Her Majesty the Queen - v. -, 2022 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 15 Date: March 25, 2022 Information: 991142735 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mark Taylor Appearing: A. Derwin (Alexa Laplante as Agent) For the Crown L. Pham For the Accused Note: Pursuant to

section 486.4 of the Criminal Code the Court made an order directing that the identity of the victim, and any information that could disclose the identity of the victim, shall not be published in any document or broadcast or transmitted in any way. JUDGMENT B.D. HENNING , J [ 1 ] The Accused Mark Taylor had been charged with a sexual assault under

section 271 of the Criminal Code , but on January 22, 2022, that charge was changed to assault under

section 266 of the Criminal Code , proceeding by

summary conviction, for which the penalty is as follows: 266 Every one who commits an assault is guilty of

(

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. … 787

(1) Unless otherwise provided by law, every person who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both. [ 2 ] The Crown argues for a sentence of incarceration of six months less one day, having regard to provisions of the Immigration and Refugee Protection Act , SC 2001, c 27 [ Act ] relevant provisions of are set out and referenced below. The Defence argues for a conditional discharge due to implications under that Act , as well as the Accused’s personal circumstances.

FACTS [ 3 ] The complainant, N.M., and the Accused were both undergoing training for anticipated positions with Parks Canada in Regina at the RCMP training facility. The circumstances of this case are contained in facts that were read into the record and which the Defence did not take issue with. This oral statement of facts was formatted into a written

summary that was provided to the Court that is not challenged by the Defence. It reads as follows: 1 . She along with other troop mates were having drinks on October 10, 2020 at their hotel the Comfort Inn Suites, 4300 Diefenbaker Drive, Regina celebrating a friend’s birthday. They were playing games and having drinks in the common area of the hotel. 2 . N.M. had 6-7 drinks. 3 . Mr. Taylor had been drinking since the afternoon. 4 . They were in the common area of the hotel and then went to a troop mate’s room for more drinks around 10:00 p.m. 5 .

N.M. left the hotel room at approximately 11:30 p.m. to return to her own room. Mr. Taylor followed her inside her room. N.M. didn’t know he was behind her. When she realized Mr. Taylor was in her room, she was surprised and uncomfortable. 6 . N.M. was not flirting with Mr. Taylor throughout the night and did not want to engage in any sexual activity. 7 . At first, N.M. did not think much of his presence as they were troop mates and friends. 8 . They sat on the couch and talked for a few minutes and Mr. Taylor finished his beer. 9 . Mr. Taylor started kissing N.M. and she kissed him back. 10 . Mr.

Taylor removed her cardigan and she said “I don’t want this.” 11 . In her words she “realized this was wrong” and stopped him. N.M. advised she wanted to go to sleep. She was fully clothed and laid under the covers. 12 . Mr. Taylor followed her to the bed and continued to make sexual advances on her. Mr. Taylor put his hand down her pants, under her underwear, and touched her vagina with his hand while she said “no” multiple times. 13 . There was no penetration. 14 . Mr. Taylor said he wanted to perform oral sex on N.M. She told him to stop numerous times and pushed him away.

Eventually, he stopped and asked to cuddle. 15 . She N.M. estimates that the sexual advances lasted approximately 20 minutes. 16 . N.M. said “I don’t want this,” rolled over and texted one of her troop mates “please help Taylor won’t leave me alone. I’m trying to get away to go to sleep” and “he’s in my room passed out.” 17 . One of the troop mates knocked on the door and N.M. went to sleep in her friend’s room. 18 . N.M. estimates she was alone with Mr. Taylor in her room for approximately 40 minutes. 19 . N.M. came back the next morning and found her bed was made. 20 .

N.M. indicated in her statement to police that she felt “violated” and “disgusting.” She also commented on how difficult it is to be a female in law enforcement. 21 . Mr. Taylor resigned from his training with Parks Canada shortly thereafter. 22 . On October 16, 2020, a formal letter was provided to Mr. Taylor advising that his training agreement was terminated as a result of this allegation, and this would have been the outcome regardless of his decision to resign.

POSTIONS OF CROWN AND DEFENSE AND LEGAL ARGUMENT [ 4 ] The Crown relies primarily on the following case with somewhat similar circumstances, R v Tuffs, 2012 SKCA 6 , 385 Sask R 178 . Judgment extracts are as follows: [3] No issue is taken with the standard of review and the essential facts. The facts are fully canvassed in the conviction decision of the trial judge but a brief review is in order. The parties, the complainant an off-duty RCMP police officer and the respondent a businessman in a nearby community, were separately visiting the same friends in Kindersley.

After an evening of socializing and drinking, they eventually ended back at their mutual friends’ residence. The complainant testified she was sleeping in the basement of

the residence and the respondent, without her consent, got on the bed behind her (she being under the covers and the respondent on top) and placed one of his hands down her pants touching her vagina and said words to the effect “I know you say no, but I know you want it.” She further testified the respondent grabbed her hair to force her head around in an attempt to kiss her.

She was able to push him off her and testified that at some point “something clicked in his head that, okay, well maybe I shouldn’t be doing this” and later said it just ended after something clicked as if the respondent recognized it was something he should not be doing. She testified that there was no penetration. [4] The complainant’s testimony as to the duration of the incident was uncertain and ranged from a couple of minutes to 30 seconds but she was not sure of the exact length of time. … [12] However, we agree with the trial judge this was a case of sexual assault on the lower end of the scale.

Although there was a claim of bruising, the testimony of the investigating officer said it was slight and there was more of a “redness.” The duration of the incident was very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said he was sorry and left. This is not to minimize the effect on the complainant who filed a victim impact statement stating she was required to take time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep.

She said she was forced to see a psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as a result of the assault. [13] We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and the immediate reaction of the respondent that he had gone too far, a sentence of one year incarceration satisfies the sentencing principles and, in particular, does not offend the principle of parity. See, for example, R. v. Iron , 2005 SKCA 84 , 269 Sask.

R. 51 where the accused, with a prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop until the victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having served part of the conditional sentence imposed by the lower court. [ 5 ] The Defence has argued for a conditional discharge basing that position primarily on the particular circumstances of the Accused and collateral consequences that result from a more severe disposition.

The Crown conceded that the part of the test for a conditional discharge that requires that it be in the interest of the Accused was met, but strongly opposed the Defence position on public policy grounds. It is not contested that a conditional discharge is available as a sentence option in this particular case. Additionally, a conditional sentence is also available and should be considered if the court concludes that a custodial sentence is appropriate.

This option was not made reference to in argument as counsel took positions at the opposite ends of the sentencing range available. [ 6 ] Sections 718 and 718.2 of the Criminal Code must be considered and are provided as follows.

These sections allow considerable flexibility in sentence but no sentence may violate these principles which have been developed and refined by case law. 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,

sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act , and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. … 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [ 7 ] The particular circumstances of the Accused were set out in detail in a pre-sentence report.

His present age is 31 and he is originally from New Zealand and has been in Canada for approximately five years with permanent resident status but not citizenship. Both counsel appeared to agree that a result of any conviction under the Criminal Code would make him subject to deportation, but that may be appealed and such appeals are very often allowed provided no incarceral sentence of six months or more is imposed.

For this reason the Crown argues for a sentence of six months less one day which they consider to be lenient concession to provide the Accused with the most favorable position for appeal of his status in Canada. The Crown indicated that the Accused has no criminal record of convictions. [ 8 ] The situation with respect to possible effect of the Accused’s status in Canada is governed by the A ct ,

section 36 . These considerations are considered in law to be collateral consequences to conviction and sentence. That issue has been considered in a number of cases including the Supreme Court most recently in R v Suter, 2018 SCC 34 , [2018] 2 SCR 496. [ 9 ] Relevant provisions are as follows: 36

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed ; …

(3) The following provisions govern subsections (1) and (2): (

a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been

prosecuted summarily; (

b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act , or in respect of which there has been a final determination of an acquittal; (

c) the matters referred to in paragraphs (1)(

b) and (

c) and (2)(

b) and (

c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; (Emphasis Added) [ 10 ] It would appear from the above that it is not correct to state that the Accused would be subject to inadmissibility to Canada and subsequent deportation automatically on any conviction , but only if it is for an offence where the maximum penalty is at least ten years or a sentence of imprisonment is of six months or more is imposed.

That inadmissibility is not triggered by a criminal conviction alone. I do not perceive a distinction being made under section 36(1)(

a) between a conditional discharge, a suspended sentence or even sentence of imprisonment if it is not six months or more. The serious consequences of inadmissibility for admission to Canada is imposed only in the circumstances noted. [ 11 ] However, there is the somewhat ambiguous subsection 36(3)(b), which refers to ‘record suspension’ which I take to mean, a discharge, absolute or conditional.

It may, therefore, be correct to say that the Accused would be in a stronger position with respect to status in Canada if a conditional discharge were granted that would make inadmissibility for admission inapplicable under two sections of the Act . [ 12 ] Besides this collateral consideration there are significant other issues to consider. The facts have been set out above. The charge is simple assault, not the original charge of sexual assault. The Court was not advised, nor should it inquire, why the charge was changed.

I take note of the fact there is a very different and more severe sentencing regime in existence in this and every province of Canada with respect to sexual assault than for simple assault. The Crown has argued that the sexual circumstances of the assault are still highly relevant and I accept that proposition. The sexual aspects of the assault make the assault significantly serious and considerations relating to sexual assault, and particularly the victim’s impact statement, which was provided, are relevant.

The complainant has been affected in a number of ways, some of which continue some two years following the offence and they must be given weight. [ 13 ] This assault considered even as sexual assault would still fall in the lower range of such assaults, as noted in the primary case, R v Tuffs , cited by the Crown that describes a situation which bears some similarity the present case, to be a sexual assault at the lower end of the scale – see paragraph 12. [ 14 ] The background, character and circumstances of the Accused are also very relevant.

The Accused had served in the New Zealand navy for nine years commencing at age sixteen and his service including operational deployments. He had then attended university obtaining a Bachelor of Arts degree following which he came to Canada. He has an excellent work history in responsible positions in Canada for some years, including working with homeless persons and persons with mental issues. Since leaving the Parks Canada training, he is enrolled in a Master of Arts program in the subject area of public policy. His background, work history, and attitude are very positive and he is highly remorseful.

He did not approach potential reference persons from prior positions that he held due to embarrassment over this incident. He resigned from the Parks Canada training program when he was charged. The Crown made the point that he would have been terminated in any event. Nonetheless, he has now lost that career opportunity and almost certainly, any opportunity to work in another area of law enforcement. [ 15 ] The pre-sentence report completed by probation services in British Columbia where Mr. Taylor now lives is also very positive. It notes at some length that Mr.

Taylor fully acknowledged the offence during an interview and admitted fault and wrong-doing without minimization or prevarication. In my opinion, personal deterrence is not a factor for sentencing in this case. [ 16 ] Because of the sexual aspect of the assault the policy considerations have been argued by the Crown as militating against a conditional discharge. The Crown cites the case of R v Malek, 2016 SKQB 142 in support of the inappropriateness of a conditional discharge for sexual assault.

This position equates the charge as being essentially a charge of sexual assault, and the change to simple assault as being a distinction without a difference. I do not accept that, position, though I certainly consider the sexual aspects of the assault as highly relevant. However, options may exist for sentencing with a change of assault that would not be appropriate with a sexual assault. A guilty plea was entered on a different charge and that difference cannot be entirely discounted, in my opinion.

I would accept that the option of a conditional discharge may be considered in this case along with numerous other considerations.

[ 17 ] The Defence has filed a brief outlining considerations in sentencing and in particular to the availability and appropriateness of a conditional discharge in the present circumstances. [ 18 ] A case not cited by either counsel which has relevance is R v Omene , 2014 SKQB 1 , 435 Sask R 276 Barrington-Foote, J (as he then was). The case dealt with the issue of whether a discharge should be granted in circumstances where such a discharge, though available, might not ordinarily be appropriate for sentencing, but due to the collateral consequences, it would be so.

The Court formulated the following question. [4] The question, accordingly, is this: what is the appropriate sentence not only in light of the collateral immigration consequences, but “in light of the facts of the particular case while taking all the relevant factors into account”? More specifically, should Mr. Omene receive a conditional discharge rather than a suspended sentence, thereby avoiding the conviction that could result in his deportation? [ 19 ]

Section 36 of the Immigration Act has not been changed since this case, and the risks under that Act for Mr. Omene were the same as in the present case. Nonetheless, a conditional discharge was allowed with the following conclusion: [45] In my view, a conditional discharge was within the range of available sentences on the facts which were before the learned trial judge.

Even if I am incorrect in that conclusion, and a conditional discharge is slightly outside the range that would apply in the absence of these collateral consequences, it is appropriate taking account of those consequences. (Emphasis added) [ 20 ] Another case that considered the weight to be placed on collateral consequences is R v Suter , 2018 SCC 34 , [2018] 2 SCR 496 [ Suter ] in the context of a fatal accident where the driver left the scene.

The Supreme Court considered the original trial judge’s sentence of five months incarceration and the appellate court’s sentence of 26 months to both be unfit notwithstanding that the appeal court sentence was within the ordinary sentencing range for such an offence. The appropriate sentence was stated to be 15 to 18 months, outside the normal parameters due to collateral consequences. The Court took a flexible approach to consideration of collateral consequences, though always subject to the Criminal Code provisions under

section 718 and following. [ 21 ] Thus I conclude that there is high authority for imposing a sentence in exceptional circumstances that may be outside of normal sentencing parameters if there are serious collateral consequences or other mitigating or aggravating factors that make such an imposition inappropriate. The Defence argues strongly that only a conditional discharge would clearly protect the Accused here from inadmissibility to Canada.

The thorough Defence brief at paragraphs 25 and following, cites persuasive cases from Alberta where discharges were granted for relatively serious assault cases involving bodily harm and two cases from British Columbia involving sexual assaults where discharges were granted.

However, one of those sexual assault cases involved touching over clothing, a less serious circumstance than the present case, and the other case does not disclose the offence though it would appear to have been minimal. [ 22 ] The present case is one of common assault and I accept that a discharge is available and there is some distinction to be recognized between a charge of assault and sexual assault even if the facts are identical.

The plea is to a charge on which a different sentencing scheme ordinarily applies, but the Crown argues that due to the factual basis of the charge, notwithstanding it is not a sexual assault, the sexual assault considerations must be applied. I have observed that there is merit in the Crown argument but there is still a difference, in my opinion, that is inherent due to the actual charge before the Court. [ 23 ] This assault did involve actual touching beneath clothing of the vaginal area, but no penetration, but nonetheless a significant personal intrusion against the integrity of the victim.

The victim impact statement makes that very clear. Many such cases do result in a term of actual imprisonment for general policy reasons that have been enunciated in cases like Tuffs, and others. [ 24 ] Case authority does, however, permit the Court to depart from the normal parameters of sentencing for serious collateral consequences or because the circumstances contain significant mitigating or aggravating factors.

This is stated by the Supreme Court of Canada in R v Suter , which endorses great flexibility in sentencing. [ 25 ] Having regard to the serious, personal and intrusive character of this assault, but also to the exemplary history and background of this offender, and the attitude he has manifested following the offence, I am of the opinion that this is a case where the Court may impose a sentence that is to some degree outside of the most common sentencing parameters in this jurisdiction which might include incarceration.

I take also into account that the charge is assault simpliciter , not sexual assault, and further, that the Accused is a permanent resident subject to the provisions of

section 36 of the Act . I do not, however, conclude that only a discharge would preserve his status in Canada. A sentence below the level specified in section 36(3)(

b) would do that. That is why the Crown has argued for a

sentence of six months, less one day incarceration. [ 26 ] Notwithstanding some authority cited by the Defence from another jurisdiction for granting a conditional discharge for minimal sexual assaults, I conclude that a discharge would be against public interest for an assault of this intimacy.

However, I also conclude that the Crown position of incarceration is a greater penalty than this Accused or public policy requires in this instance, having regard to the actual charge and all of the considerations stated and discussed. [ 27 ] Accordingly, I would impose a suspended sentence and probation for a period of fifteen months which should be of sufficient length to accommodate the programing that will be required as well as the steps necessary for transferring the probation order to another jurisdiction for administration. [ 28 ] The conditions that I would apply, which are to be worded in accordance with the wording for conditions customarily used within the Court are as follows.

Counsel may address me as to details of these conditions, which may be amended following discussion with counsel. - Keep the peace and be of good behaviour. - Appear before the Court whenever required to do so by the Court. - Notify the Probation Officer or Court in advance of any change to the Offender’s name or address and promptly notify the Probation Officer or Court of any change of the Offender’s employment or occupation. - Report to a Probation Officer at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (Toll Free 1-888-586- 6363) by phone within 3 working days and after that as told to do so by your Probation Officer or designate. - Maintain present residence in British Columbia and not change that residence without the prior written permission of your Probation Officer or designate or the Court. - Participate in mandatory assessments and follow up programming for: sexual offending as directed by your Probation Officer. - Have no contact of any kind in any way, directly or indirectly, with N.M. except through a lawyer. - Cooperate with the transfer of the Order for Administration forthwith to the Province of British Columbia. - Participate in programming as directed by the Probation Officer that will include: assessment for alcohol use and follow-up programming if appropriate. - Comply with any programming and not cause yourself to be discontinued for reasons of conduct.

Dated at the City of Regina, the Province of Saskatchewan this 25 th day of March, 2022. __________________________ Henning, J