His Majesty the King - v. -, 2022 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 45 Date: November 22, 2022 Information: 991160294 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Z. J. L. B. Appearing: M. Longworth For the Crown A. Hunter For the Accused Note: Sections 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify the victim or a witness in relation to an offence alleged under

Section 271 of the Code . SENTENCING DECISION F.M. DAUNT , J [ 1 ] This is a case of a young couple, R.C. and Z.B., negotiating sexual boundaries in their relationship. Negotiations broke down because Z.B. simply could not see things from R.C.’s point of view, even after extensive discussion. To make her point, R.C. took the matter to police, who charged Z.B. with sexual assault. Even then, he could not see her point of view. He took it to trial. He was found guilty. After hearing the reasons for his conviction, he now sees R.C.’s point of view and accepts her boundaries. R.C. is satisfied with

that. They are now reconciled and have two children together. R.C. says “he is an amazing father.” [ 2 ] That is not the end of the matter, however. Z.B. was convicted of two counts of sexual assault, one in 2019 and one in 2020, and he must be sentenced. The Crown seeks a global sentence of three and a half to four years in a federal penitentiary. Defence asks the court to consider a shorter, provincial sentence followed by lengthy probation. Circumstances of the Offences [ 3 ] The details of the offences are contained in R v Z. J. L. B ., 2022 SKPC 44 .

In short, in the summer of 2019, Z.B. had sexual intercourse with R.C. while she was sleeping. Although he testified that he thought she was awake, I found he was reckless as to whether she was awake and consenting. In the summer of 2020, continued pestering leading to acquiescence led to a finding of wilful blindness to her lack of consent, resulting in a conviction. He was acquitted of a third count of common assault. No drugs or alcohol were involved. [ 4 ] The couple first began seeing each other in May 2019, when R.C. was 18 and Z.B. was 20.

In June or July of 2019, at the time of the first assault, R.C. was pregnant with their first child, who was born in February of 2020. At the time of the second assault, that child was five months old. Since the second assault, the couple has had another child. Z.B. successfully had his release conditions amended to allow him to attend the birth. After the assaults, R.C. and Z.B. had conversations about his behaviour, and how it made her feel. Although he said he would never do it again, she felt he did not appreciate the seriousness of his actions.

At the time, all Z.B. got out of these conversations was that he should talk about his feelings more. [ 5 ] For the first couple of years, these young people experienced a volatile relationship, repeatedly breaking up, then getting back together. It was after one of these breakups, in December of 2020, that R.C. made a complaint to the police, shortly after an incident involving a scuffle over a cell phone. That scuffle was the basis of the now-dismissed assault charge. Constable Husky, who took the original complaint, wanted R.C. to attend the police station to give a video statement.

Shortly after this, R.C. and Z.B. reunited. She did not go to the police station, and no charges were laid. [ 6 ] In May of 2021, the couple split up again, and R.C. attended the police station to lay a new complaint against Z.B. and to follow up with a video statement. R.C. said repeatedly, both in her testimony and in her victim impact statement, that she merely wanted Z.B. to see her point of view. [ 7 ] At the sentencing hearing, R.C. said she was being petty in complaining to police about Z.B. She regrets that he has lost so much time with the children as a result of these charges.

She forgives Z.B. and wants him home with her and the children. R.C. has agency and strong family support. This is not a case of an abused spouse falling into a cycle of violence. This is a case of two isolated incidents in an evolving relationship. [ 8 ] Z.B. now admits at the time of the offences he felt a sense of entitlement to sexual contact as a result of their relationship status. Since the trial, however, he fully understands what he did was wrong. He is full of remorse and willing to change his ways.

He finally understands R.C.’s point of view. [ 9 ] R.C. submitted a victim impact statement to the Court, which reads as follows: I forgive [Z.B.]. I didn’t even think of the first assault as assault until I talked about it with a friend months after. After the second assault, I was upset and left. But we later talked through it as days went by. During the second incident I did give into having sex with [Z.B.] I was saying no and leave me alone at first. I came to the police December 2020 after me and [Z.B.] had broken up. I went to the police again May 2021 after a break up.

I’m not sure if you had noticed but I would only do things because I would be afraid of losing [Z.B.]. As I am today.

These assaults never really affected me in any way. Only way it is, is by him going to jail. Especially for that long. He’s losing timewith not only me but our two kids. He’s an amazing father. I just wanted [Z.B.] to see it from my point of view, that there a consensus [sic] for his actions and now that he does, I forgive him. [10] R.C. wants Z.B. home but, at this point, that is not her decision to make. Ironically, to defend her personal autonomy, thejustice system takes this fundamental choice away from her.

Nevertheless, after hearing argument on sentencing – and after hearingfrom the victim – the Court removed the condition that Z.B. have no contact with R.C. He was also ordered to start sex offendertreatment. Unfortunately, the probation officer will not refer him to the program prior to sentencing. [11] These two incidents occurred in the context of a long-term, mostly consensual sexual relationship between two young adultswho are figuring out how a relationship works and how to be parents to their children.

R.C. tried to use the criminal justice system as abargaining chip in this couple’s negotiations on the terms of their relationship. She now regrets that decision. Circumstances of the Offender [12] Z.B. is now 23 years old, soon to be 24. He has no criminal record. He has no mental health or substance abuse issues. Hehas been on conditions since May 27, 2021, without incident (although both Z.B. and R.C. have had consensual contact in violation ofthe terms of his Release Order). He is of Indigenous descent, with family ties in Canoe Lake. He has not seen his biological father in 15years.

Raised by his mother and stepfather in North Battleford, he participated in Air Cadets and graduated from a Catholic high school. He has a pretty steady work history and is currently employed full time as a mechanic. Although the pre-sentence report states there wasnothing unusual in his upbringing, when I asked him where he got such ideas about how to treat women, he said from the way hisstepfather treated his mother. His mother adds that her spouse was often away from the family home, leaving Z.B. without a fatherfigure much of the time.

His mother and stepfather separated in June of this year. [13] Z.B. has strong community support. His mother is fully aware of the circumstances of these offences and continues to supportZ.B., as do his family and friends, who are age-appropriate and pro-social. [14] According to the pre-sentence report, Z.B. has a good attitude and belief system regarding the criminal justice system ingeneral and these offences in particular.

At page 8 of the report, the author states, “He appears open, motivated, and willing to takeprogramming as directed and make positive changes to his life.” Although he still sometimes rationalizes his actions, he is a goodcandidate for community programming. As stated on page 5 of the report: [Z.B.] indicates he takes full responsibility for the offenses and appears remorseful. He does recognize the impact on the victim andfeels he disrespected and betrayed her trust. He agrees he did not get proper consent because the victim was asleep at the time.

He hasno animosity towards the Criminal Justice System and accepts his guilty verdict and any sentence imposed. He said he did not accept theguilty verdict at first but in retrospect, after the judge explained why he was found guilty, he now accepts it. [15] When asked, Z.B. did not personally feel affected by many R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]factors. However, his history indicates a separation from his home community, family breakdown, and inter-generational trauma fromresidential schools.

Although raised in urban settings, his roots lie in Canoe Lake First Nation, where his mother and siblings reside. Hehas experienced family and community breakdown, being estranged from his biological father since he was eight years old. Hisbiological father abused substances and was involved in the criminal justice system. His mother attended residential school. Althoughshe says it had no negative impact on her, it had a serious effect on her parents and her grandparents, especially regarding substanceabuse.

Also, as this Court said in R v A.W.C., 2022 SKPC 34 at para 32: [32] [R]esidential schools affected not just those who attended, but their families and communities.

Children were physically andsexually abused, and that affected how they lived their lives when returned to their homes, leading to intergenerational violence andaddiction. …Churches and residential schools also introduced the idea that the man is the head of the family, with women and childrensubservient, an idea that drastically affected family dynamics in Indigenous communities. [16] Z.B. was raised Catholic but has been involved in Cree cultural activities, although not recently.

He would like to reconnectwith Indigenous traditions such as sweats and pow-wows. [17] The writer of the pre-sentence report administered two risk assessments, one regarding general recidivism and one for sexual

offending. Z.B. presents a low risk to reoffend generally. This risk can be further reduced by targeting his risk factors: attitude, employment stability and residence stability. Since the report was written, Z.B. has secured full-time employment, thus addressing the employment stability risk factor. He is working on his relationship with R.C., which may lead to increased residence stability. He scored a “below average” risk to reoffend sexually.

In that regard, his only risk factor is “capacity for relationship stability.” Again, he is trying to restore his relationship with R.C., which seems less volatile since these charges were laid. It seems both parties have matured since the commission of the offences in 2019 and 2020. [ 18 ] According to the pre-sentence report, Community Corrections offers a sex offender education group in the community, which takes about a year to complete. That would be followed by referral to a Mental Health treatment group program, also in the community.

Sex offender treatment is not available in the provincial correctional system. Sex offender treatment is available in the federal system, with the caveat that prisoners serving relatively short sentences may not be able to complete such programming prior to their early release date. Purposes and Principles of Sentencing [ 19 ] Sentencing is governed by

Part XXXIII of the Criminal Code . Fundamentally, pursuant to

section 718.1, a sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility. Further, according to the Criminal Code : 718 The fundamental purpose of sentencing is to protect society and to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 20 ] Crown counsel, in her argument, also cited

section 718.04. She submits R.C. was particularly vulnerable because she was pregnant at the time of the first assault, though, given the time frame, she was at most two months pregnant. The Crown further submits R.C. was a vulnerable victim at the time of the second assault because she was in an intimate relationship and caring for a young child, as well as being Aboriginal and female. The

section states: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 21 ] In other words, it is the vulnerability, not the personal circumstances, that bring this

section into play. A victim can be vulnerable for any number of reasons, but the issue is contextual. Being Aboriginal does not automatically make someone more vulnerable in every situation. Neither does being female. Neither does being two months pregnant. There is no evidence R.C. was financially dependent on Z.B., for example, or that her Indigeneity or her gender trapped her in this relationship. On the contrary, she seems resourceful when it comes to equalizing power imbalances. [ 22 ] Crown also points to

section 718.2(a)(ii) and (iii), saying that Z.B. abused his intimate partner, and also abused a position of trust or authority in relation to the victim, both statutorily aggravating factors. Although he did abuse his intimate partner, I’m not convinced Z.B. held a position of trust or authority over R.C. He had no authority over her. He was not her boss. He had no control over her movement or her finances. He was not in a position of trust in any legal sense. [ 23 ] In 2019, Parliament also enacted

section 718.201, which states that in the case of intimate partner abuse, the Court “shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal

female victims.” It is true that females are generally more vulnerable than males in a domestic relationship. Males are typically physically stronger and socially more powerful than their female partners. Sexual assault is

an act of physical control, and Aboriginal females are particularly vulnerable to abuse in our society. They deserve special protection from our Courts. [ 24 ] Other sentencing principles include parity (sentences should be similar to each other), totality (consecutive sentences should not be unduly long or harsh), restraint, and the due consideration of alternatives to custody, especially for Aboriginal offenders ( Gladue ).

The Crown submits her position accounts for totality, as well as Z.B.’s youth and Gladue factors, by reducing what should be two consecutive three-year sentences to one global sentence of three and a half to four years. [ 25 ] Although counsel cited numerous cases in support of their positions, the Crown relies primarily on R v Bear , 2022 SKCA 69 [ Bear ], which re-affirms the three-year starting point for major sexual assaults in Saskatchewan, even for an Aboriginal offender.

Defence relies primarily on R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ], which upheld a shorter, provincial sentence but added a period of probation for an Indigenous offender. None of the cases cited concerned an offender in an ongoing spousal relationship, including children, with a complainant who forgives him and wants to continue the relationship. Analysis [ 26 ] The three-year carceral starting point in Saskatchewan applies to a “major sexual assault,” and assumes an offender with no prior criminal record, of previously good character ( Bear at para 80 ).

The Court in Bear says at paragraph 78 : [78] The determination of whether the major sexual assault label applies to an offence requires consideration of all of the relevant circumstances. Offences involving penile penetration, forced intercourse, or other forms of sexual activity such as fellatio or cunnilingus are generally understood as constituting major sexual assaults, but none of those things are prerequisites to such a finding [citations omitted].

Other factors, including the intrusive, violative, or degrading nature of the sexual contact, the age or vulnerability of the victim, the nature of the relationship between the offender and the victim, or the duration or number of instances of the offending conduct may each individually, or in combination, serve to place an offence in the major sexual assault category. In Bear , although neither penile penetration nor forced intercourse were involved, the Court found the assault on a sleeping and intoxicated victim to be a major sexual assault.

The assault “amounted to a substantial and highly intrusive violation of K.K.’s sexual and personal integrity and was committed at a time when she was particularly vulnerable.” In other words, it is not the presence or absence of penile penetration that matters, but the degree of violation of the victim’s sexual integrity. [ 27 ] In this case, R.C. says the assaults affected her hardly at all, that they had minimal impact on her sexual integrity. At first glance, we have a sexual assault on a sleeping victim. We have a second sexual assault on the same victim. Both involved intercourse.

These two incidents, however, arose in the context of a long-term consensual sexual relationship. The offender and the victim remain in a relationship. They have two children together. R.C. herself says the assaults never really affected her in any way. Her biggest fear is losing Z.B. She reported him to police because he would not listen to her point of view. Although she is Aboriginal and female, she is not particularly vulnerable in the context of this relationship. She has strong family support. After the first assault, which occurred before they were living together, she simply went home.

After the second assault, she left the home to stay with family, but returned the next day and kicked Z.B. out of her apartment. She was not isolated or trapped in this relationship. She went to the police to teach Z.B. a lesson. Z.B. crossed a boundary a couple of times during the course of this relationship, the last time being two and a half years ago. If he had listened to R.C. when they first discussed it, instead of placating her to “get her off his back,” the assaults would never have come to the attention of the authorities.

Despite the element of penetration, in the context of this relationship, I find these were not major sexual assaults. I find they were not major sexual assaults because the victim says they were not major sexual assaults. The three-year starting point does not apply. [ 28 ] Even if they were major sexual assaults, however, Courts have deviated from the three-year starting point when circumstances warrant. Chanalquay , for example, is a case of sexual assault by an Indigenous man on an intoxicated and sleeping victim, with whom he was not in a relationship.

In that case, the Saskatchewan Court of Appeal upheld a provincial sentence of incarceration because of Gladue factors but imposed a lengthy period of probation to follow. Mr. Chanalquay had a criminal record, but it was minor and dated. [ 29 ] Moreover, the three-year starting point for major sexual assault is a statement as to what constitutes a proportionate sentence for an “average” offence of this nature. It does not consider the circumstances of the offender (or the victim) except to assume a person with no prior criminal record and of previously good character.

Starting points also address the parity principle in

section 718.2 of the Criminal Code , that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” In R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433, The Supreme Court of Canada made the following observations of the parity principle as it relates to a Gladue analysis:

[78] The interaction between ss. 718.2(

e) and 718.2(b) — the parity principle — merits specific attention.

Section 718.2(

b) states that“a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.Similarity, however, is sometimes an elusory concept. … [79] In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background andexperiences, having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparitybetween sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders,those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencingprocess. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e). [30] Although three years is a starting point, it is not a mandatory minimum sentence. Starting points are non-binding guidance byappellate courts.

Sentencing is an individualized process and remains within the discretion of the sentencing Court (R v Parranto, 2021SCC 46, 411 CCC (3d) 1). Chanalquay imposed a sentence below three years for an individual with a criminal record. In R v J.M., 2022SKKB 220 [J.M.], the Court of King’s Bench, sitting as a trial court, imposed a sentence of two years followed by two years of probationin a case of non-consensual anal intercourse on a spouse. The assault occurred while the spouses were co-habiting, but the spousalrelationship ended several years before charges were laid. J.M. was convicted after trial.

In that case, the victim impact statementalleged serious physical consequences to the assault. However, the sentencing judge disregarded it because the evidence was not led attrial. Furthermore, J.M. had a criminal record, including a conviction for assault on a domestic partner, and another conviction forassault causing bodily harm. [31] J.M. relied on R v T.S.1, 2021 SKQB 82 [T.S.1], which imposed a similar sentence of two years followed by 18 months ofprobation.

In both cases, the federal sentence was imposed, rather than a provincial sentence, because of the availability of appropriateprogramming in the federal system. In T.S.1, the young couple had a prior relationship which ended when the victim found out she waspregnant. After the baby was born, the two had little contact until about a week before the assault. The victim wanted T.S. to have arelationship with the child. They specifically agreed to have a platonic relationship. Nevertheless, T.S. forced himself upon the victimand engaged in non-consensual sexual intercourse without a condom.

The impact on the victim was severe, and included alcoholism,abuse of prescription drugs, and diagnoses of depression and severe anxiety. The victim and the offender were not in a consensual sexualrelationship at the time of the offence or afterwards. T.S.’s appeal against conviction and sentence was dismissed by R v T.S.C., 2022SKCA 1. Gladue Analysis [32] Gladue mandates a different methodology in arriving at a proportionate sentence. It does not automatically lead to a differentresult, but it certainly may. The Court must first consider the unique systemic or background factors that may have played a

part inbringing Z.B. before the Court. Gladue factors may reduce moral culpability, thus affecting proportionality. The Court must thenconsider the types of sentencing procedures and sanctions that may be appropriate in the circumstances for Z.B. because of hisAboriginal heritage or connection. A Gladue analysis may thus present opportunities for more culturally appropriate sanctions. [33] Regarding the systemic and background factors which played a

part in bringing Z.B. to court, I take judicial notice of thehistory of colonialism, displacement, and residential schools. The effects of this history are multi-generational and continue to translateinto lower educational attainment, lower incomes, higher unemployment, substance abuse and suicide, and higher levels of incarcerationfor Aboriginal peoples.

The legacy of colonialism and residential schools especially changed the way women and children were treatedin Cree communities, fostering the very attitude that led to Z.B.’s offending. [34] Regarding moral culpability, because of his background, because of the way he was raised, because of the legacy ofcolonialism and residential schools, Z.B. was reckless and wilfully blind to R.C.’s consent. On January 4, 1983, what is now

section 278of the Criminal Code came into force. Before that date, husbands could lawfully rape their wives.

Section 278 abolishes the common-law doctrine that a husband cannot be guilty of rape on his wife, whether or not they cohabit. Under the common law, the marriagecontract contained an implied, irrevocable consent to sexual intercourse. That idea seeped into Indigenous communities throughchurches and residential schools. Furthermore, until 1999 when the Supreme Court of Canada decided R v Ewanchuk, (SCC), 1999 SCC 711, [1999] 1 SCR 330, women were pretty much presumed to consent unless they actively resisted. This is whatZ.B. believed at the time of the offences.

Since Ewanchuk, of course, some active communication of consent is required to establish adefence to sexual assault. Z.B.’s sense of entitlement to sex with the mother of his child led to his recklessness and wilful blindness as toR.C.’s consent. Recklessness and wilful blindness substitute for knowledge to ground a conviction for sexual assault. However, they arelesser forms of mens rea than full knowledge.

This reduces Z.B.’s moral culpability, thus affecting proportionality. [35] As for which sanctions might be appropriate in light of Z.B.’s unique circumstances, while a Gladue analysis does notmandate a more restorative approach to sentencing, it certainly allows it. Restorative justice seeks to restore the harmony in a

relationship or in a community, to try to put the parties in the position they were in before the wrongdoing occurred. Focusing on restoration better fits traditional Cree culture than the colonial approach, which focuses on punishment. Culturally sensitive community resources are available in this community to support a more restorative sentence. [ 36 ] The Gladue methodology is not at odds with the sentencing goals enumerated in

section 718 of the Criminal Code . The sentence that contributes to respect for the law and the maintenance of a just, peaceful, and safe society is the one that restores harmony to this family and continues the strides they have made over the last few generations to overcome the legacy of colonialism. In the spirit of truth and reconciliation, as well, any sentence should consider the effect on the next generation. A lengthy prison sentence deprives R.C.’s children of a good parent and perpetuates the normalization of incarceration for Indigenous people. [ 37 ] The first goal outlined in

section 718 is to denounce unlawful conduct. Naming Z.B.’s actions a crime denounces his conduct and vindicates R.C. This occurred with the finding of guilt after trial. That is all R.C. wanted out of this process. Doing so performs an important social function. Although times have changed over the last few decades, this kind of offence is committed daily behind closed doors in households throughout this country, mostly unreported and unprosecuted. In this case, the finding of guilt denounces the crime. [ 38 ] The second goal in

section 718 is to deter the offender and others from committing similar crimes. Z.B. has been duly deterred. He now sees the error of his ways. Any sentence of incarceration serves no deterrent purpose in this case, and has the collateral effect of punishing the victim and the children she shares with Z.B. [ 39 ] Regarding general deterrence, there is no evidence that a lengthy sentence of imprisonment deters the public from committing similar crimes, which are seldom premeditated or planned. Again, naming the behaviour as criminal and subject to sanction deters as much as a lengthy period of imprisonment.

A restrictive community-based sanction can also have a deterrent effect (R v Proulx , 2000 SCC 5 , [2000] 1 SCR 61). Furthermore, an unduly harsh sentence might have a chilling effect on potential complainants in similar situations. Had R.C. been aware of the consequences of reporting, of the effect on herself and her children, of her lack of control over the outcome, I doubt she would have called the police at all. The sentence should not deter victims from coming forward. [ 40 ] The third goal of sentencing is to separate offenders from society where necessary. Z.B. is not dangerous.

His risk to reoffend is low. He poses no threat to public safety. He poses no threat to the victim of his offences, making it unnecessary to separate him from society. [ 41 ] The fourth goal is to assist in rehabilitating offenders. Z.B. is motivated to change. He is a young man learning to be a good husband and father. This goal is best achieved in the community. Sex offender counselling is not available in the provincial system. Any provincial sentence would be time well wasted.

The lengthy penitentiary term necessary to ensure he receives programming would be disproportionate in this case. [ 42 ] The fifth goal of sentencing is to provide reparations for harm done to victims. Here, the best reparations Z.B. can make are to acknowledge the wrongness of his actions, to support R.C. and their children, and to be a good example to his children so they do not make the same mistake.

This is best achieved by keeping the family together and allowing Z.B. to serve his sentence in the community. [ 43 ] The final goal of sentencing is to promote a sense of responsibility in Z.B. and acknowledgement of the harm done to the victim. Again, the finding of guilt and Z.B.’s subsequent realization of why he was found guilty achieves this goal. Z.B. needed an attitude adjustment. His attitude has been duly adjusted. He needs to make a sincere apology to R.C. and to treat her with more respect.

This is best achieved in the community as well. [ 44 ] Denunciation and deterrence are the primary sentencing goals. Those goals can be achieved by a restorative, rather than a punitive sentence. Denunciation and deterrence do not automatically equate with long prison terms. Using the doctrine of restraint, those goals can be achieved without the lengthy incarceration of an individual who is not dangerous. [ 45 ] The Criminal Code provides many sentencing options to achieve the goals of sentencing. The least onerous is an absolute discharge.

While legally available, that sentence is not proportionate to the gravity of the offence and the degree of responsibility of the offender. Similarly, a conditional discharge, while it might be in the best interest of the accused, is contrary to the public interest, given the nature of the offences. A suspended sentence could honour proportionality and still achieve all of the goals of sentencing through the crafting of a probation order. If it were to prove unsuccessful, the Crown could apply to the Court to revoke the suspended sentence and impose a sentence of incarceration.

I have considered whether an intermittent sentence might be more appropriate, given the gravity of

the offences. I have concluded that the ability to revisit a suspended sentence makes it the more desirable option. Furthermore, the doctrine of restraint requires the Court to refrain from depriving an offender of liberty, if less restrictive sanctions may be appropriate in the circumstances. [ 46 ] Despite R.C.’s subjective view of the gravity of the offence, or at least its impact on her, proportionality does require some loss of liberty. Incarceration furthers none of the goals of sentencing and actually serves to frustrate them in this case.

A probation order, however, is the single most useful implement in the sentencing toolbox. It is flexible, can be amended if circumstances change, and may contain a wide range of conditions aimed at rehabilitation, reintegration, and public protection, and also serve to denounce and deter crime. The Electronic Monitoring Program is available to curtail Z.B.’s liberty. I have considered whether a 24-hour curfew would put R.C. at risk and find it does not. Z.B. is not violent. He has no substance abuse or mental health issues. He is a low risk to reoffend.

Furthermore, R.C.’s mother is living with them, which provides some oversight. As well, R.C. will be free to leave the premises whenever she wishes. [ 47 ] A two-year sentence, such as those given in T.S.1 and J.M , would not guarantee Z.B. receives sex offender treatment; a sentence of less than two years guarantees he will not , at least for the time he is incarcerated. Neither of those options are appropriate in this case. Rather, a longer community-based sanction provides an alternative to custody which best satisfies the purposes and principles of sentencing. [ 48 ] In

summary, given their minimal impact on the victim, I find the offences before the Court do not qualify as major sexual assaults so as to attract the three-year starting point. If I am wrong on that, however, this case is unique in that it involves a young couple who very much want to stay together and raise their children. The victim has strong family support, as does the offender. The offender is remorseful. The trial process itself has changed the way he thinks about consent. Incarceration would harm the victim and her children.

Combined with the Gladue analysis, these factors justify a departure from the usual range of sentencing for these offences. [ 49 ] After careful consideration, I impose the following sentence: I suspend the passing of sentence and place Z.B. on probation for a period of three years, with the following conditions: Statutory Conditions 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 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. Optional Conditions 4. Report to a probation officer within two working days and after that, as told to do so by your probation officer. 5. Live at a residence approved by your probation officer and not change that residence without the prior written permission of the probation officer or designate or the Court. 6.

For the first six months, stay inside your residence or the immediate property 24 hours per day unless you have the prior permission of the probation officer or designate or the Court to be elsewhere, or for employment purposes. 7. When equipment is available and installed, enrol in the electronic monitoring program and comply with the rules of that program for the first six months of this order. 8.

For the first six months of this order, come to the door of your approved residence when asked to do so by a probation officer or designate and permit them entry into your approved residence to check equipment operation. 9. Participate in assessments and complete programming for sexual offending as told to do so by your probation officer. 10. Take such personal counselling and relationship counselling as directed by the probation officer. 11. Prepare a written apology to R.C. approved by your probation officer and deliver that apology as told to do so by your probation officer. 12.

Complete 240 hours of community service work within the first 18 months of this order as told to do so by the probation officer.

[ 50 ] If circumstances change, Z.B. can apply to the Court to remove or amend any of the optional conditions. If Z.B. breaches this Order, the Crown may apply to the Court to revoke the order and impose a custodial sentence. [ 51 ] This may be a community-based sentence, but it is an alternative to incarceration. It is not lenient. Z.B. will have to manage work, family obligations, community service work, and counselling treatment appointments. It is possible his relationship will break down again. If that happens, he will have to find a new, stable residence.

This sentence is flexible enough to adapt to such life changes, but it will not be easy. Ancillary Orders [ 52 ] The Court imposes a victim fine surcharge of $200 on each count. Time to pay will be determined after submissions on the issue. [ 53 ] Sexual assault is a primary designated offence. The Court authorizes a warrant in Form 5.03 authorizing the taking of a DNA sample for the national database. [ 54 ] Pursuant to

section 109 of the Criminal Code , Z.B. will be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years. He has one day to surrender any such items in his possession. Pursuant to

section 113, he may apply for an exemption from this prohibition if he needs any of those items for sustenance or employment. [ 55 ] Until very recently, a lifetime SOIRA ( Sex Offender Registration Act , SC 2004, c 10 ) order was mandatory for anyone convicted of more than one sex offence. However, in light of R v Ndhlovu , 2022 SCC 38 ,

section 490.013(2.1) of the Criminal Code is of no force and effect. If a SOIRA order is granted, it will thus be for a period of 20 years. The Supreme Court has declared

section 490.012 also violates

section 7 of the Charter and is of no force and effect. The declaration of invalidity is suspended for one year, leaving in place the mandatory 20-year order. However, Z.B. may apply pursuant to section 24(1) of the Charter to be relieved of his personal obligation under SOIRA . For a period of 90 days, I reserve jurisdiction to impose a SOIRA order. If a Charter Notice is served and filed within that time, I direct the Clerk of the Court to assign a date for hearing the application, which will be before me.

If no application for exemption is received by the Court within 90 days, an order will issue without further submissions or court appearances. That order will be in Form 52 requiring Z.B. to report to a registration centre (police station) within seven days of the order, and to fulfil his other obligations under SOIRA , which include reporting once per year, reporting any change in personal information within seven days, and reporting any absences from home for more than seven days. That order will be in place for 20 years unless he successfully applies after ten years for the order to be terminated.

Dated this 22 nd day of November 2022, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ F.M. Daunt. J