His Majesty the King - v. -, 2022 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 39 Date: September 23, 2022 Informations: 90424498, 90455581, and 90455586 Location: Meadow Lake _____________________________________________________________________________ Between: His Majesty the King - and - R.H.S. Appearing: W. Louison For the Crown L. Mischuk For the Accused SENTENCING DECISION M.E. TOMKA , J BACKGROUND [ 1 ] Mr. R.H.S.’s trial on Information 90424498 was held on May 10, 2022.

He was charged with assault contrary to s. 266 of the Criminal Code [ Code ], sexual assault contrary to s. 271 , and forcible confinement contrary to s. 279(2) in relation to events that allegedly took place on May 19, 2020 (the Trial Matters). The Crown proceeded by indictment on the Trial Matters. [ 2 ] After trial, Mr. R.H.S. was found guilty on all counts on June 2, 2022. Sentencing was adjourned to a later date. [ 3 ] Defence requested that a pre-sentence report (PSR) be prepared. The Court obliged the request and ordered a PSR on June

24, 2022. [ 4 ] Sentencing submissions were heard on August 5, 2022. [ 5 ] On August 5, 2022, Mr. R.H.S. entered guilty pleas to the following: Information # Count Code

Section Description 90455581 Count (3) s. 145(5) Breach of curfew on a release order 90455586 Count (1) s. 348(1)(

a) Break and enter a dwelling house Count (4) s. 145(5)(

a) Breach of curfew on a release order [ 6 ] This sentencing decision relates to the Trial Matters as well as the other matters to which Mr. R.H.S. pled guilty on August 5, 2022. MATERIALS BEFORE THE COURT [ 7 ] Prior to sentencing the Court was provided the following materials: 1. Cases submitted by the Crown: R v Sandhu, 2022 ABQB 332 [ Sandhu ] ; R v Friesen, 2020 SCC 9 , 391 CCC (3d) 309 [ Friesen ] ; R v Bear, 2022 SKCA 69 ; R v J.S., 2017 ONSC 2998 ; R v Dyck, 2014 SKCA 93 , 323 CCC (3d) 333 ; R v B.U., 2006 SKQB 476 , 290 Sask R 160 [ B.U .] ; and 2.

Pre-sentence report prepared by Tanya Stanley. [ 8 ] During sentencing submissions, the following further material was filed with the Court: 1. Mr. R.H.S.’s criminal record. 2. Victim impact statements from the complainant J.S., dated March 18, 2021, and from the complainant’s mother, T.D., undated. Both of the victim impact statements were read into the record by the Crown during submissions.

POSITION OF THE PARTIES [ 9 ] This was a contested sentencing with a significant gap between the positions of the parties. [ 10 ] The Crown sought a significant period of incarceration along with the necessary ancillary orders.

On the Trial Matters, namely, the sexual assault, the assault, and the confinement the Crown suggested a global sentence of 6-8 years’ incarceration. [ 11 ] On Information 90455586, which includes the break and enter charge, the Crown suggested a further 3 years’ incarceration to be served consecutively. [ 12 ] Concurrent time was suggested by the Crown on the remaining charges. [ 13 ] However, the defence position was a global sentence of 3 years on the Trial Matters and a further 18 months consecutive for the matters on the break and enter charge.

Defence took no issue with the concurrent time on the remaining charges, nor the ancillary orders requested by the Crown. SENTENCING PRINCIPLES TO BE APPLIED [ 14 ] Sentencing is an individualized process, as emphasized by the Saskatchewan Court of Appeal in R v Whitehead , 2016 SKCA 165 at para 26 , 344 CCC (3d) 1 : [26] . . .

As the Criminal Code suggests — and as courts have consistently held — sentencing is an inherently individualised process where the gravity of the offence and the role the offender played in its commission must be considered alongside the degree of responsibility of the offender, having had regard to the offender’s unique individual circumstances.

Differences in these considerations may well account for variations in sentence even as between co-accused provided the predominant goal of sentence proportionality is achieved. (Emphasis added) [ 15 ] Sections 718 , 718.1 and 718.2 of the Code are the statutory framework for sentencing. Those sections set out the fundamental purposes of sentencing and the key objectives of sentencing, which include denouncing unlawful conduct, deterring the offender and other persons from committing offences and, where necessary, separating the offender from society. Key objectives also include

rehabilitation of offenders, providing reparation for harm done to the victim and the community, promoting a sense of responsibility in the offender and maintaining a just, peaceful, and safe society. [ 16 ]

Section 718.1 of the Code states that a fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 of the Code sets out that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. The Code also provides for the principle of parity, that is, that similar sentences should be imposed for similar offences and similar offenders. The Code also provides that the totality principle must be considered, such that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

As well, the Code provides for the principle of restraint to the effect that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, and that the least restrictive sanction that is reasonable in the circumstances should be identified. [ 17 ] Mr. R.H.S. is Indigenous, and, as such,

section 718.2 (

e) of the Code applies. On this issue, the Court is cognizant of Justice Kalmakoff’s comments in R v Charles, 2021 SKCA 114 , wherein he discusses sentencing of an Indigenous offender at paras 20 – 22: [20]

Section 718.2 (

e) requires sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances, while paying particular attention to the circumstances of Indigenous offenders.

This Court has, on many occasions, emphasized that s. 718.2 (e), interpreted in light of the Supreme Court’s decisions in Gladue and R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, requires that the sentencing of Indigenous offenders be approached in a different way (see, for example: Chanalquay ; R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ]; R v Delorme , 2017 SKCA 3 ; R v McKay , 2019 SKCA 129 ; R v J.P. , 2020 SKCA 52 , 62 CR (7th) 328 [ J.P. ]; R v Ratt , 2021 SKCA 7 ; R v Kishayinew , 2021 SKCA 32 ; and R v Charles , 2021 SKCA 75 , [2021] 7 WWR 734 [ Charles ]) . [21] As part of this approach, a judge sentencing an Indigenous offender must consider the unique systemic or background factors that may have played a

part in bringing the offender before the courts, as well as the types of sentencing procedures or sanctions that may be appropriate in the circumstances for the offender because of his or her Indigenous heritage ( Gladue at para 66; Chanalquay at para 34; Charles at para 37 ). [22] While s. 718.2(

e) does not dictate a particular result or necessarily require the reduction of a sentence just because an offender is Indigenous, the analysis mandated by it is an integral part of the reasoning which leads to a fit sentence ( Gladue at para 88; Chanalquay at paras 34–37). Part of that analysis is a consideration of the extent to which an Indigenous offender’s unique circumstances – including background and systemic factors – may have had a bearing on his or her moral culpability ( Ipeelee at paras 71 and 73 ; Whitehead at paras 56–58 ; Chanalquay at para 40).

This is required even where the nature of the offence calls for a sentence of incarceration, as Jackson J.A., citing J.P. , explained in Charles : [41] In J.P. , Leurer J.A. emphasized that even if a fit sentence requires incarceration, the “requirement for proportionality demands that the impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determining the period of incarceration” (at para 63).

This is so because a sentencing judge must account for “ any factor affecting moral blameworthiness (whether by increasing or decreasing it)” and those factors “ must be given weight in order to impose a fit sentence based on the principle of proportionality” (emphasis in original, at para 64). [ 18 ] Furthermore, in the context of this sentencing s. 718.01 and s. 718.04 of the Code are applicable to the Trial Matters and the break and enter charge.

These sections require that denunciation and deterrence be the primary principles that are considered when sentencing for matters involving the abuse of children or someone who is vulnerable because of personal circumstances, such as being Indigenous and female. [ 19 ] The Court notes and accepts the comments of Judge Rybchuk in R v Nayneecassum , 2022 SKPC 10 at para 62 [ Nayneecassum ], namely, that sections 718.01 and 718.04 were “… enacted in response to the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls Calls for Justice 5.3, 5.16 and 5.18 that recognize the vulnerability of Indigenous females to sexual assault and calls for action to reform the criminal justice system to protect Indigenous girls from violent crime.” CIRCUMSTANCES OF THE OFFENCES Information 90424498 - the Trial Matters [ 20 ] The sexual assault, confinement, and assault of Ms.

J.S. occurred on May 19, 2020. The facts of this incident are outlined in the Court’s trial decision, and the Court does not intend to repeat them in detail. However, a

summary of the facts is important. [ 21 ] In the early morning hours of May 19, 2020, J.S., who was 17 at the time, asked Mr. R.H.S. and his uncle for a ride to her grandmother’s home from a party they were all attending. Both individuals were known to Ms. J.S. The two men agreed to give her a ride, and the three of them got into the uncle’s truck. The uncle drove, Mr. R.H.S. sat in the passenger seat and J.S. sat in the back seat behind Mr. R.H.S.. [ 22 ] During the ride, J.S. became concerned about Mr. R.H.S.’s behavior. She wanted to get out of the truck and tried several times to leave. However, Mr.

R.H.S. did not allow her to get out of the truck, pushed her back into her seat, and would not open the door for her. At one point during the drive, she tried climbing out of the window. Mr. R.H.S. grabbed her shirt and pulled her back in the car, not allowing her to leave. [ 23 ] The truck was eventually driven to a bushed area. When the truck stopped, Mr. R.H.S. pulled J.S. out of the truck. He grabbed her by the wrist and eventually pushed her to the ground. While she was on the ground, Mr. R.H.S. held J.S. down so she could

not get away. She was on her stomach. He then pulled down her clothing and underwear and penetrated her vagina with his penis until he ejaculated. He did not ejaculate directly inside her. In no way did J.S. consent to this sexual act. J.S. suffered minor bruises due to her treatment by Mr. R.H.S.. These events occurred on the Big Island Cree Territory in Saskatchewan. Both Mr. R.H.S. and J.S. are members of this First Nation community. [ 24 ] Following a trial, Mr.

R.H.S. was found guilty of unlawful confinement contrary to s. 279(2) of the Code , sexual assault contrary to s. 271 of the Code and assault contrary to s. 266 of the Code . Information 90455581 [ 25 ] On November 28, 2021, Mr. R.H.S. was on a release order that included a condition that he abide by a curfew from 10:00 p.m. to 7:00 a.m. each day. At approximately 1:30 a.m. on the night in question, Mr. R.H.S. attended at the home of his ex-domestic partner, Ms. J.S.2, and commenced banging on the door. Police were called, and he left without incident.

This incident occurred on the Big Island Cree Territory in Saskatchewan. Mr. R.H.S. pled guilty to breaching the release order contrary to s. 145(5)(a). Information 90455586 [ 26 ] On November 30, 2021, at approximately 4:30 a.m., Mr. R.H.S. went to the home of Ms. J.S.2 (who was also the complainant in the previous information) and began kicking on the door. He continued kicking until the deadbolt on the door gave way. He gained entry to the home and found Ms. J.S.2. Upon finding her in the home, Mr. R.H.S. was belligerent, confronting her about being with other men. Ms.

J.S.2 tried to call 911 on her cell phone, but Mr. R.H.S. accosted her and tried to stop her from calling the police. He threatened her and eventually left the home. [ 27 ] Later the same day, at approximately 9:45 p.m., Mr. R.H.S. once again went to Ms. J.S.2’s home, kicked at the door, and gained entry. He sought Ms. J.S.2 in the home, and, when he found her, he raised his fists and threated to hit her. Fortunately, there were two other women in the home at this time who went to assist Ms. J.S.2. Mr. R.H.S. attempted to grab Ms. J.S.2’s cell phone, when the two women interjected. [ 28 ] Mr.

R.H.S. left the home and threatened Ms. J.S.2, saying he was going to come back every night. [ 29 ] Ms. J.S.2 in her statement indicated that she was one of Mr. R.H.S.’s former domestic partners, but at the material time she had not been involved with him for some time. [ 30 ] Mr. R.H.S. pled guilty to break and enter contrary to s. 348(1) (

a) of the Code , and breach of a release order contrary to s. 145(5) (a). GRAVITY OF THE OFFENCES [ 31 ] In regard to the Trial Matters, recently the Supreme Court of Canada commented on the seriousness of sexual offences perpetrated against a child. See : Friesen , paras 1 and 5 . Notably, para 5 of Friesen states: [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far- reaching and ongoing harm that it causes to children, families, and society at large. [ 32 ] In this case, J.S. was 17 years old at the material time making the comments of the Supreme Court in Friesen applicable. There is little doubt she faced a traumatic encounter with Mr. R.H.S. involving a terrifying confinement and a very serious sexual assault. There is no question the gravity of the Trial Matters is significant. [ 33 ] Further, Mr.

R.H.S. pled guilty to break and enter into a dwelling house belonging to an ex-domestic partner. This charge is a serious indictable matter. The circumstances of the charges on Information 90455586 are aggravating; they include the fact that the charge involved the home of a former domestic partner as well as some level of violence (albeit low level violence). The complainant was an Indigenous woman. Furthermore, Mr. R.H.S. had been convicted of a personal violence offence against this ex-domestic partner previously.

HARM CAUSED BY THE OFFENCE Victim Impact Statements [ 34 ] Pursuant to s. 722(1) of the Code , the Court is to consider any statement that may have been prepared by a victim of an offence in which he or she describes the harm done to or loss suffered by the victim. [ 35 ] The Crown tendered two victim impact statements in relation to the Trial Matters, one from J.S. and one from her mother. The defence took no issue with any portion of the statements. However, as provided for in s. 722(8) of the Code , the Court is only to consider the relevant portions of the statements and to disregard the remainder.

[ 36 ] In that vein, J.S.’s victim impact statement reads, in part: ….After the assault happened it made me not like myself. I can barely eat anymore. I don’t care about myself at all. I have changed completely. I started to smoke more weed it helps numb me., it helps take away the pain. I have a feeling like I shouldn’t be alive. … I am scared of older men and feel protective over females….had a bad panic/anxiety attack. It weighed heavy on my chest and felt like it was suffocating me.

I have a lot of fears about different things since the assault, it is hard to descript and talk about. [ 37 ] The Court in its sentencing decision accepts that the complaint, J.S., was significantly impacted by the events perpetrated upon her by Mr. R.H.S.. CIRCUMSTANCES OF THE OFFENDER [ 38 ] Mr. R.H.S. is 30 years old and is a member of the Big Island Cree Territory and has resided there for most of his life. [ 39 ] He has two daughters, aged three and two, with J.S.2 (the complainant in several of the Informations). This relationship is fluid and, by his own admission, unhealthy. J.S.2 and Mr.

R.H.S. started seeing each other in 2018. [ 40 ] Mr. R.H.S. has two older children, aged 12 and 17, with C.S.. [ 41 ] In his early years, Mr. R.H.S. was raised by his maternal grandmother. He describes his childhood as hard. He recalls being physically assaulted by his grandmother and mother until he ran away at the age of ten years old. After running away, he moved from home to home, staying with anyone willing to have him.

He recalls at some point being placed in foster care. [ 42 ] He has three younger siblings, two of whom were placed with foster families outside of Big Island Lake with his remaining sibling residing in the community. He has never met the two siblings who were placed outside of Big Island Lake. His father also had three other children with a woman who was not his mother who reside at Big Island Lake. [ 43 ] From an early age, Mr. R.H.S. witnessed his grandparents drinking and fighting. He was introduced to alcohol at the age of eight. Mr.

R.H.S. was sexually abused, at the age of 10, by an extended family member who was babysitting him. [ 44 ] Mr. R.H.S. acknowledges that alcohol is a problem for him. He has been drinking alcohol since he was eight years old. Drinking became more regular for him when he turned thirteen. This was also when he started getting in trouble with the law. Prior to his arrest, Mr. R.H.S. says that he had been drinking almost daily. Mr. R.H.S. says he previously used marijuana when he was younger and began using meth a few years ago but says he only uses it occasionally. [ 45 ] Mr. R.H.S. has a criminal record.

The PSR indicates: R.H.S.’s youth criminal history begins in 2007 and includes 35 convictions. For these, R.H.S. received probation and time served. R.H.S.’s adult criminal history begins in 2011 and includes 20 convictions. For these convictions R.H.S. received fines, incarceration, time served and probation. [ 46 ] In addition, the PSR indicates: In completing the SPRA risk assessment as well at the STATIC-99 and STABLE 2007 R.H.S. was found to be in the high-risk category in all assessments.

R.H.S.’s issues with substance abuse as well as his lack of leisure activities and positive peers in the community are a concern. R.H.S. has not had significant employment in his life. However, the attitude R.H.S. has displayed towards his criminal involvement is a concern. GLADUE ANALYSIS [ 47 ] As noted, the PSR touches on several Gladue factors throughout, but it also specifically comments at page 5 of 9 that: … R.H.S. indicated he has experienced some racism when working away from Big Island Lake on a few occasions. He has not let these experiences affect him.

R.H.S. stated he has experienced loss in his life, losing an uncle and a cousin who he was very close to. R.H.S. indicated he does not know how to deal with his grief. R.H.S. was not raised in a loving supporting family; he talks about being thrown outside in the winter in his underwear by his mother. R.H.S. always felt alone. They grew up with alcohol abuse and physical abuse in the home. Family breakdown is a real thing for R.H.S., he stated he did not know his father, his mother could not raise him correctly and his maternal grandmother was abusive.

When asked about his culture, R.H.S. stated he does not understand it, he has never been taught. Growing up he stated he attended

church sometimes. R.H.S. indicated he would love to learn about his traditional ways. This writer asked about residential school experiences. Both A. and R.H.S. are unaware if R., R.H.S.’s grandmother attended the school. A. stated her mom was also abused the same way by her parents, so she believes this was a learned behavior. [ 48 ] R v Ipeelee , 2012 SCC 13 , 280 CCC (3d) 265 [ Ipeelee ] instructed that the Gladue analysis is a two-stage process during which the Court must consider: (1) the systemic and background factors which played a

part in bringing the Indigenous offender to court; and (

b) the types of sentencing procedures and sanctions that may be appropriate for the offender in light of his or her Indigenous heritage. 1. Systemic and Background Factors [ 49 ] The Court takes judicial notice of the history of colonialism, displacement, and residential schools. The effects of this history are multi-generational and continue to result in lower educational attainment, lower incomes, higher unemployment, substance abuse and suicide, and higher levels of incarceration for Indigenous people. Residential schools affected not just those who attended but their families and communities.

Children were physically and sexually abused, and that affected how they lived their lives when they returned to their homes, leading to intergenerational violence and addictions. [ 50 ] At an early age, Mr. R.H.S. experienced physical abuse from his grandmother and mother as well as sexual abuse from a family member. He was young when he left home and school to escape the violence. He grew up in an atmosphere of poverty and spent time couch surfing as an early teen. He had no real home growing up. He struggles with alcohol and is seemingly now acknowledging he has a drug abuse issue. The Court accepts that Mr.

R.H.S.’s behavior is the by-product of intergenerational substance abuse, violence, and loss of culture. [ 51 ] Because some of Mr. R.H.S.’s behaviour is a direct result of intergenerational issues, the Court is of the opinion that his moral blameworthiness is lowered and should be considered in determining a fit sentence. 2. Type of Sentence Appropriate in Light of Indigenous Heritage [ 52 ] Denunciation and deterrence are the primary sentencing objectives in this case. Certainly, there is debate whether lengthy sentences deter crime.

However, it is the Court’s view they do send a message regarding society’s views of the criminal act, thereby denouncing it. In this particular case, nothing short of a significant period of incarceration would be proportionate to the gravity of this offence and the degree of responsibility of this offender, even considering the mitigating effect of Gladue factors and his personal circumstances. [ 53 ] The Court is aware that there is programing available in the penitentiary setting that may assist Mr. R.H.S. in coping with the intergenerational issues he faces.

It is important to note that the PSR identifies that Mr. R.H.S. has never been taught about his culture and that he would “love to learn about his traditional ways”. The Court is also cognizant that programing in relation to domestic violence as well as substance abuse issues is also available in the penitentiary setting. Most assuredly, Mr. R.H.S. would benefit from such programing. AGGRAVATING FACTORS [ 54 ] The Court is to consider the aggravating factors on sentencing.

Regarding the Trial Matters, the aggravating factors include: • The age of the complainant – ( s. 718.2 (a)(i.1) of the Code ); • The complainant is an Indigenous woman; • The complainant suffered a significant impact – (s. 718.2(a)(iii.1) of the Code ); • This was a serious sexual assault involving some level of violence; • The complainant suffered minor physical injuries (bruising). [ 55 ] Regarding the break and enter matters, the aggravating factors are: • The home was owned by a former domestic partner – ( s. 718.2 (a)(ii) of the Code ); • There was some violence involved once he gained entry to the home; • The homeowner is an Indigenous woman; • The accused knew or was reckless as to whether there was anyone home at the time of the offence – ( s. 348.1 of the Code ); • Mr.

R.H.S. not only broke through the door of the home once but came back twice and entered the home without permission; • Mr. R.H.S. has previously been convicted of an offence of personal violence against the owner of the home.

MITIGATING CIRCUMSTANCES [ 56 ] The Court is also to consider the mitigating factors in determining a fit sentence. On the Trial Matters the mitigating circumstances include: a. the personal circumstances of the offender leading to a decreased moral blameworthiness including Gladue factors. [ 57 ] Regarding the remaining matters, the additional mitigating factor is: a. the guilty pleas.

PARITY [ 58 ] The Supreme Court of Canada, in the majority decision in R v Parranto , 2021 SCC 46 at paras 36 and 44 , 411 CCC (3d) 1 approved the use of non-binding starting points or ranges for sentencing judges: [44] While not binding, however, sentencing ranges and starting points are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence. And, as we have already observed, they offer judges a place to begin their thinking.

When applying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualizing the sentence, the sentencing judge must therefore consider “all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them” ( Ipeelee , at para. 75 ).

Those factors and circumstances may well justify a significant downward or upward adjustment in the sentence imposed. (Emphasis in original) [ 59 ] The Saskatchewan Court of Appeal has consistently endorsed a starting point of 3 years imprisonment for a serious sexual assault conviction involving an adult victim and an offender with no criminal record to be adjusted downward or upward based on the circumstances of the offence and offender.

See R v Kishayinew , 2021 SKCA 32 at para 35 ; R v Okemaysim , 2021 SKCA 33 at paras 77- 79 ; R v Lemaigre , 2018 SKCA 47 at para 20 . [ 60 ] In the era following Friesen , supra , it is also clear to this Court that the starting point for a serious sexual assault is somewhat higher than 3 years’ incarceration for cases involving a child complainant rather than an adult complainant. [ 61 ] The Court has considered all of the cases filed by the Crown (which are outlined above). However, to be frank, they were of marginal assistance and are only useful to show general trends.

Indeed, the differences in the circumstances of the offences, the offenders, and other factors were a clear reminder to the Court that sentencing is extremely individualized and fact specific. [ 62 ] That being said, of the cases filed by the Crown, the following were of the most assistance: R v Sandhu , 2022 ABQB 332 In this case, the complaint was an 18-year-old Indigenous woman visiting Edmonton. She had gone to the bar with friends. The complainant was intoxicated. She accompanied three males into their car at the end of the night. She was held down and sexually assaulted in that car.

All three men had forced vagina/penile penetration with her. She yelled “no” throughout. Mr. Sandhu was convicted of sexual assault in his own right, sexual assault as a party, and unlawful confinement. Mr. Sandhu had no criminal record; he was going to be deported and had significant community support. He received a global sentence of five years’ incarceration. Mr. Sandhu was approximately the same age as Mr. R.H.S.. However, various factors in this case differ from the present case including that the complainant was not a child at law, Mr.

Sandhu had no criminal record, the Sandhu case involved several incidents of serious sexual assault and there were no Gladue factors to consider. R v J.S. , 2017 ONSC 2998 In R v J.S. , the complainant and the accused were in a relationship. On this occasion, the accused became jealous, hit her on the head, and also bashed her head on the floor. The accused grabbed the complainant by the hair and took her to the bedroom. He duct-taped her ankles and hands and around her head. He penetrated her vagina and anus with his penis. She was duct taped for two to seven hours while the assault occurred.

The accused told her he was going to kill her. He did not allow her to go to the bathroom or smoke or leave the apartment. After he was finished, he hit her head on the floor several more times. She was eventually able to flee the apartment. She suffered bruising and a sprained ankle. Clumps of her hair were pulled out, and two upper teeth were damaged. All of this took place at the hands of the accused. The accused was 42 years old. He had a lengthy record. He blamed his actions on alcohol abuse.

He was sentenced to 8 years less remand credit for the confinement, 5 years for the sexual assault and 2 years for assault causing bodily harm. Again, the factors in this case differ from the within case – this was an adult complaint, the injuries were significant, and the time the complainant was confined was more significant. R v B.U., 2006 SKQB 477 In this case the accused was the spouse of the complainant. The accused was upset when the complainant came home. He grabbed her by her hair and repeatedly banged her head into the corner of the wall and into the door frame.

He hit her with his fist, eventually pulling out his penis and forcing it into her mouth. The accused also took a screwdriver and began shoving the handle of the screwdriver time

and time again into her vagina. Further, during the assault he shoved a bottle-like object into her vagina. Following these acts, he had non-consensual penis/vagina intercourse with her. She begged him to stop. He would not allow her to leave the home. This was a prolonged incident. She fled the home many hours later. The accused was found guilty of assault, forcible confinement, and sexual assault. Aggravating factors were his lack of remorse, the duration of the incident, and the significant nature of the assaults.

He was sentenced to 1 year of imprisonment for assault, 2 years concurrent for the forcible confinement, and 4 and one-half years for the sexual assault. Certainly, the level of violence, the number of sexual acts and the duration of the confinement involved in this case are on the higher end of the spectrum as compared to the case at bar. As well, the B.U. case did not involve a child complainant and there were no Gladue factors to consider. SENTENCE [ 63 ] Given the circumstances of these offences, the personal circumstances of Mr.

R.H.S. including the Gladue factors and having regard to the principles of sentencing, including the principles of denunciation, deterrence, parity and totality, the Court is satisfied that the appropriate sentences, before considering remand time, are as follows: The Trial Matters : Information 90424498 Count 2

Section 271 1642 days Count 1

Section 266 180 days concurrent Count 3 Section 279(2) 729 days concurrent Information 90455581 Count 3 Section 145(5)(a) 30 days concurrent Information 90455586 Count 1 Section 348(1)(a) 540 days consecutive Count 4 Section 145(5)(a) 60 days concurrent [ 64 ] The parties have agreed that as of September 23, 2022 (the date of sentencing), Mr. R.H.S. will have 474 actual days in custody, equating to 711 days of enhanced remand time. It is the Court’s view that he should be credited with the enhanced time against his sentence. [ 65 ] Mr.

R.H.S.’s remand credit is to be applied to Count 2, the s. 271 conviction, on Information 90424498. Therefore, Mr. R.H.S. would have 931 days going forward on the s. 271 conviction after crediting his remand time. [ 66 ] The intention of the Court is a total global sentence of imprisonment of 2182 days less remand credit of 711 days, leaving a total of 1471 days of custodial time going forward for Mr. R.H.S.. TOTALITY [ 67 ] The Court acknowledges that it must consider the principle of totality given it has imposed a consecutive sentence.

The Court has reviewed and adopts the Court of Appeal’s decision in R v Dillon, 2022 SKCA 17 at paras 36-41 on the principle of totality. Despite Mr. R.H.S.’s personal circumstance, Gladue factors and other mitigating circumstances, the Court is of the view that the totality principle is not violated by the sentence imposed on Mr. R.H.S.. In the Court’s opinion, the combined sentence is not unduly harsh or long considering the circumstance of the offences and the offender. Indeed, Mr. R.H.S. was involved in two very serious separate incidents involving different complainants at different times.

The gravity of his offences is extremely high and consideration of Mr. R.H.S.’s personal circumstances, Gladue factors and the mitigating factors were influential in imposing the various sentences. The Court has considered totality in imposing a concurrent sentence for some of the charges. ANCILLARY ORDERS [ 68 ] Pursuant to s. 109 of the Code , a firearms prohibition for a period of 10 years will be imposed.

The s. 109 order is to attach to Counts 2 and 3 on Information 90424498 and Count 1 on Information 90455586. [ 69 ] In addition, pursuant to s. 487.051 of the Code , the Court makes an order authorizing the taking of such bodily substance samples from Mr. R.H.S. – as are reasonably required for forensic DNA analysis. In making this order, the Court is aware that Mr. R.H.S. may already have samples in the national data bank. However, as the Court reads s. 487.051 , the order is mandatory, given the offences for which he is being sentenced. If Mr.

R.H.S. does, in fact, have a DNA sample in the national data bank, then s. 487.071 of the Code would apply to prevent the submission of a duplicate sample. The s. 487.051 order will attach to Counts 2 and 3 on Information 90424498 and Count 1 on Information 90455586.

[ 70 ] Pursuant to ss. 490.012 and 490.013 of the Code , the Court orders that Mr. R.H.S. comply with the Sex Offender Information Registration Act, SC 2004, c 10 , for life. This order will attach to Count 2 on Information 90424498. [ 71 ] The Court also waives any victim surcharge having regard to the Supreme Court of Canada decision in R v Boudreault , 2018 SCC 58 , [2018] 3 SCR 599 . __________________________ M.E. Tomka, J