R v Parr, 2020 NUCA 2

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Parr, 2020 NUCA 2 Date: 20200409 Docket: 03-19-001 CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Elee Parr Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Jolaine Antonio The Honourable Mr. Justice Kevin Feehan _______________________________________________________

Memorandum of Judgment of The Honourable Mr. Justice Slatter and The Honourable Mr. Justice Feehan Memorandum of Judgment of The Honourable Madam Justice Antonio, dissenting in part Appeal from Conviction and Sentence by The Honourable Mr. Justice Bychok on the 5th and 6th day of December, 2018 (File No 03-17-168-1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Majority: I.

Overview [ 1 ] Elee Parr appeals his convictions of December 6, 2018, that on September 29, 2017 at Cape Dorset, Nunavut, he committed sexual assault contrary to s 271 of the Criminal Code , RSC 1985, c C-46 , and breached two recognizances for failing to keep the peace and be of good behaviour, and to abstain from intoxicating substances, contrary to s 145(3) of the Criminal Code . [ 2 ] Mr Parr also appeals his sentence of five years on the sexual assault conviction and 60 days consecutive for each of the breaches of recognizance, for a total sentence of 1,945 days, less 649 days’ credit for pre-trial detention, for a remaining sentence of 1,296 days (43.2 months). [ 3 ] For the reasons set out below we dismiss the appeal on conviction.

We allow the appeal on sentence, and impose afresh a global sentence of four years. II. Decision of the trial judge on conviction [ 4 ] Mr Parr was at the time of trial 26 years old, had four children, and was a hunter and carver. The trial judge rejected his evidence on material points. [ 5 ] Mr Parr said that on the night of September 28, 2017, he and others were drinking at his sister’s place. He said he and the complainant “were getting drunk. Not that drunk, but we were getting [a] bit.” He said he drank “almost two mickeys of vodka” and felt “Kind of drunk. Not that drunk, but drunk.

Buzzed.” He later said the complainant was “not drunk, not at all.” [ 6 ] While outside the house for a cigarette, Mr Parr asked the complainant about having sex and she did not reply to him. Later that evening, he said they started talking and kissing, and at some point “went on the mattress [on the floor of the living room], started having sex.” He said they took off each other’s pants. [ 7 ] When asked, “How did that end?”, Mr Parr said the complainant asked him to “get off” her, so he “got off right away” and she went upstairs.

He then said, in answer to defence counsel’s following question as to whether the complainant had said anything before that, she had asked him three times to allow her to climax first. He said she never did climax and he never did ejaculate before she asked him to get off her.

[ 8 ] After the complainant went upstairs, Mr Parr said he followed to ask her what was going on. When she did not reply, he told her to leave but she did not and he went downstairs. [ 9 ] The trial judge said he did not believe Mr Parr “nor [did] Mr Parr’s evidence raise a doubt in [his] mind.” He found Mr Parr “not a credible witness.” He specifically rejected Mr Parr’s evidence that he was not significantly drunk after he had consumed about 26 ounces of vodka.

He said Mr Parr had changed his evidence “on a very significant point” when he said the complainant had told him to get off her, and then said she had asked him three times to let her climax first. The trial judge said: It is inconceivable that the very willing, even eager partner Mr. Parr described would, after asking three times to be able to [climax] first, would then suddenly change her mind and demand he get off her.

There is no [air] of reality to this evidence, and I reject it. [ 10 ] The trial judge also said Mr Parr’s evidence firstly that he and the complainant were “getting drunk” and then later that she was “not drunk at all” struck at the “very heart of his defence” and showed him to be not credible: “I do not believe that Mr. Parr was truthful in Court. I must reject his evidence.” [ 11 ] The trial judge also considered the evidence of the complainant. He accepted some but not all of her evidence. The complainant was 17 at the time of the offence.

She said her best friend, Mr Parr’s niece, GP, invited her to come drinking at her place.

However, the niece dropped her off at the party and then left to go on a “joy ride.” The complainant said she had consumed “about one inch of vodka in a glass before she left for [the niece’s]” and then when she got to the party “they were drinking straight vodka.” She said “I get drunk pretty easily” but maintained she was not significantly intoxicated later that evening. [ 12 ] The complainant said Mr Parr had touched her thighs, both inside and out, and her face, and she told him to stop. [ 13 ] Later in the evening, the complainant estimated she was probably five out of ten inebriated.

She said she had consumed at the party about “a full glass-and-a-half of straight vodka.” She said she laid down on a mattress on the living room floor fully dressed, under blankets, and fell asleep. She woke up at sometime after 2:00 in the morning with Mr Parr’s penis inside her vagina and she was naked from the waist down. She said she tried to stop him but he just giggled. [ 14 ] She said she tried to push him off with her hands on his chest and shoulders.

She said it felt like it lasted for a long time, “probably 15 minutes.” She denied having asked him to allow her to climax first. [ 15 ] When Mr Parr stopped, she grabbed her clothing, ran upstairs, and pushed a dresser against the door. She said Mr Parr followed her upstairs and tried to get in saying that he wanted to continue having sex with her. [ 16 ] The complainant was asked whether she had ever thrown up at the party and even though she was specifically challenged with the contrary evidence of another friend, MM, said she had not. [ 17 ] The trial judge found the complainant a credible witness.

He said “[s]he was thoughtful and responsive to all the questions put to her. She did not answer a question until she knew what the questioner meant. Her story was logical, consistent, and it made sense,” except for her evidence about alcohol consumption and that she did not throw up that evening. [ 18 ] MM, a 17-year-old friend of the complainant’s, was said by the trial judge to be the “only sober person at [the niece’s].” The trial judge found the friend, MM, to be “an impressive witness… credible and truthful.” She appeared to be impartial.

Her evidence was straightforward and logical, and the trial judge placed considerable weight on it. [ 19 ] MM testified that both the complainant and Mr Parr were “already drunk when she arrived” around 9:00 pm. She said the complainant appeared to be more drunk than Mr Parr. She heard Mr Parr asking the complainant if she wanted to have sex and the complainant did not answer. She testified that sometime later, Mr Parr and the complainant were on a couch together, he tried to kiss her and she simply laughed.

The friend’s, MM’s, evidence was that still later in the evening the complainant was lying on the couch and had been vomiting onto the floor while she slept. She said she wiped up the mess and then went upstairs with the niece, GP, to smoke marihuana.

When she came down, she found that the complainant had “puked a bit more.” She said goodbye to the complainant but there was no response. [ 20 ] GP, Mr Parr’s niece and the host of the party, said she did not recall the complainant having thrown up, and agreed that “if someone had thrown up, she would remember.” [ 21 ] After considering all of the evidence, and giving particular weight to that of the friend, MM, the trial judge found the complainant was “so ill around 11 p.m., that she did vomit onto the livingroom floor,” and later, when MM left the party, “the complainant was not responsive... [and] so intoxicated...she does not remember vomiting.” [ 22 ] On all of the evidence, the trial judge was “satisfied beyond a reasonable doubt that [the complainant] fell asleep...alone...fully clothed,” and “she next woke up to find Mr.

Parr on top of her with his penis in her vagina.” He concluded that Mr Parr “took advantage of his sleeping victim” and was guilty of sexual assault. III. Decision of the trial judge on sentencing [ 23 ] In sentencing submissions, the Crown said the appropriate sentence for the sexual assault in this case was four years’ jail and for the two breaches of recognizance 45 days each, consecutive to the sentence for sexual assault. That would be 1,551 days, less a credit of 649 days, leaving 902 days left to serve or approximately two and one-half years.

In making that recommendation, the Crown relied primarily upon R v Akpaliakluk , 2016 NUCJ 24 , and R v Ipeelie , 2015 NUCA 3 , 602 AR 98. [ 24 ] Defence counsel argued that a primary consideration would be to allow Mr Parr to serve the remaining portion of his sentence in Nunavut so that he would not be removed “from [his] culture and family and friends and any contact with [his] people....” The trial

judge, in argument, referenced his decision in R v Itturiligaq , 2018 NUCJ 31 , paras 80 and 86 , where he questioned “why after 19 years of division, we continue to send our federal offenders out of Nunavut to the south.” [ 25 ] Relying upon R v Alainga , 2014 NUCJ 34 , defence counsel suggested a sentencing range of three to four years globally as “the high end of the [range] for this offence.” He said the starting point should be three years and that sentence in this matter should be “36 months...to 44 months,” giving Mr Parr a sentence “of less than two years going forward” and allowing him to stay in the territory to serve his remaining sentence. [ 26 ] The trial judge delivered oral reasons on sentencing and indicated he would provide “detailed written reasons,” which he does not appear to have done.

The trial judge identified as important the principles of deterrence and rehabilitation, and the principle that like offenders should be treated alike if the offences are alike. [ 27 ] In explaining why he exceeded the recommendations of both the Crown and defence counsel, he said: It is clear to me that the reported case law in Nunavut does not reflect the present day range of sentencing for this offence in these circumstances with this repeat offender in Nunavut.

He did not cite any specific cases nor explain the difference between the reported Nunavut decisions and the “present day range” of sentences in Nunavut. He did say “Domestic violence, family violence, alcohol related sexual violence, is a crisis in our society.” [ 28 ] The trial judge also said he was required to take into account the provisions of s 718.2(

e) of the Criminal Code , that the Court must pay particular attention to the circumstances of Indigenous offenders. Finally, he repeated the comments he had made earlier during argument that he needed to take into account that federal jail time required that the Court “continue to send federal Inuit prisoners to the south.” [ 29 ] The trial judge found no mitigating factors. [ 30 ] As to aggravating factors, he said “when Mr. Parr raped his victim, he was on probation” and had been released on bail only two days earlier.

He also said that Mr Parr “assaulted a sleeping vulnerable intoxicated victim,” he “overpowered his victim’s resistance and he continued to assault her.” He observed that the victim was a minor, and that the offence had a profound traumatic effect upon her, particularly because she was “hassled and bullied by the people in this community who had heard about what had happened.” [ 31 ] Finally, repeating his concern that “in Nunavut the sentencing range for this offence has not been reflected to date in the emerging case law,” he sentenced Mr Parr to five years’ federal penitentiary time for the sexual assault and 60 days consecutive for each of the two breaches of recognizance, for a total sentence of 1,945 days with 649 days’ pre-trial credit leaving remaining 1,296 days in federal prison (approximately 43.2 months).

IV. Grounds of appeal [ 32 ] On conviction, Mr Parr says the trial judge erred in applying a more exacting standard of scrutiny to his evidence than he did to the evidence of Crown witnesses, resulting in a miscarriage of justice. On sentence, Mr Parr says the trial judge committed both errors of law and procedure that impacted on the sentence he imposed. V. Analysis

a) The conviction decision [ 33 ] Mr Parr says that in applying a more exacting standard of scrutiny to the defence evidence than he did to Crown evidence, the trial judge seized on meagre opportunities to reject Mr Parr’s evidence and that if he had been equally unforgiving of the Crown’s evidence he might have found reasonable doubt. [ 34 ] In support of the submission, Mr Parr says the trial judge erred in accepting the evidence of the friend, MM, over that of the complainant, himself, and the niece, GP, with respect to interactions between the complainant and Mr Parr that evening, their alcohol consumption, and whether the complainant had vomited.

The trial judge concluded that the complainant “was so intoxicated…she does not remember vomiting” and was too intoxicated to consent to sexual activity. He concluded the complainant “was clearly a nine or ten out of ten” on intoxication, despite her own estimate that she was only “five out of ten”. [ 35 ] Additionally, Mr Parr says the friend, MM, had not informed the police in her original statement that the complainant had vomited and she had cleaned it up, and this evidence was only first mentioned as the complainant and MM discussed their evidence on the way to trial.

The trial judge dealt with this new evidence at trial by saying “it is not unusual for witnesses to speak to different facts at different times” or “to recall different details in different venues at different times.” [ 36 ] On the other hand, the trial judge was critical that Mr Parr “changed his evidence” as to when the complainant told him to get off her, and that she had asked him to make sure she climaxed first. The relevant questions and answers were: Q. How did that end? A. Not good. Q. How?

A. Like, she started saying - - she wanted me to get off, so I got off right away. And then put my pants on. Right after I put my pantson, she went upstairs. I tried asking her what’s going on. She didn’t say anything. And then I told her to leave right away, because I didn’t know what wasgoing on between - - in her head. I even tried to get her out of the house, but she stayed. Q. Was anything said to you before she said, “Get off”? A. Pardon? Q. Did she say anything to you before she said, “Get off” when she - - A. Yeah, she said, “Make me [climax] first. Make me [climax] first.” She said it three times.

The trial judge appears to have overemphasized the effect of these answers when read together. The order of the appellant’s answers wasdetermined by the order of counsel’s questions. The appellant did not change his testimony, although his evidence was implausible: seesupra para 9. [37] The trial judge also said Mr Parr had changed his evidence with respect to whether he and the complainant were drunk. Hehad said earlier in the evening that they were both “getting drunk. Not that drunk, but we were getting [a] bit,” and later in the evening hewas “Kind of drunk. Not that drunk, but drunk.

Buzzed.” The trial judge said that was inconsistent with his admission that Mr Parr hadconsumed about 26 ounces of vodka. With respect to the complainant, the trial judge was critical of Mr Parr’s evidence later in theevening that “She was not drunk, not at all.” We do not find fault with the trial judge’s evaluation of this evidence.

It was reasonable andsupportable on the evidence to find that both the complainant and Mr Parr were quite drunk that evening and we do not find an error inprinciple nor a palpable and overriding error in that conclusion. [38] Finally, Mr Parr says he was harshly evaluated on his evidence about when he was talking with or kissing the complainantwhich the trial judge said was “confusing.” Mr Parr says there was nothing confusing about his account. He started off on one couchwhen they were talking.

He moved to the second couch with the complainant when they began kissing, and then they both moved to themattress when they started having sex. [39] The Crown replies that if the trial judge did misstate certain parts of Mr Parr’s evidence, particularly when he said that MrParr did not testify that he had asked the complainant about having sex or that she told him she wanted to have sex with him, there is nobasis upon which to suggest this was intentional or became a path to an easier rejection of Mr Parr’s version of events.

Overall, theCrown submits it was fair to say that Mr Parr’s testimony was that he was interested in having a sexual encounter with the complainant,the complainant knew this and agreed to a sexual encounter.

The friend, MM, testified that “He said it loud and clear.” The trial judgeacknowledged that the evidence of MM was that Mr Parr had “persistently tried to convince [the complainant] to have sex with him.” [40] Finally, the Crown says the trial judge was entitled to accept the evidence of the friend, MM, with respect to whether thecomplainant was drunk and vomiting, over the evidence of the complainant, Mr Parr, and the niece, GP.

As to consenting to sexualintercourse, the Crown says that it was the “very heart” of the accused’s defence that the complainant was “a sober and willing sexualpartner,” and the trial judge was entitled to find that she was not because she was too drunk to have been able to consent.

The Crownsays these are all assessments of credibility and reliability made by the trial judge; he did not believe Mr Parr, did believe thecomplainant on these essential matters, and those conclusions are reviewed deferentially. [41] Overall, it appears that the trial judge may have misstated the details in some of the evidence, particularly with respect to theinteraction between the complainant and Mr Parr over the course of the evening, and whether Mr Parr had changed his evidence as to theexchange between them during sexual intercourse.

However, we find that the trial judge was entitled to properly arrive at his essentialconclusions on credibility and reliability, and accept the evidence of the friend, MM, whenever it conflicted with the evidence of MrParr, the niece, GP, or the complainant. That is the role of a trial judge. We do not find that the trial judge’s misstatements of some of thedetails amounted to palpable and overriding error or an error in principle.

We give deference to his critical conclusion on credibility andreliability, upon which this portion of his decision squarely rests. [42] We do not conclude that the trial judge applied different standards of scrutiny to the evidence of Mr Parr and Crown witnessesresulting in unfairness in the way the trial judge carried out his assessment of credibility and reliability.

It cannot be said that heuncritically presumed the Crown’s evidence to be true or that he failed to consider testimony in the context of all the evidence: R vGostick (1999), (ON CA), 121 OAC 355, paras 12-19, 137 CCC (3d) 53; R v C(J) (2000), (ONCA), 131 OAC 230, paras 8-13, 145 CCC (3d) 197; R v PN, 2013 NLCA 16, paras 36-48, 333 Nfld & PEIR 206; R v Rhayel, 2015ONCA 377, paras 83, 93-107, 324 CCC (3d) 362.

As this Court said in R v Wanihadie, 2019 ABCA 402, para 43: “[t]he fundamental rule, for purposes of appellate review, is that, if a trial judge’s credibility assessment can be reasonably supported bythe record, it cannot be interfered with on appeal”: CAM at para 37, [R v CAM, 2017 MBCA 70, 354 CCC (3d) 100] quoted in Quarteyat para 42 [R v Quartey, 2018 ABCA 12, 430 DLR (4th) 381, aff’d 2018 SCC 59, [2018] 3 SCR 687].

Because questions of credibilityare owed great deference on appeal, the concept of “uneven scrutiny” must never be allowed to devolve into mere disagreements aboutcredibility. [43] We conclude that the trial judge did not apply a more exacting standard of scrutiny to the evidence of Mr Parr than to theevidence of Crown witnesses. He may have misstated some of the details, but this does not mean that he misapprehended it in the overallcontext of the evidence such as to amount to a palpable and overriding error or error in principle.

He did make firm decisions aboutcredibility and reliability on which he is entitled to deference. For these reasons, we dismiss the appeal on conviction.

b) The sentencing decision

[44] The standard of review on sentence appeals is deferential and an appellate court may not interfere with the sentence unless itis demonstrably unfit or based on an error of principle, failure to consider a relevant factor, or erroneous consideration of an aggravatingor mitigating factor, and such an error has an impact on the sentence imposed: R v LM, 2008 SCC 31, paras 14-15, [2008] 2 SCR 163; Rv Ganesan, 2017 NUCA 7, para 5; R v Godfrey, 2018 ABCA 369, para 3, 77 Alta LR (6th) 213; R v DPH, 2019 ABCA 448, para 18; Rv Kippomee, 2019 NUCA 3, paras 24-26. [45] The Supreme Court of Canada in R v Lacasse, 2015 SCC 64, paras 11, 43-44, 48, 49, 51-52 and 78, [2015] 3 SCR 1089, saidthe mere fact that a judge deviates from the proper sentencing range does not on its own justify appellate intervention and a sentenceoutside of appropriate range may only be overturned if it is demonstrably unfit or clearly unreasonable.

A sentencing judge’s decision toweigh aggravating and mitigating factors in a particular way does not, in itself, mean that weighing is unreasonable. [46] With respect to the failure of the trial judge to alert counsel that he was considering sentencing in excess of therecommendation of the Crown, Mr Parr says the trial judge “has a duty to signal to counsel that [he] was having some difficulties withwhat was being proposed” and his failure to do so resulted in inherent unfairness: R v Vegso, 2012 NWTSC 77, para 19; R v Burback,2012 ABCA 30, paras 12-15, 68 Alta (5th) 72; and R v Williah, 2012 NWTSC 53, paras 29-36. [47] By privileging his own “range” over any other consideration, Mr Parr says the trial judge failed to place primary emphasis onthe fundamental principle of proportionality: s 718.1 Criminal Code; Lacasse, para 54.

This is especially true where removal of aresident of Nunavut on sentencing is “an overwhelming” Gladue consideration, as a collateral consequence: R v Suter, 2018 SCC 34,para 47-49, [2018] 2 SCR 496; R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385. [48] The Crown concedes that the sentence imposed was high for like sentences in Nunavut, but reminds us that even if a sentencefalls outside an established category of sentencing range, that does not mean it is manifestly unjust, even if the appellate court finds it“indeed severe”: Lacasse, paras 70 and 72.

The Crown says it does not resile from the position of trial Crown, and the recommendedfour-year sentence would not be a demonstrably unfit sentence, but the trial judge made no error in principle, and the five-year, four-month sentence imposed was also not demonstrably unfit. The Crown says the trial judge did not misunderstand the concept ofsentencing ranges, did not breach any rules of procedural fairness, delivered adequate reasons, and did not ignore the fundamentalimportance of proportionality.

Further, even if the trial judge made an error in principle, it did not have an impact on the sentence heimposed. [49] The Crown further concedes it is “recommended practice to follow in a sentencing hearing” that the trial judge should giveclear notice of an intention to sentence outside the range recommended by counsel, but submits this recommended practice can differdepending on the court and the circumstances of the sentencing hearing: R v Mathewsie, 2016 NUCA 5, para 45. [50] The Crown says the trial judge did take into account the sentencing factors of denunciation, deterrence, and rehabilitation andwas also alive to the need to treat similar offenders alike.

The trial judge made his decision based upon significant aggravatingcircumstances: the appellant was on probation at the time of the offence, he had been released on bail only two days before the offence,the complainant was a sleeping, vulnerable and intoxicated victim, the appellant continued to assault the complainant by overpoweringher resistance, the complainant was a minor, and the sexual assault had a significant impact upon her.

In addition, the accused had atroubling record including convictions for robbery, sexual interference, assaults, forcible confinement, careless use of a firearm, utteringthreats, resisting arrest, and failures to comply with court orders.

In all, the Crown says while the sentence was on the high side, it wasnot demonstrably unfit. [51] The Crown finally concedes that if the trial judge relied on the breaches of recognizance as aggravating, and therefore acontributing factor to the five-year sentence on the sexual assault charge, those sentences can be made concurrent rather thanconsecutive. [52] We conclude that the trial judge made errors in principle arriving at his overall sentence of five years and four months andthat it impacted the sentence he imposed.

Despite both Crown and defence counsel having presented briefs of law to the trial judge onranges of sentencing in Nunavut, the trial judge without reference to any law at all determined by himself that the cases reported inNunavut did “not…[reflect]…the emerging case law.” He never told the parties he was considering “jumping” the position of theCrown, and he in fact led the parties to believe he was sympathetic to imposing a sentence that would keep Mr Parr in Nunavut for theremainder of his sentence.

A trial judge cannot develop a sentencing range based entirely on his or her own personal experience, withoutany reference to cases, outside the ranges recommended by the Crown and defence, and after saying he was unhappy with the prospect ofgranting federal time “in the south.” He did not advise counsel that he did not accept the ranges of sentence they proposed, based uponsubmitted Nunavut sentencing decisions, or that he was contemplating a sentence well over the sentence sought by the Crown. Neithercounsel had time to consider that possibility and respond to it.

This practice is to be highly discouraged. [53] Additionally, by his comments about the injustice and unfairness of sending offenders from Nunavut to serve federal time inthe south, he clearly signaled to counsel that he might have been considering fashioning a sentence involving territorial jail time withprobation.

That was potentially misleading to counsel and unfair. [54] While the failure of a sentencing judge to flag an intention to sentence outside the recommended range is stronglydiscouraged, when this does occur, the question for the appellate court is whether the sentence imposed is unfit: R v Ehaloak, 2017NUCA 4, paras 34-39. However, the accused must be given fair notice of the case he has to meet. While Mr Parr was aware of theCrown’s position on sentence, the trial judge never warned him that there were other concerns at issue.

The trial judge could have easilyadvised counsel that he thought their ranges of sentence were low. He could also have warned the parties that he was aware of cases thathe thought gave a different range. [55] The trial judge did not offer any case law to support his proposed range or his ultimate sentence, appeared to dismiss all of thereported Nunavut sentencing decisions put to him by both counsel, and perhaps was referencing his own unreported sentences asestablishing an appropriate range of sentence. This constitutes inadequate reasons for sentencing as required in s 726.2 of the CriminalCode.

A trial judge must provide reasons sufficiently intelligible, transparent and assessable to allow meaningful appellate review: R v

Sheppard, 2002 SCC 26, paras 15, 23, 28 and 35, [2002] 1 SCR 869. [56] Finally, the trial judge did rely upon the breaches of recognizance in arriving at his sentence on the sexual assault offence andthen imposed sentence for the latter offences consecutively, rather than concurrently to the former. [57] Taken as a whole, these compounded errors constitute an error in principle, and we find they did have an impact on thesentence imposed such that it was, in context, demonstrably unfit. [58] Having found the sentence imposed by the trial judge unfit, we must now determine a fit sentence: s 687, Criminal Code.

Weacknowledge the Crown’s position that four years would not be an unfit sentence. We acknowledge that the Nunavut decisions R v LT,2000 NFCA 7 , 2000 NUCJ 11, [2000] NuJ No 8, 2000 CarswellNun 10, 48 months, and R v AS, (NL SC),1999 NUCJ 5, [1999] NuJ No 8, 1999 CarswellNun 6, 30 months, are indicative of the range of sentences imposed in Nunavut for likeoffences and in like circumstances. Both sentences were imposed after jury trials for offenders with a prior criminal record, and involvedpenetration.

LT involved an historical incident where the accused forced intercourse on his 12-year-old niece three times, and thecomplainant was significantly traumatized. In AS, the accused was sentenced for several offences including abduction and forcedintercourse. He showed no remorse and the complainant was clearly traumatized.

While the sentence was a total of 41 months, 30months was allocated to the sexual assault conviction. [59] We conclude that a fit and reasonable sentence for Mr Parr, in the context of all of the evidence, is 48 months for the sexualassault of the complainant and 45 days each for the two breaches of recognizance, as recommended by trial Crown and not resiled fromby appellate Crown counsel, all to be served concurrently. We do not intend for this sentence in this case to act as a cap or establish arange for sentences of this sort.

We find the maximum sentence proposed by the trial Crown to be a fit sentence on these facts. [60] We have reviewed the recent decision of the Supreme Court of Canada on sentencing: R v Friesen, 2020 SCC 9. This appealdoes not raise the issues on sentencing ranges discussed in Friesen.

Our decision turns on the failure of the trial judge to alert counselthat he was considering sentencing in excess of their recommendations, his inadequate reasons respecting the case law in support of whathe said was the higher “present day range of sentencing” in Nunavut, the Crown’s concession on appeal that its position on sentencing attrial was not unfit, and that the breaches of recognizance should have resulted in concurrent, rather than consecutive sentences. VI. Conclusion [61] The conviction appeal is dismissed.

The sentence appeal is allowed and the original sentence imposed is substituted by aglobal sentence of four years: 48 months for the sexual assault of the complainant and 45 days each for the two breaches ofrecognizance, all to be served concurrently, less the pre-trial custody credit of 649 days. Appeal heard on February 11, 2020 Memorandum filed at Iqaluit, Nunavut this 9th day of April, 2020 Slatter J.A. Feehan J.A. Antonio, J.A. (dissenting in part): [62] I concur with the majority on the appeal from conviction.

I would have allowed the appeal from sentence with a differentresult and for different reasons, as explained below. The sentencing below [63] After the appellant was found guilty, counsel submitted written materials and made brief sentencing submissions. The trialjudge adjourned briefly, then received a victim impact statement, heard from a community elder, and delivered oral reasons. His reasonsdid not include citations or case names. He suggested that in Nunavut, sentences for sexual assaults are changing: “Judging by the cases

which the lawyers submitted to the Court this morning, it is clear to me that the reported case law in Nunavut does not reflect the present day range of sentencing for this offence in these circumstances with this repeat offender in Nunavut.” Later in his reasons, he said, “in Nunavut the sentencing range for this offence has not been reflected to date in the emerging case law.” By “case law”, the trial judge explained, he meant “written reports that tell us what other judges have done with similar offenders in similar circumstances.” [ 64 ] In his reasons, the trial judge focused on the circumstances of the offence and offender.

He was alive to the impact of placement in a southern penitentiary,

section 718.2 (

e) of the Criminal Code and the duty to impose the least restrictive sentence. [ 65 ] He found no true mitigating factors. He identified various aggravating factors: the appellant was on probation when the offence occurred; he had been released on bail only two days before; he was an adult who assaulted a sleeping, vulnerable, intoxicated victim; he overcame her resistance and continued to assault her; the victim was under 18 years old; the assault had a profound, traumatic effect on her.

The trial judge tailored his sentence to the appellant as a “repeat offender”, in reference to his criminal record which included several convictions for violence, as well as threats, firearms, unlawful confinement, and sexual interference.

The trial judge also noted that the victim had been hassled and bullied by some members in the community as though she were at fault. [ 66 ] The trial judge commented: In the circumstances of this case, by a similar repeat offender with the aggravating factors I have just outlined, the Nunavut sentencing range for this repeat offender for sexual assault after trial is four to seven years in a federal penitentiary. [ 67 ] He sentenced the appellant to five years for the sexual assault, plus 120 days consecutive for two breaches of recognizance.

The adequacy of the reasons [ 68 ] The appellant submits the trial judge erred in constructing a range of sentence and treating it as binding, without identifying any authorities that establish his range. [ 69 ] The submission that the trial judge failed to cite authority is essentially a complaint about the reasons for sentence.

As stated by the Supreme Court of Canada in R v Sheppard , 2002 SCC 26 at para 28 , “The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose.” Reasons are not to be judged against “some abstract standard of perfection”; they are to be assessed with an understanding of the context in which they were given, having regard to “ the time constraints and general press of business in the criminal courts”: Sheppard at para 55 . [ 70 ] The trial judge delivered reasons orally, immediately after receiving all submissions and materials.

He was not required to repeat all that had just been said. Nor was he required to cite the authorities he had just received. The trial judge’s reasons permit meaningful review; the omission of citations is not, in itself, a reviewable error. Understanding precedents and “the range” [ 71 ] Apart from any concern about the adequacy of the reasons, the appellant submits that the trial judge misunderstood the concept of sentencing ranges, erred in framing a range of four to seven years, and deviated from the true range for this offence.

He further submits that the trial judge allowed his range to trump any individualized considerations, including the effect of Criminal Code

section 718.2 (

e) and the disproportionate effect of a penitentiary sentence on him as a member of a northern indigenous community. [ 72 ] The appellant’s argument regarding “the range” is essentially the same as that made on appeal in R v Ipeelie , 2015 NUCA 3 . There, the sentencing judge opined that a proper sentence for the offence would be in the range of six to 10 years, but imposed four years in recognition of significant mitigating factors.

This court’s comments at paras 13-16 apply to the case at bar: … [C]ounsel argued that the sentencing judge erred in concluding that the starting point in his analysis of sentence was at the six to 10 year range. She maintained that the proper range for sentencing for sexual assault in Nunavut is between two years less a day and four years, set through reference to a variety of cases from the territory.

R v Mucpa (8 October 2013), Pond Inlet, Nunavut 11-13-70, (NUCJ) [unpublished judgment] [ Mucpa ], is an example of a four-year sentence imposed on receipt of a guilty plea to a charge of sexual assault after a street abduction in circumstances similar to those here. She argued that the sentencing judge erred through failing to consider four years as the upper end of the range, to which the mitigating effects of the guilty plea and rehabilitation prospects should then have been applied to reduce the sentence to two years less a day, with the result that Mr.

Ipeelie would serve this sentence within Nunavut rather than in a southern penitentiary. The flaw in this argument is that it treats four years as the maximum sentence which could be imposed, whereas Parliament has imposed an upper limit of 10-years’ imprisonment for sexual assault in s 271(

a) of the Criminal Code . The four-year sentence imposed in Mucpa was not determined because it was the upper limit of any fit sentence, but was the end result of applying both the aggravating and mitigating factors existing in that case. And here, the sentencing judge must also have applied both the aggravating and mitigating factors to the sentencing range he articulated of six to 10 years, given that his ultimate conclusion was that a four year sentence was fit. Finally, even if a proper sentencing range can be established through reference to reported cases, Mr.

Ipeelie’s four-year sentence obviously falls within this range. We otherwise reject the suggestion that a sentence of more than four-years’ imprisonment is presumptively unfit. [ 73 ] The question on this appeal is not what the range is or whether the trial judge departed from it. “Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past”: R v Lacasse , 2015 SCC 64 at para 57 . They do not establish minimum or maximum sentences to be applied in future cases.

Each sentence must be proportionate to the gravity of the offence and the blameworthiness of the offender, taking into account all aggravating and mitigating circumstances. Deviation

from the range is not in itself a reviewable error unless it is significant and unjustifiable; a ppellate intervention is possible only if the sentence is demonstrably unfit: Lacasse at paras 51, 67 . [ 74 ] On appeal, appellant’s counsel provided a chart of 28 reported cases, dating from 1999 to 2017, on sentencing for sexual offences in Nunavut other than cases of extremely low and high gravity and youth court cases.

Appellant’s counsel asserted a range of two to four years for offences of this kind, meaning sexual violence without more extreme features such as injury or multiple victims, committed by offenders with or without related records, with or without a guilty plea. She submitted that “There are two reported decisions involving an offender with a prior related record convicted after trial of sexual assault involving penetration of a single victim”; they resulted in sentences of 48 months [ R v T(L) , 2000 NUCJ 11] and 30 months [ R v S(A), 1999 NUCJ 5].

Therefore, she submitted, the 36- to 48-month range proposed by the parties was squarely within the range, and the range asserted by the trial judge had no basis in the reported case law. [ 75 ] While sentencing precedents can be useful as checks on parity, care must be taken in using them: R v Arcand , 2010 ABCA 363 at para 121 . For instance, where sentences for multiple offences have been adjusted for totality, it can be difficult to discern what a stand-alone sentence would have been: examples among the submitted precedents include R v S(A) ; R v B(A) , 2013 NUCJ 15 .

Where the sentencing court was constrained by the positions of the parties, the result is not truly adjudicated and is of reduced precedential value: examples among the submitted precedents include R v Caza , 2000 NUCA 9; R v Keenainak, 2011 NUCA 5 ; R v Pudlat , 2005 NUCA 3 ; R v N(J) , 2005 NUCA 1 . [ 76 ] In short, there are dangers in “ finding a case that seems alike and working from it”: R v Gibson , 2015 ABCA 41 at para 15 , citing Arcand .

Similarly, there are dangers in constructing a range “by isolating one or two oversimplified factors”: R v Nickel, 2012 ABCA 158 at para 30 . “[T]he value of a range is directly linked to the degree to which the required sentencing rigour has been applied to defining the range and to the reasoning in the cases making up the range”: Arcand at para 121 , also para 123. [ 77 ] Ranges reflect past sentences. Sentences depend on circumstances of the offence and the offender, and can be heavily influenced by factors other than the offence itself.

Even if two offences were identical, the sentences imposed should not be identical if, for example, significant mitigating factors were present in once case but absent in the other.

Parity is one of the aims of sentencing, but parity is reached only when all aggravating and mitigating circumstances are accounted for and sentences are adjusted as necessary: R v Felix, 2019 ABCA 458 at para 67 ; R v Gosselin, 2009 NWTSC 13 at para 40 . [ 78 ] One of the most significant mitigating influences is a guilty plea, which can indicate an offender’s remorse, spare victims and witnesses the stress of a trial, and facilitate the restorative aims of justice. In R v B(A) , 2011 NUCJ 15 , the court recognized the particular significance of guilty pleas in northern communities.

As explained at paras 23, 25: Nunavut has a small population. Even our largest communities are small. When an offender is released from jail they most often return to their home community – the place where the offence occurred. Unlike big cities in the South, anonymity is not an option. Cultural ties, family bonds, and personal circumstances make moving to the South an unrealistic option for many.

There is a tremendous shortage of housing so when offences are perpetrated by one family member on another, and the two of them share a home, the offender and the victim frequently continue to reside in the same home upon the offender's release from jail. Restoring harmony in the community … is of the upmost importance and the court must do what it can to facilitate that process. A guilty plea, as it is an acknowledgement of wrongdoing and an acceptance of responsibility, is a first step in that process.

Of course, sentencing is not an arithmetic process, but some courts have observed that a guilty plea can reduce a sentence by as much as one third: R v Tkachuk , 2017 NWTTC 18 at para 10 ; R v Payne , 2005 NWTSC 42 at para 24. [ 79 ] The majority of the cases relied on by the appellant for range of two to four years involved guilty pleas. For example, in Ipeelie , the intoxicated offender forced the complainant, whom he did not know, behind a house, pushed her down and had unprotected, non-consensual intercourse.

He was subject to two probation orders at the time of the offence, had a predilection for crime and violence when drinking, and continued to drink. The offender pleaded guilty and took steps toward rehabilitation while on bail. He was sentenced to four years. [ 80 ] In R v Sherrard , 2012 NUCJ 4 , the offender forced intercourse on a 20-year-old victim while she was unconscious from drinking too much during a party at his residence. Two other guests saw him force his hand inside her vagina and anus with sufficient force to cause significant injury.

The next morning, the offender went to the police station to get help for the victim, confessed and fully co-operated with authorities. He entered a prompt guilty plea. After accounting for pre-sentence custody, the sentence was four and a half years. [ 81 ] In R v T(J) , 2000 NUCJ 2, the offender sexually assaulted a sleeping family member in her home. He had a significant related record. He pleaded guilty at the first opportunity and expressed remorse.

He was sentenced to 40 months. [ 82 ] In each of these cases, the offenders pleaded guilty and were found to be remorseful or to have taken significant rehabilitative steps. These cases can be seen as supporting sentences above four years for cases of similar gravity but in the absence of these factors. [ 83 ] Of course, comparison to other precedents could point to a lower sentence. For example, in R v Akpaliakluk , 2016 NUCJ 24 , the offender pleaded guilty to sexually assaulting the sleeping complainant and was sentenced to two years less a day.

In R v Newkingnak , 2015 NUCJ 22 , the offender pleaded guilty to sexually assaulting two 10-year-old girls and was sentenced to three years, decreased from an otherwise-fit four years for totality.

In R v A(J), 2009 NUCJ 3 , the offender, while serving a sentence at a halfway house for violence against the same victim, forced oral and vaginal intercourse on his former spouse while she was visiting their child in the hospital; he did not plead guilty and was sentenced to four years for the sexual assault with some consecutive time for breaches. [ 84 ] I reiterate that the issue on appeal is not whether a different sentence might have been fit, nor whether the sentence imposed is in parity with all available precedents.

The issue is whether the sentence imposed was unfit, in the sense that it was not proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code

section 718.1 . It is clear from his exchanges

with counsel that the trial judge understood the need to adjust the effect of precedents to account for different circumstances. Fitness of sentence [85] “All forms of sexual violence … are morally blameworthy precisely because they involve the wrongful exploitation of thevictim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity”: R v Friesen, 2020SCC 9, at para 89.

Forced sexual intercourse is an inherently violent act that “constitutes a serious violation of a person's body and anequally serious violation of their sexual autonomy and freedom of choice”: Arcand at paras 174-175. Sexual assaults harm society, too,since “[h]arm to one member of the community affects the rights and security of others. This is particularly striking in cases involvingviolence against women:” Arcand at para 179. [86] As the trial judge recognized, this offence was aggravated in a number of ways. The appellant has a related criminal recordand was on probation when the offence occurred.

The victim was under 18 years old and was profoundly traumatized, both of which arestatutory aggravating factors: Criminal Code

section 718.2(a)(ii.1) and (iii.1). The former requires that primary consideration be given todenunciation and deterrence:

section 718.01. The appellant commenced his assault on a sleeping or unconscious victim, and persistedafter she awoke and as she tried to fight him off. [87] In Arcand at paras 283 and 284, the Alberta Court of Appeal expressed the “unequivocal” need to “send a strong message”that sexually assaulting a sleeping or unconscious person must be condemned: Sexually assaulting an unconscious victim elevates an offender’s degree of responsibility for the crime beyond the norm contemplated bythe three year starting point.

An offender who sexually assaults a person who is asleep or passed out is treating that person as if theperson were an object to be used – and abused – at will. Since the offender knows full well that the person is not consenting, this revealsan enhanced degree of calculation and deliberateness by the offender. Further, at that point, the person is at their most vulnerable, unableto defend themselves in any way and unable to call for help from others.

The offender knows this too, adding further to the high level ofmoral blameworthiness for the illegal conduct. … … [W]e are also bound to say that there is considerable experience of the judges of this Court in Alberta, the Northwest Territories andNunavut with offences similar to this one. The victim, after partying with friends, awakens in her home to find herself being violated by a“guest” who has taken advantage of the victim’s deep sleep or unconsciousness to sexually assault her.

Hence the need for this Court tounequivocally condemn this behaviour and send a strong message that sexually assaulting someone in these circumstances constitutes anaggravating factor in sentencing.

There is also considerable judicial experience with offences of this kind occurring outside the victim’s own home: e.g., R v Dippel, 2011ABCA 129; R v Osvath (1996), (ON CA), 87 OAC 274 (CA); R v Lennie, 2013 NWTCA 7; R v Alainga, 2014NUCJ 34; R v Gargan, 2018 NWTSC 70; R v Kakfwi, 2018 NWTSC 62; R v Dick, 2018 NWTSC 15; R v Milosevic, 2019 ABQB 199; Rv Krueger, 2017 ABQB 459. [88] The trial judge explained that denunciation is an important principle of sentencing for sexual assault.

He said deterrence wasnecessary for the appellant, as a repeat offender, and for the community at large: … too much of this is going on in Nunavut. Too many people in our homes and in our communities are being hurt. … Judges have nomagic wands, but at least we can stand up and speak for the community and say “Stop”. And if you do this and if you are convicted,serious consequences will follow. [89] It was open to the trial judge to include “the needs and current conditions of the community” in his balancing of sentencingfactors: R v M(CA), (SCC), [1996] 1 SCR 500 at para 91.

Though the Criminal Code applies everywhere in thecountry, and caution should be taken in creating idiosyncratic local ranges, the needs or characteristics of a given region may validlyexplain certain apparent disparities in sentences: Lacasse at para 89, Nickel at para 30.

Local judges are “aware of the frequency ofvarious offences in their communities, and for that reason in particular, they are in the best position to determine what weight to attach tothis and [translation] ‘to properly assess the particular combination of sentencing objectives that is just and appropriate for the protectionof [the] community’”: Lacasse at para 102, citing R v Pelletier, 2008 QCCA 1616 at para 3; R v Friesen, 2020 SCC 9 at para 25. [90] In the trial judge’s view, “Domestic violence, family violence, alcohol related sexual violence is a crisis in our society.

Sojudges of the Nunavut Court of Justice had to condemn this violence.” The trial judge’s observation is not a new one. [91] In R v Newkingnak, the Nunavut Court of Justice observed at para 55: Nunavut leads the country in the per capita rate of commission of sexual offences. This is also true of sexual offences committed byadults on children. This type of crime remains a persistent and pressing problem in all of Nunavut's communities.

Included were graphs showing the “alarming incidence” of sexual violence generally and sexual violence against children in Nunavutfrom 2009 to 2013, with sexual offences occurring at a much greater per capita rate in comparison to Canada as a whole. The courtconcluded at para 56: The high incidence of sexual offences generally and crimes against children in particular requires a firm response by a sentencing court inNunavut.

The need to emphasize general deterrence through an exemplary sentence is enhanced under these circumstances. [92] Similarly in R v P(O), 2012 NUCJ 23 at para 20, the trial judge remarked that “[t]he Nunavut Territory has one of the highestper capita rates of sexual offences in Canada” and included a graph showing the per capita rates for sexual assault in 2010 which depictedalmost 600 in Nunavut compared to 100 or fewer in the southern provinces.

He stated at para 28: Deterrence, denunciation, and protection of the public must be the Court’s foremost considerations on the sentence to be imposed on thisoffender for these offences. Without the mitigating effect of the guilty pleas, the sentence today would have been longer. Rehabilitation

is not unimportant, but the seriousness, number, and circumstances of these offences demand that rehabilitation now take a back seat to other sentencing considerations. [ 93 ] In R v LP , 2011 NUCJ 8 , the court stated at paras 13-15: Sexual offences involving sleeping victims are unfortunately a common occurrence in Nunavut and particularly in the community of Iqaluit. These offences tend to be alcohol related. Alcohol is readily available in the community of Iqaluit. The therapeutic intervention necessary to properly address the harm caused by sexual offences is not readily available in Nunavut.

In July 2009, Statistics Canada published a report entitled “Police Reported Crime Statistics in Canada.” For the year 2008, Canada as a whole averaged 64.5 reported sexual assaults per 100,000 citizens. Nunavut reported a rate of 667.8 sexual assaults per 100,000 citizens. This is approximately ten times the national average. The sad reality is that both children and youth are also victims of violent crime at much higher rates in Nunavut than in the rest of Canada.

The Court must firmly address the sexual abuse of the young through a denunciatory sentence. [ 94 ] I defer to the trial judge’s sense of the frequency of sexual violence in Nunavut, particularly as it finds support in the existing authorities. His appreciation of need to denounce and deter is to be respected. It is also illustrated by the facts: the offence was committed in a living room during a party, yet the appellant was not deterred by the possibility that others might see him. [ 95 ] There were no true mitigating factors. The appellant did not express remorse, either directly or through a guilty plea.

As noted, the sentencing judge was aware of the appellant’s indigeneity and his own obligations under Criminal Code

section 718.2 (e). [ 96 ] With one exception that I will explain below, I conclude that the sentence imposed is fit, having regard to existing precedents, significant aggravation, no meaningful mitigation, and the needs of the community. [ 97 ] The trial judge’s comment that “the Nunavut sentencing range for this repeat offender for sexual assault after trial is four to seven years” is not binding and is not under appeal. This court need not resolve whether the comment was meant to be expositive or aspirational, based on his reference to ongoing developments in the range of sentence for sexual assault.

As individual sentences are crafted to respond in part to a community’s needs, ranges may evolve, as has recently been the case with sentences for impaired driving causing death: R v Junkert, 2010 ONCA 549 at paras 46-47 ; R v York , 2015 ABCA 129 at para 13 . [ 98 ] The above conclusions are supported by the Supreme Court’s unanimous judgment in R v Friesen , 2020 SCC 9 , issued after the appeal was argued but before these reasons were released. There, the Court considered the proper approach to sentencing ranges, particularly for sexual offences committed against children.

Much of its reasoning is germane here, given the victim’s age, the heightened vulnerability she experienced as a result of being unconscious, the effect on her of this offence being committed in a house occupied by her friends and peers, and the blame she experienced in the community. [ 99 ] The Supreme Court observed that girls and young women are disproportionately the victims of sexual offences, triggering a need to ensure equality and equal protection of the law: at paras 54, 68.

A proper, contemporary understanding of the harm caused to victims of sexual violence is critical to understanding the gravity of the offence: at para 50. The focus should be on wrongful interference with sexual integrity, including the traumatization of violation of trust, humiliation, objectification, exploitation, shame and loss of self- esteem: at para 55. Victims can be further traumatized by rejection and blame from others around them: at paras 60-61.

Sentences must recognize and reflect the harm and the wrongfulness of sexual violence, and courts should “weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity”: at para 74. Thus, as stated at para 108, Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. Sentencing ranges are not “straitjackets” but are instead “historical portraits” ( Lacasse , at para 57 ).

Accordingly, as this Court recognized in Lacasse , sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society’s understanding of the severity of the harm arising from that offence increases (paras 62-64 and 74). The Supreme Court stressed the need to use caution in applying precedents, dated or otherwise, that were based on a less developed understanding of the harm caused by an offence: at para 110.

It discouraged the view that ranges based on past precedents establish an effective maximum, potentially to be exceeded only in rare or special circumstances: at paras 111-112. Error regarding the breaches of recognizance [ 100 ] The appellant admitted to and was sentenced for two counts of breaching a recognizance: one for consuming alcohol and one for failing to keep the peace and be of good behaviour. The trial judge imposed consecutive sentences for the breach counts, but also treated the breaches as aggravating the

section 271 sentence. [ 101 ] This treatment of the breaches violates

section 725 of the Criminal Code , which essentially provides that when imposing sentence for an offence, the court may consider other criminal conduct as an aggravating offence, or may enter convictions for that conduct and impose sentence, but not both. [ 102 ] Here, given that they were separate convictions, it was not open to the trial judge to treat the breaches as aggravating on the

section 271 sentence. Of course, the trial judge did not quantify the effect on sentence, but his reasons indicate he found it significant. Jumping the parties’ positions without notice [ 103 ] The appellant submits the trial judge committed a procedural error in not advising counsel that he was considering imposing a sentence more severe than that sought by the Crown.

[ 104 ] When a sentencing judge contemplates a sentence outside the positions taken by counsel, the judge must inform the parties of his or her intention and give them an opportunity to respond: R v Mathewsie , 2016 NUCJ 5 at para 55 ; see also, R v Hood , 2011 ABCA 169 at para 15 ; R v Beal , 2011 ABCA 35 at paras 15 , 18; R v Abel , 2011 NWTCA 4 at para 23 ; R v Hagen, 2011 ONCA 749 at para 5 ; R v Beardy , 2014 MBCA 23 at para 5 . [ 105 ] However, despite being an error in principle, the failure to give notice does not automatically ground an appellate remedy and the sentence imposed is not automatically unfit: R v Keough , 2012 ABCA 14 at para 20 ; also, R v Burback , 2012 ABCA 30 at para 15 . [ 106 ] The risk in not hearing further submissions from counsel is that the trial judge will overlook something because there was no opportunity for counsel to identify relevant considerations or to address the judge’s concerns.

The risk is likely reduced when counsel take different positions, and further reduced post-trial, when it is unlikely that there were any invisible motivators for positions taken, such as weaknesses in the Crown’s case. In any event, these risks can be cured on appeal if all submissions have been made and the court has the factual foundations to impose an appropriate sentence: R v GWC , 2000 ABCA 333 at paras 26 , 28.

As stated in Burback at para 15 : Any procedural unfairness arising from a failure to give notice can be cured on appeal by giving the parties the opportunity to make the full argument they were denied in the court below. This will not result, automatically, in a change of sentence, but there may be times where, as a result of the argument, variation will be required. [ 107 ] The parties in this case were given the opportunity to make full argument.

This court, therefore, is in a position to conduct an analysis for the fitness of the sentence as outlined in Lacasse : if the error in principle did not render the sentence unfit, this court may not intervene. [ 108 ] The procedure followed by the trial judge was flawed, and these reasons ought not to be taken as encouraging any repetition. However, for the reasons given above, the procedural error did not result in an unfit sentence. Therefore, the standard for appellate intervention is not met.

Result [ 109 ] I would have allowed the sentence appeal only to the extent of reducing the sexual assault sentence by four months to account for the error in using the breaches in aggravation. I would have imposed a sentence of 4 years and 8 months, from which pre-sentence custody would have been deducted according to the trial judge’s calculation. Appeal heard on February 11, 2020 Memorandum filed at Iqaluit, Nunavut this 9th day of April, 2020 Authorized to sign for: Antonio J.A. Appearances: J Marshall for the Respondent E Tache-Green for the Appellant