R. v. R.B., 2019 ONCJ 567

CITATION : R. v. R.B., 2019 ONCJ 567 DATE : August 2, 2019 Information No . FD15 – 1554 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - R.B. Ms. A. Woolf for the Crown Mr. A. Fazari for the accused Reasons for Sentence An order has been made under s. 486.4 directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. NADEL, J .: Introduction [ 1 ] RB and SB [1] had a sometimes volatile intimate relationship. As children, they had been across-the-street neighbours.

They reconnected on social media in 2012 and began to date. They lived together between 2013 and 2015. In the spring of 2015 they fought on March 6 th but reconciled the next day. However, they broke up “finally” in April of 2015. [ 2 ] Some weeks later, on May 5 th , SB contacted RB by text. After communicating through text messages, they met and spent the rest of that night and much of the next day together at RB’s home.

What happened between them during those hours was the subject- matter of this trial. [ 3 ] SB made a complaint to the police in the late afternoon of May 6, 2015 resulting in RB being tried, by indictment.

In written reasons for judgment, dated January 11, 2019, I found him guilty of the following offences: Count 1: assault, contrary to s. 266 of the Code ; Count 2: sexual assault, contrary to s. 271 of the Code ; Count 3: unlawful confinement, contrary to s. 279(2) of the Code ; and, Count 4: threatening death, contrary to s. 264.1(2) of the Code . [2] [ 4 ] Counsel made their sentencing submissions on June 17, 2019 and filed casebooks of precedents to assist me in arriving at a fit sentence.

In addition to those oral submissions and prior precedents I have had the benefit of a pre-sentence report [3] , a Gladue report [4] , reference letters [5] , a victim impact statement [6] (the inappropriate aspects of which have been ignored by me), an additional reference letter beyond the bound volume of reference letters, and, finally, the viva voce testimony from KD, one of RB’s referees. The Facts of the Offences [ 5 ] A full description of the facts and my findings is set out in my reasons for judgment dated January 11, 2019.

For these purposes the following description of the facts and events should suffice. [ 6 ] RB and SB met at a bar and drank copious amounts of beer. RB also drank some shots of liquor. After a stop at SB’s apartment RB drove them to his house. Both were highly intoxicated by alcohol. By SB’s assessment, they were an 8 on a 10 point scale where 10 was as drunk as one can get. [ 7 ] The evening quickly degenerated into acrimony with RB complaining that SB shat on everything he tried to do. He assaulted her by holding her nose and mouth closed to cut off her breathing on several occasions over the ensuing hours.

He pulled off her pants and underwear and attempted to sodomize her. He was flaccid and could not penetrate her but he did touch her anus with his penis. He

punched her on the top of her head and he pulled her by her breasts up a set of stairs causing her top and bra to be removed. [ 8 ] At that point SB was naked and she stopped resisting him. He bound her ankles and her wrists with painters’ tape and then hog- tied her using a length of coaxial cable. The easiest way to picture these bonds is to imagine a person kneeling and holding their hands behind their back. The cable was tied around her ankles, and then around her wrists and then around her neck.

If she tried to straighten her legs the cable would get taut around her neck. [ 9 ] SB was made to lay on her side, naked and bound all night. She slept fitfully and fearfully as her pleas to be released were ignored. Indeed, RB told her that things had gone “too far” and he could not let her go. He threatened to kill her and then himself and to burn the house down around them. [ 10 ] SB awoke to find RB watching her. At that point he untied her, allowed her to put on a pair of his shorts and one of his t-shirts.

He then took her downstairs where they watched television all day until he fell soundly asleep and SB was able to escape and run for help. [ 11 ] Her physical injuries were photographed and documented by P.C.

Sathmary as follows: [1] some bruising and swelling around her left orbital bone; [2] some small bruising at her right clavicle area; [3] on the inside of her left wrist there was some slight redness; [4] on the outside of the left wrist there was some bruising as well; [5] on the inside of her right bicep there was a small red mark; and, [6] on the left side of her lower back there was some bruising and a scratch.

The Position of the Crown [ 12 ] The Crown’s position is that RB ought to be sentenced to a maximum reformatory sentence together with three years of probation along with the following ancillary orders: (

i) DNA on a primary basis for the sexual assault conviction; (ii) a s. 743.21 non-contact order; (iii) a SOIRA order for 20 years; and, (iv) a s. 109 order for 10 years. The Crown’s Gladue Submissions [ 13 ] RB’s mother is a Mohawk. Because none of the Crown’s case precedents related to an indigenous offender she began her submissions by spending some time on Gladue factors. [ 14 ] In her submissions the Crown identified what she termed “classic” (sic) Gladue factors. The first such factor was a history of substance abuse.

The Crown acknowledged the presence of this factor in RB’s life but stressed that RB felt it was under control. Despite his feelings the Gladue reporter highlighted the need for treatment at Ontario Correctional Institute for alcohol, should a custodial sentence be imposed. Ms. Woolf noted that RB told the pre-sentence reporter that his use of alcohol is under control and that he is not drinking. Further, his collateral sources did not see alcohol abuse as an issue for him. Given that, Ms.

Woolf questioned whether alcohol abuse is an issue for RB now, although she did acknowledge that control of alcohol abuse can be a lifelong struggle. [7] [ 15 ] Ms. Woolf submitted that physical abuse is another Gladue factor but that does not apply to RB who denied having to endure inappropriate or unusual or undue or other discipline. He was never victimized by familial physical abuse.

Nonetheless, he witnessed familial substance abuse and familial acrimony that resulted in police attendances, on occasion, according to the pre-sentence report. [ 16 ] RB did relate an incident of sexual abuse while growing up to the pre-sentence reporter but he did not provide any details and only made a passing reference to this complaint. [ 17 ] Another Gladue factor identified by the Crown was low academic achievement. RB was apparently neither interested nor engaged in school and left as soon as he was permitted to do so.

He reported that he was challenged to maintain appropriate behaviour in school, in part as a reaction to racist taunts. As a result he preferred to leave school and work. [ 18 ] RB’s prior criminal record was not well identified. He acknowledged a domestic related conviction in the USA, for which he received probation. His current convictions are his first convictions in Canada. Significantly there is no suggestion of any familial history of criminality.

Indeed, the Crown noted that RB was raised by parents who inculcated positive community values in him. [ 19 ] Likewise there are no identified mental health concerns reported by any sources or referees. [ 20 ] The most significant factor in RB’s attitudes is his distrust of formal authorities and non-natives.

This mindset is the consequence of his exposure to racist attitudes and actions toward him. [8] His views of distrust are so set that his prior spouse is concerned that he will skew their child’s views as a result of his own. [ 21 ] Since the birth of his son in April of 2017 RB has developed a closer cultural connection to his indigenous background. This has resulted in regular attendance at and participation in events at the indigenous friendship centre servicing his community. [ 22 ] The Crown acknowledges that a different sentencing analysis is to be accorded to indigenous offenders.

Further, the Crown accepts that courts are directed to find alternatives to jail and to apply restorative principles and sentences if possible . In applying those approaches Ms. Woolf submits that the court must consider the sincerity of an accused’s rehabilitative plan and whether there are any appropriate alternatives to incarceration.

[23] In sum, the Crown submits that Gladue aims at proportionality. The object is to determine a fit sentence; a sentence that isproportional. One that fits the crime and one that fits the offender’s moral culpability. [24] Here, given the facts of his crimes, a jail sentence is inescapable. Given the severity of his crimes, because of all of theaggravating features implicated by those crimes, the sentence should not vary from what a similarly placed non-indigenous offenderwould face. The Crown’s Submissions on the Range of Sentence [25] Relying on R. v. E.M., 2018 ONSC 6951, R. v. Smith, 2011 ONCA 564 and R. v.

C.S.M., 2017 ONCA 107, Ms. Woolf submittedthat the Court of Appeal has identified a broad range of sentence of between 21 months to four years for cases involving forcedintercourse with a spouse or former spouse, depending upon the specific facts at issue. The Crown’s Review of Case Law [26] While Ms. Woolf provided and reviewed several cases of domestic violence, little is to be gained by a laborious review of theparticular facts of each of these cases.

However, I will note a number of aggravating features and commentary from them. [27] In almost all of the cases submitted by the Crown the following aggravating fact-patterns repeated: • the threat of violence or death to an intimate partner; • unlawful confinement of an intimate partner for substantial duration; • unlawful confinement enforced or exacerbated by the use of ligatures; • non-sexual violence to an intimate partner; • invasive or penetrating sexual assault or violence of an intimate partner; • criminal behaviour amounting to a breach of trust; • the perpetration of the crimes in the sanctity of the victim’s home or in places where the victim had a reasonable expectation ofsafety; and, • the crimes exacted a physical; but, more importantly the crimes exacted a continuing psychological toll. [28] The devastating and dehumanizing consequences of these kinds of crimes, which occur when offenders treat their partners asobjects, were stressed in Ms.

Woolf’s references to paragraph [24] of R. v. Shackleton, [2017] O.J. No. 2495 (S.C.), where K.A. GormanJ. quoted liberally from paragraphs [15] and [16] of R. v. Sandercock, (1985), 1985 ABCA 218 , 62 A.R. 382, (which I appendnext in edited form): 15 The key … is the ... “contemptuous disregard for the feelings and personal integrity of the victim". … Many believe thatgratification of sexual desire by almost any means is not only normal but "healthy". This attitude … has led to … the belief … thatsociety also permits the use of others as objects for sexual gratification.

It does not, and denunciatory sentences are needed to reinforcethe point. 16 The other aspect which creates a major sexual assault is the effect on the victim. … This harm includes not just the haunting fearof another attack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also alingering sense of powerlessness. … [W]hile we all are aware in an intellectual way about the fragility of normal existence, to experiencea sudden and real threat to one's well-being, a threat so intense that one must beg to be spared, tends to destroy that sense of personalsecurity which modern society strives to offer and humanity so obviously wants. [29] Ms.

Woolf submitted that while RB’s crimes are worse, the case most similar to RB’s actions is R. v. Satkunarajah, 2012 ONSC6470, where the offender isolated his victim in a motor vehicle, threatened her with death and sexually assaulted her. She was able toescape by jumping from the moving vehicle. That accused had an unrelated record and pleaded guilty. The attack left substantialresidual effects on the victim. Given the lack of actual penetration in RB’s sexual assault, Ms.

Woolf submitted that paragraph [24] ofSatkunarajah is apposite: “While our courts seem to reserve harsher punishment where a sexual assault involves intercourse or penetration one cannot overlook thecircumstance of this assault and the impact on the victim. These events were horrifying for the victim. She was in a vulnerable position;she was confined in a dark isolated area; the offender’s crude groping was accompanied by death threats. She thought she was going todie. …” [30] On these facts and circumstances R.N.

Beaudoin J. imposed a two-year concurrent penitentiary sentence on the offences ofsexual assault, forcible confinement and threatening death. [31] The Crown also adverted to R. v. Nolan, 2009 ONCA 727, where the facts were even more egregious than RB’s behaviour. Nolan confined his wife of 19 years by tying her down on a bed. He duct-taped her mouth, punched her in the face, cut her underwearoff with an exacto knife and threatened to cut her vagina.

He tried unsuccessfully to rape her but after cutting her loose they did engagein intercourse. [32] On these facts the initial 100 day sentence, which the Crown appealed against, was clearly inadequate. As noted by the Court, at

paragraph [7], this “victim was confined and violated in a particularly degrading manner in her own home. She suffered physical harmthat included bruising and swelling on her face, ear and shoulder and emotional harm that included feelings of vulnerability andhopelessness.” In the result a 21-month sentence (albeit to be served conditionally as permitted at that time), was substituted. [33] The Crown stressed comments made by J.F. Kenkel J. in R. v.

A.M.W., 2018 ONCJ 461 at paragraph [8] where he said, “Evenconsidering the fact that the accused is a first offender, a sentence of two years less one day for forced anal intercourse where the victimwas bound and forcibly confined is at the lowest end of the range for these offences.” [34] Ultimately, both counsel accept the law respecting “ranges” as explained in R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J.No. 64. The principle was subsequently voiced in R. v.

C. (S.M.), 2017 No. 590 at paragraph [7]: “… The range of sentence imposedfor similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimatequestion is not what range does or does not apply, but whether the sentence imposed was appropriate in the specific circumstances of thecase.” [35] It was for this reason that Ms. Woolf referred to R. v.

E.M., 2018 ONSC 6951 at paragraphs [15] through [18], which I haveedited and reproduce next: 15 … The jurisprudence clearly indicates that in cases of sexual assault the principles of deterrence and denunciation are theprimary considerations for the court to consider. The rehabilitation of the offender should be taken into account, as is indicated in section718(

d) of the Criminal Code, but this is to take secondary place to the primary consideration of deterrence and denunciation. The actionsof E.M. call for a custodial sentence. As to the length of the sentence, the court is guided by the comments of the Ontario Court ofAppeal in R. v. Smith, 2011 ONCA 564 , 274 C.C.C. (3d) 34, where at paragraph 87 the court states that, In all cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months tofour years.

This statement in Smith was quoted with approval by the Ontario Court of Appeal as recently as February 8, 2017 in R. v. S.M.C., [2017]O.J. No. 590. 16 Courts must be careful when considering ranges for sentence which are only a helpful guide. At the end of the day, thesentencing exercise is not an exact science but rather an art -- one that must be tailored to the individual and reflect the gravity of theoffence and the degree of responsibility of the offender. As noted in paragraph 7 of the Ontario Court of Appeal in R. v.

Smith, The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must bestressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in thespecific circumstances of the case. 17 The act of sexual assault strips the victim of their dignity and the ability to make a choice about acts of intimacy and whathappens to their body. The courts have commented about this in the past. At paragraph 272 in R. v.

Arcand, 2010 ABCA 363 ,264 C.C.C. (3d) 134, the Alberta Court of Appeal notes that "non-consensual sexual intercourse under any circumstances constitutes aprofound violation of a person's dignity, equality, security of the person and sexual autonomy". In R. v. McCraw, (SCC),[1991] 3 S.C.R. 72, the Supreme Court of Canada stated at paragraph 29 of its decision, For women, rape under any circumstances must constitute a profound interference with their physical integrity.

As well, by force orthreat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of thoserelations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament'sintention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but isbasically

an act of violence. 18 The psychological trauma experienced by J.B. as a result of the actions of E.M. mirror the comments made at paragraph 32in McCraw wherein the Supreme Court of Canada states, The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a senseof defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. The Crown’s Submission Summarized

[36] Applying these principles and the need to denounce and deter such behaviour, as well as the need to separate offenders fromsociety and to promote a sense of responsibility in offenders, and having regard to the aggravating features of RB’s crimes[9] the Crownurges its sentencing submission. [37] The Crown noted in closing that while not an aggravating feature, RB maintains his innocence.

The Crown submitted that thesignificance of that stance is that he has failed to reflect on his behaviour or to identify the factors that led him to commit the offencesand, equally, that he has failed to identify what steps he could take to address those issues. [38] In short, RB lacks insight into his conduct and therefore continues to present a risk of reoffending, especially to a domesticpartner that he may engage with in the future. Therefore, a lengthy period of probation is required to compel him to participate incounselling to educate him to address his issues and to help him rehabilitate.

In addition, a lengthy period of probation will provide asafety circle and some level of comfort to his victim for an extended period of time. The Position of the Defence [39] Mr.

Fazari began his submissions by noting a number of circumstances that he urged mitigated RB’s crimes; viz: • that RB had worked productively his whole life and had been a contributing member of society; • that both RB and SB were substantially intoxicated that night; • that it was SB who initiated their contact that night; • that SB conceded that engaging in sex with RB was a possibility that she adverted to early in their contact that night;[10] and, • that the victim impact statement filed by SB was not in prescribed form and it lacked any substantial detail. [40] Mr.

Fazari submitted that the fact that sex was a possibility in SB’s mind distinguished RB’s crimes from the cases submitted bythe Crown. I respectfully disagree. [41] Regardless, the defence submitted that the Crown’s cases are extreme fact patterns and the sentence to be imposed must begeared to this trial’s specific facts. On that basis, given the facts found by me, Mr, Fazari submitted that a fit sentence on the sexualassault conviction ought to be 30 to 60 days to be served intermittently.

The balance of the offences should attract a conditional sentenceof between nine and twelve months, together with probation. That would be a fit sentence as required by s. 718.1. [42] Turning to the concept of the gravity of the offence Mr. Fazari reminded me that I am to be guided by Justice Doherty’scomment at paragraph [90] of R. v. Hamilton, (ON CA), [2004] O.J.

No. 3252 (C.A.): [90] The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penaltyimposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or riskof harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the druginvolved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s.718.2(a). [43] Mr.

Fazari contended that the most important consideration is the appropriate sentence for the sexual assault conviction. He saidthat a review of the Crown’s cases including the “range” identified by the Court of Appeal necessitate the conclusion that the crimecommitted by RB is at the very lowest end of sexually assaultive behaviour. [44] Specifically, there was no penetration and the sexual assault only lasted seconds, unlike the much more extreme intrusiveness ofthe cases cited by the Crown. Moreover, there was no sexually assaultive behaviour committed while SB was tied up on his bed. And,once again, Mr.

Fazari stressed that SB attended his home voluntarily, she was not forced to come with him and she may have beenprepared to engage in sexual relations with him.[11] [45] Counsel next turned to Justice Doherty’s comment in Hamilton on the issue of proportionality, at paragraph [91]: [91] The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantialelements of the offence – especially the fault component – and any specific aspects of the offender’s conduct or background that tend toincrease or decrease the offender’s personal responsibility for the crime. …” [46] The defence contended that this factor is a substantially mitigating one given RB’s indigenous background by virtue of theapplication of R. v.

F.A.L, 2018 ONCA 83. Essentially, Mr. Fazari said that these events were the product of alcohol abuse by RB andthat his descent into alcoholism was a reaction to the racism that he faced due to his native heritage. [47] RB has a problem with alcohol and he admits that he does. He admits that he is an alcoholic. He suffered racism as a child inschool. Ironically, he was ostracized by his schoolmates in city schools as an Indian and ostracized by his native schoolmates on thereserve as a “half-breed”. [48] More significantly, as a young man he was brutally attacked for being an Indian chatting up a white girl.

He suffered very severeinjuries and was comatose for a significant period of time as a result and hospitalized for many months. [49] RB reported that despite being victimized in this vicious fashion the men who assaulted him were never prosecuted. As a resulthe has developed a mistrust of non-natives and the criminal justice system.[12] [50] Mr. Fazari submitted that RB’s root problem with alcohol resulted from this assault. That it was because of his victimization atthe hands of these men that he started drinking and became an alcoholic.[13]

The Defence Submission on “Range” of Sentence [51] Mr. Fazari relies, appropriately, on the comments made at paragraph [90] of R. v. Jacko, 2010 ONCA 452, which anticipatessimilar language in Lacasse: [90] Sentencing “ranges”, such as that described in Wright are not immovable or immutable. They are and represent guidelines, ofgreater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range.

To consider arange of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality and isnot faithful to the teachings of Wright. Individual circumstances matter. [52] Counsel stressed the same point by referring to Justice Moldaver’s comments in R. v. D.D., (ON CA), [2002]O.J. No. 1061 at paragraph [33]: [33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible.

Onthe contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Thesuggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similarcases. [53] Mr. Fazari highlighted that the events before the court occurred more than four years ago. RB has been law-abiding andproductive since then. Since May of 2015 he has had a son from a short-lived failed relationship but one that was not marred by anydomestic violence.

He is in another relationship now and, again, it is a placid and non-violent one. He is held in high esteem by hisemployer and has many referees who think highly of him as a result of his character and past actions respecting those referees or theirfamilies. [54] While RB is currently abstaining from the use of alcohol he is prepared to engage in probation to assist in his continued sobriety. He continues to harbour guarded feelings towards non-aboriginals and law enforcement but despite those feelings he remains law-abiding and productive.

He has become deeply involved in his indigenous culture and is described as a role model for other men insofaras his behaviour and involvement in his culture are concerned. [55] RB spent three days in pre-sentence custody and for approximately one and a half years was subject to a 9:00 p.m. to 7:00 a.m.curfew.

He has been law-abiding and compliant with his bail release terms for more than four years. [56] While the defence concedes that the principles of deterrence and denunciation are paramount, given the passage of time fromthese events, and RB’s subsequent behaviour and current circumstances his prospects for rehabilitation cannot be completely ignored. [57] When considering the injuries sustained by SB, which are substantially less than what was inflicted on the other victims in thecases cited by the Crown, the court ought to find that while the range of sentence espoused by the Crown may be correct for those factsthat range has little application on this case.

The Crown’s cases were very violent crimes with permanent consequences and that sameought not to be said for this case. The Defence Position on Comparable Cases [58] Mr. Fazari referred to several cases of sexual assault in which the sentences imposed were markedly lower than in the casessubmitted by the Crown. For example, in R. v. M.S., 2018 ONCA 706 the appellant, an indigenous male, attempted to force intercourseon a female that he had been swimming with by following her into the women’s change room. He was thwarted in doing so.

After anextensive adjournment to obtain an appropriate Gladue report, the Court of Appeal upheld the six months’ jail sentence imposed by thetrial judge. In that case the offender’s penis apparently touched his victim’s vagina but no penetration occurred. The defence suggestedthat those facts mirror RB’s crime. However the offender there was thwarted by his victim’s resistance and his inability to displace herclothing. There are many facts that distinguish that case from RB’s, including the prior domestic relationship between RB and SB, thefact that RB was able to pull SB’s jeans and panties off and the fact that

an act of anal intercourse did not occur because RB’s penis wasflaccid, not because he was thwarted by SB. [59] Mr. Fazari next referred to R. v. Wong, 2018 ONCJ 131, a sentencing decision by Justice D.A. Harris in which His Honourimposed a blended sentence combining imprisonment for the equivalent of 90 days to be served intermittently along with a conditionalsentence of one year that His Honour found was appropriate in the circumstances of that case.

There are many points of distinctionbetween Wong and this case, not the least of which is that in Wong the Crown’s position was a sentence range of nine to ten months andthat the Crown proceeded summarily. [60] Mr. Fazari then turned to R. v. Ouellet, 2014 QCCA 135 for its sentencing guidance. After a trial the offender was convicted ofsexual assault, forcible confinement and assault causing bodily harm. The facts are outlined at paragraphs [13] to [22] of that decision. Ouellet was sentenced to 18 months concurrent on all three counts plus lengthy probation.

On appeal that sentence was varied to 90days intermittent concurrently, 45 weeks on a conditional sentence for the forcible confinement count. While there are many differencesbetween Ouellet and this case, I accept that the facts are in some ways more egregious than this case. [61] Ouellet was 63, had no prior criminal record and had never been violent to his ex-spouse previously. The Quebec Court ofAppeal found 18 months to be a disproportionate sanction for these crimes. At paragraph [113] they held that Ouellet’s life “cannot besummed up in these 30 minutes”.

Significantly, they took pains to note that despite the effect his crimes had on her, his victim did notwant him to be incarcerated. [62] Mr. Fazari provided other cases for my consideration including R. v. Tulk, 2014 NLTD(G) 18 as well as R. v. Smarch, 2007YKSC 43. Both of these cases are distinguishable on many grounds including the Crown’s position, which was for a much more modestsentence than that advocated for by Ms. Woolf, although I hasten to add that the Crown’s position is only one of many factors that needto be taken into account. Nonetheless, Mr.

Fazari stressed paragraph [46] of Smarch where the sentencing judge noted that Smarch’s

experiences at residential school left him very traumatized. As a result, the sentencing judge found that ”Smarch’s residential schoolexperience was likely a contributing factor to his alcoholism, and less directly, to the current offences”. [63] Finally, Mr. Fazari referred to R. v. G.A.M., 2001 ABPC 252 where a conditional sentence for a violent and degrading crime ofsexual assault with a weapon was imposed[14] together with a 90-day intermittent sentence on the count of forcible confinement. TheCrown’s position in that case was a three-year sentence on the major count.

A conditional sentence was then potentially available forsuch a crime. Defence Comments on the Gladue and Pre-Sentence Reports [64] Mr. Fazari reviewed aspects of both the pre-sentence report and the Gladue report. The upshot of his submissions was that giventhat he behaved badly on this occasion his productive prior history demonstrates that but for his abuse of alcohol he would not be beforethe court. He has insight into his abuse of alcohol and he has been and will continue to be a productive and contributing member ofsociety. He has aged parents to care for, along with a young son to raise.

He is inculcating that child into indigenous culture andtradition and is a role model for other native fathers. He has spent more than four years at large on terms without incident. For 18months he was on a tight curfew. RB’s actions are on the lower end of the scale of inappropriate behaviour when compared to the casesthe Crown has pointed to. In all of these circumstances a fit sentence would be an intermittent sentence on the sexual assault and aconditional sentence on the balance plus probation.

Reasons for Sentence [65] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance ofa just, peaceful and safe society by imposing just sanctions directed to achieving one or more of the objectives set out in s. 718 of theCriminal Code of Canada. [66] “The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a ‘just andappropriate’ sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender.”[15] [67] Those words were written by Chief Justice Lamer.

Since that time the Criminal Code of Canada has substantially circumscribedthat duty statutorily. Justice Lamer’s dictum has been encapsulated by s. 718.1: “a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender.” [68] To assist in carrying out this fundamental principle a court must take into consideration any of the applicable principles identifiedin s. 718.2. [69] Here, RB’s victim was his former common law partner.

While the word “former” does not appear in s. 718.2, it is clear from thefacts, that the couple’s meeting was to investigate reconciliation and in these circumstances, I am of the view that s. 718.2(a)(ii)applies.[16] This is a statutorily aggravating factor. [70] In addition s. 718.2(a)(iii.1) also applies as an aggravating factor. The psychological trauma suffered by SB was substantial andcontinues to affect her four years on.

Her very brief, but cogent, victim impact statement is appended in the following footnote.[17] [71] In my view RB did not abuse a position of trust or authority in relation to SB, but the fact that she was attacked by him in thehome they once shared is an aggravating feature of these crimes. One’s home should be a sanctuary from the vicissitudes of life and RBwas inviting SB back to that home. [72] Parliament has decreed by s. 718.2(

b) that parity should be strived for in the imposition of sentence. Hence, both sides haveurged “comparables” upon me. Likewise, controlling appellate courts have directed that like cases be treated alike. [73] In R. v. Devaney, (ON CA), [2006] O.J. No. 3996 at paragraph [13] our Court of Appeal said: "... it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particularcircumstances. This approach accords with the principle that like crimes will attract like sentences.

In many if not most cases, afterconsidering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range." [74] Nonetheless, as noted by both counsel and as demanded by statute, sentencing is an individualized exercise and the principle ofparity cannot trump fitness. Ranges of sentence may have developed but ranges are merely prior and often historical results. The lessonsfrom Lacasse must be adhered to. [75] There are many other aggravating features of RB’s crimes.

The indignity of being stripped naked and kept that way for hours isa major aggravating feature. The demeaning nature of being forced to be naked, and the vulnerableness and powerlessness engenderedby those actions, even when exercised by competent and authorized authority is described and identified by R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. [76] Being subjected to

an act of unwanted anal intercourse is a further degrading and humiliating feature of RB’s crimes. Iacknowledge that he did not penetrate SB’s anal cavity with his penis but it was not for lack of trying. While it is correct to note thatRB’s attempt at sodomizing SB was short-lived and lasted only for a matter of seconds of actual skin-on-skin contact, he first had tooverpower her and pull off her jeans and panties and lay her on her stomach on the loveseat in his living room. This act is not at thelower end of the spectrum of sexual assault.

It was not a mere butt slap or a momentary fondling of a breast, for example. [77] Having her airways cut off by RB on several occasions must have been very frightening. Likewise the threats made by RB that“things had gone too far”, that he could not let her go and that the events would end in a murder/suicide with the house being burneddown around them was undoubtedly a terrifying experience exacerbated by the length of SB’s captivity.

[ 78 ] In short, RB subjected SB to a horrifying ordeal. RB clearly recognized the extent of his criminal behaviour because, initially at least, his response was to try to end his life, whether out of shame or to avoid penal consequences is unclear. [ 79 ] In my view these were serious crimes. I reject the defence’s contention that they can be looked at in isolation.

The defence contends that since the attempted act of anal intercourse was merely perpetrated for a few seconds and without success this is a modest crime at the low end of the sexual assault spectrum. [ 80 ] Looking at the various crimes charged in isolation misses the forest for the trees. It is an artificial parsing of these events. [ 81 ] Before leaving aggravating circumstances, I note one factor that is not aggravating. RB pleaded not guilty and had a trial. That is not an aggravating circumstance. As Mr.

Joseph Dubeck, (the doyen of criminal lawyers in Hamilton for many decades), used to say, “Everyone is entitled to be properly convicted.” [ 82 ] The only consequence of pleading not guilty is that RB cannot list a guilty plea as one of the mitigating factors to be weighed in the balance [18] . [ 83 ] Other matters worth noting, which are neither aggravating nor specifically mitigating are: (

i) that the actual violence inflicted by RB all occurred at the time when he was most intoxicated; (ii) there were no permanent physical injuries inflicted; (iii) he did not subject SB to violence while she was naked, bound and completely vulnerable; and, (iv) while his domination of her continued over the following day, he did not inflict any actual physical violence upon her during those hours. [ 84 ] There are a number of mitigating facts and circumstances, which I shall attempt to identify, albeit not in any ranked order. [ 85 ] RB has no prior record that has been proved.

He concedes a conviction imposed in the USA for a domestic related crime of violence and for which he was apparently sentenced to probation. However, the particulars of that offence, (that is to say, the date of the conviction, the place of the conviction, the particular crime in question and even the details of the sentence,) are not before me. (See Watt J.A.’s judgment in R. v. M.C., 2019 ONCA 502 for the impropriety of this kind of evidence.) In these circumstances I shall treat RB as a first offender. [ 86 ] RB has a lifetime of productive work credits to draw against.

He has firm and secure prospects for rehabilitation. [ 87 ] He spent approximately 18 months on a 9:00 p.m. to 7:00 a.m. curfew early in the history of this prosecution, without any breaches and he had remained crime-free and law-abiding for over four years since committing these offences.

He is entitled to some Downes credit against an appropriate sentence for the strictures on his liberty. [ 88 ] He has remained productive while on bail, continuing to work and fathering and becoming engaged in the upbringing of his young son. [ 89 ] He acknowledges that he is an alcoholic and is prepared to continue to take counselling to keep his alcoholism under control.

He is currently deeply engaged in his indigenous community spending many days each week at the Fort Erie Native Friendship Centre, where he is involved both in cultural activities and in counselling sessions. [ 90 ] RB is a “Status Indian” under the Indian Act . His mother, too, and her parents are also native Canadians. His maternal grandmother moved her family off-reserve to avoid having her children attend one of the infamous residential schools to which Indian children were forcibly taken.

She also chose to live close to the USA border so that she could flee with her family to avoid the “60’s scoop”. [ 91 ] RB’s father is non-native, as is SB. It is beyond my ken to attempt to determine how his antipathy toward non-natives played out in these crimes. That is a psychological investigation that I am not equipped to attempt. Nonetheless, like L.F. Gower J. in Smarch , I am prepared to accept that RB’s alcoholism is a consequence of his experiences as a native Canadian. [ 92 ] RB’s abuse of alcohol is linked to his upbringing, which was a product of his mother’s upbringing.

In addition, sexual assault was, according to RB’s sister, rampant in their family tree. While RB has on occasion admitted to having been sexually assaulted as a child, he is not prepared to discuss the matter. [ 93 ] “The child is father to the man,” as the saying goes. RB’s alcoholism is, in my view, sufficiently a product of his upbringing as a native Canadian to have some bearing on his moral culpability. [ 94 ] In attempting to apply the Gladue principles I am guided by paragraphs [40] to [47] of R. v.

F.H.L. , 2018 ONCA 83 , which I have edited as follows: 40 … For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case.

This approach finds support both in Ipeelee and decisions of this court. 41 The Supreme Court made clear in Ipeelee , at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence".

LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness." . . .

43 From a sentencing judge's perspective, adhering to this approach requires attention to two factors. 44 First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include "such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee , at para. 60.

This list is not exhaustive. 45 Second, a sentencing judge must consider whether those systemic and background factors "bear on the [offender's] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing": Kreko , at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender's own life experiences -- in other words, whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": Monckton , at para. 117; R. v.

Bauer , 2013 ONCA 691 , 119 O.R. (3d) 16 , at para. 13 . If systemic and background factors have impacted an Aboriginal offender's own life experiences, the sentencing judge must then consider whether they "illuminate the offender's level of moral blameworthiness" or disclose the sentencing objectives that should be prioritized: Radcliffe , at para. 53; Kreko , at para. 23.

The Supreme Court provided the following comments about moral blameworthiness in Ipeelee , at para. 73: Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability" .

Failing to take these circumstances into account would violate the fundamental principle of sentencing -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender .

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se . [Underline Emphasis Added, Italic Emphasis in Original] 46 Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders -- viewed in the light of the systemic and background factors described above -- "diminish their moral culpability".

In conducting this inquiry, however, courts must display sensitivity to the "devastating intergenerational effects of the collective experiences of Aboriginal peoples", which are often difficult to quantify: Ipeelee , at para. 82. When inquiring into "moral blameworthiness", courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove: Kent Roach, "Blaming the Victim: Canadian Law, Causation and Residential Schools" (2014) 64 University of Toronto L.J. 566, at 588-593; Clayton Ruby, Gerald Chan, Nader R.

Hasan, Annamaria Enenajor, Sentencing: Ninth Edition (Markham: LexisNexis Inc., 2017), at 712; R. v. Quinn , 2015 ABCA 250 , 606 A.R. 233 , at para. 49 ( per Bielby J.A., dissenting) . I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach that sentencing judges should follow: The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge ...

In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples. 47 Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee , at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized.

Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee, at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee , at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick , at para. 36.

Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue , at para. 78; R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207 , at para. 44 . As this court recognized in Kakekagamick , at para. 42: To be clear, s. 718.2(

e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(

e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. Conclusion and Imposition of Sentence [ 95 ] These were offences of domination and violence. RB’s efforts at reconciliation with SB were rejected by her and he lashed out angrily and violently. He kept her forcibly confined for approximately 14 hours. During that time he abused her physically, sexually and psychologically.

The ordeal that he subjected her to has had long-term consequences for her. [ 96 ] While RB’s alcoholism is related to his indigenous background, which in turn has affected his upbringing, his abuse of alcohol has not prevented him from working productively. This is a demonstration that he can control his abuse of alcohol. He can pick and choose when to get drunk.

I am of the view that any diminishment of or mitigation of his moral culpability as a result of his alcoholism is extremely modest. [ 97 ] Of greater weight is his entitlement to Downes credit [19] and his demonstration, (through four years of law-abidingness while on bail), that a crushing sentence ought to be avoided because RB’s prospects for rehabilitation, (as a productive member of the community), are secure. [ 98 ] Finally, I take into account that RB is a first offender, albeit not a youthful one and further, that I must consider the totality of the sentences being imposed. [ 99 ] In the result, in addition to all of the collateral orders sought by the Crown and in addition to three years on probation to commence upon the expiry of his warrant of committal, (on terms to be pronounced in court on the date when this sentencing judgment is released), I sentence RB as follows:

On Count 2: sexual assault, contrary to s. 271 of the Code to six months in a provincial reformatory; On Count 3: unlawful confinement, contrary to s. 279(2) of the Code to six months in a provincial reformatory consecutive to the time imposed on Count 2; On Count 4: threatening death, contrary to s. 264.1(2) of the Code to four months in a provincial reformatory consecutive to the time imposed on Counts 1 and 2; and, On Count 1: assault, contrary to s. 266 of the Code to two months in a provincial reformatory consecutive to the time imposed on Counts 1, 2 and 3. Dated at St.

Catharines this 2nd day of August 2019. _________________________ J.S. Nadel, (OCJ) [2] I found RB not guilty on Count 5. That count was particularized to allege that RB covered SB’s nose and mouth to suffocate her with intent to enable or assist himself to commit a sexual assault against her. I found that the acts of suffocation committed by him against SB were not as numerous as testified to by SB but more importantly that they were not intended to assist him in committing a sexual assault against her.

Rather, they were simply mean spirited and angry acts of assault committed for the purpose of causing SB pain, discomfort and fear. [16] While SB initiated contact with RB by text, it was RB who said: “ I have no intention of fighting or any other kind of hostility. If we never take the chance to talk then we will never know. Idk I’m just so fuckin sad.”