof Canada has held in R v M (CA), (SCC), [1996] 1 SCR 500 at 566, that the appeal court should intervene only wherethe sentence imposed by the trial judge is a marked and substantial departure from the sentences customarily imposed for similaroffenders committing similar crimes. [45] The respondent says the facts of this case are substantially different from the three Yukon cases referred to by defence counsel.The age of the victims was the most significant difference (14, 15, and 17 in the other Yukon cases, and 10 and 7 in this case) but therewere other differences as well, including the pre-meditated and predatory nature of the offences occurring on two separate occasions withtwo different victims.

The judge was not required to find a conditional sentence was a fit sentence on that basis that judges in other recentYukon cases have done so, especially where there are substantial fact differences among the cases. [46] Here, the sentencing judge began the sentencing hearing by stating he was prepared to consider the imposition of a conditionalsentence, without hearing argument from counsel on the issue, based on the three Yukon cases he had reviewed in which the mandatory

minimum of 90 days was found to be unconstitutional. The sentencing judge accepted this was the law in the Yukon. Further, the sentencing judge itemized several factors which in his view distinguished this case from the other Yukon cases, as noted by the Crown in his submissions: that is, the young ages of the victims and the circumstances surrounding the offences. Thus, his failure to refer specifically to GK and Pye did not constitute a reviewable error. Conclusion on Sentence [ 47 ] In GK , Pye , and DAD , each court reviewed cases to determine the appropriate sentencing range, absent a conditional sentence.

In GK , that was found to be three to four months custody; in Pye , nine to 10 months; and in DAD , four months. [ 48 ] In each of those cases, the judges found the mandatory minimum of 90 days custody in s. 151 (

b) to be unconstitutional, making a conditional sentence available for them to consider. The unconstitutionality of this

section was not argued at the sentencing hearing, based on the sentencing judge’s stated acceptance that the law in the Yukon made a conditional sentence available for his consideration. As a result, I will not proceed through that analysis here, but agree with the analysis of the Territorial Court in GK , Pye , and DAD that the mandatory minimum is unconstitutional for the purpose of this sentence. [ 49 ] The appropriateness of a conditional sentence requires a balancing of the often-conflicting principles of denunciation and deterrence on the one hand, and rehabilitation and the application of s. 718.2(

e) on the other ( Pye at para. 42 ). [ 50 ] The sentencing judge in this case did not engage in any risk assessment or assessment of rehabilitative potential of the appellant before imposing the custodial sentence.

One of the statutory requirements before a conditional sentence is imposed (s. 742.1(a)) is that 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 sentencing.” [ 51 ] The appellant has been living in the community since his first appearance after being charged on December 22, 2020 under conditions. Since April 22, 2022, he has been released on bail pending appeal and his conditions have been equivalent to house arrest.

He has not breached any of his conditions at any time. [ 52 ] He has the support of a girlfriend. They have been together for almost two years and they spend as much time as possible doing activities out on the land. They plan to marry. [ 53 ] He has worked seasonally in the past for a First Nation government collecting sonar data for Fisheries and landscaping. [ 54 ] He has self-referred for counselling with Yukon Health and Social Services.

He is currently working with a counsellor at Mental Wellness and Substance Use Services. [ 55 ] As evidenced by the letters submitted for the sentencing hearing and the comments of the sentencing judge, the appellant has completed a treatment program for alcohol use. He had reduced his drinking to one six-pack of beer a month. As noted by the sentencing judge, this is a significant achievement.

He stated to the Gladue report writer that he plans to quit drinking altogether. [ 56 ] Given this high level of compliance with strict conditions, evidence of motivation to seek and complete treatment, his lack of criminal record, and his sincere remorse, serving his sentence in the community would not endanger the safety of the community in my view. He appears to be at low risk to reoffend. [ 57 ] I have already referred to the judge’s observation in Pye that deterrence and denunciation can take many forms, including community sentences.

As well, the Supreme Court of Canada in Proulx noted a conditional sentence can achieve both punitive and restorative objectives. At para. 41, the Court wrote: … A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls. [ 58 ] I have considered the circumstances of the offences and of the appellant.

There are significant aggravating factors and the offences are serious, for the reasons set out by the sentencing judge. However, the circumstances of the appellant must be balanced against these factors and the Gladue analysis must be undertaken.

The purposes and principles of the sentencing can be achieved by a strict conditional sentence. [ 59 ] The court in G.K. , where there was a conviction on one count after trial, imposed a six-month conditional sentence; the court in Pye , where there was a guilty plea to one count imposed a 12-month conditional sentence; and the court in DAD where there was a guilty plea on one count, imposed a six-month conditional sentence. [ 60 ] In this case, there are guilty pleas to two counts, two victims of a younger age, and some evidence of premeditation and predatory behaviour.

The penalty for the two convictions must be consecutive because they do not arise from the same event, and there are two victims (s. 718.3(4) and s. 718.3(7)(b)). [ 61 ] As in Pye , the serious nature of these offences warrants the continuation of strict conditions in the nature of house arrest for the appellant. [ 62 ] The custodial sentence of 18 months’ plus three years’ probation is overturned.

In its place, the appropriate sentence shall be 18 months’ term of imprisonment (8 months on Information 20-00705 and 10 months on Information 20-00706 to be served consecutively) to be served conditionally plus two years’ probation. The terms of that sentence will be:

1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Report to a Supervisor within two working days after the making of this conditional sentence order and thereafter, when and in the manner directed by the Supervisor. 4. Remain within the Yukon unless you have written permission from the Supervisor. 5. Notify the Supervisor in advance of any change of name or address, and promptly of any change of employment or occupation. 6. Not communicate directly or indirectly, with H.M., O.B. or S.J. 7.

Not attend within 50 metres of H.M., O.B. or S.J.’s place of residence, school, employment or education or any other place they may reasonably be expected to be, except with the prior written permission of the Supervisor. 8. Not enter within 50 metres of any school, playground or place that reasonably might have people under the age of 16, except with the prior written permission of the Supervisor. 9. Not be in contact or communication with any minor under the age of 16, except with the prior written permission of the Supervisor in consultation with Family and Children’s Services. 10.

Reside at [redacted], Yukon, and abide by the rules of the residence, and as long as you are not in the same room as E.J. unless there is direct line of sight supervision of you and E.J. by M.H. or another adult. The supervisor must not be under the influence of alcohol or non-prescription drugs or except as otherwise directed by the Supervisor. 11.

For the first 12 months of this order you must remain inside the residence at all times, except with the prior written permission of the Supervisor and except for the purpose of employment, which can include work at Victoria Gold Mine, including travel directly to and directly from the place of employment. You must answer the door or the telephone to ensure you are in compliance with this condition. Failure to do so during reasonable hours will be a presumptive breach of this condition. 12.

For the last 6 months of this order, abide by a curfew by being inside your residence or on your property between 10:00 p.m. and 6:00 a.m. daily except with the prior written permission of your Supervisor. You must answer the door or the telephone for curfew checks. Failure to do so during reasonable hours will be a presumptive breach of this condition. 13. Do not change that residence without the prior written permission of your Supervisor. 14.

Attend and actively participate in all assessment counselling, and treatment programs as directed by your Supervisor, and complete them to the satisfaction of your Supervisor, for the following issues: substance abuse, alcohol abuse, psychological issues, and any other issues identified by your Supervisor, and provide consents to release information to your Supervisor regarding your participation in any program you have been directed to do pursuant to this condition. 15. Abstain from the use of alcohol and non-prescription drugs. 16.

Not attend any premises whose primary purpose is the sale of alcohol including any liquor store, off sales, bar, pub, tavern, lounge or nightclub, or any premise whose primary purpose is the sale of cannabis. [ 63 ] The statutory terms of a probation order apply. All other conditions will be the same as outlined in the conditional sentence order, except that there will be no house arrest condition and no curfew condition.

As this is a primary designated offence there will be an order pursuant to s. 487.051 authorizing the taking of samples for the purpose of DNA analysis. [ 64 ] There will be an order pursuant to s. 490.012 requiring T.J.H to comply with the provisions of the Sex Offender Information Registration Act , S.C. 2004, c. 10 , for a period of 10 years. ___________________________ DUNCAN C.J.