His Majesty the King - v. -, 2023 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 55 Date: November 29, 2023 Information: 991204819 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Doyle McGillis Appearing: Loren Klein For the Crown Adam Fritzler For the Accused An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. SENTENCING K.A. LANG , J I. INTRODUCTION [ 1 ] The accused, Mr. McGillis, was convicted, after trial, of the following offences: 1.

On or about the 3 rd day of August 2022, being at large on an Undertaking, fail to comply with a condition, thereof, to wit have no contact of any kind in any way, directly or indirectly, with L.G. except through a lawyer and/or not be at the residence, workplace or

place of education of L.G., contrary to section 145(4) (

a) of the Criminal Code . 2. On or about the 3 rd day of August 2022, commit a sexual assault on L.G. contrary to

section 271 of the Criminal Code . [ 2 ] The trial of this matter took place over two days with a significant gap between dates to accommodate legal counsels schedule. The last day of trial was August 1, 2023. Again, to accommodate legal counsel schedules, representations on sentencing were not heard until October 18, 2023 and November 7, 2023 with Defence counsel filing more material on November 14, 2023. II. FACTS FROM TRIAL [ 3 ] The relevant facts from trial follow. [ 4 ] For the most part, the evidence of the Complainant and Accused was consistent on material facts.

The only difference being the Accused argued he had an honest but mistaken belief with respect to the sexual activity. That was not accepted by the Court. [ 5 ] The Court accepted that the Accused and Complainant had been in a three-year relationship and the Accused was the biological father of the Complainant’s two children. The relationship had been tumultuous with several “on again”, “off again” periods.

At the time of this offence, although not in a relationship, the Accused would stay with the Complainant from time to time but could not just come and go without her permission. [ 6 ] In the days leading up to the offence date, the couple had been in each other’s company, with the consent of the Complainant, despite the Accused being on a non-contact order relating to the Complainant. This incident occurred at the home of the Complainant. [ 7 ] Leading up to the incident, the Accused and Complainant had been drinking heavily together for several days including on the day in question.

At some point an argument started between the two. The Complainant then went to bed and either fell asleep or passed out. She was awakened by the Accused in her bed behind her “fingering” her vagina under her pants and whispering in her ear “Oh you like that baby”. The Complainant testified that she shot out of bed and said to the Accused “What the fuck are you doing?”. [ 8 ] The Complainant testified that the Accused’s fingers were in her vagina “rubbing the sides”. The Complainant testified that she immediately asked the Accused to leave the house and he did.

Both the Complainant and Accused were, at all material times, fully clothed.

I accepted all of this as fact. [ 9 ] The Accused really did not testify much differently except to say he thought the Complainant was consenting to all of this activity although he acknowledged at trial that he was intoxicated himself and that L.G. had given no response to anything that he was doing or saying to her during the occurrence. [ 10 ] The accused thought his fingers were rubbing against the outside of the Complainant’s vagina. [ 11 ] Regardless, it was apparent that this incident was of very short duration and the Accused immediately stopped when he was instructed to do so, and he left the house when requested. [ 12 ] The Accused also acknowledged that both the Accused and Complainant were “drunk as shit” that evening.

III. ISSUE [ 13 ] The only issue is to determine an appropriate sentence in these circumstances.

IV. POSITION OF THE PARTIES CROWN [ 14 ] The Crown emphasized the need for denunciation and deterrence and requested a sentence as follows: 1. Incarceration as follows: Sexual assault - 30 months; Breach of Undertaking - 1 month; 2. DNA Order; 3. 20-year SOIRA [1] Order;

Section 109 Lifetime Firearms Prohibition Order. DEFENCE [ 15 ] The Defence argued that under these circumstances a proper sentence would be: 1. 17 days’ time serviced plus 2 years of probation; 2. DNA Order; 3. SOIRA Order;

Section 109 Firearms Prohibition Order. V. CIRCUMSTANCES OF THE OFFENDER [ 16 ] The Accused has no criminal record and has, since August of 2022, been on very restrictive release conditions, including an ankle bracelet. The Accused has incurred no breaches while on release. [ 17 ] Defence provided the Court with an October 11, 2023 letter from the Ministry of Justice which confirmed that Mr. McGillis was currently working with the Ministry of Social Services towards reunification with his children. The Ministry letter confirmed that Mr.

McGillis had secured fulltime employment, was attending visits with his children, and was attending counselling. The letter confirmed that all of this was in jeopardy should the Accused be subjected to a jail sentence. GLADUE [ 18 ] Not a lot of information was provided about Mr. McGillis following the original sentencing hearing. When the Court asked legal counsel about Mr. McGillis’ Gladue [2] factors, counsel represented that Mr. McGillis did not wish to discuss those matters.

However, since that time Defence counsel has filed a letter with this Court dated November 14, 2023, discussing in a bit more detail, the background of Mr. McGillis. I summarize the circumstances of Mr. McGillis as follows:

Mr. McGillis is an Indigenous person. His mother is Metis and his estranged father is from a First Nation. His parents separated when he was very young. There was chronic alcoholism in his family, especially on his father's part but also included his mother’s family. There was both physical and sexual abuse in the home resulting in criminal proceedings against his father. Mr. McGillis has had no contact with his father since that time. Mr. McGillis and his siblings were, as children, apprehended and placed into foster care for approximately one year.

As young children, even while in the parental home, they would often spend their days at the Rainbow Youth Centre, eating there and spending time there until it closed at 9:00 p.m. before going home. Mr. McGillis has a grade 9 education. He has had some form of employment for much of his life. His employment has, in large part, paid for alcohol and drugs since age 13. Addiction has been a problem in his life since that time. He does state that being on court ordered conditions has allowed him to “clean up” his life (as has been confirmed in the letter from the Ministry of Justice). Mr.

McGillis’ children have currently been apprehended and are living with Mr. McGillis’ mother. It is the goal of Mr. McGillis to assume care for his children and he has worked hard towards that end, as again has been confirmed in the letter from the Ministry of Justice. Mr. McGillis is significantly motivated to continue with the progress he has made in his life and his plans are to upgrade his education and reunite with his children. He currently has employment as a sous chef at a local eatery. [ 19 ] Clearly from the facts of this case Mr. McGillis has Gladue factors.

Prior to this incident he held sporadic employment, experienced poverty (which was evident from his testimony at trial as well), and has experienced family breakdown and significant addiction issues. [ 20 ] In the case of R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] the Court noted at para 83 that an Aboriginal offender does not have to show a “direct causal link between his circumstances and his offending”. I accept that Mr. McGillis has Gladue factors which have affected his circumstances significantly. VI.

CIRCUMSTANCES OF THE VICTIM [ 21 ] The victim filed a text message with the Court which the Crown requested I accept as a victim impact statement. It was entered as Exhibit P-1 at the sentencing hearing without any objection by Defence. [ 22 ] Clearly L.G., an Aboriginal complainant, was negatively impacted by this occurrence and continues to be. She stated that after the incident her life changed drastically as she “fell back into drinking, than from there back to drugs”. She also fell back into depression and trying to cope with “that night”. She described feeling “betrayed, unworthy, sick”.

She stated she wished it did not happen. [ 23 ] It was very evident from L.G.’s statement that this event had a significant impact on her. This Court did question, to some degree, her comment that this event made her fall back into drinking. The Court had heard evidence that prior to this event, the two children of Mr. McGillis and L.G. had been apprehended by Social Services and that this pair had been on a two-day drinking binge with each other leading up to the offence. VII. PRINCIPLES OF SENTENCING [ 24 ] The principles of sentencing are provided by ss. 718 - 718.2 of the Criminal Code .

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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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; (

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. [ 25 ] A few other noteworthy provisions of the Criminal Code that are applicable here and relate to sentencing include s. 718.04 which is applicable here and states: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 2019, c. 25, s. 292.1 . [ 26 ] Other factors that came into play are the statutorily aggravating factors found at s. 718.2 (

a) of the Criminal Code relating to: ii) intimate partner violence; iii) evidence that the offender abused a position of trust; iii.1) evidence that the offence had a significant impact on the victim. [ 27 ] In this case, while the Accused and Complainant were not necessarily intimate partners at the time of the offence, they had been in a three-year long relationship and shared two children of that relationship.

At the time of this incident their relationship was described as, “on again - off again”, but off at that moment in time (although they had been in each other’s company for several days leading up to the time of this incident). [ 28 ] While the Accused was not necessarily in a position of trust over the Complainant, he was certainly in her home when this occurred, and she at least trusted him enough to go to bed with presumably no expectation that anything like this would occur without her consent. [ 29 ] And from the victim impact statement, clearly this complainant was impacted by these events.

VIII. AGGRAVATING AND MITIGATING CIRCUMSTANCES AGGRAVATING FACTORS [ 30 ] The Crown points out, and I accept, that the significant aggravating circumstances in this case include: 1. The victim was an Aboriginal female; 2. The victim was particularly vulnerable as she was sleeping/unconscious at the time of the offence and was highly intoxicated; 3. This is an intimate partner scenario; 4. The victim impact statement illustrates that this matter has had a significant effect on this victim; 5. The offence occurred inside the victim’s home – sanctity of the home; 6.

The offence was committed while the Accused was on a non-contact order with the Complainant; 7. Vaginal - digital penetration occurred. MITIGATING FACTORS 1. The Accused is an Aboriginal offender with Gladue factors. 2. Although not technically mitigating but more so not aggravating, the Accused has no criminal record. 3. The Accused has been on stringent release conditions, including an ankle bracelet, since the offence date and has not incurred any breaches in well over one year of being on these restrictive conditions. 4.

According to the reference letter filed from the Ministry of Justice the Accused: - has found good employment; - is attending regular visits with his children and is successfully working towards reunification with them; - the Accused is attending counselling. [ 31 ] While not mitigating, it is noteworthy to mention that factually: 1. The incident was of a very short duration; 2. The Complainant’s clothing was never removed during this incident and the Accused was also fully clothed; 3. When told to stop, the Accused immediately did stop all sexual activity; 4.

When told by the Complainant to leave her home, the Accused did leave; 5. Other than the act of force itself in digitally penetrating the victim while she was asleep, no other force was used, for example, choking, putting his hands over her mouth, or general threats of violence if she did not cooperate or the presence of a weapon for intimidation purposes; 6. The Accused himself was intoxicated at the time, no doubt contributing to his poor judgment as he testified he thought the Complainant was consenting to this activity. IX.

CASE LAW [ 32 ] Although several cases were provided by the Crown and Defence, this Court takes the position that it need not go any further than to examine the cases of R v Bear , 2022 SKCA 69 [ Bear ] and R v Merasty , 2023 SKCA 33 [ Merasty ].

[ 33 ] Both of these cases are fairly recent Saskatchewan Court of Appeal decisions which have fairly similar facts to the case at bar. [ 34 ] The facts in Bear were as follows at para 6 : K.K. testified that, on the evening of April 29, 2017, and into the early morning hours of April 30, she had been out with some friends. They had gone to several bars. K.K. was quite intoxicated by the time she returned to the residence. After making her way up the stairs to her bedroom, she changed her clothes and got into bed. She testified that, just as she was laying down to go to sleep, Mr.

Bear sent her a Snapchat message, asking if she "wanted to cuddle". She ignored the message and quickly passed out. She said she woke up to find Mr. Bear in the bed with her. Her pants and underwear had been removed and he was inserting his fingers into her vagina and rubbing his penis against her leg. She said that she had not invited him into the room or engaged with him in any way before this happened. The incident stopped when Mr. Kytwayhat, who had just returned to the house, came up the stairs to the area where the bedrooms were located. K.K. said that, upon hearing Mr. Kytwayhat on the stairs, Mr.

Bear pulled up his pants and pretended to be asleep. She left the room and told Mr. Kytwayhat what had happened. Mr. Kytwayhat confronted Mr. Bear, and Mr. Bear then left the house. [ 35 ] In Bear the facts were such that it was highly likely that significantly more sexual activity had taken place between Mr. Bear and his unconscious victim. The Court of Appeal noted that at the preliminary inquiry the victim testified Mr. Bear was performing oral sex on her when she awoke.

By the time of trial she did not have as clear a recollection of this occurrence. [ 36 ] However, as the Court of Appeal referenced at para 9 of the Bear decision, there was DNA evidence found in Mr. Bear’s underwear that was consistent with some form of intercourse between Mr. Bear and the victim having occurred. [ 37 ] In Bear , the trial judge, after finding the Accused guilty after trial, imposed an 18-month term of imprisonment. [ 38 ] The Saskatchewan Court of Appeal allowed the Crown appeal of sentence and imposed a sentence of 30 months incarceration.

In doing so the Saskatchewan Court of Appeal went into great detail with respect to the sentencing principles to be considered in cases such as Bear . The Saskatchewan Court of Appeal starting at para 116 had this to say: [116] The process of crafting a fit sentence begins with having regard for the fundamental purpose of sentencing set out in s. 718 of the Criminal Code and determining the appropriate balance of objectives listed in that section. The ultimate goal is to impose a just sanction for the crime that Mr. Bear committed. [117] Mr.

Bear perpetrated a serious sexual assault against a victim who was asleep at the time and in no position to resist. As such, it is appropriate to focus on the sentencing objectives of denunciation and deterrence … Promoting a sense of responsibility in Mr. Bear and acknowledging the harm his conduct has done to the victim and the community must feature prominently in the sentence as well. … [119] There are three key considerations that define the gravity of an offence: (

i) the nature and comparative seriousness of the offence; (ii) the circumstances of its commission; and (iii) the harm caused by it ( R v Yuzicapi , 2011 SKCA 134 at para 28 ) … The Supreme Court expressed a similar sentiment in Friesen , instructing that when applying the proportionality principle, courts need to take into account the wrongfulness and the harmfulness of the offender's conduct. Wrongfulness and harmfulness are relevant considerations with respect to both the gravity of the offence and the degree of responsibility of the offender.

Taking wrongfulness and harmfulness into account ensures that the proportionality principle serves its function of holding offenders responsible for their actions, as well as properly condemning the offence and the harm caused by it ( Friesen at para 75; see also Nasogaluak , at para 42). [120] Determining an offender's degree of responsibility requires consideration of not only their conduct in committing the offence, but also their personal circumstances. As set out in the discussion above, in the case of Indigenous offenders, s. 718.2 (

e) requires that particular attention be paid to the systemic and background factors that have shaped the offender's personal circumstances, because those factors may have an impact on the offender's moral culpability ( R v Ratt , 2021 SKCA 7 para 73 ; R v J.P ., 2020 SKCA 52 at para 65 , 62 CR (7 th ) 32 [ J.P .]). [121] In terms of the gravity of the offence, sexual assault is undoubtedly objectively serious.

By definition, it is an inherently violent offence; it involves an assault that violates the victim’s sexual integrity. … [122] There is no doubting that the particular circumstances of the commission of the offence were serious as well. Mr. Bear sexually assaulted K.K. in her bedroom, in the house that she shared with him.

She had a right to expect that she would be safe and secure in that room and, while she was in a vulnerable state and in no position to resist because of her level of intoxication and the fact that she was asleep, he entered her room covertly and committed a highly intrusive act that violated her sexual and personal integrity in a very substantial way. Although K.K. was not physically injured, the offence had a profound and lasting emotional effect on her.

Moreover, K.K.'s particular vulnerability as an Indigenous woman is a fact that adds further to the gravity of the offence. [123] As to the second component of proportionality, the offender's degree of responsibility, while the trial judge conducted no

explicit analysis of this component, he observed that the offence involved a single isolated incident, was short in duration, and came to an end when Mr. Kytwayhat's footsteps on the stairs interrupted it. While each of those observations may serve to temper Mr. Bear's degree of responsibility to a certain extent, there are also several other factors which, in the circumstances, speak to a higher degree of responsibility. [124] On the facts found by the trial judge, Mr. Bear had clearly proposed a liaison of some type with K.K. before going to her room; he sent her a message asking if she "wanted to cuddle".

Her lack of response to that message could not properly be taken as an invitation; it was certainly not a communication of consent. Moreover, the trial judge found that K.K. was asleep when Mr. Bear entered her room and remained asleep when the sexual contact began. She was highly intoxicated. Mr. Bear was not. In fact, there is no evidence to suggest that he was anything other than completely sober. From all of this, it may readily be inferred that it would have been obvious to him that K.K. had not consented to sexual activity and was in no position to do so . Nor was she in a position to resist his advances.

Despite all of this, he proceeded as he did. This demonstrates a serious lack of regard, on Mr. Bear's part, for K.K.'s personal integrity and well-being that speaks of a higher level of moral culpability. [125] Consideration of Mr. Bear's moral culpability also requires attention to how it may have been affected by his experiences as an Indigenous person. It is fair, in my view, to say that his personal background and the effect of systemic and historic factors place Mr. Bear in a different position, in many respects, than a non-Indigenous offender.

He was exposed to family instability and surrendered for a period of time to the Ministry of Social Services by his mother. He has felt the sting of racism throughout much of his life and, as the Pre-Sentence Report notes, his exposure to consistent verbal and emotional abuse has negatively affected his mental health. Bearing these things in mind, I conclude that his experiences as an Indigenous person serve to reduce his level of moral culpability to some degree. [126]

Section 718.2(

a) provides that a sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances. In this case, the trial judge quite properly found the following to be aggravating factors: (

i) K.K. was sleeping at the time of the sexual assault; (ii) the assault involved vaginal penetration; (iii) she was highly vulnerable because of her state of intoxication; and (iv) the offence had a lasting impact on her. I would agree that those are all properly characterized as aggravating. However, unlike the trial judge, in the present circumstances, I would consider the fact that Mr. Bear violated K.K.'s expectation that she would be safe and secure in her bedroom, in her own home, to be aggravating as well. [127] On the other side of the coin, the fact that Mr.

Bear had no previous criminal record, had support in the community, was assessed as a low risk to reoffend, and had taken positive steps to better himself are all mitigating factors but, given the nature of the offence that he committed and the governing starting point approach, they are of limited value. The same can be said for the fact that he was subject to bail conditions, with which he complied, for a lengthy period of time. The conditions were not particularly onerous, and much of the delay in completing the trial proceedings fell at his feet.

As such, his time subject to release conditions is entitled to little credit in fixing a fit sentence. … [129] The principle of parity does not detract from the need for sentences to be individualized. Differing personal circumstances between offenders can justify differing sentences for similar offences ( Pham at para 9). As noted by the trial judge in this case, a review of decisions involving sexual assaults committed against sleeping victims reveal a general range of sentence of 30 months to four years imprisonment. Of course, not all cases will fit into such a range.

While appellate courts may set sentencing ranges or starting point sentences for certain offences, such ranges and starting points are "guidelines, not hard and fast rules" ( Friesen at para 37). A fit sentence may be above or below an established range or starting point where the circumstances justify it.

The focus must remain squarely fixed on crafting a proportionate sentence for the offender before the court, for the offence committed, in the particular circumstances of the case . [Emphasis added] [ 39 ] The most recent relevant case, also from the Saskatchewan Court of Appeal and rendered earlier this year, is the case of Merasty , ( supra ). The facts in Merasty are also strikingly similar to those in the case at bar. [ 40 ] The facts in Merasty starting at para 4 were as follows: [4] Wade Merasty was convicted of sexually assaulting an acquaintance at a home in Prince Albert on June 30, 2019.

The offence happened after a house gathering where alcohol and drugs were consumed. In the early hours of that day, the complainant texted a friend for a ride home, but she learned that it would be some time before she would be picked up. Mr. Merasty suggested to her that she should get some sleep. In his oral sentencing decision, the judge, speaking to Mr. Merasty, summarized what next took place: ... The two of you went downstairs to a bedroom. There was [ sic ] two beds in there. You each had a bed. ...

I accepted [the complainant's] testimony, that she went to sleep in one bed and you went to sleep in another. She had her clothes on and she was wrapped in a blanket. And I accepted that testimony, as I did to the testimony that she woke up to you on top of her, and you were kissing her. She woke up, she realized her pants and underwear were pulled down to her ankles, and your pants had been pulled down, and that you were trying to insert your penis into her vagina . When she woke up, she immediately shoved you, moved her body away and told you, No, no, no, this is not happening, or words to that effect.

She got up, pulled away. There's -- there is no dispute to the facts that the encounter immediately ended at that point. … [Emphasis added]

[ 41 ] In Merasty the trial judge, after finding the Accused guilty after trial, imposed a sentence of 6 months imprisonment followed by 12 months’ probation. [ 42 ] The Saskatchewan Court of Appeal allowed the Crown appeal of sentence and imposed a sentence of 20 months incarceration followed by 12 months’ probation. [ 43 ] In imposing a fit and just sentence the Court in Merasty , not unlike in Bear , set out on a detailed analysis of the relevant sentencing factors to consider.

The Saskatchewan Court of Appeal held starting at para 49: [49] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code . Pursuant to that provision, a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". I would therefore begin the sentencing exercise by considering the gravity of the offence. [50] As explained by Kalmakoff J.A. in Bear , there are "three key considerations that define the gravity of an offence: (

i) the nature and comparative seriousness of the offence; (ii) the circumstances of its commission; and (iii) the harm caused by it" (at para 119, citing R v Yuzicapi , 2011 SKCA 134 at para 28 , 377 Sask R 133). I would reiterate that Mr. Merasty perpetrated a sexual assault against a helpless victim who trusted him enough to sleep in the same bedroom. The gravity of this offence is obvious.

It was an offence against a sleeping, helpless victim with personal circumstances that Parliament has described as making her vulnerable, thus mandating a primary emphasis on deterrence and denunciation when constructing a fit sentence. It was also a violent crime which caused serious emotional and psychological harm to the complainant. The gravity of this was compounded by Mr. Merasty's insistence that he had done nothing wrong and that she was either lying or exaggerating.

While he did not engage in any additional violence, and while he did not persist after she resisted, these factors only serve to prevent the circumstances from being even worse than they were. [51] To this point, I have eschewed expressing a conclusion whether the facts here disclose a major sexual assault and hence "a starting point sentence of three years imprisonment" ( Bear at para 80 ). In Bear , Kalmakoff J.A. summarized many cases when he stated that the "determination of whether the major sexual assault label applies to an offence requires consideration of all of the relevant circumstances".

He identified the fact that offences "involving penile penetration, forced intercourse, or other forms of sexual activity such as fellatio or cunnilingus are generally understood as constituting major sexual assaults, but none of those things are prerequisites to such a finding".

He also referred to other factors, including "the intrusive, violative, or degrading nature of the sexual contact, the age or vulnerability of the victim, the nature of the relationship between the offender and the victim, or the duration or number of instances of the offending conduct may each individually, or in combination, serve to place an offence in the major sexual assault category".

In the latter context, he observed it to be of "particular relevance" how this Court had "repeatedly held that sexual assaults committed against sleeping or unconscious victims are particularly serious" (at para 78). [52] However, I do not interpret Bear as requiring that every sexual assault against a sleeping or unconscious victim attract a starting point sentence of three years' imprisonment . To reach this conclusion it would be necessary to ignore the facts of that case, as well many other cases, involving much more serious conduct, where this Court has applied the three-year starting point.

For example only, Bear involved a highly vulnerable victim who was not only sleeping but was "very intoxicated" and suffered digital penetration of her vagina (at para 79). Each of the three cases Kalmakoff J.A. relied on in support of the three-year starting point for major sexual assaults also involved circumstances that can only be described as more grave than those here, as do several others that I have already reviewed in this judgment.

As explained in Friesen , a "range or starting point should only be created for a category of offences that share enough common features that it is useful to judge them by the same rubric" (at para 39). [53] In my respectful view, the circumstances of this case do not share enough of the common features of the cases that have been categorized as major sexual assaults that it would be useful for sentencing purposes to begin with reference to a starting point of three years' imprisonment.

However, I am satisfied from a review of this Court's previous decisions that the circumstances of this case come perilously close to requiring this. [Emphasis added] [ 44 ] In Merasty the Court reviewed numerous other cases including that of R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ]. The facts of Chanalquay as described by the Saskatchewan Court of Appeal in Merasty were as follows at para 56 : [56] In Chanalquay , the victim fell asleep at a house party. She "awoke to find her pants pulled down and Mr. Chanalquay on top of her having sexual intercourse.

She got up from the couch, pulled up her pants and ran home" (at para 7). Mr. Chanalquay initially denied having sex with the victim, but at trial gave a story that she had overtly consented. The trial judge convicted Mr. Chanalquay on the strength of the victim's contrary evidence. This Court found that, "on the particular facts of this case, a jail sentence of two years, combined with the probation order prescribed above, will both protect the public, respect the victim of Mr. Chanalquay's crime, provide adequately for denunciation and deterrence, and serve to help ensure Mr.

Chanalquay's ongoing success as a member of his family and his community" (at para 60). [ 45 ] In Merasty the Court went on to discuss the importance of denunciation and deterrence in cases such as this, and described it as a “well established common law principle” that has now been codified at a s. 718.04 of the Criminal Code .

[ 46 ] In Merasty the Saskatchewan Court of Appeal came to the following conclusion on a just and appropriate sentence as follows, starting at para 66: [66] Having regard to this case law, and in particular the need to denounce and deter sexual assaults on sleeping victims, before consideration of Gladue , the facts here would have normally called for a term of imprisonment in the range of two to three years. Therefore, although Mr.

Merasty's assault does not share enough of the common features with the cases that have been categorized as a "major" sexual assault to attract a starting point sentence of three years' imprisonment, as I have said, it comes perilously close to doing so. [67] In this case, the judge identified that an order of probation would, in addition to serving as a form of sanction, also assist in Mr. Merasty's rehabilitation and was consistent with the restorative justice principles that underlie s. 718.2 (e).

Of course, it also has a penal aspect to it, as he remains subject "to the state's supervision, under conditions that significantly restrict [his] activities when he is not in custody " (R v Hotomanie, 2022 SKCA 119 at para 62 . See also: R v Jimmy, 2023 SKCA 28 at para 91 , per Jackson J.A. in dissent, but not on this point). This aspect of the sentence parallels what was ordered by this Court in Chanalquay . Such an order cannot accompany a term of imprisonment exceeding two years (s. 731(1)(b)).

The order of probation justifies a term of imprisonment below the range I have identified because it, together with the term of imprisonment that is ordered, strikes a proper balance of the operative Gladue considerations and the need to denounce and deter conduct such as that committed by Mr. Merasty . [68] Having regard to all of the foregoing, I would sentence Mr. Merasty to serve a term of imprisonment of 20 months, to be followed by a probation order on the terms previously ordered by the judge. Mr. Merasty must also comply with SOIRA for a period of 20 years . [Emphasis added] X.

ANALYSIS [ 47 ] A few themes emerge from the cases of Bear and Merasty that are particularly relevant to the case at bar. [ 48 ] In this case Mr. McGillis perpetrated a sexual assault on a sleeping/unconscious victim, in no position to resist, and in her home. This itself is

an act of force. [ 49 ] Clearly denunciation and deterrence, for cases like this one, and as codified in the Criminal Code under s. 718.04 , are primary considerations. [ 50 ] In sentencing Mr. McGillis this Court must consider the gravity of this offence and the three important considerations as set out in the case law, namely: 1. The nature and seriousness of the offence; 2. The circumstances of its commission and; 3. The harm caused by it. [ 51 ] In McGillis, the sexual assault was an offence against a sleeping, helpless victim with personal circumstances that made her vulnerable.

It was a violent crime which caused emotional and psychological harm to L.G., as outlined in her victim impact statement. It was an offence that occurred in the victim’s home, a place where one should expect to be safe. [ 52 ] However, Merasty interpreted Bear to mean that not every sexual assault against a sleeping or unconscious victim would attract a starting point sentence of 3 years imprisonment.

In fact, Merasty and Chanalquay, both Saskatchewan Court of Appeal decisions, imposed sentences of imprisonment far less than 3 years. [ 53 ] In Merasty the Saskatchewan Court of Appeal felt that imprisonment plus probation would not only address the primary consideration of denunciation and deterrence but would also assist Mr. Merasty with his rehabilitation and was consistent with the restorative principles that underly s. 718.2 (e).

The Court in Merasty , in commenting on the probation part of the sentence, noted at para 67 that even probation “has a penal aspect to it, as he remains subject ‘to the state’s supervision, under conditions that significantly restrict [his] activities when he is not in custody’”.

[ 54 ] What I must also take into consideration is that no two cases are exactly alike. While Bear and Merasty were most certainly similar cases, they were factually more serious than the McGillis case for a few reasons including: R v Bear - Unlike the McGillis case where both the Accused and Victim were fully clothed throughout, in Bear the victim’s pants and underwear had been pulled down and presumably the Accused had at least partially removed his clothing as he was rubbing his penis against her leg. This perhaps also went to the premeditation of Mr.

Bear as he would have had to take some time to remove clothing and then start rubbing his penis against the victim while inserting his finger into her vagina; - In addition, there was also some evidence that Mr. Bear had performed oral sex on the victim and had some type of vaginal/penile intercourse with her, given the DNA evidence; - The facts in Bear were much more aggravating than those in the case at bar where Mr. McGillis inserted his finger into the victim’s vagina for a very short period of time, while they were both fully clothed, and while the Accused was also intoxicated; - In Bear , Mr.

Bear was not intoxicated at all although the victim was very intoxicated. In the present case the Accused and Victim had spent several days together binge drinking and they were both intoxicated at the time of the incident; - In Bear , Mr. Bear had been subject to what the Court described as “non onerous” release conditions while out on bail pending trial. To the contrary, Mr. McGillis has been on extremely restrictive conditions of release, including an ankle bracelet, which also included curfew restrictions for well over one year. He was in essence in custody in the community while awaiting trial.

R v Merasty - Turning now to M erasty , some of the differences between that case and McGillis were as follows: - Again, like Bear , the victim’s underwear and pants had been pulled down around her ankles. The Accused also had his pants pulled down. In McGillis they were both fully clothed throughout; - In Merasty the victim awoke to having the Accused on top of her, her pants and underwear pulled down, the Accused kissing her and “trying to insert his penis into her vagina”; - In contrast, Mr. McGillis did not have his penis out and was not on top of L.G., nor was he kissing her.

His finger was in her vagina, his penis was not. Both serious but by different degrees of intrusion; - While it is unclear what release conditions Mr. Merasty was on leading up to his trial, we do know that Mr. McGillis was on some of the most restrictive conditions possible and did not breach any of them while awaiting trial. [ 55 ] Mr. McGillis’ actions were, given his own testimony at trial, more akin to poor judgment while in an intoxicated state.

It was an incident that was relatively short in duration compared to the assault in the Merasty case which went on much longer as clothing was removed and attempts at penile intercourse occurred; [ 56 ] The facts in the present case are also much less serious than those in Chanalquay where again the victim awoke to her pants having been pulled down and Mr. Chanalquay on top of her actually having sexual intercourse. Mr. Chanalquay received a custodial

sentence of 2 years. XI . GLADUE AND THE POSSIBILITY OF A CONDITIONAL SENTENCE ORDER [ 57 ] Parliament has, with the repeal of ss. 742.1 (

e) and (f), opened up the possibility of conditional sentence orders (CSO’

s) for a much broader range of offence. Notably these amendments were not yet proclaimed into force during sentencing of Mr. Bear or Mr. Chanalquay and were just newly available at the time of the appeal in Merasty but were not in force at the time of the original sentencing in that case. [ 58 ] The McGillis case seemingly has numerous sentencing principles colliding. [ 59 ]

Section 718.04 of the Criminal Code was enacted in 2019 making denunciation and deterrence a primary consideration in cases such as McGillis. [ 60 ] However, s. 718.2(

e) requires the Court to consider all available sanctions, other than imprisonment and particularly so for Aboriginal offenders. [ 61 ]

Section 718.2 (

e) of the Criminal Code recognizes that the circumstances of Aboriginal offenders are different than those of non-Aboriginal offenders.

The case of R v Gladue provided at para 37 : [37] The fact that the reference to aboriginal offenders is contained in s. 718.2( e ) , in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. [ 62 ] Gladue provided two considerations which must be taken into account when sentencing an Aboriginal person: [66] The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the court; and

B) The types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his/her particular aboriginal heritage or community connection. [ 63 ] In this case Mr. McGillis, an Indigenous person, has suffered from dislocation from his community, addiction, poverty and family breakdown. There is no doubt this has had a dramatic effect on Mr. McGillis’ circumstances and is directly related to his conduct on the day in question. [ 64 ] Gladue noted that an Aboriginal person should not automatically receive a reduction in sentence due to s. 718.2 (e) .

Rather, para 88 noted that the sentence will be dependent "upon all the factors which must be taken into account in each individual case." The Court must consider all unique or background factors which may have been a part of why the offender committed the offence. This is further clarified in the case of Ipeelee , where the Supreme Court provided at para 83 that an Aboriginal offender does not have to show a "direct causal link between his circumstances and his offending".

Rather, the specific circumstances of the offender must "bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized". [ 65 ] Additionally, at para 60, Ipeelee provided numerous circumstances that must be judicially noted when dealing with Aboriginal offenders.

It stated: [60] To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the

case-specific information presented by counsel. [ 66 ] Notably the Court in Gladue spent a significant amount of time discussing the over-representation of Indigenous people in Canadian penal institutions and the role of s. 718.2(

e) in sentencing. It stated: [58] If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians. In the mid-1980s, aboriginal people were about 2 percent of the population of Canada, yet they made up 10 percent of the penitentiary population. In Manitoba and Saskatchewan, aboriginal people constituted something between 6 and 7 percent of the population, yet in Manitoba they represented 46 percent of the provincial admissions and in Saskatchewan 60 percent: see M. Jackson, Locking up Natives in Canada (1988-89), 23 U.B.C. L.

Rev . 215 (article originally prepared as a report of the Canadian Bar Association Committee on Imprisonment and Release in June 1988), at pp. 215-16. The situation has not improved in recent years. By 1997, aboriginal peoples constituted closer to 3 percent of the population of Canada and amounted to 12 percent of all federal inmates: Solicitor General of Canada, Consolidated Report, Towards a Just, Peaceful and Safe Society : The Corrections and Conditional Release Act -- Five Years Later (1998), at pp. 142-55.

The situation continues to be particularly worrisome in Manitoba, where in 1995-96 they made up 55 percent of admissions to provincial correctional facilities, and in Saskatchewan, where they made up 72 percent of admissions. A similar, albeit less drastic situation prevails in Alberta and British Columbia: Canadian Centre for Justice Statistics, Adult Correctional Services in Canada, 1995-96 (1997), at p. 30. … [64] These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.

The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 ( e ) , intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. [ 67 ] At para 65 of Gladue the Supreme Court of Canada sends a strong message to sentencing judges in relation to this issue when it held: [65] … Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. [ 68 ] Paragraph 80 of Gladue discussed crafting the proper sentence for this offence, committed by this offender, harming this victim in this community.

Gladue held at paras 80 and 81 : [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances.

There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2 ( e ), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing.

In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [ 69 ] Some 13 years after Gladue was decided, the case of R v Ipeelee was rendered. At para 63 of Ipeelee it noted that the implementation of s. 718.2 (

e) had no discernable impact on overrepresentation of Aboriginal people in the criminal justice system. Ipeelee attributed this to a fundamental misunderstanding and misapplication of both s. 718.2(

e) and the Supreme Court decision in Gladue . [ 70 ] Ipeelee (at para 68 ) again stressed the important roles of sentencing judges in this process. It stated, quoting from Gladue :

[68]

Section 718.2(

e) is therefore properly seen as a "direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process "… [ 71 ] Ipeelee at para 86 also discussed the application of s. 718.2(

e) for “serious offences” and indeed if there is any such justification for labelling any offence as a “serious offence”. The Court stated: [86] In addition to being contrary to this Court's direction in Gladue , a sentencing judge's failure to apply s. 718.2(

e) in the context of serious offences raises several questions. First, what offences are to be considered "serious" for this purpose? As Ms. Pelletier points out: "Statu torily speaking, there is no such thing as a 'serious' offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered 'serious'" (R. Pelletier, "The Nullification of

Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to "the relative ease with which a sentencing judge could deem any number of offences to be 'serious'" (Pelletier, at p. 479). It would also deprive s. 718.2(

e) of much of its remedial power, given its focus on reducing overreliance on incarceration. … [ 72 ] Although Gladue and Ipeelee are now over 10 years old, they continue to be extremely relevant. Indeed sentencing judges stand on the frontlines and are in the best position to ensure sentencing fairness, especially as it relates to an Aboriginal offender. [ 73 ] As stated earlier, Parliament has now equipped sentencing judges with more tools for sentencing with the fairly recent amendments to the Criminal Code opening up the possibility of a CSO for a much wider swath of offending. But is it a possibility for Mr.

McGillis? [ 74 ] When looking at the reasons for the amendment to the Criminal Code , allowing for more conditional sentence orders, some of the comments expressed during second reading before Parliament of Bill C-5 (designed to make conditional sentence orders more available) were interesting to note as follows: Mr.

Gary Anandasangaree (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.) provided the following comments about Bill C-5 during its second reading before Parliament ( House of Commons Debates , 44 th Parl, 1 st Sess (13 December 2021) at 1100): This bill fulfills a platform commitment to reintroduce former Bill C-22 within 100 days, and I am proud to work with the Minister of Justice on this important piece of legislation.

The proposed reforms represent an important step in our government's continuing efforts to make our criminal justice system fairer for everyone by seeking to address the overrepresentation of indigenous people, Black Canadians and members of marginalized communities. Bill C-5 focuses on existing laws that have exacerbated underlying social, economic, institutional and historical disadvantage and which have contributed to systemic inequities at all stages of the criminal justice system, from first contact with law enforcement all the way through to sentencing.

Issues of systemic racism and discrimination in Canada's criminal justice system are well documented, including by commissions of inquiry such as the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the Commission on Systemic Racism in the Ontario Criminal Justice System. … The numbers speak for themselves. Black Canadians represent 3% of the Canadian population yet represent 7% of those who are incarcerated in federal penitentiaries.

Indigenous people represent roughly 5% of the Canadian population yet represent 30% of those who are federally incarcerated. The number is profoundly higher for indigenous women, who represent 42% of those who are incarcerated. Indigenous people and Black Canadians have been particularly marginalized by the current criminal justice system.

The calls for action recognize that sentencing laws, and in particular the broad and indiscriminate use of MMPs, or mandatory minimum penalties, and restrictions on the use of conditional sentences have made our criminal justice system less fair and have disproportionately hurt certain communities in Canada. … This bill would increase the availability of conditional sentencing orders in cases where offenders do not pose a risk to public safety.

CSOs allow offenders to serve sentences of less than two years in the community under strict conditions, such as house arrest and curfew, while still being able to benefit from employment, educational opportunities, family ties and community and health-related support systems. [ 75 ] Clearly Parliament was concerned with the overrepresentation of Indigenous people in Canadian jails, notwithstanding s. 718.2 (

e) of the Criminal Code and cases like Gladue and Ipeelee .

[ 76 ] The comments are clearly an urging by Parliament to have conditional sentence orders used more often, instead of jail, as long as the offender does not pose a risk to public safety. [ 77 ] A few cases that are also noteworthy at this time include the following: R v RNS , 2000 SCC 7 , [2000] 1 SCR 149 [ RNS ]: [21] In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence should generally be imposed. This follows from s. 718.2 (

e) of the Criminal Code , which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. I would note, however, that there may be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence. R v RS , 2023 ONCA 608 : [77] First, it is an error in principle to decide that a conditional sentence is not fit, based solely on the level of violence committed during the offence, or because denunciation and deterrence are the primary sentencing goals.

In Ali the trial judge committed both of these errors. As Zarnett J.A. said in Ali , at para. 38: It was an error in principle for the trial judge [in Ali ] to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances. [78] The same holds true, in my view, with sexual offences, which are acts of violence.

It would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred.

To the extent that my colleague’s decision may suggest that conditional sentences will never be fit for sexual offences as serious as the one that occurred in this case, I must express my disagreement. [79] Second, it would be an error in principle to hold that a conditional sentence is unavailable because the sentencing range for an offence generally exceeds the maximum period for a conditional sentence of two years less a day. Sentencing ranges are identified by courts.

They should not be used to remove legislated sentencing tools from consideration… … [82] It is also important to appreciate that conditional sentences were developed in large measure to provide a sentencing tool capable of responding more effectively to the needs of Indigenous offenders and to enable judges to honour the legislated principles of restraint that apply to Indigenous offenders. In R. v.

Jacko , 2010 ONCA 452 , 101 O.R. (3d) 1, at para. 73 , Watt J.A. recognized that Aboriginal status is “an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence.” [83] … Even though it is outside of the usual range for offences of this kind, the conditional sentence the trial judge imposed was reasonable, notwithstanding that the offence R.S. committed was vile, disturbingly violent, degrading, and harmful to the complainant.

What made it so was how significantly R.S.’s experiences as an Indigenous person were found to have contributed to his criminal conduct, thereby reducing his blameworthiness. The fitness of the conditional sentence is also supported by the fact that R.S. was an appropriate candidate for a restorative sentence. He was remorseful, revolted by his own conduct, and had already demonstrated his desire to avoid future offending by taking meaningful and impressive steps to address the alcohol addiction that contributed to his offending. [ 78 ] To determine whether a CSO is something available to Mr.

McGillis, a review of the provisions of s. 742.1(

a) needs to be undertaken. Notably the Supreme Court of Canada in R v Proulx , 2000 SCC 5 , [2000] 1 SCR 61 [ Proulx ] enumerated many of the factors a sentencing judge must consider before finding a CSO to be a just and appropriate sentence. And while some of the considerations in Proulx might be less relevant, given the recent amendments to the Criminal Code , most of the considerations still offer assistance. [ 79 ] Proulx starting at para 55 goes into a lengthy dialogue on CSO’s and the factors relevant to imposing one. The 2024 annotated Criminal Code at page 1590 does a very succinct job of summarizing these factors. I will set them out here and then consider them individually. (

i) Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict the

offender’s liberty. Therefore, conditions such as house arrest or strict curfews should be the norm. (ii) In deciding whether to impose a conditional sentence, the judge will not proceed by way of rigid two-step process whereby the length of the term is fixed and then the decision made whether to impose a conditional sentence. While a two-stage process is involved, the judge at the first stage merely considers whether to exclude the two possibilities of a penitentiary term or a non-custodial term.

In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing to the extent necessary to narrow the range of sentences for this offender. At the second stage, the judge will consider the principles of sentencing in a comprehensive way in determining whether to impose a conditional sentence.

Thus, the judge may properly conclude that the term of the conditional sentence should be longer than it would have been if the offender were sentenced to immediate imprisonment. (iii) That the safety of the community would not be endangered is merely one of the three prerequisites for imposing a conditional sentence and it is not the primary consideration. “Safety of the community” refers only to the threat posed by the specific offender and not to a broader risk of undermining respect for the law. It includes consideration of the risk of any criminal activity, including property offences.

In considering the danger to the community the judge must consider the risk of the offender re-offending and the gravity of the damage that could ensue. Particularly in the case of violent offenders, a small risk of very harmful future crime may warrant a finding that this prerequisite has not been met. The risk should be assessed in light of the conditions that could be attached to the sentence.

Thus, the danger that the offender might pose may be reduced to an acceptable level through imposition of appropriate conditions. (iv) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances. (

v) There is also no presumption in favour of a conditional sentence if the prerequisites have been satisfied. However, serious consideration should be given to the imposition of a conditional sentence in all cases where these statutory prerequisites are satisfied. (vi) A conditional sentence can provide a significant amount of denunciation particularly when onerous conditions are imposed and the term of sentence is longer than would have been imposed as a jail sentence.

Generally, the more serious the offence, the longer and more onerous the conditional sentence should be. (vii) A conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed and judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

Offences such as dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. (viii) When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence. (ix) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. (

x) Neither party has the onus of establishing that the offender should or should not receive a conditional sentence. However, the offender will usually be best situated to convince the judge that such a sentence is appropriate and it will be in his or her interests to make submissions and provide information establishing those elements militating in favour of such disposition. (xi) The deference due trial judges in imposing sentence generally applies to the decision whether or not to impose a conditional sentence.

Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying intervention. [ 80 ] I will now consider each principle as it relates to Mr. McGillis. i. Punitive v. Rehabilitative A CSO, unlike probation, which is considered to be rehabilitative, has a punitive element to it through the imposition of house arrest and curfew. In McGillis, this would then speak to the issue of deterrence and denunciation which is to be given primary consideration in cases such as this one.

If a CSO is considered both punitive and rehabilitative, it nicely takes into consideration the primary consideration of deterrence and denunciation while not ignoring the rehabilitative and restorative justice component of sentencing. In that regard a CSO would be a good fit for Mr. McGillis. ii. CSO only available if sentence is otherwise less than 2 years. According to Proulx this should not be a rigid approach.

In McGillis, when the facts are compared to the most recent cases of Bear , Merasty and Chanalquay , clearly the facts in McGillis are less serious then Merasty and much less serious than Bear and Chanalquay . Mr. Chanalquay received a 2-year sentence. Mr. Merasty received a sentence of 20 months plus probation. Cleary for Mr. McGillis, a sentence of less than 2 years would be appropriate given his specific facts and circumstances. A CSO is therefore available to Mr.

McGillis because a sentence of less than 2 years would be appropriate in this case yet a strictly community based sentence of probation, as suggested by counsel for Mr. McGillis, would not be appropriate given the serious nature of this offence and the need for denunciation and deterrence.

iii. Safety of the community In considering this principle this Court must be mindful of the risk Mr. McGillis himself poses to the community. I would conclude, for Mr. McGillis, that he poses no risk to the community. The incident itself was a single isolated incident of poor judgment occurring while Mr. McGillis himself was intoxicated. It was of a short duration. No one was unclothed. Other than the act itself there was no other use of force and Mr. McGillis stopped when he was instructed to stop and left the residence immediately when asked. Mr.

McGillis has, since August 2022 been on the most restrictive conditions possible including an ankle bracelet and curfew. He has not incurred even one breach over the past 15 plus months. He had no criminal record prior to this offence and was therefore no danger to the public prior to this offence occurring. Since the offence date Mr. McGillis has found employment, sought out treatment and is very close to achieving reunification with his children, all according to the letter of October 11, 2023, by the Ministry of Justice. Given these remarkable and compelling facts, I find Mr.

McGillis to be of no risk to the community. iv. Statutory prerequisites With the recent amendments to s. 742.1 of the Criminal Code there are now no statutory prerequisites that would prevent Mr. McGillis from being eligible for a CSO. v. No presumption in favour of CSO Proulx states there is no presumption in favour of a CSO even if it is available. However clearly during the House of Commons debates as set out herein, Parliament was most certainly encouraging the judiciary to impose CSO’s as long as offenders posed no risk to public safety.

Clearly the goal is to reduce the number of incarcerated people and especially Indigenous offenders. The case of RNS at para 21 certainly suggests a CSO should trump a term of imprisonment, if either is available. vi. CSO can provide significant denunciation Clearly Proulx took the position that a CSO can provide significant deterrence and denunciation which is significant in the present case as those are the primary factors to be considered; vii. CSO provides significant deterrence This is also of significant importance in the present case where deterrence is also a primary consideration.

In order to accomplish this “sufficiently punitive conditions” must be imposed. viii. Rehabilitation This principle speaks to the need and possibility for rehabilitation. Mr. McGillis is an excellent candidate for rehabilitation. Other than this offence he has no criminal history, he has not incurred any new charges while on restrictive release conditions for the

part 15 months and has sought out counselling already on his own. He has turned his life around and has addressed his addiction issues. ix. CSO can still be imposed in light of aggravating circumstances. In this case there are significant aggravating circumstances as have already been laid out by the Court. This according to Proulx , is not an impediment to imposing a CSO. x. Neither party bears the onus In this case, legal counsel has provided the Court with significant information about Mr. McGillis, in addition to the letter from the Ministry of Justice. The Crown has acknowledged that a CSO is an option available to this Court in sentencing Mr. McGillis.

xi. Deference to trial judges This speaks for itself and has also been addressed in both Gladue and Ipeelee which both stated that trial judges are on the front lines with respect to the issue of over incarceration. XII. CONCLUSION [ 81 ] Mr. McGillis has been convicted of an egregious offence. This Court needs to give primary consideration to the principles of deterrence and denunciation in sentencing Mr. McGillis. However, this Court is also very mindful of the issue of over incarceration of Indigenous people in this country and the efforts of Parliament to correct this problem.

In so doing, Parliament has recognized the negative affect of colonialism on Indigenous people and the disadvantages it has caused them. [ 82 ] The actions of Mr. McGillis on the date in question were serious. A community based sentence of probation, as suggested by his lawyer, would not be appropriate as it would not adequately address deterrence and denunciation for crimes of this nature. [ 83 ] In my view, given all the circumstances of this case, a penitentiary sentence of 2 years or more of incarceration is also not appropriate for reasons already explained.

This then opens the door for the imposition of a CSO for Mr. McGillis. In my view, a properly crafted CSO would rightfully address the primary considerations of denunciation and deterrence while allowing for a strong component of restorative justice. This is especially so in a case such as this where Mr. McGillis represents little to no risk to society. He has gotten his life back on track; has addressed his addiction issues; has himself sought out counseling; and is very close to being reunified with his children. [ 84 ] Incarceration is not the answer for Mr. McGillis.

It would only add to the problem of over incarceration of Indigenous people and would be contrary to the clear direction given to the judiciary by Parliament. It would also have the unintended consequence of significantly undermining the progress Mr. McGillis has made in the community already. [ 85 ] Having considered all the above, my sentence for Mr. McGillis is as follows: [ 86 ] With respect to count 3 (sexual assault): This Court is very mindful of the fact that Mr.

McGillis has been on extremely strict release conditions, including an ankle bracelet and curfew, tantamount to custody, for nearly 15 months already. Accordingly, I am sentencing Mr. McGillis to a period of incarceration, in the community, pursuant to a conditional sentence order, for a period of 20 months, and under the following conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Report to a supervisor within two working days after today’s date and after that when required and in the manner directed by the supervisor or designate. 4.

Remain within the jurisdiction of the court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the court or supervisor. 5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation. 6. Report to a supervisor at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (toll free 1-888-586-6363) immediately and after that as told to do so by your supervisor or designate.

7. Live at a residence approved by your supervisor and not change that residence without the prior written permission of your supervisor or designate or the court. 8. For the first 12 months of this order, stay inside your approved residence 24 hours a day unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order.

An automatic curfew exemption shall apply for employment purposes and for the purposes of attending medical appointments for himself or his children. Exemptions for any other child related activities shall be in the discretion of the Supervisor. 9. For the first 12 months of this order enroll in the Electronic Monitoring Program and comply with the Electronic Monitoring Program Rules and Protocols pertaining to the use of Radio Frequency (RF) electronic monitoring as told to do so by your supervisor.

While this requirement is in place, you must come to the door of your approved residence when asked to do so by a probation officer or designate or police officer and permit them entry into your approved residence to check equipment operation. 10. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor. 11. Participate in assessment(

s) and complete programming for: sexual offending, personal counselling and domestic violence. 12. Have no contact of any kind in any way, directly or indirectly, with L.G. except through a third party for the purpose of arranging child access. 13. Not be at the residence, workplace or place of education of L.G. except through a 3 rd party to facilitate child access. 14. Not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance. [s. 515(4.1) CC] 15.

Not possess a knife except when using a knife to eat or for employment purposes. [ 87 ] The conditional sentence order shall be followed by 12 months of probation on the following conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. 4.

Report to a probation officer at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (toll free 1-888-586- 6363) within two working days of your release from jail. 5. Live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the court. 6. Participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer. 7.

Participate in assessments and complete programming for: sexual offending, personal counselling and domestic violence. 8. Have no contact of any kind in any way, directly or indirectly, with L.G. except through a 3 rd party for the purpose of arranging for child access. 9. Not be at the residence, workplace or place of education of L.G. except through a 3 rd party for the purpose of facilitating child access. Ancillary orders relating to the sexual assault conviction will include: a.

A DNA order with samples to be provided to the Regina City Police within two working days or as otherwise directed by the Regina City Police. b. A 20-year SOIRA order. c. A s. 109 weapons prohibition for life. d. A victim fine surcharge in the amount of $200.00 to be paid or worked off within three months of the date of this Order.

[ 88 ] With respect to count 2, the Breach of Undertaking, given that Mr. McGillis had no criminal record prior to this offence and the fact that he has gone some 15 months while on extremely restrictive release conditions, without any breaches, the Court imposes a $250.00 fine and will give the offender three months, from the date of this Order, to pay it or work it off under fine options. [ 89 ] In addition, there will be a victim fine surcharge, relating to the Breach of Undertaking, of $75.00 to be paid or worked off within three months from the date of this Order. ________________________ K.A. Lang, J