R. v. Stewart, 2021 BCPC 303

Citation: R. v. Stewart 2021 BCPC 303 Date: 20211217 File No: 256523-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. KERRY CRAIG STEWART BAN ON PUBLICATION s. 486.4(1) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: K. Gallo Counsel for the Defendant: D. Karp Place of Hearing: Vancouver , B.C. Dates of Hearing: November 29, 2021 Date of Judgment: December 17, 2021 Introduction

[ 1 ] On May 3, 2021, Mr. Kerry Craig Stewart was found guilty, after trial, of the offence of sexual assault of the complainant L.T. (“the Complainant”) on September 12, 2019 in Vancouver, British Columbia, contrary to s. 271 of the Criminal Code . [ 2 ] He is before the Court for sentencing. Circumstances of the Offence [ 3 ] The circumstances of the offence are set out in this Court’s decision, indexed at R. v. Stewart , 2021 BCPC 111 . [ 4 ] A brief outline will suffice for purposes of sentencing. [ 5 ] Mr.

Stewart, as a prospective employer, arranged to meet the Complainant in a public place, Starbucks Cafe, on September 12, 2019, for a job interview for a promotional job. Due to a mix up with the meeting location, Mr. Stewart arranged by phone to pick up the Complainant in his vehicle. Rather than go to the pre-arranged public location, Mr. Stewart drove her to his apartment to conduct the interview. The Complainant had agreed in advance to be photographed for a company employee profile. Mr. Stewart controlled and directed the interview and the photography.

In the course of photographing the Complainant, he asked her to take off her top. He became sexually aroused. He crossed the line from the legitimate requirements of the job interview and committed sexual assault of the Complainant. [ 6 ] In particular, Mr. Stewart kissed the Complainant, physically picked her up, and placed her on a bed. He undressed. He took off her underpants and performed oral sex on her which lasted about 30 seconds. He grabbed her legs and maneuvered to rub his erect penis on her vulva and this lasted about 30 seconds. He did all these things without her consent.

She told him several times over the course of these actions that she did not want to have sex which he ignored. After he rubbed his penis on her genitals, he began to look for a condom in the bedside table. He stopped on finding none. Mr. Stewart was then distracted by a telephone call. The Complainant left the bedroom, quickly clothed herself, and surreptitiously left the apartment without a word to Mr. Stewart. [ 7 ] The Complainant testified that she felt psychologically and emotionally trapped in the bedroom because Mr. Stewart was physically bigger and stronger than she was.

He had ignored her when she told him at least three times that she did not want to have sex. He admitted that the Complainant never asked for sexual contact and did not take any physical steps to initiate sexual contact with him. Circumstances of the Offender [ 8 ] Mr. Stewart was born in 1983 in Campbell River, British Columbia. He is 38 years of age. He was raised in east Vancouver in his formative years. His parents separated when he was young and he experienced periods of family dysfunction and neglect. Notwithstanding the difficult early years, he now has close emotional ties to both parents.

He has built and maintained good connections with nearly all of his-half siblings on each side of his family. [ 9 ] Mr. Stewart’s father is of non-Indigenous descent. His maternal family’s ancestry and heritage is Indigenous, linked to Metis and Cree ancestry. I will touch on these details later in my assessment of the Gladue factors in this case. [ 10 ] Mr. Stewart finished high school on Vancouver Island, where he lived with his father and his step-mother during his teenage years. He then worked in various occupations, including in the construction, shipping/receiving, and hospitality industries.

He found his strength in sales, starting first in telemarketing and moving to the telecommunications industry which sector has been his employment base over the past 18 years. He has undertaken technical and sales training, and executive management development programs in the telecom industry. [ 11 ] Mr. Stewart is considered a valuable asset to his employer and earns a good income in his sales and service position. [ 12 ] In his personal life, he is in a stable dating relationship of three years’ duration. He maintains his own rental residence in Vancouver. [ 13 ] Mr.

Stewart has no physical or mental health impediments. Although he was exposed to alcohol and drugs while growing up, he has not struggled with a substance use disorder and currently does not misuse alcohol or use illicit substances. [ 14 ] Mr. Stewart has filed a number of letters of support attesting to his good character and many positive qualities. His employer describes him as a born leader and an excellent sales and service representative. His long standing childhood friend describes Mr.

Stewart as a steady and encouraging presence in his life, and a valuable contributor to a community program for youth at risk. Several others describe his constancy when they have personal challenges, and note his generosity and kindness especially to children in need of support. [ 15 ] A letter from Warriors Against Violence confirms that Mr. Stewart has undertaken telephone and zoom counselling to understand the impact of violence and to heal from trauma and pain. Victim Impact [ 16 ] The Complainant provided a statement of the impact of the offence on her well-being.

She has difficulty sleeping and needs prescribed sleep medication. She says the assault has affected her lifestyle and relationships. She does not like being touched by others, and her negative response to physical contact in social settings makes her more self-isolating. [ 17 ] She has flashbacks when people at work make sexual jokes. Her experience of a healthy sexual relationship is impaired and she feels unable to have a genuine sexual relationship. She feels unsupported by those close to her, having experienced victim shaming and blaming reactions from her roommate and her ex-boyfriend.

Sentencing Legislation and Jurisprudence

Legal Framework: [18] The maximum sentence of imprisonment for a sexual assault conviction under s. 271 of the Code, where the Crown proceeds byindictment, is 10 years. By operation of s. 742.1 (f)(iii) of the Criminal Code, a conditional sentence of imprisonment is not available foran indictable offence of sexual assault. [19] The sentencing process is governed by the legislative framework outlined in s. 718 to s. 718.2 of the Criminal Code. [20]

Section 718 of the Code provides that the fundamental purpose of sentencing is to protect the public and to contribute to respectfor the law and the maintenance of a just, peaceful, and safe society.

To achieve this purpose, under s. 718.1, a judge is required toundertake an individualized assessment of the seriousness of the offence and the degree of responsibility of the offender in committing it,and balance all relevant sentencing considerations including the objectives of sentencing as set out in s. 718 and the secondary sentencingprinciples under s. 718.2 of the Criminal Code. [21] The objectives of sentencing include denunciation of the unlawful conduct, deterrence of the offender and others fromcommitting similar offences, separation of the offender from society where necessary, rehabilitation of the offender, reparation for harmdone, and promotion of a sense of responsibility in the offender, including an acknowledgment of the harm done to victims or to thecommunity. [22]

Section 718.1 of the Code sets out the cornerstone principle of sentencing, namely that the sentence imposed must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [23] A proportionality assessment lies at the heart of sentencing and a judge has the duty to impose a “fair, fit and principledsanction”, with “proportionality as the organizing principle” in reaching this goal: R. v. Parranto, 2021 SCC 46, R. v. Nasogaluak, 2010SCC 6 at para. 40; R. v. Ipeelee, 2012 SCC 13 at para. 37. [24]

Section 718.2 of the Code sets out a number of secondary sentencing principles which must be considered in crafting a sentence.They include:

a) The principle that a sentence should be increased or reduced to take account of any mitigating or aggravating circumstancesestablished during sentence proceedings.

b) The parity principle, which requires that a sentence should be similar to sentences imposed on similar offenders for similar offencesin similar circumstances.

c) The restraint principle, which requires that an offender should not be deprived of liberty if a less restrictive sanction is appropriate.

d) The principle that all available sanctions other than imprisonment should be considered if they are reasonable and consistent withthe harm done, with particular attention to the circumstances of Aboriginal offenders.

e) The totality principle, which requires that where consecutive sentences are imposed, the total sentence should not be unduly long orharsh. Position of the Crown and Defence [25] The Crown’s position is that, in light of the sexual assault sentencing jurisprudence, the range of sentence is between twelvemonths and three years’ imprisonment. A sentence short of imprisonment would be an unfit sentence given the gravity of the offence. [26] The Crowns seeks a sentence of incarceration of 18 months, to be followed by 2 years of probation. It seeks a “no contact” orderunder s. 743.21. It also seeks a mandatory DNA order under s. 486.04 of the Criminal Code, as well as a 10 year s. 109(1)(

a) firearmsprohibition, and a 20 year SOIRA order under s. 490.013(2)(

b) of the Code. [27] The defence seeks a non-custodial disposition of a suspended sentence and probation of three years under strict conditions.Counsel for Mr. Stewart contends that it is an error to require evidence of “exceptional circumstances” as a pre-condition for a suspendedsentence for a sexual assault offence. [28] Defence counsel’s position is correct as a bare assertion, but it is absent of context in that it ignores the fundamental role ofproportionality. The proper statement of law is set out by our Court of Appeal in R. v.

Kodimyala, 2020 BCCA 275, at paras. 23-28: [24] The court also clarified (at para. 112) that there is no requirement for there to be “rare or special circumstances” in order to impose asubstantial sentence where it is proportionate, which we interpret as equally applicable to the imposition of a lenient sentence where oneis proportionate.

The Manitoba Court of Appeal echoed the same principle in Burnett, noting that the law does not require a sentencingjudge to find exceptional circumstances to justify a sentence below a judicially created range: see paras. 25–26. [Emphasis added] [29] As noted in Kodimyala (at paras. 26 and 27), the term “exceptional circumstances” is not a term of art, but a “shorthand way ofidentifying the kind of personal circumstances which justify going outside a conventional range in order to craft an appropriateindividualised proportionate sentence.” Application of the Sentencing Principles [30] Counsel have provided the Court with case authorities which support their respective sentencing positions.

The cases relied onare listed in the Appendix of Cases attached to these Reasons. In addition, I have also considered the following SCC cases: R. v. Friesen,2020 SCC 9 , 2020 SCC9; R. v. Ewanchuk, [1999] 1 SCR 330, ; and R. v. Parranto, 2021 SCC 6.

[ 31 ] I have reviewed the Gladue Report of Stuart Cadwallader, the letters of reference presented on behalf of Mr. Stewart, the Victim Impact Statement, and Mr. Stewart’s in-court statement.

Section 718.1: Proportionality [ 32 ] Proportionality (s. 718.1) is a fundamental principle of sentencing and requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. This engages an assessment of two broad categories of harm: the harm caused by the offender to the victim in committing the offence, as well as the harm caused to society and its values.

It also engages two measures of the offender’s degree of responsibility: first, by the moral fault or culpability of the offender in the commission of the offence, and second, by their responsibility as weighed in light of their personal circumstances: R. v. Lacasse , 2015 SCC 64 at paras. 129- 130 . [ 33 ] The sexual assault by Mr. Stewart was by unwanted kissing, by picking up the Complainant and placing her on the bed, and in removing her panties. He forced the Complainant to endure oral-genital contact with his mouth and tongue on her vulva and around her genitalia.

He held her legs apart while he rubbed his penis on her external genital organs. These are multiple acts of interference of the Complainant’s intimate and private person and are, by any objective measure, serious and morally reprehensible acts. [ 34 ] The sexual interference was under one minute in duration and there was no penetrative act. [ 35 ] In assessing the seriousness of the offence of sexual assault, the context in which the assault occurred in important. Mr. Stewart was conducting an employment interview with a job applicant.

Whether such an interview takes place in a boardroom, a warehouse, or a place chosen by the prospective employer as was done here, job applicants must be protected from sexual assaults and related bodily interferences of a sexual nature. [ 36 ] I find that although the offence was not pre-planned, Mr. Stewart took advantage of an opportunity that he created when he moved the interview setting from a public place to a private setting.

It was coercive in that he controlled the interview elements, including photography, through which he made more intrusive demands. [ 37 ] In the context of an employment interview, the applicant is vulnerable and at the mercy of the demands of the prospective employer. Mr. Stewart’s conduct was self-focused and predatory. Mr. Stewart admitted he became sexually aroused. He assaulted the Complainant. He failed to maintain the required professionalism and objectivity required of a potential employer when conducting a job interview. [ 38 ] As for his degree of responsibility in the commission of the offence, Mr.

Stewart’s moral fault or culpability is high. As noted, he was in charge of the interview in which he held greater power and authority. He was not under the influence of alcohol or other intoxicants. At 37 years of age, he was a mature adult holding positions of responsibility in the telecom industry. He must be taken to know that what he was doing was wrong and against the norms of society. [ 39 ] The paramount sentencing objectives in this case mandates a sanction which gives precedence to denunciation, being society’s expression of high disapproval for this serious breach of societal rules.

The objective of deterrence is also paramount. As expressed through sentencing, deterrence signals to the offender specifically and to members of a civil society generally that significant sanctions will attach to morally blameworthy crimes. [ 40 ] Mr. Stewart’s indigeneity, and the importance of rehabilitation as a sentencing objective for first time offenders, are also relevant sentencing considerations which I will address later in these reasons.

Secondary Sentencing Principles under s. 718.2 Aggravating and Mitigating Factors [ 41 ] It is aggravating the assault took place during the course of a job interview. Job applicants, regardless of the setting in which they are interviewed are entitled to be treated with dignity and respect. The Complainant felt vulnerable, dehumanized, and objectified by Mr Stewart’s conduct. [ 42 ] The offender performed multiple acts of sexual touching, including kissing, cunnilingus and penile rubbing of the Complainant’s outer genitalia. The acts were highly intrusive and the degree of physical interference was significant.

This is an aggravating factor on sentencing. [ 43 ] The mitigating factors are that the accused is a first-time offender, with no prior criminal record. The letters of reference filed on his behalf show that he is seen as a reliable and available friend who led a pro-social life before this offence. He has strong family supports. He is successfully employed and has the support of his employer. He has a history of volunteerism and charitable giving. [ 44 ] The letters of support attest to his good character and speak of many positive personal attributes.

The mitigating weight of the references is tempered by the fact that a quick survey of reported case law shows that sexual offences are committed by persons of seemingly good character in social or family settings, including by trusted friends or family, or by persons holding positions of respect and authority in institutional settings such as places of work, worship or education. [ 45 ] It is noteworthy that Mr. Stewart has not breached any conditions of his pre-sentence release. Mr.

Stewart’s positive antecedents indicate that he is more likely to be able to reset his moral compass to avoid any repetition of such conduct in future. [ 46 ] Collectively, his pro-social background, absence of a criminal record, and compliance with conditions of release indicate that he is at low risk for sexual reoffending. [ 47 ] Mr Stewart exercised his constitutional right to have the state prove his guilt. He does not have the benefit of a guilty plea in

mitigation of sentence. [ 48 ] As to evidence of remorse, Mr. Stewart’s in-court statement was focused on the difficult circumstances he had placed himself in, saying that he wanted to apologize for “putting myself in this situation”, which has “affected so many lives”. The lives he expressly mentioned were his own and those within in his circle. He said he was sorry to be compared to the offenders in the cases which were spoken to in sentencing.

He did not mention the Complainant or her experience, or express remorse for any role he may have played in her humiliation, hurt or distress. [ 49 ] In circumstances where the offender does not accept the guilty verdict, an in-court statement of the adverse effects of the trial process on him is understandable. It is unfortunately deficient for mitigation in sentencing. Where there is an absence of acceptance of responsibility, at the very least there must be a clear expression by the offender of his understanding of the adverse effects of his conduct on the victim as opposed to himself.

Without acknowledgement of the harm done to the victim, the mitigating weight of remorse is not established. [ 50 ] It is mitigating that Mr. Stewart has started to undertake some counselling to help him to understand the role of violence in society but the evidence of its impact on his insight is unclear at this time. Review of the Case Law [ 51 ]

Section 718.2(

b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The case law on sentencing for sexual assault offences is highly fact-specific.

Sentences are wide- ranging and reflect the balancing of proportionality, parity and individualization of sentence for each offender. [ 52 ] In this case, the parties are apart in their assessment of what constitutes a fit sentence, with the Crown seeking a sentence of imprisonment of 18 months followed by probation, and the defence seeking a suspended sentence and lengthy probation. [ 53 ] The comparator cases by the defence, where suspended sentences were imposed, include brief instances of grabbing and kissing of clothed or partially clothed victims ( Chugh, KJC ), a head lock and brief kiss ( Mustafa), masturbating onto a sleeping victim where Crown did not seek a custodial sentence ( M.D.), brushing a hand over the victim’s clothed chest and pulling her closer while making lurid suggestions ( Szymanski), kissing on lips and on breasts after lifting the victim’s shirt ( Payne), placing hands under victim’s top and between her legs ( AAF) , pulling down the pants and exposing the victim’s buttocks ( Dyson, P.G.) or touching the victim’s breasts or buttocks ( Malek, Zaccarria, P.G. ). [ 54 ] None of these cases involved a fully naked female on whose genitals the fully naked offender placed his mouth and penis. [ 55 ] In the defence case of Armstrong, the offender committed a serious offence of sexual violence.

At the time of sentencing he was suffering from a dangerous and potentially contagious medical condition easily capable of spreading to others in an institutional setting. His circumstances were rare and exceptional, and made a sentence of incarceration unsuitable for public safety reasons.

The Court noted that a fit sentence would have been 22 months jail absent danger to the accused's health and to other inmates. [ 56 ] I distinguish the balance of the defence authorities as age-related absence of consent cases where there was consent-in-fact to the sexual activity but legally ineffective consent under the criminal law. [ 57 ] For example, in JG , the offender had sexual intercourse with his girlfriend age 14 who was incapable of consenting under law. The encounters were described as consensual, respectful and not exploitative. She was reluctant to cooperate with the investigation.

He received a suspended sentence and 12 months’ probation. [ 58 ] In Chen , the victim was an under-age young male who was a willing participant in the sexual intercourse, but by reason of this age he was not able to give consent. The offender received a suspended sentence and two years’ probation. [ 59 ] In CJJ , the 20 year old offender had sexual intercourse with his girlfriend who was under age. The mother complained to police. Her daughter was reluctant to cooperate.

The court commented that a custodial sentence is ordinarily mandated but found that the adverse impact of Covid19 in the northern community warranted a non-custodial sentence. [ 60 ] In R. v. B., the 19 year old offender received a suspended sentence after a guilty plea to

an act of oral sex with an underage boy who could not legally consent . Given the directive by the SCC in Friesen , this type of sentence appears inconsistent with the current sexual assault sentencing law. [ 61 ] None of the cases relied on by the defence come close to the gravity of the offending committed by Mr.

Stewart on the Complainant. [ 62 ] I have considered the Crown cases, and find Ewanchuk and Eustache to be of particular assistance on the issue of parity either by reason of the context in which the assault occurred or the manner or degree of violation. [ 63 ] In Ewanchuk , the assault occurred in the context of a job interview. The offender lay on top of the victim, ground his pelvis against hers, placed his hands inside her shorts on her thigh, tried to touch her vaginal area and then inserted his penis under her shorts but on top of her underwear and rubbed it against her clothed outer genitalia.

The Alberta Court of Appeal held that a one year sentence was not fit for the serious offence of “simulated intercourse” by an offender with prior sexual assault convictions. The Court imposed a sentence of two years less a day. [ 64 ] In R. v. Eustache , 2014 BCCA 337 , the Court of Appeal upheld a one year sentence of imprisonment for sexual assault. The 48 year old offender took off the pants of an 18 year old unconscious female and rubbed his genitals against hers. He stopped when interrupted by the arrival of a family member.

[65] In R. v. Malik, 2012 BCSC 502, the accused taxicab driver received a sentence of 18 months imprisonment and a 2 yearprobation order for assaults on a young intoxicated female passenger. His assaults included that he tried to kiss her, tried to pull down herbra and then tried to force his penis into her mouth. [66] In R. v. R.A.R., [2000] 1 S.C.R. 63, the SCC found the sentence imposed by the sentencing judge of one year imprisonment to befit. The employer’s assault of the female employee was said to be reprehensible and an abuse of his position of authority.

The employer’sacts consisted of grabbing the victim’s crotch area, directing her to lie down and digitally penetrating her vagina. [67] In R. v. Webber, 2021 BCSC 1194, an Indigenous offender with reduced moral blameworthiness by reason of his developmentaldisability, lack of maturity, and Aboriginal status received a one year sentence with two years’ probation for the sexual touching anddigital penetration of the 17 year old sleeping victim. He had no criminal record and came from disadvantaged circumstances. The Courttook into account relevant Gladue factors in mitigation of sentence. [68] In R. v.

Hume, 2016 BCCA 230, the offender’s appeal from a 3 year sentence was dismissed. The assault, shaving the genitalarea of the victim who was passed out, was described as highly invasive and degrading. The Court of Appeal noted: [51] …The proportionality of a sentence is determined both on an individual basis and by comparison to sentences imposed for similaroffences committed in similar circumstances: Lacasse at para. 53. [52] In

summary, the manner in which Mr. Hume shaved D.H.’s genitals and other body parts was highly invasive, humiliating, anddegrading. The fact that there was no actual penetration or physical injury is not, in these circumstances, determinative of the seriousnessof the assault. [69] The relevance of penetration, or its lack, was discussed by the SCC in R. v. Friesen at paras. 141-146. The court cautionedagainst a pre-determined hierarchy of physical acts for determining the gravity of the sexual assaults for purposes of sentencing.

Thedegree of intrusion and manner of bodily interference are highly relevant, but it is important not to fix the penetrative sexual act as thebright line which divides serious sexual assaults from less serious sexual aggressions. Sexual violence that does not involve penetrationis not “relatively benign”.

It is still an “extremely serious” offence of violence against the dignity, security and bodily integrity of thevictim. [70] Under s. 718.1 of the Criminal Code, the Court must give paramountcy to the principle of proportionality, and imposepunishment based on the seriousness of the offence and the degree of responsibility of the offender. [71] In R. v. Friesen, 2020 SCC 9, the SCC said: [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary.

They are the practical expression of both parity and proportionality. [72] In assessing proportionality, the harms caused to society and its values can be seen in the disproportionate impact of sexualassaults on women and girls in particular, and its pervasiveness in society in general, and remain a matter of longstanding concern underthe criminal law: see R. v. Osolin (SCC), [1993] 4 SCR 595 at 669 and R. v. Ewanchuk, (SCC), [1999]1 SCR 330, paras. 68-75, referred to with approval in R. v. R.A.R., 2000 SCC 8 at para. 26. [73] In R. v.

Barton, the SCC said that “without a doubt, eliminating myths, stereotypes, and sexual violence against women is one ofthe more pressing challenges we face as a society”. In R. v. Goldfinch, 2019 SCC 38 at para. 37, the SCC said that “[s]exual assault isstill among the most highly gendered and underreported crimes.” [74] In R. v. M. (CA), (SCC), Chief Justice Lamer noted at para. 81 that: … As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p. 77: “society, through the courts, must show itsabhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. [75] In assessing parity, the case authorities I have summarized in these reasons illustrate that a sentence of imprisonment, for a firsttime offender, of between one year and three years is liable to result for sexual assaults of the type and degree that include a combinationof one or more of unconsented kissing, grabbing and groping of breasts or buttocks; genital area assaults by touching or groping; forcedoral-genital contact with the victim; vulnerability of the victim by age or impairment by alcohol or drugs; or situational vulnerability ofsleeping victims, cab passengers, or employees or prospective employees. [76] Sentencing ranges are guidelines and not prescriptive.

A departure from the conventional sentencing range is available undercircumstances summarized comprehensively by the B.C. Court of Appeal in R. v. Kodimyala, or where the principles of restraint under s.718.2(

d) or s. 718.2(

e) are engaged. [77] Where, within or outside the general range of sentence, a particular sentence is situated will depend on case-specificconsiderations after a balancing of sentencing facts with the objectives and principles of sentencing. Indigeneity and the Application of Gladue Principles under s. 718.2(e) [78] Under s. 718.2(

e) of the Criminal Code, the Court must consider the intergenerational losses and systemic barriers faced byIndigenous peoples. The Court has a statutory duty to consider and balance the systemic and background factors that may bear on theculpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. In sentencing an Indigenousoffender, a sentencing judge must consider two factors:

1. The unique systemic or background factors that may have played a

part in bringing the particular offender before the courts ; and 2. The types of sentencing procedures and sanctions that may be appropriate in the circumstances. See Gladue at para. 66 [ 79 ] The Gladue Report, dated 04 July 2021, of Mr. Stuart Cadwallader of Kulus Consulting & Development notes that Mr. Stewart is Indigenous on his matrilineal side, and non-Indigenous on his patrilineal side. [ 80 ] Until recently, Mr. Stewart was largely unaware of the details of his mother’s Indigenous history, which is traceable to his mother’s grandparents, Mr. Stewart’s great-grandparents.

They were Cree and Metis, and raised their family on a farm in Saskatchewan. During the period of the First World War, the older daughters were removed from the family farm and placed in Indian Residential Schools, and this episode was not spoken about within his grandmother’s immediate family. Understandably, it would have been an unspeakable and heart-breaking loss to the family. [ 81 ] Mr. Stewart’s maternal grandparents were hardworking, with no evidence of alcohol misuse or violence in their nuclear family. They provided a loving family environment in which his mother was raised.

His grandparents moved to Prince George, BC, in the late 1950’s and then to Vancouver in the early 1960’s. They settled in the downtown east side of Vancouver in the Raymur Housing Projects. Mr. Stewart’s mother left home at age 18. She met and married his father Craig Stewart and gave birth to Kerry Stewart in 1983. [ 82 ] Mr. Stewart was around age 6 when his parents’ marriage ended. He recalls turbulence and violence in the family home. After her marriage foundered, Mr. Stewart’s mother returned to live with her father from time to time. Mr.

Stewart’s upbringing in Vancouver was difficult due to parental neglect and poverty. It was marked by his mother’s absences, alcohol misuse, and her lifestyle of partying and drug use. Mr. Stewart felt the effects of being left to fend for himself, often in impoverished circumstances, from age 6 to 14 years. He was picked on and abused by his peers. [ 83 ] Mr. Stewart was fortunate to find a more stable environment in his father’s home on Vancouver Island at age 14.

He graduated high school, and returned to Vancouver where he sought and found his footing and subsequent personal and employment success. [ 84 ] He is now engaging in exploring his Metis heritage and has applied for Metis registration in BC. [ 85 ] Mr. Cadwallader summarizes that: A number of adverse factors that affect Aboriginal people in general are present in Kerry Stewart’s personal life including: • Multigenerational familial instability, breakdown, and fragmentation.

Kerry’s formative years were defined by parental substance misuse, violence, poverty, and instability. • Intergenerational effects of Indian Residential School, Sixties Scoop, and the Canadian government’s disenfranchisement of the Metis population with consequent loss of cultural identity and connection to the Metis Nation.

This has resulted in a loss of language, culture, ancestral knowledge, and traditional family and community support mechanisms. [ 86 ] I do accept that the deficits in Mr Stewart’s upbringing, including poverty and neglect, have a basis in the history of colonialism and its systemic dismantling of Aboriginal communities and cultures.

The harmful and consequential impacts of discrimination against Aboriginal peoples include family dysfunction, substance misuse, endemic poverty, reduced educational and employment opportunities, and marginalization and ostracization. [ 87 ] I am satisfied that Mr Stewart’s mother, who was born in 1958, carried forward the effects of losses suffered by her own mother, and faced systemic barriers of racism and gender discrimination in the 1960s and 1970s, and more acutely so as a single Aboriginal mother in the 1980s.

The poverty and neglect that Mr Stewart experienced in his formative years can be directly linked to this ancestral fragmentation, as expressed in his mother’s reduced opportunities in society, including access to employment and affordable housing. [ 88 ] In R. v. West , 2020 BCSC 352 , with respect to the crisis of overrepresentation of Indigenous offenders in custody, Justice Marchand said : [40] To help address the crisis, Gladue and Ipeelee changed the way Indigenous offenders are sentenced, though not necessarily the result.

In sentencing an Indigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors which may have played a

part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances. [ 89 ] In R. v.

Mero , 2021 BCCA 399 , Justice Marchand commented as follows: [71] A fit sentence is one that is proportionate and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender: Ipeelee at para. 37 ….. [72] In striking the appropriate balance, it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. [73] While restorative sentences may be more appropriate for Indigenous offenders, an application of Gladue principles will not necessarily lead to a reduced sentence. There is no automatic heritage-based discount.

Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender: Gladue at para. 33; R. v. Wells , 2000 SCC 10 at paras. 42–44 ; Ipeelee at paras. 84–85 . Balancing Sentencing Principles and Objectives

[ 90 ] Sexual assaults are serious offences. It is vital that sentencing courts send a clear signal to all citizens that the justice system will hold sexual offenders accountable in accordance with the seriousness of their offending and their personal circumstances. Society expects nothing less. [ 91 ] In weighing and balancing the sentencing factors, I conclude that the normative character of Mr. Stewart’s offending reveals physical sexual assaults of the Complainant that were exploitative, coercive, humiliating, and inherently wrong. I find that the continuum of acts by Mr.

Stewart of picking up the Complainant, placing her on the bed, removing her underwear, and assaulting her through both oral and penile contact were grave violations of the Complainant’s bodily and sexual integrity. They adversely impacted her personal autonomy and agency in the circumstances. [ 92 ] To summarize, the aggravating factors are :

a) the situational context of the assault, during a job interview, and the vulnerability of the job applicant in those circumstances;

b) multiple acts of sexual interference including oral contact and penile contact;

c) the high disregard for the bodily and emotional integrity of the Complainant who felt trapped and who escaped at the first opportunity; and

d) long term effects of the assault on the Complainant who reports sexual and relationship insecurity, and feeling ashamed, blamed and violated. [ 93 ] The relevant mitigating factors are:

a) absence of a criminal record;

b) low risk to reoffend;

c) family and community support;

d) stable work history;

e) counselling endeavors;

f) community volunteerism; and

g) Aboriginal heritage [ 94 ] I conclude that denunciation and deterrence, both specific and general, are the primary sentencing objectives. Rehabilitation and restraint are also relevant for Mr Stewart as a first-time offender. The principles of restraint, as expressed under ss. 718.2(

d) and 718.2(

e) operate in determining whether incarceration is an appropriate form of sentence, and if so, in fixing the length of incarceration. [ 95 ] As earlier noted, the comparator cases show that a suspended sentence is not a fit sentence and would not reflect the seriousness of the offence and the degree of responsibility of the offender. In my judgment, the range of sentence for sexual assaults of comparable gravity is one year to three years of custody.

A sentence of imprisonment serves to communicate that punitive consequences will flow for violations of the physical and psychological integrity of any person through sexual offending. [ 96 ] The Gladue factors may mitigate either the type of sentence imposed, or the length or severity of sentence. As noted in R. v.

Ipeelee , 2012 SCC 13 at para. 75 : “Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.” [ 97 ] First, the overrepresentation of indigenous offenders in custody remains an ongoing justice system and societal concern.

Second, the court must take into account the unique circumstances of Aboriginal persons within the society in which they are situated, including differential impacts of sentencing on them, given the inequities and barriers which have been, and still remain, in place: see Ipeelee , at paras. 76-79 . [ 98 ] I accept that there will be a differential impact of sentence on an offender who comes from a marginalized community, as does Mr Stewart.

He was raised in hardship, and in the face of it he had managed to build a successful life, with a stable residence, a solid work history with good earnings, and strong community supports. [ 99 ] The sentence I would have imposed, absent restorative and rehabilitative considerations under Gladue for Mr Stewart, would have been incarceration of 18 months.

This is a denunciatory and deterrent length of sentence which communicates society’s condemnation of the sexual offending in this case and achieves the fundamental purpose of protecting society and acknowledging the harm sexual offending causes, particularly to women and girls. [ 100 ] However, it is relevant to this sentencing that the length of sentence not remove from Mr Stewart the possibility or prospect of rehabilitation and reintegration into society on his completion of sentence.

The barriers of systemic racism, which have excluded the full and equitable participation of Aboriginal persons in society, have not been dismantled. I anticipate Mr Stewart’s conviction and sentencing for this offence will harden those barriers in certain respects. Separating him from society for too long will risk eroding his existing employment and social networks, and impair his pathway to reintegration into society.

Mr Stewart’s sentence should reflect this social context reality and strive, within the bounds of proportionality, to preserve his rehabilitative prospects. [ 101 ] After weighing and balancing proportionality and other sentencing objectives, including the restorative goal of assisting Mr. Stewart as an Indigenous person to regain his footing in society, it is my judgment that the least restrictive sanction in this case is imprisonment of 12 months, followed by a probation order of 18 months.

[ 102 ] Mr Stewart is sentenced to imprisonment for 12 months for the offence of sexual assault.

On his release from custody, Mr Stewart will be bound by a probation order of 18 months, with the following conditions: 1) Keep the peace and be of good behaviour. 2) You must appear before the court when required to do so by the court. 3) You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. 4) You must report in person to a probation officer at Vancouver Community Corrections, 275 E Cordova Street, Vancouver B.C. within two business days after your release from custody.

After that, you must report as directed by your probation officer. 5) When first reporting to your probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your probation officer. 6) You must have no contact or communication, directly or indirectly, with L.T. 7) You must not go to any residence, school, place of employment or place of worship of L.T. 8) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This is not limited to but may include programing for sexual offence prevention. [ 103 ] Mr Stewart is prohibited from having any contact or communication, direct or indirect, with the Complainant during the period of his imprisonment, pursuant to s. 743.21 of the Criminal Code . Ancillary Orders on Sentence

a) DNA - Pursuant to s. 487.051(1), Mr. Stewart shall provide a sample of his DNA for forensic DNA analysis.

b) Sex Offender Registration - Pursuant to ss. 490.012 and 490.013, Mr. Stewart shall comply with the obligations of the Sex Offender Information Registration Act, S.C. 2004, c. 10 [ SOIRA ] for a period of 20 years.

c) Weapons Prohibition - Pursuant to s. 109(1)(a), Mr. Stewart shall be prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, ammunition, and/or explosive substance, for a period of 10 years, or life, whatever the case may be. _____________________________ The Honourable Judge H. Dhillon Provincial Court of British Columbia APPENDIX A: CASE AUTHORITIES CROWN CASES R. v. R.A.R. , 2000 SCC 8 R. v. Ewanchuk , 2002 ABCA 95 R. v. Eustache , 2014 BCCA 337 R. v. Webber , 2021 BCSC 1194 R. v. Hume , 2016 BCCA 230 R. v. Malik , 2012 BCSC 502 DEFENCE CASES R. v.

Payne , 2021 NWTTC 15 R. v. Szymanski , 2021 ONSC 5482 R. v. M.D., 2021 YKTC 24 R. v. Mustafa , 2021 ONSC 3088 R. v. K.J.C., 2021 NSCA 5 R. v. Chugh , 2020 ABPC 247

R. v. C.J.J., 2020 BCPC 201 R. v. P.G., 2020 ONSC 4438 R. v. A.Z., 2019 ONSC 6256 R. v. Chen, 2019 BCSC 1290 R. v. J.G., 2017 ONCJ 881 R. v. Armstrong, 2016 ONSC 5760 R. v. Malek, 2016 SKQB 142 R. v. Dyson, 2016 NWTTC 3 R. v. B. and S., 2014 BCPC 94 R. v. A.A.F., 2014 BCPC 46 R. v. Gladue, (SCC), [1999] 1 SCR 688