R v CD, 2021 NUCA 21

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v CD, 2021 NUCA 21 Date: 20211125 Docket: 02-21-006-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - C.D. Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ Appeal from the Sentence by The Honourable Ju stice P. B ychok Dated the 3rd day of March, 2021

(2021 NUCJ 20) _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ [1] The appellant appeals the sentence of imprisonment imposed on him following his guilty plea to two counts of sexualinterference under s. 151 of the Criminal Code. Facts [2] The convictions resulted from two discrete events that occurred in 2016 and 2017. Both involved the appellant touching hisunderage granddaughter’s genitals.

The Crown proceeded summarily, and the appellant entered timely guilty pleas. [3] The appellant is a 67-year-old Inuk who has been married for 48 years and who has two children and 10 grandchildren. He isunilingual and requires a translator to deal with the legal process. He lived off the land until he was nine years old, but his family’s sleddogs were taken away and they were relocated to the community. He spent a short period of time in a residential school.

He has ongoinghealth problems, and while he is a hunter, his health impedes his ability to hunt. [4] The authorities became aware of the offences in 2018, and the appellant was arrested and released on bail in April 2018. Theappellant then suffered a health emergency and was sent out of the jurisdiction for open heart surgery. He entered guilty pleas on March19, 2019, which was the earliest realistic opportunity.

A presentence report was ordered, and he was sentenced on circuit in thecommunity on March 3, 2021. [5] The Crown submitted that an appropriate sentence was nine months in custody, followed by 12 months of probation,together with collateral orders that are not in dispute on appeal. The Crown argued that this was the “absolute floor of the appropriaterange of sentences here”, but that it was justified because of the “significant Gladue factors”, and the guilty plea which had avoided thecomplainant having to testify.

The Crown also noted that the complainant had not had the support of her family in bringing forward theallegations. [6] Defence counsel submitted that the mandatory minimum 90 days of incarceration, followed by probation, would be a fitsentence. Defence counsel emphasized the significant Gladue factors (including attendance at a residential school) and the early guiltyplea. The 65-year-old offender had no criminal history at all.

Also relevant were the appellant’s acute medical history, ongoing supportfrom his community, the tragic impact of the charges on his family and the health of his family members, and the two years he spent onrelease conditions. [7] The trial judge initially sentenced the appellant in the community, based on oral reasons for sentencing that he gave then. Atthat time, the trial judge sentenced the appellant to 4.5 months’ incarceration on each count, to be served consecutively. However, aboutseven weeks later, he issued supplemental written reasons for decision: R. v C.D., 2021 NUCJ 20.

In those written reasons, hepronounced a sentence of nine-months’ imprisonment on each count, to be served concurrently. Standard of Review [8] An appellate court should only intervene to vary a sentence if (

a) the sentence is demonstrably unfit or (

b) the sentencingjudge made an error in principle (which includes an error of law, a failure to consider a relevant factor, or an erroneous consideration ofan aggravating or mitigating factor) that had an impact on the sentence: R. v Lacasse, 2015 SCC 64 at paras. 41, 44, [2015] 3 SCR 1089;R. v Friesen, 2020 SCC 9 at para. 26. [9] An appeal is from the sentence, not from the reasons for decision: R. v Chaisson, (SCC), [1995] 2 SCR1118 at para. 6; R. v McDonald, 2011 ABCA 307 at para. 73, 515 AR 82. Sometimes a sentence may be shown to be “demonstrablyunfit” simply from the sentence itself.

More frequently, “errors of principle” will emerge from the reasons for sentencing. Trial judgesare required to give reasons for their sentences: Criminal Code, s. 726.2. However, mere inadequacies in the reasons will not justifyappellate intervention if the sentence itself is not demonstrably unfit. [10] There is, however, a threshold issue in this appeal: what was the sentence, and what were the reasons? As noted, the trialjudge rendered two different sentences, based on two different sets of reasons.

The appellant argues that there are significant differencesbetween the two, the most noticeable one being that the sentences were changed.

The Reasons for the Sentences [11] As noted, the initial oral reasons for sentence were given in the community. By their general tone, it is clear that the trialjudge was attempting to address the members of the community who were in court that day. This was entirely appropriate. As the trialjudge noted: “Everyone in town knows what happened”. It was important that justice be administered in the community. [12] In the circumstances, there was no valid reason for the trial judge to issue supplemental reasons.

While he stated in his writtenreasons that he had advised counsel that he would provide supplemental reasons at a later date, there is no indication of that in thetranscript. [13] However, the “reservation” of a right to edit or supplement reasons does not affect the analysis. Whether or not that right is“reserved”, trial judges have an inherent ability to edit oral reasons, for example, by correcting the grammar or method of expression orby adding citations: PricewaterhouseCoopers Inc v Perpetual Energy Inc., 2021 ABCA 16 at para. 61.

On the other hand, an expressreservation of the right to edit or supplement does not enlarge the scope or nature of enhancements of reasons that are permissible. [14] The issue of “supplemental reasons” can arise in different contexts: (

a) A trial judge may simply declare an outcome with “reasons to follow”: e.g. R. v Teskey, 2007 SCC 25, [2007] 2 SCR 267(verdict); R. v Sundman, 2021 BCCA 53 at paras. 55-56 (mid-trial rulings); (

b) The trial judge may have lengthy reasons prepared, and essentially finalized, but due to the length read only a

summary,followed by immediate release of the longer version: e.g. R. v Vander Leeuw, 2021 ABCA 61 at para. 9. (

c) The trial judge may announce his or her decision, but then correct that decision when an obvious error or illegality is identified:e.g. R. v Vader, 2019 ABCA 191 at paras. 56-57, 89 Alta LR (6th) 146. (

d) The trial judge gives reasons that appear to deal with all the issues, and outline all of his or her reasons, but then releases truly“supplemental” reasons that add arguments or issues: e.g. Perpetual Energy at para. 61. The scope of permissible variations between the original oral reasons and the supplemental reasons varies with the context.

In generalterms, a trial judge may edit oral reasons for punctuation, grammatical errors, citations and the like, but may not revise, correct, orreconsider the words actually spoken or make changes of substance: R. v Wang, 2010 ONCA 435 at para. 9, 256 CCC (3d) 225; R. vDesmond, 2020 NSCA 1 at paras. 24-25, 384 CCC (3d) 461. [15] Similarly, the importance and treatment of supplementary reasons on appeal will vary. The parties are entitled to point out anydifferences between the oral and written reasons and argue their significance: Vander Leeuw at para. 9.

In some cases, the supplementalreasons will simply be ignored: Teskey; Wilde v Archean Energy Ltd., 2007 ABCA 385 at para. 24, 82 Alta LR (4th) 203, 422 AR 41.The appellate court is, however, entitled to refer to both sets of reasons, either to support or undermine the decision under appeal:Perpetual Energy at para. 66; R. v Ball, 2012 ABCA 184 at para. 4, 533 AR 102.

Where appropriate, an appellate court is entitled toreview the decision based on the original rationale: Nova Scotia (Minister of Community Services) v C.K.Z., 2016 NSCA 61 at paras.61-63, 376 NSR (2d) 113. [16] The appellant based his appeal on the original oral reasons. The Crown argues that the supplemental written reasons do notform a part of the sentencing. In this case, the appropriate response on appeal is to ignore the supplemental reasons. There was no reasonfor them, as the oral reasons purported to provide the entire analysis that justified the sentences imposed in the community.

Thesupplemental reasons did not just edit the initial oral reasons; they engaged new issues and were a rewrite of other issues. There was nojustification for the actual change of the sentences. The Change in Sentence [17] As noted, in his initial oral reasons, the trial judge sentenced the appellant to 4.5 months on each count, to be servedconsecutively. In his written reasons, he changed the sentence to nine​months imprisonment on each count, to be served concurrently. Nojustification or reason for changing the sentence was given.

An inherent danger of issuing supplementary reasons after the fact isdemonstrated here, in that the trial judge does not appear to have realized that he was changing his decision. If there was some perceiveddifference between the two sentences, it was not explained. [18] Any inherent ability of a trial judge to edit oral reasons does not extend to actually changing the outcome. Once a sentence isimposed, the judge is functus officio: R. v Hasiu, 2018 ONCA 24 at para. 33, 358 CCC (3d) 503; R. v J.P., 1997 ABCA 30 at para. 4,196 AR 151; Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33 at para. 33.

An actual change in the outcome is rarely possible,and must be justified other than in the guise of supplementing the reasons: see R. v Malicia (2006), (ON CA), 82 OR(3d) 772 at paras. 28-31, 211 CCC (3d) 449 (CA); R. v Krouglov, 2017 ONCA 197 at para. 35, 346 CCC (3d) 148; R. v Wharry, 2008ABCA 293 at para. 60, 94 Alta LR (4th) 293, 437 AR 148. [19] It is obvious that 4.5 + 4.5 = 9 months, so one might assume that the change in the sentence is without consequences.However, regardless of any prejudice to the appellant, this change of the sentence is well outside the scope of what can properly beaccomplished through “supplemental reasons”.

Once a decision has been rendered, the ability of a judge to change course and declare adifferent decision is very limited. [20] In this case, the Warrant of Committal on Conviction (Form 21) recorded the sentence given following the original oralreasons: 4.5 months on each count, to be served consecutively. The court generally becomes functus at the point where the formaljudgment is entered on the record: R. v Smithen-Davis, 2020 ONCA 759 at paras. 32-34, 68 CR (7th) 75; Canadian Broadcasting

Corporation at para. 33. The Warrant records the judgment of the court and was never amended. The purported change in the sentence was legally ineffective. Differences in the Reasons [ 21 ] The appellant argues that there are reviewable errors underlying his sentences. While he based his appeal on the original sentences, he relies on differences between the oral reasons and the later written reasons. As noted, in this case, there was no justification for the supplemental written reasons, and they should be disregarded.

The fitness of the appellant’s sentences should be measured based on the oral reasons delivered in the community. [ 22 ] Nevertheless, some comment on the differences between the two sets of reasons is warranted, since the appellant’s argument on appeal relies in part on those differences. The Mandatory Minimum Sentence [ 23 ] Under s. 151(

b) of the Criminal Code , the mandatory minimum sentence for sexual interference when prosecuted summarily is imprisonment for 90 days. There is no requirement that mandatory minimum sentences for multiple offences be imposed consecutively. [ 24 ] During the submissions on sentencing, reference was made to the mandatory minimum sentence, but no constitutional challenge was mounted. While passing reference was made to R. v G.H. , 2020 NUCJ 33 , 478 CRR (2d) 47 which had held that the mandatory minimum was cruel and unusual, counsel confirmed that they were not prepared to make a constitutional argument.

Defence counsel merely noted that the mandatory minimum “puts us in a difficult position in that regard”. Indeed, the issue was moot, because even defence counsel submitted that an appropriate sentence was 90 days, which was the mandatory minimum. [ 25 ] While the trial judge engaged in some discussion with counsel about mandatory minimums in general, his oral reasons for decision said nothing on the topic. However, his later written reasons included a lengthy

section on the subject ( 2021 NUCJ 20 at paras. 11-23 ), in which the trial judge expressed his disagreement with the outcome in G.H. The discussion of this new, moot topic in the written reasons went well beyond what can properly be called “supplemental reasons”. This part of the written reasons was inappropriate. However, as Lacasse confirms, any error in sentencing must have had an actual impact on the sentence to justify appellate intervention, and any obiter discussion about the minimum sentence had no such impact.

Differences in the Anaylsis [ 26 ] The appellant points out that the trial judge relied on different mitigating and aggravating factors in his two sets of reasons, again indicating how undesirable it is for judges to issue multiple reasons in support of a decision. Some of the identified differences are apparent, although other differences amount merely to a more or less detailed discussion of one factor or the other. However, since the supplemental written reasons should be ignored, and the initial sentence imposed in the community is the one that is effective, these differences had no impact on the sentence.

Grounds of Appeal [ 27 ] The appellant argues that the sentences imposed on him are tainted by three errors: (

a) a failure to properly consider Gladue factors; (

b) errors in dealing with aggravating and mitigating factors; (

c) imposing sentences that were not proportionate to the gravity of the offences and the moral culpability of the appellant. Consideration of Gladue Factors [ 28 ] It is not disputed that a sentencing judge must consider the aboriginal heritage of an accused and any systemic challenges that he faced during his life as a result. “There can be no sound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’s Aboriginal heritage on his moral culpability”: R. v Swampy , 2017 ABCA 134 at para. 36 , 50 Alta LR (6th) 240.

It was also not disputed that the appellant’s life had been impacted by many “ Gladue factors”, including the displacement of his family from the land and attendance at a residential school. [ 29 ] The appellant argues that the trial judge failed to consider Gladue factors in formulating his sentence, but that is not a reasonable conclusion.

An extract from the transcript of the oral reasons for decision given in the community demonstrate an awareness of these factors: Many years ago now, the Supreme Court of Canada in a very - one of the most important cases in our history, in the Queen versus Gladue told Canadians that because of the very real issues, social, economic and personal that arose out of the circumstances of colonialism, courts have to be very sensitive to the very real negative impacts, in this case on Inuit society. And that was reaffirmed later by the Supreme Court of Canada in a case called Queen versus Ipeelee .

And that’s only right and fair.

We judges of the Nunavut Court of Justice see ourselves as judges of a Gladue and Ipeelee court because the vast majority of the people we deal with, the vast majority of Nunavumiut people that we deal with are Inuit. With the

section that I just quoted [section 718.04], Parliament has broadened its vision.

I said in a case a year-and-a-half ago that the very same circumstances which have affected people and have to a certain extent contributed to their coming to court, the very same circumstances have affected Inuit women and have made them vulnerable. (Transcript, p. 30, l. 7 to p. 31, l. 2) And I've already mentioned that in Canada jail is the last resort, and that we require to give particular attention to the circumstances of Aboriginal Inuit offenders, and that's taken directly from 718.2(e), and those are the Gladue factors that I talked about a bit earlier. (Transcript, p. 33, l. 4-9) The trial judge indicated that he had considered Gladue factors in sentencing, and he is entitled to be taken at his word: R. v O’Brien , 2011 SCC 29 at paras. 17-18 , [2011] 2 SCR 485. [ 30 ] The appellant’s argument appears to be that the trial judge did not make specific reference in his reasons to the factual details about the appellant’s experience as an aboriginal offender.

In this case, however, the facts were not in dispute and had just been recited to the trial judge. Both counsel acknowledged the existence of those factors, discussed them in argument, and confirmed the need to consider them in sentencing. The reasons of a trial judge “. . . must, when read in conjunction with the record, show why the judge reached a particular result”: R. v Parranto , 2021 SCC 46 at para. 39 ; R. v G.F ., 2021 SCC 20 at para. 70 , 71 CR (7th) 1; R. v R.E.M. , 2008 SCC 51 at para. 16 , [2008] 3 SCR 3.

The trial judge was not required to repeat the undisputed facts that had just been reviewed by counsel. In context, it cannot be said that this factor was overlooked or underemphasized. [ 31 ] The appellant argues that the trial judge was required to analyse his “personal specific Gladue factors” and demonstrate how they were reflected in the sentence. The law is clear, however, that an accused is not required to show “causation” or any direct link between Gladue factors and the offence. Gladue factors tend to be systemic, and showing such direct links is generally impossible.

For the same reason, a trial judge cannot be expected to explain the effect any particular Gladue factor had on the moral culpability of the accused. For example, in this case, no one could describe the link between the taking of the family’s sled dogs and the appellant’s moral culpability for the sexual interference with his granddaughter. [ 32 ] Sentencing is an individualized process, within the discretion of the trial judge. The weight to be given to various factors in the proportionality analysis, and to aggravating and mitigating circumstances, rests with the trial judge.

In this case, the appellant has not shown that the weight given by the trial judge to Gladue factors amounted to an error of principle or generated an unreasonable outcome. Consideration of Aggravating and Mitigating Circumstances [ 33 ] The trial judge recited a number of legal factors influencing the sentence, including the primacy of proportionality. He referred to or quoted a number of sections of the Criminal Code that he thought were applicable, including s. 718 , 718.01 , 718.02 , 718.1 , and 718.2 .

He then recited a number of mitigating and aggravating factors that affected the appellant’s sentence. [ 34 ] The appellant argues that the trial judge relied on some factors as “aggravating” that are not properly so characterized: • Since the offence of sexual interference under s. 151 can only be committed against a young person, it is an error to consider youth an aggravating factor under s. 718.2(a)(ii.1); •

Section 718.04 provides that denunciation and deterrence are the primary objectives of sentencing when the complainant is vulnerable, including if they are Aboriginal or female, but this is not an “aggravating” factor mentioned in s. 718.2; These references, however, do not disclose a reviewable error. [ 35 ]

Section 718.2 of the Criminal Code lists a number of specific factors that are “deemed to be aggravating”. This list, however, is not exhaustive. For example, in this case, it is conceded that the fact that the complainant was sleeping during one of the offences is aggravating. [ 36 ] In a narrow sense, one can argue that other relevant factors are not properly characterized as “aggravating”, but that term is used in many different ways: (

a) There are a number of crimes that can be committed in a wide range of circumstances, for example mischief, manslaughter (near murder/near accident), and criminal harassment. When identifying where a particular crime fits on the range of seriousness, sentencing judges will sometimes refer to indicia of gravity, and call them “aggravating circumstances”. (

b) In considering the “gravity of the offence” within the proportionality analysis, certain circumstances will aggravate moral culpability. For example, it is an aggravating factor when a theft is committed by a person in trust of the funds. (

c) Sometimes the word “aggravating” is used narrowly to refer to the specific factors mentioned in s 718.2(a), or other factors that are accepted in law to be aggravating. On occasion, trial judges will use the word “aggravating” in several different ways in the same set of reasons.

That is not necessarily a reviewable error, because it is appropriate to use “aggravating” as a general expression of “gravity of the offence”, or as a generic reference to any relevant consideration that would tend to increase a sentence: R. v Morton , 2021 ABCA 29 at paras. 23-24 , 27-28. [ 37 ] The appellant is correct that it is an error to use an essential element of the offence as “aggravating”: R. v Flight , 2014 ABCA 380 at para. 4 , 584 AR 392. So being impaired or causing bodily harm are not “aggravating” factors in a charge of impaired driving causing bodily harm.

On the other hand, the level of impairment or the extent of the bodily harm may well be aggravating.

[ 38 ] When the trial judge described the age of the complainant as “aggravating”, and referred to s. 718.2 (a)(ii.1), he was merely speaking of the “gravity of the offence” within the proportionality analysis. Friesen at paras. 134-35 describes the age of a sexual assault victim as a “significant aggravating factor”, even in a s. 151 context, in this sense of age being an “indicia of gravity” in the proportionality analysis.

Circumstances which impact the gravity of the offence or the degree of responsibility of the offender are clearly circumstances relating to the offence or the offender, not simply elements of the offence. The chosen phraseology does not reflect reviewable error. [ 39 ] Likewise, it was not a reviewable error to use the word “aggravating” in reference to the direction from Parliament in s. 718.04 that denunciation and deterrence are primary objectives when sentencing for offences against vulnerable persons.

The aboriginal status of a vulnerable complainant is a relevant factor in sentencing: s. 718.04, R. v L.P ., 2020 QCCA 1239 at paras. 78-80 , 393 CCC (3d) 1. Again, by use of the word “aggravating”, the trial judge should simply be taken as referring to the “indicia of gravity” surrounding this offence.

When denunciation and deterrence are specified as the primary objectives of sentencing, that is an indication that a higher or sterner sentence is called for. [ 40 ] Further, the appellant argues that the trial judge erred in finding as an aggravating factor that the offence had a significant impact on the complainant. The appellant argues that aggravating factors must be proven beyond a reasonable doubt, and there was no evidence in support of this finding.

There was in fact only a limited amount of evidence on the impact of the offence on the complainant, because she had declined to provide a victim impact statement. The record disclosed: (

a) the appellant’s unwanted attention to the complainant had been ongoing; (

b) the complainant indicated that she was scared of the appellant; (

c) the complainant had not received the support of her family when she brought forward the allegations; and (

d) she was relieved that the appellant had pled guilty, eliminating the need for her to testify in front of the community.

In discussing the effect of the sexual offences on the complainant, however, the trial judge referred to more generic information, such as that arising from the Inquiry into Murdered and Missing Indigenous Women and Girls, a report from the Pauktuutit Organization of Inuit Women, and comments in Friesen on the effect of sexual offences on complainants. [ 41 ] The appellant notes that Friesen at para. 85 indicated a sentencing court should have regard to “the actual harm that a specific complainant has experienced as a result of the offence”. The appellant fairly argues that the evidence on that subject was weak.

The trial judge’s references to more generic statements about the effect that sexual abuse has on victims were, however, relevant. These comments reflect the gravity of this particular offence and are directly related to the message in Friesen that such offences must be dealt with more seriously. This factor was only one of many considered by the trial judge. To the extent that the trial judge overstated the evidence of the particular effect of the offences in this particular complainant, it cannot be said to have had a material impact on the sentence. [ 42 ] In

summary, no reviewable error has been shown in the trial judge’s treatment of aggravating factors. Although the trial judge may have overstated the evidence of the effect that the offences had on the complainant, that single factor would not have had a material effect on the ultimate sentence. [ 43 ] The appellant also argues that the trial judge failed to consider all of the mitigating factors. The trial judge specifically mentioned the appellant’s guilty plea and his expression of remorse.

Even though the trial judge did not specifically state that the appellant was a “first time offender”, he did note that he had no criminal record. He expressly noted twice that jail is “the last resort” (transcript, p. 26, l. 8-9; p. 33, l. 5), which is consistent with s. 718.2 (

d) and (e). The trial judge made specific reference to the appellant’s serious health problems, and thought that those problems could be addressed while the appellant was in custody (transcript, p. 36, l. 5- 13). The weight given to these various mitigating factors is within the discretion of the trial judge. No reviewable error has been shown. Proportionality [ 44 ] The appellant argues that the trial judge failed to properly apply the principle of proportionality.

Rather than fixing an individualized sentence that was appropriate for this offence, and this offender, the appellant argues he was more concerned about the prevalence of sexual violence in Nunavut, and the victimization of Inuit women in general. [ 45 ] The trial judge recognized the primacy of proportionality in sentencing: The fundamental principle, the most basic principle of sentencing, and really everything follows from this, if you think about it closely, is the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (Transcript, p. 25, l. 25 to p. 26, l. 3) He twice mentioned his objective was to impose a proportionate sentence. (Transcript, p. 26, l. 1; p. 35, l. 1) [ 46 ] The appellant points out that later on, in reference to s. 718.01, s. 718.04 and Friesen at paras. 104-105 , the trial judge stated: First and foremost the sentence I impose as required by law must emphasize denunciation and deterrence. (Transcript, p. 33, l. 15-17) It is not reasonable to read this legally correct statement as amounting to a renunciation of the principle of proportionality.

Reasons must be read and interpreted as a whole, not by parsing their individual words and structure in a search for error: G.F . at para. 69 . [ 47 ] Proportionality considers the “gravity of the offence” and “the degree of responsibility of the offender”. The trial judge was entitled to point to the generic factors about sexual offences in Nunavut that he mentioned when determining “gravity”. Further, a sexual crime against a child is directly relevant to the “moral culpability of the offender”. While personal attributes of the accused are obviously

also important in determining moral culpability, it was not a reviewable error for the trial judge to consider more general aspects of the offence. The prevalence and objective seriousness of a particular offence are clearly relevant to the need for deterrance. [ 48 ] The appellant also argues that his sentence was not proportionate, because it failed to give adequate weight to various mitigating circumstances, including Gladue factors, the effect of the Covid pandemic, the appellant’s health problems, and parity in sentencing.

The fact that the trial judge gave more detailed reasons on some of these factors in his supplemental written reasons does not necessarily mean that his original oral reasons were legally deficient or that the sentence imposed was demonstrably unfit. The weight to be given to these factors in the proportionality analysis was particularly within the mandate of the trial judge. [ 49 ] The appellant disagrees with the sentences imposed on him, but the test for reviewable error is that the sentence must be demonstrably unfit.

Friesen at para. 136 stated: “Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence”. In that context, the sentences imposed on the appellant cannot be said to be unduly harsh. The appellant has failed to show any reviewable error with respect to the proportionality analysis or the ultimate sentences.

Summary [ 50 ] In

summary, the appellant has failed to show any reviewable error in the sentences. The sentences are not demonstrably unfit, and the appellant has not shown any error of principle that had an impact on the sentences. [ 51 ] The appeal is dismissed. [ 52 ] The appellant argues that, having been released on bail pending appeal, he should not be reincarcerated for compassionate reasons. He argues that he has serious health problems, and that the correctional facilities are not able to provide appropriate care.

While one must obviously have sympathy for the appellant given his age and health, there is no basis on this record for a stay. Appellants who elect to seek release pending appeal must be aware of the possibility of them having to surrender to serve the balance of their sentence. The appellant must surrender himself into custody no later than November 30, 2021, to serve the balance of the sentences. Appeal heard on November 22, 2021 Reasons filed at Iqaluit, Nunavut this 25th day of November, 2021 Slatter J.A. Appearances: E.K. Baasch for the Respondent V.S.B. Perrie for the Applicant