Her Majesty the Queen - v. -, 2022 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 10 Date: June 2, 2022 Information: 991112863 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven James Nayneecassum - and - The Attorney General of Saskatchewan (Intervenor) PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Appearing: Allie Derwin For the Crown

David Andrews, Q.C. For the Accused Katherine Roy For the Attorney General SENTENCING DECISON J. RYBCHUK, J INTRODUCTION [1] It is often said that sentencing is an art rather than a science. Sentencing is one of the most delicate stages of the criminaljustice process that requires judges to consider and balance a variety of factors that are difficult to define with precision (R v Parranto, 2021 SCC 46, 75 CR (7th) 217 [Parranto]; R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse]). It is a discretionary exercise, butit does not vest absolute discretion in the sentencing judge.

Rather, the art is constrained by well-articulated principles derived from theCriminal Code, RSC 1985, c C-46 [Code] and jurisprudence. As Lamer C.J.C. aptly noted in R v M.(C.A.), (SCC),[1996] 1 SCR 500 at para 91, sentencing is “a delicate art which attempts to balance carefully the societal goals of sentencing against themoral blameworthiness of the offence, while at all times taking into account the needs and current conditions of and in the community”. [2] This analysis informs what follows. Some cases are harder than others.

This is one such case. [3] Steve Nayneecassum entered a guilty plea to sexual interference contrary to s. 151 of the Code. He comes before the Courtfor having sex with a young Indigenous girl who was statutorily unable to consent to sex. Doubtless, this offence will have an enduringimpact on her into her adult life. [4] Defence counsel requested and filed with the court various medical records including a psychological assessment of Mr.Nayneecassum. [5] Mr. Nayneecassum has a myriad of personal features that place his moral blameworthiness for this offence at the forefront of the analysis.

He presents with Fetal Alcohol Syndrome, operative Gladue[1] factors, and a significant cognitive and intellectual disabilitythat places him in the 0.1 percentile of adults. Mr. Nayneecassum’s mental age falls below that of an individual who can legally consentto sex or be charged with a criminal offence under the Youth Criminal Justice Act, SC 2002, c 1. [6] Counsel for Mr. Nayneecassum filed a constitutional challenge to s. 151(

a) of the Code, which requires the imposition of amandatory minimum sentence of one-year imprisonment upon a finding of guilt when the Crown proceeds by indictment, as it did here. [7] The matter of sentencing and the Charter[2] application was heard before me on November 29, 2021, December 8, 2021,February 17, 2022 and April 11, 2022. I reserved the decision. These are my reasons for sentencing.

CIRCUMSTANCES OF THE OFFENCE [8] The circumstances of the offence were outlined in the submissions of counsel and the exhibits filed in court. [9] During submissions, there was some slight discrepancy between the Crown and defence counsel surrounding the details ofthe offence, some of which were acceded to by the Crown and others that were not. No sentencing hearing was requested or required to

be held as it would have required the victim to testify and the distinctions did not affect the determination of sentence. [10] Where any conflict remained, it was minor and resolved in favour of Mr. Nayneecassum.

In R v Williams, 2020 SKCA 108,393 CCC (3d) 325 the Court of Appeal for Saskatchewan accepted as a general proposition of law that where the facts related to sentenceare unclear or unresolved, the Court is to impose a sentence based on the factual understanding that is most favourable to the offender.This was a restatement of earlier law that determined when no formal sentencing hearing is held and the Crown has not proven anaggravating factor beyond a reasonable doubt, the sentencing judge must “so far as possible”, accept the accused’s version of the factsstated at the informal hearing unless there is some manifest reason why that

interpretation is contrived or erroneous: R v Gardiner, (SCC), [1982] 2 SCR 368 at 414–415; R v Poorman (1991), (SK CA), 66 CCC (3d) 82 at para 14 (SaskCA); R v Ewanchuk, 2002 ABCA 95 at para 22, 164 CCC (3d) 193; R v Gobin (1993), (MB CA), 85 CCC (3d) 481at 482 (Man CA); and R v T.A.S., 2018 SKQB 143 [T.A.S.]. Accordingly, where the Crown facts may have diverged slightly with Mr.Nayneecassum’s statement to the police, I accept his version of the events for the purposes of this sentencing. [11] Briefly summarized, Mr. Nayneecassum met the complainant, SM, on the evening of November 15, 2019. Mr.

Nayneecassumwas 29 years old. SM was 14 years old. SM is an Indigenous female. Mr. Nayneecassum is also Indigenous. [12] SM and Mr. Nayneecassum were with a group of people at a mutual friend’s house. The group went to get slushies andreturned to the friend’s house. They were consuming plenty of alcohol. SM indicated that she was 14 years old many times throughoutthe evening. She also indicated that she thought Mr. Nayneecassum was around 30 years old at the time. [13] At some point in the evening, SM and Mr. Nayneecassum began kissing.

Everyone in the group, except for SM, Mr.Nayneecassum and an individual named Tyler, left to get more alcohol. SM, Mr. Nayneecassum and Tyler went to Mr. Nayneecassum’sresidence. SM stopped drinking alcohol at this point. [14] In the early morning hours of November 16, Tyler left Mr. Nayneecassum’s residence. SM and Mr. Nayneecassum wentupstairs. They kissed. They each took off their own clothes. They engaged in vaginal intercourse once. SM went to sleep and stayed thenight at Mr. Nayneecassum’s home. [15] The following morning, SM’s older sister, LM, and others showed up at Mr.

Nayneecassum’s residence because SM had notcome home that night. Upon entering the home, these individuals discovered that SM and Mr. Nayneecassum had engaged in sexualactivity. [16] One of the individuals, KZ, began yelling at Mr. Nayneecassum. KZ called him a “pedophile”, stating repeatedly “she’s only14” while punching Mr. Nayneecassum. IMPACT ON THE VICTIM [17] There was no Victim Impact Statement filed. The Crown attempted to contact SM to elicit a statement but was unsuccessful.SM was focused on her healing process.

I am cognizant of the Supreme Court’s comments in R v Friesen, 2020 SCC 9, 391 CCC (3d)309 [Friesen] that “direct evidence from children or their caregivers is not required for the court to find that children have suffered actualharm as a result of sexual violence” at para. 86. Undoubtedly, SM has suffered and will continue to suffer harm as a result of herencounter with Mr. Nayneecassum. She is a previous victim of sexual abuse. This offence will have an even greater impact on her. Still,I am unable to fully assess the impact of the actual harm done to the victim, nor the impact the offence had on her.

POLICE INTERVIEWS [18] LM took SM to give a statement to the police later that day on November 16, 2019. Her statement was tendered in the absenceof a Victim Impact Statement but added very little to the sentencing. SM’s statement was consistent with Mr. Nayneecassum’s statementfor the most part. She said they all drank lots of alcohol that night. SM said she gave consent to Mr. Nayneecassum for the sexualencounter which lasted approximately 15 minutes. She explained that she felt obligated to give consent to him because he was an olderman.

SM disclosed that she was molested by another adult male when she was younger.

[ 19 ] Mr. Nayneecassum also gave a statement to the police on November 26, 2019. The police treated him the same as any other adult offender, which he is not. He was advised of his Charter rights and cautioned. Mr. Nayneecassum initially indicated that he wished to speak with counsel but changed his position shortly after. The admissibility of the interview was not challenged. [ 20 ] In the interview, Mr. Nayneecassum stated that he consumed a substantial quantity of vodka on the night of the offence and was very intoxicated.

He indicated that they drank three bottles of vodka straight and one of the individuals he was with that night consumed bleach. [ 21 ] Mr. Nayneecassum said he knew SM was 14 years old. He stated that he did not digitally penetrate her prior to engaging in sexual intercourse. He estimated that the entire incident lasted approximately an hour. Mr. Nayneecassum wore a condom. CIRCUMSTANCES OF THE OFFENDER [ 22 ] Steve Nayneecassum was born on August 13, 1990. He is presently 31 years old. At the time of the assault, he was 29 years old. [ 23 ] Mr.

Nayneecassum was apprehended by Social Services at a young age because his mother, Ms. Karen Nayneecassum (Karen), abused alcohol. He was in and out of foster care during his formative years before eventually being returned to his mother. Mr. Nayneecassum grew up in Saskatchewan, in the communities of Prince Albert and Regina with his mother. Mr. Nayneecassum’s mother has since become sober and obtained a Bachelor of Arts degree in counselling from a Bible College. He lives with her to this day. [ 24 ] Mr.

Nayneecassum began high school in an alternative education program in Regina before the family moved to Prince Albert where he graduated high school from the alternative education program. Mr. Nayneecassum indicated that he was a “pretty good kid” when he was younger, although he was bullied a lot. [ 25 ] Mr. Nayneecassum has been employed in menial positions at various times in the past. His mother said that he has been fired for being late, not showing up to work or showing up to work intoxicated. He has been unable to work since this incident. She said that Mr. Nayneecassum is easily manipulated by his peers.

He has some capacity to cook for himself, although he is not able to cook complex meals. Mr. Nayneecassum is able to visit the doctor, take medication and follow up with his lawyer on his own. He said that he is “rotten with money” and would like to be more responsible with money. [ 26 ] Karen advised that she is concerned that Steve has been depressed since being charged with this offence. He is growing increasingly worried about the possibility he will be going to jail and has posted several times on Facebook that he is thinking about suicide. She expressed concern over his alcohol consumption habits.

Steve also reported significant alcohol and marijuana consumption. The incident occurred during a period of time when they briefly tried to see if Mr. Nayneecassum could live on his own. He has since returned to living with his mother who is his main caregiver for the foreseeable future. [ 27 ] Steve Nayneecassum comes before the Court with no criminal record. Fetal Alcohol Spectrum Disorder [ 28 ] In the pre-sentence reports, Mr. Nayneecassum’s medical records from Sunny Hill Health Centre in Vancouver are summarized.

The records span from November 1990 to December 1994, beginning when Steve was a little over two months old to age four years, four months. He was seen on a regular basis by multiple medical professionals during this time. [ 29 ] The record indicates that at two months of age, Dr. Jane Finlay noted that Mr. Nayneecassum’s features were consistent with fetal alcohol syndrome. The salient features are:

(1) Facial features, known as dysmorphia, which are specific to prenatal alcohol exposure;

(2) Small eyes with short palpebral fissures; and

(3) A small nose and a smooth philtrum with a thin upper lip. [ 30 ] A subsequent exam conducted when he was five months old indicated that Dr. Smith had provided a diagnosis of Fetal Alcohol Spectrum Disorder [FASD] for Mr. Nayneecassum. Dr. S. Segal described Mr. Nayneecassum as angry and irritable. [ 31 ] A development assessment, conducted on January 16, 1991 by Susan R. Harris, Ph.D., Physiotherapist, indicated that Steve presented with “Slight developmental delays in mental skills [and] slight developmental delays in motor skills” at five months of age.

Subsequent developmental assessments conducted prior to Steve turning one year old indicated that he had regressed from “slight” to “mild” to “moderate” mental and motor delays. By age three, Steve was operating at one year below age-level expectations. [ 32 ] The records from Regina Public Schools indicate that Steve was assessed as Extremely Below Average for cognitive abilities in Grade 1, with a Full Scale score in the 0.1 percentile. His verbal and non-verbal scores were consistent in the Extremely Below Average range in the 0.2 percentile. [ 33 ] Steve’s mother, Karen, is aware of his diagnosis.

She confirmed that she drank during her pregnancy . Karen observed that Steve has low self-esteem and is always seeking approval from others. She believes that his need for approval leads Steve to be easily swayed by peers and people who do not have his interests at heart. One time, he was a passenger with a group of intoxicated people involved in a car rollover. One of the people in the car convinced Steve to take the blame for the accident. [ 34 ] Karen also noted that Steve “does things and thinks there are no consequences [and] gets himself into trouble”.

One time, Steve met a woman who lived in northern Saskatchewan. He had only known her a few months, yet phoned her to tell her that he was the father of the child to whom she had just given birth. He could not grasp the concept that it takes nine months for a baby to develop. He sincerely believed the baby was his even though he had only known the mother a few months. Intellectual Disability [ 35 ] Defence counsel referred Mr. Nayneecassum to a registered psychologist, Mr. Michael White, for a psychological assessment. Mr. White’s assessment was multi-faceted, involving an interview with both Mr.

Nayneecassum and his mother, in addition to various tests. [ 36 ] Mr. White supplemented his written report with testimony in court. He was qualified as an expert to provide opinion evidence in the following areas:

(1) Diagnoses of intellectual disabilities in accordance with the DSM-5 criteria;

(2) The manner in which a moderate severity intellectual disability impacts the accused’s: a. Reasoning, problem solving, planning, abstract thinking, judgment, academic and experience-based learning; and b. Adaptive behavior and functionality, including an assessment of deficits that impact and limit his functionality in daily life (including communication, social participation and independent living).

(3) Community treatment and therapeutic recommendations for individuals, such as the accused, with a moderate severity intellectual

disability. [ 37 ] Mr. White formed the opinion that Mr. Nayneecassum has a moderate intellectual disability. Such a diagnosis requires that the subject meet three criteria:

(1) Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized testing;

(2) Deficits in adaptive functioning that result in failure to meet development and socio-cultural standards for personal independence and social responsibility; and

(3) Onset of intellectual and adaptive deficits during the developmental period. [ 38 ] Mr. White employed a number of tests and questionnaires to form his opinion, which are detailed at pages 8-14 of his report. Rather than reviewing the results of each individual test, I propose to summarize Mr. White’s findings, which include:

(1) Verbal comprehension skills, the skills used to demonstrate awareness of facts and information that we take for granted, were described as extremely below average (0.1 percentile);

(2) Perceptual reasoning, the skills used for interpreting visual information and logical thinking, were described as extremely below average (0.1 percentile);

(3) Working memory index was described as extremely below average (0.1 percentile). Mr. White commented that this area was “exceedingly challenging” for Steve;

(4) Processing speed index, the skills relating to controlling attention, was described as extremely low overall (0.4 percentile);

(5) A full scale score that placed Mr. Nayneecassum below the 0.1 percentile of cognitive abilities, with an assessed Intelligence Quotient (IQ) of 48;

(6) Free recall memory, the skills used to learn new information and recall it for later use, was described as extremely below average (1 st percentile);

(7) Reading at below a Grade 6 level; and

(8) Significant deficits in adaptive behavior, including communication skills, daily living skills, and socialization skills, placing him in the extremely below average range (less than 1 st percentile). [ 39 ] Mr. White explained that 0.1 percentile means that if Steve was in a room filled with 1,000 people, every other person in that room would have more cognitive ability than him. Any more serious forms of diagnosis of intellectual disability would be “severe” or “profound” requiring ongoing need of support and supervision in social settings and group or care homes. [ 40 ] Mr.

White also considered the impact of Steve’s Indigenous background on his test scores with the Culture-Language Interpretive Matrix (C-LIM). This test evaluates the effects of cultural and linguistic bias on the performance of cognitive tests. Mr. White informed the Court that Steve’s test results across the board were so low that they could not be explained by cultural or linguistic

bias. [ 41 ] Mr. White gave evidence that Steve’s FASD medical condition is distinct from his intellectual disability. He testified that the two diagnoses are often co-occurring, but can also be separate in some cases. [ 42 ] Mr. White viewed Steve’s statement to the police in court. The police interview did not change his opinion. [ 43 ] Mr. White emphasized several aspects of the interview that are telling of Steve’s cognitive deficits. By way of example, Mr. White observed that Steve said, “I don’t hit women” and “nothing happened” despite telling the officer that he had sexual intercourse with SM. Mr.

White opined that Steve only understands the consequences of physical harm and violence. He does not understand the other types of harm that can come from his actions or the complex reasons why it is wrong. [ 44 ] In response to a question about why he had sex with a 14-year-old girl, Steve replied that he was going through a break-up. Steve appeared confused when the officer asked him who took off whose clothes and had difficulty understanding what this meant. Mr. White also pointed to Steve’s slowness in signing his name and the confliction he experienced making up his mind whether to get a lawyer.

I find that Mr. White’s observations were accurate. [ 45 ] In his court testimony, Mr. White opined that Steve’s ability to understand his actions is significantly compromised. At the conclusion of his written report, Mr.

White stressed the impact that Steve’s intellectual disability has on him in his social life: Steve’s history of not understanding humour, or social cues, along with his being very susceptible to manipulation by peers warrant moderate challenges in the social domain. . . . [S]teve is clearly an adult in need of considerable support to avoid being taken advantage of by others, sustain an appropriate degree of employment, and the basic functions of daily living such as cooking and cleaning. [ 46 ] As for a plan to deal with Steve’s condition, Mr. White provided four recommendations:

(1) Steve might benefit from a comprehensive mental health evaluation by a qualified clinical psychologist and follow-up mental health counselling;

(2) People working with Steve should recognize his limited cognitive abilities when communicating with him, such as using simple, concrete vocabulary;

(3) Steve would likely benefit from a period of direct instruction on social skills for adults including elements of: a. Language pragmatics; b. Non-verbal communication; c. Social norms; d. How to avoid manipulation; and e. Emotional regulation.

(4) A copy of Mr. White’s report should be provided to Steve and his mother so that he can become connected with the FASD support team at the Regina Community Clinic. [ 47 ] As a general proposition, Mr. White stated that individuals who have moderate intellectual disabilities are vulnerable members of our society. In a prison setting, Mr. White suggested that the risk to Steve would be exacerbated. Gladue Considerations [ 48 ] A formal Gladue Report was not prepared or required. Defence counsel supplemented Mr. White’s report with information obtained from speaking with Mr. Nayneecassum’s mother. [ 49 ] Mr.

Nayneecassum is a status member of the Ahtahkakoop First Nation. His mother advised that her father attended residential school, and both of her parents were alcoholics and separated. Ms. Nayneecassum attended residential school herself. She spent a decade in foster homes where she was abused by a foster brother and forced to run away at age 15. [ 50 ] Ms. Nayneecassum consumed alcohol during her pregnancy with Steve. She indicated that alcohol was a problem for her and Steve’s father until Steve was 10 years old.

She separated from Steve’s father for a time, and he was not involved in Steve’s life (i.e. no father figure). Ms. Nayneecassum has attended various treatment centres for her addictions. Steve was apprehended from her when he was two months old and placed in and out of foster care for the next approximately four and one-half years. At the time Steve was apprehended, Ms. Nayneecassum’s other children were also apprehended and placed in foster care on different occasions throughout their lives (i.e. family dislocation).

POSITIONS ON SENTENCE [ 51 ] The Crown asserts that the mandatory minimum sentence contained in s. 151 (

a) of the Code does not violate s. 12 of the Charter . In the Crown’s view, a sentence of one year imprisonment is not grossly disproportionate to the sentence that is appropriate for Mr. Nayneecassum’s circumstances. The Crown urges a sentence for Mr. Nayneecassum of three years incarceration. [ 52 ] Defence counsel concedes that by virtue of the amendments to s. 742.1 of the Code , a conditional sentence order [CSO] is no longer available for this offence and the Court has no jurisdiction to consider the constitutionality of these amendments in this case.

In the alternative, the defence submits that there is an outfit of sentences available to this Court that would fall well below the mandatory minimum penalty. Accordingly, the defence asserts that I should decline to apply the mandatory minimum to Mr. Nayneecassum and instead impose a short jail sentence and/or suspended sentence with a lengthy term of probation including electronic monitoring similar to a CSO. [ 53 ] Counsel are in agreement that if I do not find the mandatory minimum sentence is grossly disproportionate to Mr. Nayneecassum, I need not consider other reasonable hypotheticals. LAW

Section 12 of the Charter [ 54 ] Provincial Court judges do not have the power to declare that a law is of no force and effect. However, a judge can find that a law is unconstitutional and refuse to apply that law to a particular case. Otherwise stated, judges have a duty to impose sentences that are constitutional in each sentencing case that is before them: R v Ledebur , 2021 SKPC 58 at para 10 . [ 55 ]

Section 12 of the Charter provides as follows:

Treatment or punishment 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [56] The analytical framework that applies to a s. 12 challenge flows from the Supreme Court of Canada’s decisions in R v Nur,2015 SCC 15, [2015] 1 SCR 773 [Nur] and R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130. At paragraphs 22-24 of Lloyd, Chief JusticeMcLachlin explained: [22] The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charterwas recently clarified by this Court in Nur.

A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that isappropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individualbefore the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, atpara. 77. [23] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para 46.

First, thecourt must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485, at p.498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at pp.337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence thatis fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-72. The question, put simply, is this: In view of the fit andproportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances?

If so, theprovision violates s. 12. [24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grosslydisproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680, at p.688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate. [57] My first task therefore is to determine a fit and proportionate sentence for Mr. Nayneecassum. In doing so, I take guidancefrom ss. 718 to 718.2 of the Code.

Purpose, Objectives and Principles of Sentencing [58] The fundamental purpose of sentencing, and the objectives behind the sanctions imposed to serve that purpose, are set out ins. 718 of the Code, which reads: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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.

[59] To supplement the fundamental purpose and objectives of sentencing, Parliament set out certain principles in ss. 718.1 and718.2 of the Code to guide sentencing judges in crafting a fit and just disposition. In that regard, the Code provides as follows: Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 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 offenceor the offender, and. . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, . . . 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; . . . (

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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [60] Proportionality is the organizing principle in reaching the goal of a fair, fit and principled sanction. Individualization is centralto the proportionality assessment as each offence is committed in unique circumstances by an offender with a unique profile.

Thesentencing court is best positioned to craft a fit sentence for the offender before it: Parranto at paras 10-13. [61] In Friesen, the Supreme Court of Canada explained the relationship between proportionality and parity in this way: [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.

Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 ofthe Criminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similarcircumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is nowcodified in s. 718.2(

b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 36-37; R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras.78-79). [62] Additionally, ss. 718.01 and 718.04 of the Code provide that where an offence has involved the abuse of children or someonewho is vulnerable because of personal circumstances, such as being Aboriginal and female, the primary considerations for a sentencingcourt must be denunciation and deterrence.

The latter provision was enacted in response to the Report of the National Inquiry intoMissing and Murdered Indigenous Women and Girls Calls for Justice 5.3, 5.16 and 5.18 that recognize the vulnerability of Indigenousfemales to sexual assault and calls for action to reform the criminal justice system to protect Indigenous girls from violent crime.

The Impact of the Friesen Decision [ 63 ] In April 2020, the Supreme Court of Canada released its decision in Friesen , which is the controlling authority in sentencing child sexual offenders. The overarching message for sentencing judges is set out in para. 5: [5] … 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. [ 64 ] The Supreme Court emphasized that “[t]o effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important”: Friesen at para. 50 . [ 65 ] The Supreme Court directed sentencing judges to consider two categories of harm that sexual violence against children can cause: “[h]arm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood”: Friesen at para. 80 . Sexual violence against children is not limited to physical harm. Rather, the Court stressed that sentencing judges must focus on the emotional and psychological harm that flows from sexual offences against children: Friesen at paras. 56 and 82 .

These effects are not always evident at the time of sentencing, therefore courts must weigh the reasonable foreseeability of future harm at the time of sentencing. [ 66 ] The sentence imposed must reflect the contemporary understanding of sexual violence against children. It must reflect the wrongfulness and harmfulness of sexual violence against children, and the life-altering harms to the victim’s personal autonomy, bodily integrity, sexual integrity, dignity and equality that often do flow from the sexual violence.

The sentence must be commensurate with the gravity of sexual offences against children: Friesen at paras. 56, 74 and 76 . [ 67 ] With respect to the gravity of the offence, the Supreme Court observed: [76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.) at para. 80 ; R. v.

Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 35 ). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences.

We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [ 68 ] The Supreme Court affirmed the comments of the Saskatchewan Court of Appeal in R v L.V. , 2016 SKCA 74 at para 102 , 480 Sask R 181 [ L.V. ], that sentences for sexual offences against children should reflect Parliament’s intention to increase maximum sentences: Friesen at para. 100 .

Additionally, the Court remarked that the legislative scheme in the Code reveals that Parliament has determined that sexual violence against children should be punished more severely than sexual offending against adults: Friesen at para. 116 . [ 69 ] The Court commented on a non-exhaustive list of factors relevant to sentencing for sexual offences against children: Friesen starting at para. 121 ; R v Williams , 2020 BCCA 286 at para 20 . These include:

a) the offender’s likelihood to reoffend;

b) the offender’s abuse of a position of trust or authority;

c) the duration and frequency of sexual violence;

d) the age of the victim;

e) the degree of physical interference; and

f) the participation of the victim. [70] The participation of the victim warrants further comment. The statutory age of consent in Canada is 16. Subject to the close inage exception, which does not apply in this case, children under 16 years of age are incapable of giving true consent to sexual activity.Courts have previously referred to a child’s expression of this legally invalid form of consent as “de facto consent”.

This type oflanguage is discouraged to avoid false representations that a child has consented to sex, when they are legally unable to do so (seeFriesen at para. 148). [71] Invalid consent is not a mitigating factor and it is an error of law to treat it as such (Friesen at para. 149), but it can be achronological fact to place the offence in context and assess the moral blameworthiness of the offender (R c Bertrand Marchand, 2021QCCA 1285 at para. 109).

Victim participation is not a legally relevant consideration at sentencing: Friesen at para. 150. [72] With the law on this point clarified, the other characteristics impacting the appropriate sentence for Mr. Nayneecassum can becanvassed. Cognitively Impaired Offenders [73] The primary objectives of denunciation and deterrence do not impede a sentencing judge’s discretion to accord significantweight to other mitigating features of a case, including Gladue factors and rehabilitation: Friesen at para. 104.

Indeed, the SupremeCourt cautioned against disregarding mitigating factors when crafting a proportionate sentence: [91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender's moral culpability.The proportionality principle requires that the punishment imposed be "just and appropriate ..., and nothing more" (M. (C.A.), at para. 80(emphasis deleted); see also Ipeelee, at para. 37).

First, as sexual assault and sexual interference are broadly-defined offences thatembrace a wide spectrum of conduct, the offender's conduct will be less morally blameworthy in some cases than in others. Second, thepersonal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that imposeserious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v.Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180). [74] In each case, an offender-specific approach is required.

Denunciation and deterrence are not accorded the same weight whensentencing cognitively impaired offenders: R v Scofield, 2019 BCCA 3 at para 64 [Scofield]; R v Resler, 2011 ABCA 167 at para 14; R vMelrose, 2021 ABQB 73 at para 275 [Melrose]. [75] Cognitive deficits lower blameworthiness and responsibility. Hence, the offender’s conduct calls for less denunciation orcondemnation (Melrose at para. 276).

There is less blameworthiness to punish. [76] Specific deterrence is less of a feature for mentally ill offenders (Scofield at para. 68; R v Robinson (1974), (ON CA), 19 CCC (2d) 193 (Ont CA) at para 18) because an offender with cognitive deficits may have diminished capacity to change(Melrose at para. 278).

[77] General deterrence also has less purchase when sentencing an individual with cognitive impairments because theircircumstances are so unusual. The sentence is not a message to other typical or normal offenders. In that regard, the Court’s commentsin Melrose are apposite: [277] Significant cognitive deficits makes an offender unlike other potential offenders, whose psychological conditions would not be (forthe most part) exceptional. General deterrence loses its grip.

If an offender is not similar to other offenders because of cognitive deficits,a lower punishment for that offender is not unfair to other offenders and that offender’s punishment does not send a message to otherdifferently-situated offenders. That offender is not an example for dissimilar offenders: R v Belcourt, 2010 ABCA 319 at para 8. [emphasis added] [78] In R v Okemow, 2017 MBCA 59 [Okemow] Mainella J.A. explained the approach to sentencing cognitively impairedoffenders.

Before taking the offender’s cognitive impairment into account for sentencing – and assessing the weight to be assigned to thecognitive deficit – the court must consider whether, and to what extent the cognitive deficit impacted the offender. When sentencingoffenders with a cognitive or mental disorder, sentencing judges should consider and assess each of the following questions (Okemow atpara 73): 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2.

Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be madeas to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence takinginto account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [79] The extent of the offender’s cognitive deficits must be considered so that the degree of moral blameworthiness correspondswith the significance of those deficits: R v J.E.D., 2018 MBCA 123 at paras 72-73, 368 CCC (3d) 212 [J.E.D.]; R v Ramsay, 2012 ABCA257 at para 25, 292 CCC (3d) 400 [Ramsay].

Otherwise stated, the greater the deficit is shown to be, the more significance it has as amitigating factor and the less emphasis that can be accorded to denunciation and deterrence, which serves to “push the sentence ... downthe scale of appropriate sentences for similar offences”: Ramsay at para. 25, citing R v Charlie, 2012 YKTC 5 at paras 24-29, 38-43. [80] This approach applies even if the offender is unlikely to be successful rehabilitating themselves: R v Ayorech, 2012 ABCA 82at para 11, 522 AR 306; R v Hiltermann (1993), (AB CA), 141 AR 223 at paras 4-8 (Alta CA).

Gladue Considerations [81] Both counsel made submissions regarding the consideration that this Court must give to Mr. Nayneecassum’s circumstancesas an Indigenous offender. This consideration is mandatory by virtue of s. 718.2(

e) of the Code. While agreeing that Gladue factors are aconsideration in sentencing, counsel part ways on the impact and emphasis to be given to s. 718.2(

e) in this case. [82] The Court of Appeal for Saskatchewan has written extensively on the impact of Gladue factors on an offender’s moralculpability. In R v Charles, 2021 SKCA 114, Mr. Justice Kalmakoff’s comments are instructive on this issue: [21] As part of this approach, a judge sentencing an Indigenous offender must consider the unique systemic or background factors thatmay have played a

part in bringing the offender before the courts, as well as the types of sentencing procedures or sanctions that may beappropriate in the circumstances for the offender because of his or her Indigenous heritage (Gladue at para 66; Chanalquay atpara 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 isIndigenous, the analysis mandated by it is an integral part of the reasoning which leads to a fit sentence (Gladue atpara 88; Chanalquay at paras 34–37). Part of that analysis is a consideration of the extent to which an Indigenous offender’s uniquecircumstances – including background and systemic factors – may have had a bearing on his or her moral culpability (Ipeelee at paras 71and 73; Whitehead at paras 56–58; Chanalquay at para 40).

This is required even where the nature of the offence calls for a sentence ofincarceration, 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 demandsthat the impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance whendetermining the period of incarceration” (at para 63).

This is so because a sentencing judge must account for “any factor affecting moralblameworthiness (whether by increasing or decreasing it)” and those factors “must be given weight in order to impose a fit sentencebased on the principle of proportionality” (emphasis in original, at para 64). [83] To be sure, the offender is not required to show a nexus between Gladue factors and the subject offence: R v Chanalquay,2015 SKCA 141 at para 37, [2016] 4 WWR 242 [Chanalquay]. [84] In Chanalquay at para. 52, Chief Justice Richards stressed the “more demanding” individualized approach to sentencingIndigenous offenders.

This analysis recognizes that while Gladue factors are not unvarnished calls to impose shorter jail terms,restorative justice approaches should be employed where appropriate. Moreover, in R v Whitehead, 2016 SKCA 165, 344 CCC (3d) 1[Whitehead] Mr.

Justice Caldwell explained that the sentencing judge must consider “... whether and how the relevant sentencingobjectives can be actualised by way of sanctions other than imprisonment or through the term of imprisonment imposed” (at para. 56). [85] In Friesen, the Supreme Court affirmed that Gladue factors must be taken into account in the context of child sexualoffending, even in severe cases: [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue (SCC), [1999] 1 S.C.R. 688, and Ipeelee.

The sentencing judge must apply these principles even in extremely grave cases of sexualviolence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing theIndigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternativesanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [86] Therefore, the nature of Mr. Nayneecassum’s offending does not overcome the Court’s obligation to consider Gladue factors.

All of his personal background factors, systemic, familial and community history need not necessarily be itemized in great detail in aformal Gladue Report for the Court to be able to recognize and address the historical injustices and traumas that have occurred toIndigenous peoples in Canada.

The culmination of these factors has resulted in their marginalization, vulnerability and over-representation in the criminal justice system. [87] In order to fully account for these injustices, I must consider the Final Report of the Truth and Reconciliation Commission of Canada (TRCC) chaired by former Justice and Senator Murray Sinclair.

In particular, the TRCC Calls to Action Nos. 30 and 31 that aregeared toward eliminating the over-representation of Aboriginal people in custody by implementing and evaluating community sanctionsthat provide realistic alternatives for imprisonment for Aboriginal offenders that respond to the underlying causes of offending. Fetal Alcohol Spectrum Disorder [88] When viewing the evidence of Mr. White with respect to Mr. Nayneecassum’s FASD diagnosis, I am guided by Mr. JusticeLeurer’s remarks in R v J.P., 2020 SKCA 52, 62 CR (7th) 328 [J.P.].

In J.P., the Court of Appeal considered the impact of FASD onmoral culpability. At para. 65, Mr. Justice Leurer wrote: [65] Relevant to the degree of J.P.’s responsibility is his FASD and the systemic and background factors that led to his life of crime. Acombination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of a consideration of

the proportionality principle. See: Drysdale at para 65; R v Ramsay , 2012 ABCA 257 at para 25 , 292 CCC (3d) 400, and Charlie CA at paras 32-33 . [emphasis added] [ 89 ] The Court clarified that not every offender who is diagnosed with FASD is entitled to a reduced sentence: J.P. at para. 68 . There must be some evidence tying the offender’s condition to their reduced moral culpability: J.P. at para. 69 . This analysis is conducted on a case-by-case basis. [ 90 ] In allowing the appeal, the Court held that the sentencing judge had erred by failing to account for J.P.’s FASD.

His FASD was intimately connected to his systemic and background factors and contributed significantly to his commission of the offence: J.P. at para. 74 . Accordingly, this served to reduce his moral blameworthiness and the sentence he received by two years from what the trial judge had pronounced. To forsake the FASD, systemic and background factors concerning Mr.

Nayneecassum would result in the same error. [ 91 ] The TRCC Calls to Action Nos. 33 and 34 also recognize as a high priority the need to address FASD and undertake reforms to the criminal justice system to better address the needs of offenders with FASD. Collateral Consequences [ 92 ] A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of an offence, the conviction for the offence or the sentence imposed: R v Suter , 2018 SCC 34 at para 47 , [2018] 2 SCR 496 [ Suter ].

Justice Moldaver clarified that a collateral consequence is not necessarily an aggravating or mitigating factor pursuant to s. 718.2 (

a) of the Code since these consequences do not relate to the gravity of the offence or the degree of responsibility of the offender: Suter at para. 48 . However, collateral consequences are relevant to the extent that they reflect the individualized nature of sentencing as the focus is whether the impact of the sentence would have a greater impact on the offender because of the offender’s circumstances: Suter at para. 48 . [ 93 ] Although a relevant consideration at sentencing, Justice Moldaver emphasized that the fundamental principle of proportionality must prevail: Suter at para. 56 .

Put differently, collateral consequences cannot be used as a vehicle to craft a sentence that is disproportionate to the gravity of the offence and the degree of responsibility of the offender. APPLICATION OF SENTENCING PRINCIPLES [ 94 ] With these principles in mind, I turn now to finding a proportionate sentence for Mr. Nayneecassum in this matter. I begin by outlining the neutral, aggravating and mitigating factors. Neutral factors [ 95 ] The offence involved no gratuitous violence. Mr. Nayneecassum used a condom. The interaction between Mr. Nayneecassum and SM was brief. The sexual contact occurred once. Mr.

Nayneecassum’s conduct was not accompanied by the aggravating factors of grooming, coercion, compulsion, trickery, lies or manipulation. Mr. Nayneecassum was not in a position of trust with respect to SM. [ 96 ] The sexual interference on SM was non-consensual. Legally invalid consent is not a relevant consideration or a mitigating factor: Friesen at paras. 149-150 . The onus was on Mr. Nayneecassum to say no and avoid sexual contact with SM: Friesen at paras. 153-154 . This is simply the absence of another aggravating factor in this case. The absence of an aggravating factor is not a mitigating factor.

It is neutral. [ 97 ] SM’s police interview was tendered for the purpose of showing her post-offence demeanour. Chiefly, to demonstrate that the offence did not have a significant impact on her. With respect, I would not accede to this submission. It is well-established in the case law that victims of sexual assault respond differently. To draw this inference would be an error of law.

[ 98 ] Additionally, the offence was committed while both parties were under the influence of alcohol. Mr. White did not comment on Mr. Nayneecassum’s risk to reoffend. Aggravating factors [ 99 ] The age of SM and difference in age with Mr. Nayneecassum is aggravating. The nature of the sexual contact was kissing and sexual intercourse. The latter is highly intrusive and inherently harmful. SM is an Indigenous female, which is also aggravating. Mitigating factors [ 100 ] I must balance the above aggravating factors with those that are mitigating. Mr.

Nayneecassum confessed to police and entered an early guilty plea, which spared SM having to testify in court. His guilty plea is also a demonstration of remorse and a positive step towards rehabilitation. [ 101 ] I had the benefit of observing Mr. Nayneecassum’s behaviour in court. At one point during the sentencing hearing Mr. Nayneecassum was hunched over with his hands in his face rocking back and forth in his chair in the public gallery. He could be heard muttering to himself over and over again that, “it’s not my fault”. [ 102 ] At the conclusion of the sentence hearing when it came time for Mr.

Nayneecassum to speak, I was unable to hear or understand him through the face masks and plexiglass in the courtroom during the COVID-19 pandemic. I therefore came down from the judge’s dais and spoke directly to Mr. Nayneecassum in the public gallery. Mr. Nayneecassum was still hard to hear and difficult to understand even with his face mask removed, but I did get the impression that he did not truly understand what he did wrong. [ 103 ] He appeared confused but expressed a genuine apology for his actions. He told me that he wished to make further changes in his life to ensure that this never happens again.

I accept his apology and comments as a sincere attempt to understand what he did and the consequences he now faces. But it was clear to me that he possesses only an inchoate understanding of the wrongfulness of his actions. He may never understand the lifelong implications that the assault had on SM. Observing Mr. Nayneecassum in court supports both Mr. White’s conclusions in his report and my own finding that he does not fully understand the implications of why his actions were wrong. [ 104 ] Mr. Nayneecassum’s risk of reoffending is low and can be managed by conditions outside of prison. I accept Mr.

White’s evidence that a period of imprisonment involving any prolonged exposure to other inmates in general population would be detrimental to Mr. Nayneecassum. Because of his cognitive deficits, Mr. Nayneecassum is at an acute risk in a prison setting. [ 105 ] Mr. Nayneecassum has no criminal record. He has followed all the conditions of his release and has not committed any further offences since being charged with this offence two and one-half years ago. He has positive supports in the community, including his mother Karen who is his main caregiver. Their brief experiment with Mr.

Nayneecassum living on his own is over and he has moved back home to be with his mother again. Karen is aware of the challenges that Mr. Nayneecassum experiences in day-to-day life. He is dependant on her. She now plans to put Mr. Nayneecassum in contact with other community-based supports such as the FASD Clinic in Regina and the SAID program with the Ministry of Social Services. Karen has her own mobility and sight problems and stays home most of the time with her husband and Steve. She helps him with his appointments. [ 106 ] Pursuant to the factors articulated in Okemow , there is cogent evidence that Mr.

Nayneecassum suffers from a severe form of cognitive impairment. I have found that the cognitive impairment had a relationship with the offending – particularly in Mr. Nayneecassum’s inability to understand social cues, socio-cultural standards and social responsibility, as well as his lack of judgment and appreciation of the wrongfulness of sexual activity with an underage girl. Mr. Nayneecassum’s moral blameworthiness is reduced immensely by virtue of his significant cognitive deficits. Mr.

Nayneecassum’s moral blameworthiness falls well below an adult offender who would have or should have known the full wrongfulness and harm associated with sexual intercourse with a 14-year-old. As the Alberta Court of Appeal observed in Ramsay at para. 25 , this goes to the heart of the proportionality assessment. He could not appreciate the full significance of his actions. He should not be punished as if he could. [ 107 ] I must also consider Mr. Nayneecassum’s presumptive FASD diagnosis and Gladue factors, which are inextricably tied. These

systemic and background factors are intergenerational, beginning with Mr. Nayneecassum’s maternal grandparents. Mr. Nayneecassum is undoubtedly a living artifact of the residential school system. His FASD flows directly from the impact that residential schools had on his family. Chiefly, his mother’s alcoholism, which persisted throughout her pregnancy with him. Mr.

Nayneecassum cannot assume responsibility for a condition predetermined by events that occurred before he was born. [ 108 ] When assessing the role alcohol may have played in the commission of an offence by an Indigenous offender, the analysis is more nuanced. It must consider the offender’s unique systemic and background factors which also contributed directly to Mr. Nayneecassum’s own alcohol abuse and offending behaviour on the night in question.

Parity [ 109 ] Counsel directed me to several decisions, including: R v G.G. , 2018 SKQB 169 [ G.G. ]; T.A.S. ; R v Dirksen , 2019 SKQB 140 [ Dirksen ]; R v Lisoway , 2022 SKQB 90 [ Lisoway ] and Scofield . I also considered the following decisions: Melrose ; R v Alfred , 2021 BCCA 71 [ Alfred ]; R v Vaux , 2021 BCSC 1773 [ Vaux ]; R v Ford , 2019 ABCA 87 , 371 CCC (3d) 250 [ Ford ]; R v C.J.J. , 2020 BCPC 201 [ C.J.J. ]; and R v Kapolak, 2020 NWTTC 12 , 65 CR (7 th ) 387 [ Kapolak ].

I will refer only to the cases that I found helpful in determining a fit and proportionate sentence. [ 110 ] In G.G. , the offender pled guilty to five counts of sexual interference. There were five victims and repeated sexual touching at school and on a field trip, including one incident of digital penetration. The victims were eight and nine years old and the offender was an educational assistant in a position of trust. He had mild cognitive deficits and presented with Gladue factors.

There was no evidence that the offender’s mental illness rendered him incapable of appreciating the nature and quality of his actions and knowing that they were morally or legally wrong. He was assessed as both a high and low risk to reoffend in various psychiatric, psychological and pre-sentence reports.

Justice Gabrielson sentenced the offender to two years in prison followed by three years probation, which was the same sentence defence counsel had requested in the event the mandatory minimum sentence was found to be constitutional. [ 111 ] In T.A.S. , the offender was convicted of sexual interference and sexual assault. The offender was 22 years old at the time of the offences. The victim was 14 years old. She was a passenger on the offender’s bus route for three years. They texted. They engaged in mutual oral sex on four occasions.

The offender was her bus driver and in a position of trust, and the victim was particularly vulnerable because her mother was ill. Justice Barrington-Foote (as he then was) imposed a sentence of 15 months imprisonment followed by 12 months probation. [ 112 ] In Lisoway , the offender was convicted of sexual assault while caring for his six-year-old niece over a period of time. There were two sexual offences committed against the girl. In the first incident, the sexual activity involved the offender touching the girl’s vagina with his hands while showing her a dildo sex toy.

In the second incident, the offender penetrated the girl with his erect penis. She told him to stop because it really hurt. The offences had a significant impact on the victim and family. The Court previously found the offender criminally responsible for the crimes committed, although his mental health was found to factor into the commission of the offences. He was at a greater risk in a prison population given his mental disabilities. The Court held that the offender’s degree of responsibility was significant even though it was reduced by his mental disorders.

Justice McCreary dismissed the s. 12 Charter challenge and imposed a sentence of four years and six months. [ 113 ] In Scofield , the 22-year-old offender pled guilty to two counts of sexual interference, each with a different 15-year-old girl. The sexual activity in that case involved unprotected sexual intercourse. The offender presented with cognitive deficits that were linked to his offending behavior. He had an IQ of 59. He was not able to appreciate the harm of his actions on the girls.

In imposing a one-year CSO, the Court noted the impact that prison would have on the offender in addition to the limited utility of specific deterrence. I am mindful that this case was decided before Friesen and must be approached with some caution: Friesen at paras. 108-114 . Our modern understanding of the gravity of child sexual offending has shifted, and accordingly, pre- Friesen precedents are less compelling: Friesen at para. 110 ; L.V. at paras. 100-102 . [ 114 ] In my opinion, the Saskatchewan decisions are distinguishable from the case at bar. Mr.

Nayneecassum’s cognitive impairment is significantly more debilitating than that of the offender in G.G . In that case, the offender was in a position of trust with respect to the five separate victims who were all much younger. There were several instances of sexual touching. Similarly, in T.A.S. , the offender was in a position of trust and sexual contact was recurring. Moreover, the offender did not present with any of the mitigating circumstances with which Mr. Nayneecassum comes before the Court.

[ 115 ] The Crown relied on Lisoway for the proposition that the offender’s mental disorders did not obviate the need for the Court to place denunciation and deterrence at the forefront of sentencing. S entencing judges always retain discretion over which objectives to prioritize and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence ( Parranto at para. 45 ) depending on the unique circumstances of the case and the unique profile of the offender. [ 116 ] In my view, Lisoway is distinguishable in several respects.

The offender did not plead guilty and there were several aggravating factors that are not present in this case. The victim in that case was very young and highly vulnerable. The victim was a family member. The offender was in a position of trust and there was grooming behaviour involved. There was evidence that the offences had a significant impact on the victim, her family and her community. There were multiple offences. None of these aggravating factors are present in this case. Moreover, the offender did not take responsibility for his actions. He recognized that what he did was wrong.

These circumstances are distinguishable from those of Mr. Nayneecassum, whose cognitive deficits render him incapable of understanding the wrongfulness of his actions. [ 117 ] The following extra-provincial authorities provided useful guidance on how other courts have applied the principles from Friesen in sentencing offenders with significantly reduced moral culpability for offences with nominal aggravating features. [ 118 ] In Melrose , the 27-year-old first time offender pled guilty to a s. 172.1(

a) offence and a s. 151 offence. The offender had an IQ of 48 and fell into the 0.1 percentile of cognitive ability. He was assessed to have a mental age between eight and one-half to 11 years old. The victim was 13 years old. They exchanged messages online for a brief period before engaging in sexual intercourse on one occasion. The Court found that the offender was remorseful to the extent that he was capable of showing remorse and not fully understanding his wrongdoing. The mandatory minimum was not available in Alberta by virtue of the Court of Appeal’s decision in Ford .

For the s. 151 offence, the Court imposed a sentence of 90 days to be served intermittently. [ 119 ] In Alfred , the Indigenous offender was convicted of one count of sexual interference. The British Columbia Court of Appeal dismissed the offender’s appeal of a sentence of nine months followed by 24 months probation. The offender was 26 years old. He was a friend of the victim’s older brothers. The victim was 13 years old. They engaged in sexual intercourse on two occasions. The offender presented with Gladue factors, including physical and sexual abuse during his childhood and time in foster care.

At the time of the offence, he was suffering from depression. The offender had no record and led a prosocial lifestyle. In light of Friesen , the British Columbia Court of Appeal concluded that the nine-month sentence “was clearly not demonstrably unfit”: Alfred at para. 36 . [ 120 ] In Ford , the Alberta Court of Appeal struck down the one-year mandatory minimum sentence for s. 151. [3] The offender was 20 years old with limited cognitive ability. He had sexual intercourse with the 13-year-old complainant.

The Court of Appeal held that the offender’s moral culpability was diminished because of his cognitive deficits. The Court would have substituted a nine-month sentence instead of the six-month sentence that the offender received, but he was already out on probation and compliant with the conditions. Accordingly, the appeal was dismissed. [ 121 ] In my view, Melrose is directly on point, albeit with some distinguishing features. The victim in that case was not Indigenous, while Mr. Nayneecassum presents with the additional mitigating Gladue factors and a FASD diagnosis in this case.

His circumstances reduce his moral culpability beyond that of the offenders in Melrose , Alfred and Ford . [ 122 ] There is also extra-provincial authority that suggests non-custodial dispositions may be appropriate in situations where a first- time offender commits a sexual offence with few aggravating factors and many mitigating factors. [ 123 ] In Vaux , the 23-year-old first time offender entered a guilty plea to two counts of sexual interference involving a 14-year-old victim and a 15-year-old victim. The offender engaged in forced vaginal intercourse and ejaculated on the victims.

He presented with autism and other mental health challenges. He was of Métis descent. The Court found that the offender’s moral culpability was significantly attenuated because of his cognitive deficits. Accordingly, the Court held that the offender’s exceptional personal circumstances warranted a non-carceral sentence and imposed a 23-month CSO followed by three years probation. A conditional sentence was available for this offence because s. 742.(1)(

c) of the Code was declared to be of no force and effect in R v Chen , 2021 BCSC 882 . [ 124 ] In C.J.J. , the 23-year-old first time offender was convicted of sexual assault. The victim was 14 years old when the offending started. C.J.J. and the victim met through a mutual friend. They were involved in a brief intimate relationship that involved sexual intercourse once a week for approximately two months until the victim’s mother learned of it and complained to police.

The victim did not wish to provide a Victim Impact Statement or participate in the sentencing process, preferring to keep the incident in the past. Her ostensible consent to the sexual relationship was not mitigating or relevant. The offender presented as much younger than his biological

age and with several mitigating factors, including leading a pro-social lifestyle, expressing genuine remorse and was gainfully employed. He was assessed as a very low risk to reoffend. The Court imposed a suspended sentence followed by 24 months probation. The Court indicated that it likely would have imposed a conditional sentence if it had been available but due to the impact of COVID-19, a non- custodial sentence was fit.

The impacts of COVID-19 on incarcerated individuals is something to be accounted for in sentencing, and in that regard, I am guided by the Courts’ reasoning in C.J.J. as well as R v Mehari , 2021 SKCA 139 . [ 125 ] In Kapolak , an eighteen-year-old offender attacked a 15-year-old victim in a park. He grabbed her and pulled her close to him. He touched her bottom, breasts and vagina over her clothing. He also grabbed her by the hips, pulled her back and tried humping her buttocks. He then tried placing his fingers between her legs. The victim fought back but he would not stop. The attack lasted eight minutes.

The first-time offender was Aboriginal and suffered from a moderate intellectual disability and alcohol-related neurodevelopmental disorder. A psychologist testified the offender was gullible, easily taken advantage of because he does not pick up on social cues, had poor social judgment and would struggle in jail. The offender had difficulty comprehending abstract concepts and linking cause, effect and consequence. He pleaded guilty and was sentenced to a CSO of 120 days followed by 18 months probation.

The Court found the mandatory minimum sentence of 6 months for sexual assault violated s. 12 of the Charter and was not saved by s. 1. [ 126 ] As can been seen from the above case law, there is a wide range of possible sentences that have been imposed for this type of offence depending on the individual circumstances of the case and the offender. The comments of Mr.

Justice Wagner (as he then was) at para. 58 of Lacasse , illustrate the individualized nature of sentencing: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [ 127 ] Variability in the range of sentence resulting from individualization is an essential feature of just sentencing, not a problem. There is no rigid formula to sentencing someone, and variability reflects the circumstances specific to each case and each individual offender.

As Mr.

Justice Rowe, concurring in the result, explained in Parranto at para. 140 : [140] Focussing on variability as the problem is not only inconsistent with this Court’s jurisprudence, it also “helps to create or reinforce other problems: jail becomes the norm, starting point or ranges of sentence become hardened into fixed sentences, and factors leading to systemic discrimination are either ignored or inadequately dealt with” (Quigley, at p. 324 (footnote omitted)). [ 128 ] I recognize the TRCC’s 32 nd Call to Action which is to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences. [ 129 ] Accordingly, I would order the following sentence.

A FIT AND PROPORTIONATE SENTENCE [ 130 ] The statutory priorities of denunciation and deterrence and the invasiveness of the sexual touching warrant a period of imprisonment. The gravity of the offence is significant.

Indeed, the Court of Appeal for Saskatchewan has reiterated that the starting point for major sexual assaults involving penetration is three years: R v Okemaysim , 2021 SKCA 33 at para 79 . [ 131 ] In Parranto , the Supreme Court clarified that starting points are not binding in any sense in theory or practice, and in L.V. , the Court of Appeal declined to set a special and higher starting point for sexual assaults against children on the basis that the factors informing the nature of an appropriate sentence in this context are so varied as to make a starting point approach inappropriate.

However, the Court of Appeal observed that “assaults against a child should normally warrant a stronger sanction [than assaults against an adult]”:

L.V. at para. 101 . The Supreme Court echoed these comments in Friesen at para. 117 . [ 132 ] The priority of these penal objectives, however, does not exclude consideration of other factors or justify the imposition of a disproportionate sentence. Crafting a fit and appropriate sentence for Mr. Nayneecassum has proved to be a difficult exercise. On one hand, it involves a young, vulnerable Indigenous girl whose life will be forever altered as a result of her encounter with Mr. Nayneecassum. His conduct was wrongful. It was inherently damaging. Mr.

Nayneecassum was 29 years old and SM 14 years old. [ 133 ] On the other hand, it involves a young man who, while chronologically an adult, has the emotional maturity and social skills of a child. Mr. Nayneecassum’s cognitive deficits bear directly on his day-to-day life and his ability to navigate basic social situations. He does not understand and misreads social cues such as affection and anger. He lacks judgment and social responsibility. He is easily influenced and vulnerable to peer pressure. It is plainly evident in watching the police interview and Mr.

Nayneecassum in court that he could not differentiate that it was wrong to hit women from the wrong of sleeping with an underage girl. Mr. White opined that the victim removing her own clothing, coupled with the absence of a clear “no”, would not have signalled to Mr. Nayneecassum that sexual intercourse with an underage girl was wrong. [ 134 ] SM’s personal history must be juxtaposed with Mr. Nayneecassum’s own tragic circumstances. SM had been conditioned to believe that sexual interactions with an older man was appropriate due to past sexual trauma, despite her inability to consent at law.

This case is a perfect storm of two vulnerable individuals who lacked the ability to analyze the situation that they found themselves in. It is highly unlikely that such an unfortunate confluence of events will ever materialize again. This is particularly so, given the impact that the judicial process has had on Mr. Nayneecassum’s personal life and mental well-being. [ 135 ] I must also consider the fact that Mr. Nayneecassum is a product of intergenerational trauma flowing from residential schools. His upbringing was not comparable to a middle-class individual living in Prince Albert or Regina.

His personal development – as an infant, child, teenager, and now as an adult – was shaped by these very factors and they provide the necessary context to enable the Court to determine an appropriate sentence. [ 136 ] To the extent that he is capable, Mr. Nayneecassum showed remorse for his actions. He pled guilty. He apologized in court. I accept his apology as sincere. I cannot accept the Crown’s argument that Mr. Nayneecassum’s statement in his police interview, “I knew it was wrong” served to increase his moral culpability. This runs contrary to the expert evidence of Mr.

White and my own observations of him in court and on the video. There are several reasons Mr. Nayneecassum may have made that statement. Chief among them, this was his first encounter with the criminal justice system. He had just received a berating and beating from the victim’s family the morning after the offence. This occurred shortly before he gave the statement to police. He was called a pedophile. In my view, these circumstances bore on Mr. Nayneecassum’s understanding of the inappropriateness of his actions when he gave the police interview. [ 137 ] I accept Mr. White’s opinion that Mr.

Nayneecassum is vulnerable in a prison setting. Mr. Nayneecassum’s gullibility puts him at risk in his day-to-day life. This risk is amplified in a prison setting, where he would be at greater risk of manipulation and susceptible to undue influence. Many of the individuals are in prison because of their inclination or lack of disinclination to take advantage of others: Melrose at para. 250 . I have no doubt Mr. Nayneecassum would be preyed upon and subjected to psychological, emotional and potentially even physical harm should he be exposed to the general prison population through a lengthy term of imprisonment.

A short intermittent jail sentence, however, would be served on weekends alone or with one other cellmate. [ 138 ] To further contextualize Mr. Nayneecassum’s cognitive deficits, he has an IQ of 48 and functions below the mental age an individual can legally be charged and sentenced for an offence under the Code in Canada. An individual’s mental age is a function of their IQ. He has difficulty reading at a Grade 6 level. It is trite to suggest that he will struggle to understand this judgment or the reasons why he is going to jail.

In my view, his degree of responsibility is reduced so colossally that this case cries out for a non-custodial disposition such as a CSO which is no longer legally available in Saskatchewan. As Madam Justice McMurtry observed in Dirksen at para. 66 , “[t]he clear direction provided by our Court of Appeal is that a CSO does not provide the necessary denunciation of an offence, or sufficient deterrence in cases of sexual offending against young persons, except in extraordinary circumstances”. Mr.

Nayneecassum’s circumstances are undoubtedly exceptional, and even if they were not exceptional, Martin and Brown JJ. emphasized at para. 40 in Parranto that exceptional circumstances are not required when a sentencing judge departs from an established range to achieve proportionality. [ 139 ] Mr. Nayneecassum is young and a good prospect for rehabilitation. He is not entrenched in criminal activity. He has never received treatment or programming for his mental health challenges and addictions issues.

Indeed, since this incident occurred, Steve has begun working with the South Saskatchewan Independent Learning Centre and his mother wants to connect him with further community resources such as the FASD support team at the Regina Community Clinic, Regina Mental Health and Addictions Services, Cosmopolitan Handicap Workshop, Sask. Abilities Council and the SAID Program.

[ 140 ] Programs like these are available to help manage, deter and remedy an offender’s behavior in the community. They will enable Steve to get the help he needs to deal with his conditions. These resources can all be accessed through the imposition of a rehabilitative probation order and with the help of a probation officer who can assist Karen in connecting Steve with the relevant co

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