R. v. Squires, 2012 NLCA 20

Date: 201203 21 Docket: 09/25 Citation: R. v. Squires , 2012 NLCA 20 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : PAUL JAMES SQUIRES APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador […], NL Appeal Heard: December 5, 2011 Judgment Rendered: March 21, 2012 Reasons for Judgment by Welsh J.A. Separate Concurring Reasons by Rowe J.A. Dissenting in part, Reasons by Hoegg J.A. Counsel for the Appellant: Peter Ralph, Q.C. Counsel for the Respondent: Vikas Khaladkar

Welsh J.A.: [ 1 ] Paul Squires’ appeal against convictions entered against him on four charges committed over several months is based on an allegation of incompetence of counsel and an alleged error by the trial judge in refusing to allow defence counsel to pursue questions regarding Mr. Squires’ sexual relationship with the complainant. He has also appealed against a total sentence of five years imprisonment on the basis that the trial judge erred by taking into account aggravating factors that did not apply and by imposing sentences for each offence, and in total, that were demonstrably unfit.

BACKGROUND [ 2 ] Mr. Squires is a transport truck driver who travels across the Province. The complainant frequently travelled with him, or would meet him at rest stops. The two also stayed together at various times for weekends at the complainant’s residence or that of her sister. It was a tempestuous relationship over approximately two years with jealousy and mistrust on the part of both. [ 3 ] The incidents leading to three of the four charges for which Mr. Squires was convicted occurred in the cab of the transport truck. The Crown proceeded by way of indictment on all charges.

The first incident, resulting in conviction for assault contrary to

section 266 of the Criminal Code , occurred in July 2007 while Mr. Squires was driving the truck with the complainant seated beside him. The complainant testified that they were arguing and that Mr. Squires reached over and grabbed her by the back of the neck “really hard”, pulled up on her hair, and braked suddenly so that she came close to hitting her face on the dashboard. Her necklace was broken. [ 4 ] The second incident, resulting in conviction for sexual assault contrary to

section 271 of the Criminal Code , occurred in August 2007 when the complainant joined Mr. Squires in the truck at a rest stop shortly after midnight. There is a bunk for sleeping in the cab of the truck behind the seats. The trial judge described the incident in his oral decision: 30. According to the complainant, the accused imagined a connection between the man who had phoned for her from Alberta with the man that he believed he had seen earlier that evening in her car in […]. She said that this made him “really angry”, that he raised his voice, and was yelling at her.

Then, she said, the accused pushed her back, knocking her face down into the sleeping quarters. 31. While holding her face down on the bunk, the complainant said that the accused pulled down her pants and underpants, as well as his own, and then had non-consensual sexual intercourse with her. She could not get him to stop: when she asked him to, he made a remark along the lines of “you think you can screw around on me?” 32. When it was over, said the complainant, the accused said “you can tell your little friend in Alberta about that”.

Then he pulled his pants up, and sat back in the driver’s seat, acting like nothing had happened. The accused stayed in the tractor, and the complainant went to her sister’s place [located nearby]. [ 5 ] The third incident, resulting in conviction for assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code , occurred in October 2007 at the complainant’s residence. Mr. Squires had been using a cell phone belonging to the complainant. An argument arose when the complainant asked about a number on the phone bill which fuelled the complainant’s suspicion that Mr. Squires was seeing other women. The complainant demanded the return of the phone. The trial judge explained: 38. … He refused to give it to her. She grabbed the cell phone up off the bed.

The argument descended into a struggle over the cell phone, with the accused eventually striking the complainant’s hand off the floor, and then taking the cell phone from her. 39. The accused got up and headed for the porch. Determined not to let him leave with the cell phone, the complainant chased after him. In the porch, she asked again for her phone, and he told her to “F-off”. She bent down to move some boots on the porch floor, and then she felt a blow to the right side of her face.

She did not know whether he had used his fist or his elbow, but the accused had struck her a blow to the right side of her face. The complainant’s head struck the wall, causing her injury and damaging the drywall. She ultimately underwent surgery to repair two broken bones in her face which took several weeks to heal. [ 6 ] The fourth incident, resulting in conviction for sexual assault contrary to

section 271 of the Criminal Code , occurred in September 2008, again in the truck. The trial judge explained: 55. On September 2, 2008, the [accused] telephoned her at her office, asking if she wanted to see him [at] lunchtime. She agreed, and he said that his “rig” would be in the parking lot of a nearby grocery store. She went there, and got up in the cab of the tractor. The accused was in the sleeper. They made small talk, and then the complainant asked who the accused had been with for the weekend. When he did not want to talk about it, she suspected that he had been with another woman. 56.

He asked her for a hug. She replied with “didn’t the other one hug you enough?” She was looking around the cab for his cell phone. He asked again for a hug. When he didn’t get one, he reached out and grabbed her, and pulled her down into the bunk in the sleeper. 57. He was trying to take down her pants, while she was trying to hold them up. Eventually, he overcame her, and got her pants and underpants off. Then he pulled down his own pants, and had sexual intercourse with her, without her consent. … 59. The accused got out of the tractor.

The complainant found his cell phone, and on it, a text message signed “hugs ’n kisses”. The accused jumped in the cab, trying to grab the cell phone. The complainant said “I should go to the hospital now, and get the rape kit done”. The accused did not reply. [ 7 ] The weekend following this incident, Mr. Squires stayed with the complainant overnight on Friday, leaving on Saturday

afternoon. The trial judge explained: 60. … According to the complainant, she had found a receipt in the accused’s pocket, which was stamped 06:55 a.m. from Butterpot Provincial Park. His explanation was that he had stopped there for a “draw”, but she did not believe him, because it was so early in the day, ahead of his typical schedule. In any event, the argument about the Butterpot receipt precipitated his exit from her home. [ 8 ] On September 9, a week following the incident in the truck, Mr. Squires contacted the complainant who by this time had contacted and given a written statement to the police.

As a result of information from the complainant, the police arrested Mr. Squires that day. [ 9 ] In convicting Mr. Squires on the four charges, the trial judge concluded: 93. As indicated earlier, the complainant was a credible witness. Having very carefully considered and weighed her evidence, I am satisfied, to a standard of proof beyond reasonable doubt that the accused committed the offences against the complainant, in the manner and circumstances that she described. [ 10 ] The trial judge imposed the following sentence for each offence, for a total of fourteen years imprisonment:

(1) Twelve months imprisonment for common assault;

(2) Four years imprisonment for each of the two sexual assaults; and

(3) Five years imprisonment for assault causing bodily harm. [ 11 ] Applying the principle of totality, the trial judge reduced the sentence to five years imprisonment. He achieved this by making the sentences for the sexual assaults concurrent with the sentence for assault causing bodily harm and reducing the sentence for common assault to time served, being eleven months calculated as double time for the five and one-half months Mr. Squires served prior to sentencing. [ 12 ] In addition to submissions regarding his convictions and sentence, Mr.

Squires has raised the competence of his counsel at trial as a basis for ordering a new trial. That counsel was given notice of this ground of appeal but advised the Court that he would not be participating in the appeal. ISSUES [ 13 ] The issues relating to Mr. Squires’ convictions are:

(1) Did defence counsel’s conduct of the trial result in a miscarriage of justice; and

(2) Did the trial judge err by prohibiting defence counsel from putting questions to the complainant regarding her continuing sexual relationship with Mr. Squires? [ 14 ] The issues relating to the sentences imposed for the separate charges are:

(1) Did the trial judge err in considering as aggravating factors that Mr. Squires abused his spouse or common-law partner and that Mr. Squires was in a position of trust in relation to the complainant;

(2) Regarding the offence of assault causing bodily harm, did the trial judge err in failing to apply the ‘jump effect’, or, in the alternative, was the sentence demonstrably unfit;

(3) Regarding the offence of common assault, did the trial judge err in imposing a sentence based simply on the sentence imposed for a previous conviction; and

(4) Were the sentences imposed for the offences of sexual assault demonstrably unfit? [ 15 ] The final issue, requiring application of the principle of totality, is, did the trial judge err in imposing a total sentence of five years imprisonment? ANALYSIS Competence of Counsel [ 16 ] The analytical approach to an appeal based on the competence of counsel is discussed in R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520.

Major J., for the Court, explained: [26] … For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.

[29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow. ( Strickland , supra , [466 U.S. 668 (1984)], at p. 697). … [34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice. … [35] On the facts of this case, I conclude that counsel had the carriage of the defence and the implied authority to make tactical decisions, as the ones made here, in the best interests of his client.

In any event, the failure to obtain specific instructions did not affect the outcome of the trial. There was no miscarriage of justice. [ 17 ] In this case, Mr. Squires submitted that his counsel at trial was incompetent because he was aware of police investigation notes relating to the incident regarding the offence of assault causing bodily harm, but he did not ask the Crown for the notes nor did he ask the Court to order their release. In addition, Mr.

Squires submitted that his counsel was incompetent because he failed to cross-examine the complainant on information in a letter in his possession which contradicted her testimony, and he failed to contradict the complainant’s testimony with evidence given by the complainant’s sister. [ 18 ] With respect to the police notes, counsel for Mr. Squires was aware that there were written notes made by an investigating officer, but he did not request their disclosure. At trial, the complainant testified as to what she had told the police.

This was different from her testimony at trial describing the events leading to the charge against Mr. Squires. The physician who operated to set the two broken bones in the complainant’s face also testified as to what the complainant told him regarding how she suffered the injury. The evidence as to what she told the police and her physician and any contradictions arising were before the Court.

While it would have been prudent to obtain disclosure of the notes, the fact that counsel did not make the request did not result in procedural unfairness nor could it be said that, in the circumstances, the reliability of the trial was, as a result, compromised. Not seeking disclosure of the police investigation notes did not prejudice the defence or result in a miscarriage of justice. [ 19 ] Regarding the submission that counsel failed to cross-examine the complainant on information in a letter in his possession which contradicted her testimony, again it cannot be said there was a miscarriage of justice.

The issue related to inquiries made by the complainant to the prison where Mr. Squires was being held. The complainant testified: I asked the other Crown, Pat Carpenter, if I was allowed to visit Paul, but I had no intentions of visiting Mr. Squires. Ms. Carpenter’s understanding was different. She wrote in a letter: [The complainant] then informed me that she had contacted her Majesty’s Penitentiary in St. John’s regarding Mr. Squires, and then asked if she would be permitted to visit the accused. I asked her why she would want to do this and she said she was wondering how Mr.

Squires was doing. [ 20 ] Counsel for Mr. Squires in this Court submitted that the complainant’s credibility would be undermined by the inconsistency in stating her reason for asking the question about visiting Mr. Squires. Credibility of a witness is determined from the evidence as a whole. The complainant here was forthright in admitting that she had given contradictory information more than once. It was for the trial judge to assess her credibility on the whole of the evidence. It was open to counsel not to pursue this minor inconsistency which was not central to the offences.

It cannot be said that failure to put this contradiction to the complainant resulted in a miscarriage of justice. [ 21 ] Finally, regarding the evidence of the complainant’s sister, counsel must have discretion to determine what strategy should be pursued in cross-examining witnesses. It is not for the court on appeal to second-guess matters of tactics or strategy employed by counsel provided counsel’s conduct falls “within a wide range of reasonable professional assistance” ( R. v. G.D.B. , supra , at paragraph 27 ).

As noted in G.D.B. , there is a strong presumption that counsel’s conduct meets this standard. [ 22 ] In

summary, in the case before this Court, there is no basis on which to conclude that counsel’s acts or omissions constituted incompetence or that a miscarriage of justice resulted. The appeal regarding competence of counsel is dismissed. Limitation on Cross-examination [ 23 ] Mr. Squires has submitted that the trial judge erred by refusing to allow defence counsel to ask the complainant questions regarding her sexual relationship with Mr. Squires after the last incident of sexual assault. In his reasons for decision, the trial judge explained: 66.

Despite the provisions of section 276(1)(b), counsel for the accused asked the complainant whether the two had had sexual relations the weekend that she had confronted him about the Butterpot Park receipt [in September 2008]. When this was prohibited by the Court, the cross-examination still included the fact that, having been assaulted, the complainant had continued to have a relationship with him. This is not relevant to the issue of the complainant’s credibility. Section 276(1) of the Criminal Code provides: In proceedings in respect of an offence under

section … 271…, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(

b) is less worthy of belief. [24] In the circumstances, the trial judge did not err in prohibiting defence counsel from pursuing questions regarding thecomplainant’s sexual relationship with Mr. Squires. The complainant acknowledged in her testimony that she had a sexual relationshipwith Mr. Squires before and after the incidents resulting in the charges. She admitted that Mr. Squires stayed overnight at her residenceafter the second sexual assault.

The information defence counsel sought to obtain through the questions was, in fact, before the Court. [25] Further, there is no basis on which to apply the exception set out in section 276(2), which provides: In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that thecomplainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with theaccused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures setout in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [26] All three requirements of section 276(2) must be satisfied to engage the exception. In this case, in light of the evidenceprovided by the complainant regarding her continuing relationship with Mr. Squires, it cannot be said that further details about her sexualrelationship would have significant probative value. [27] In the result, Mr. Squires’ appeal against conviction is dismissed.

Appeal Against Sentence [28] The circumstances in which a sentencing decision will be set aside on appeal are summarized in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. … Spousal or Trust Relationship [29]

Section 718.2(

a) of the Criminal Code itemizes several factors that a judge in imposing sentence “shall also take intoconsideration” as aggravating factors.

These include: (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, … [30] The trial judge stated that he was applying both of these provisions, concluding that: … These sections of the Criminal Code apply in the case at Bar, because of the nature of the relationship between the accused and thecomplainant when the offences were committed.

I say this advisedly, because the complainant and the accused were neither married norcohabiting on a permanent basis, but were still involved in a long term intimate relationship. … [31] The trial judge erred in concluding that the above paragraphs are applicable in this case. As the judge noted, it could not besaid that Mr. Squires and the complainant were in a common-law relationship. The rationale underlying

section 718.2(a)(ii) is directed tothe vulnerability and dependency, particularly from an emotional, financial and psychological perspective, presumed to arise from thedomestic relationship between married or common-law spouses. The relevance of this factor is heightened where physical orpsychological abuse results in a sense of powerlessness making escape or leaving the relationship difficult (R. v. Brown (1992), 1992ABCA 132 , 73 C.C.C. (3d) 242 (ABCA), at pages 249 to 250). There is no indication in the case before this Court that thecomplainant’s relationship with Mr.

Squires engaged the kind of vulnerability or dependency associated with a spousal relationship. (The relevance of a continuing intimate relationship is referenced below.) [32] Nor could it be said that Mr. Squires was in a position of trust vis-à- vis the complainant. While it may be said that anypersonal or intimate relationship involves an element of trust broadly speaking,

section 718.2(a)(iii) is directed to the abuse committed bya person in a “position of trust or authority” in relation to the victim, such as a parent, teacher, guardian, and so forth. This point isdiscussed in R. v. Oake, 2010 NLCA 19, 296 Nfld. & P.E.I.R. 79: [60] The judge is simply wrong when he says Mr. Oake was in a position of trust vis-à-vis the four victims.

He acknowledged asmuch at p. 22. “While the accused cannot be said to have been in a position of trust as it is usually defined by the Court, it is clear that these victimstrusted the accused, he was trusted by the parents to travel with the victims to these festivals and that this trust was certainly abused.” [61] While the judge acknowledged that Mr. Oake was not in a position of trust toward the four young men, as that is defined by law(e.g. he had no authority over them, they were not in a position of dependence toward him), he went on to say that the victims and theirparents “trusted” Mr. Oake.

However, being “trusted” by someone in the everyday sense of the word does not place you in a “position

of trust” toward them, as that term is used in criminal law. [33] Accordingly, it was an error for the trial judge to apply sections 718.2(a)(ii) and (iii) of the Criminal Code in the circumstancesof this case. The question, then, is whether, as a result, the sentence must be set aside. A similar issue was considered in R. v. Power,2011 NLCA 68, 312 Nfld. & P.E.I.R. 31. In that case, the trial judge had mistakenly referred to Mr. Power being on parole, anaggravating factor, when he committed the offences.

Whether such an error should result in setting aside the sentence was discussed: [15] A factual error resulting in the trial judge mistakenly taking into account an aggravating factor may, depending on thecircumstances, amount to an error in principle warranting the setting aside of the sentence. Where the effect of the aggravating factor issignificant the validity of the sentence will be undermined (R. v. Rowe, 2008 NLCA 3, 273 Nfld. & P.E.I.R. 38, at paragraph 36). [16] In this case, counsel agree that the trial judge relied on incorrect information when he referred to Mr.

Power being on parole atthe time of the offences. That would have been an aggravating factor to be taken into account in imposing an appropriate sentence. However, in the circumstances, the effect of the error was not material and was not such as to undermine the validity of the sentence. [34] A similar result obtains in the case before this Court. The trial judge was clearly aware of the nature of the complainant’srelationship with Mr. Squires. The factors enumerated in

section 718.2(

a) of the Criminal Code are not exhaustive. It was open to thetrial judge to take the parties’ relationship into account for purposes of determining an appropriate sentence. In the result, the effect ofthe error was not material and was not such as to undermine the validity of the sentence. It follows that the trial judge’s error was notsuch as to warrant setting aside the sentence for this reason. Assault Causing Bodily Harm – The ‘Jump Effect’ [35] Mr.

Squires has submitted that the trial judge erred in imposing a sentence of five years in prison for the offence of assaultcausing bodily harm when previously his longest term of imprisonment was twelve months for assault in 2003. Mr. Squires relied on the‘jump effect’ in submitting that such a significant increase in punishment constituted an error. The ‘jump effect’, which applies in limitedcircumstances, was recently considered by this Court in R. v.

Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266: [33] Further, where the Crown is requesting a significant increase in penalty for a given repeat offence, the court may consider, as onefactor, what has been described as the “jump effect”. The principle is that sentences should generally be increased gradually, avoidingsudden, substantial increases, or “jumps”. This principle is most frequently applied to avoid a substantial increase that would beinconsistent with rehabilitation where that is a significant sentencing factor (R. v.

White, [(2007), 2007 NLCA 44 , 270 Nfld. &P.E.I.R. 351 (NLCA)], at paragraphs 5 to 8). The jump principle did not affect the sentence in White because, in that case, the offender,who had received a significant increase in sentence, had not demonstrated he was a good candidate for rehabilitation. Rather, he hadbeen convicted of assault causing bodily harm having had a lengthy record including convictions for common assault and severalconvictions for assault causing bodily harm. [34] While Mr.

Murphy has demonstrated a repeated failure to comply with court orders, and rehabilitation cannot be said to be asignificant sentencing factor, another consideration in determining whether the jump effect may apply is the nature of the offence. Breach of a court order will generally occur together with another offence, the latter being the central focus of the sentencing process.

While failure to respect and comply with a court order is a serious matter, it is, nonetheless, by its nature such as to warrant a moregradual, rather than a sudden, substantial increase in penalty. … [36] In the case now before this Court, noting the focus on rehabilitation in White, the trial judge concluded that the ‘jump effect’would not apply because greater weight should be placed on deterrence than on rehabilitation: 15. … Certainly, the issue of rehabilitation must never be lost from due consideration, and will factor in the ultimate sentence imposedin this case.

Having said that, however, the accused has repeatedly been sentenced to relatively short periods of incarceration for assaultsin the past, and these prior efforts to specifically deter him from re-offending have all failed. As noted above, he has now moved to amore serious type of assault, one of causing bodily harm, as opposed to the common assaults on his record. This leads me to placegreater weight on protection of the public and general deterrence than on rehabilitation. … [37] In assessing Mr.

Squires’ submission that the trial judge’s approach was in error, additional analysis of the ‘jump effect’ isrequired. Its potential application in determining an appropriate sentence must be considered in the context of the principles ofsentencing set out in the Criminal Code and those arising from the common law.

The Criminal Code specifies fundamental principlesto be applied in the sentencing process, including: 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: … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [38] Ordinarily a criminal record will be incorporated into application of these principles, and will be viewed as an aggravatingfactor leading to a more serious punishment rather than as a factor that tends to limit or lessen punishment. [39] However, there are circumstances where a sentence imposed for a previous offence may engage consideration of the ‘jumpeffect’.

As noted in White, it may be desirable to avoid a significant increase in penalty for repetition of an offence where the offenderhas demonstrated that he or she is a good candidate for rehabilitation. The most common example would be a young person who has notyet adopted what may be termed a criminal lifestyle. In Murphy reliance was placed on the nature of the offence, that is, breach of courtorders where the commission of another offence constituted the breach. In those circumstances, the ‘jump effect’ was engaged tosupport a more gradual increase in sentences for such breaches.

There was no effect in that case on the sentence for the substantive

offence of sexual assault. [40] The ‘jump effect’ will be engaged only where the offender is convicted of one or more repetitions of the same or a similaroffence. Otherwise, an offender with a criminal record could be placed in a more advantageous position than a first-time offender. Ihasten to add that repetitions of the same or a similar offence will not necessarily engage the ‘jump effect’.

The question is whether, inthe circumstances, having regard to the nature of the offence and applying appropriate sentencing principles, a significant or substantialincrease in punishment cannot be supported because it results in an error in principle or a demonstrably unfit sentence. (See, for example,R. v. Lohnes, 2007 NSCA 24, 251 N.S.R. (2d) 382, at paragraphs 41 and 42.) [41] In this case, Mr. Squires has a lengthy criminal record, including convictions for assault. This is his first conviction for themore serious offence of assault causing bodily harm.

His age and criminal record suggest that he is not a good candidate forrehabilitation. In the circumstances, the ‘jump effect’ would not be engaged. The question, then, is whether the sentence for thatoffence is for some other reason unfit. Assault Causing Bodily Harm – Fitness of Sentence [42] The trial judge sentenced Mr. Squires to five years imprisonment for the offence of assault causing bodily harm as a result ofthe incident when, during an argument over a cell phone, Mr. Squires struck the complainant who was injured when her head hit a wall. The judge reviewed Mr.

Squires’ record for assaults and concluded that it would be appropriate “to place greater weight on protection ofthe public and general deterrence than on rehabilitation” (see paragraph 36, above). Without further analysis, he concluded: 16. … For the assault causing bodily harm in this case, which resulted in two broken bones in the complainant’s face, requiringreconstructive surgery, the maximum sentence is ten years.

In the context of the circumstances of this offence, the offender, hisantecedents, and the lasting impact on the complainant, an appropriate sentence is five years. … [43] There is no reference to case law or an appropriate range of sentence. Factors relevant to determining an appropriate sentencewould include: the assault consisted of one blow which occurred during an argument between the parties; no other offence was involved;there is no evidence that Mr.

Squires intended the significant injury suffered by the complainant. [44] Two factors necessarily considered in such circumstances are the seriousness of the risk of injury arising from the assault andthe seriousness of the consequences of the assault. Relevant principles are discussed in R. v. DeSousa, (SCC), [1992] 2S.C.R. 944. Regarding the risk, Sopinka J., for the Court, wrote, at page 961: … Thus the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as describedabove, and one that is likely to subject another person to danger of harm or injury.

This bodily harm must be more than merely trivial ortransitory in nature and will in most cases involve

an act of violence done deliberately to another person. … [underlining in original] [45] Regarding the seriousness of the injury, Sopinka J. wrote, at pages 966 to 967: Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable todistinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.

This isreflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledgethe harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response. … In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury throughavoidable unlawful action. Neither basic principles of criminal law, nor the dictates of fundamental justice require, by necessity,intention in relation to the consequences of an otherwise blameworthy act.

I would add a caution that, while the consequences of the unlawful act constitute a relevant consideration, it is important to ensure thatthis factor does not result in a sentence that is disproportionate to the gravity of the offence (Ruby, Clayton, Sentencing, 7th ed.(Markham, ON: LexisNexis, 2008), at paragraph 5.26). [46] Mr. Squires’ challenge that the sentence imposed by the trial judge is demonstrably unfit is based on the submission that thesentence falls outside the appropriate range.

In other words, it is not consistent with the principle that “a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances” (718.2(

b) of the Criminal Code). [47] The following review of case law regarding sentencing for assault causing bodily harm prosecuted by indictment is instructive. [48] In R. v. Long (1993), (NL CA), 113 Nfld. & P.E.I.R. 178 (NLCA), a sentence of six months imprisonmentwas reduced on appeal to ninety days to be served intermittently. In that case, at about 3:15 a.m., Long, having consumed a quantity ofbeer, went to the victim’s residence where he believed he would find his ex-girlfriend. Having confirmed the victim’s identity at thedoor, Long struck the victim in the face causing him to fall over the basement stairs.

The victim suffered a broken nose from the blowand injuries to his foot requiring twenty stitches and plastic surgery from the fall down the stairs. Goodridge C.J.N.L., for the Court,stated the range to be a suspended sentence to eighteen months in prison.

There were several aggravating factors: Long “obviously hadplanned to cause some sort of trouble at the victim’s residence that night”; the assault took place in the victim’s residence at night; theinjuries were “relatively serious”; “there was nothing in the victim’s behaviour which could be considered as a provocation which mighthave had some influence on the sentence” (paragraph 6). On the other hand, Long had no criminal record, had “good antecedents” andwas employed (paragraph 8). The latter were critical factors in this Court’s decision to vary the sentence. [49] In R. v.

Glover, 2010 NLCA 55, 301 Nfld. & P.E.I.R. 270, the majority reduced the sentence from nine to three monthsimprisonment. Mr. Glover and a friend had attacked and beaten a taxi driver after a dispute in the taxi. The victim suffered “head andscalp lacerations and swelling, and bruising and abrasions on his forearms” (paragraph 36). Mr. Glover had no criminal record and wasemployed. Applying the decision in Long, the majority identified the range to be a suspended sentence to eighteen months

imprisonment. [50] In R. v. Clarke, 2001 NFCA 35 , 2001 NLCA 35, 202 Nfld. & P.E.I.R. 309, this Court affirmed a sentence of threemonths imprisonment with two years probation. There had been a dispute about the victim being barred from a club operated by Clarkein downtown St. John’s. The two happened to meet on the street in the early morning hours and the trial judge, rejecting Clarke’sallegation that he had acted in self-defence, found that Clarke had struck the victim in the face causing a shattered cheek that had to bereconstructed, requiring three permanent steel plates.

The victim reported that he required plastic surgery and surgery to prevent the lossof vision in one eye. He said he continued to suffer from blurred vision and sinus pain. Clarke had been convicted of obstructing apolice officer in 1998 and of an assault in 1991. This Court again referred to the range being a suspended sentence to eighteen monthsimprisonment. [51] In R. v. McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14, the sentence was challenged on the basis of totality. Thesentences imposed at trial for individual offences were not contested. These are instructive.

There were several assaults against thecomplainant who was McCarthy’s common-law partner. The relevant offences and sentences, described at paragraph 9, are: (1)McCarthy grabbed the complainant by the hair, hit her head back against a wall “forcing her head forward and then back into the wallcausing her to slump to the floor and while crouched in that position forcing her head down causing her face to strike her knees resultingin two black eyes”: five months in prison;

(2) McCarthy stabbed the complainant through her clothing, cutting her stomach which bledbut did not require medical attention: six months in prison;

(3) McCarthy forced the complainant against a wall, grabbed her neck andface and bit her face resulting in a bruise: five months in prison;

(4) McCarthy threw a food container at the complainant striking herhead and resulting in substantial bleeding and a visit to the hospital: three months in prison;

(5) McCarthy, while holding a knife,grabbed the complainant’s arm making motions as if he would stab her, but then he turned the knife and struck her with it: five months inprison; (6) while the complainant was sitting on the edge of a filled bathtub, McCarthy “grabbed her shoulders with his hands, forced herbackwards into the tub and submerged her head and face under the water, held her there for a couple of seconds causing her to lose herbreath before he pulled her back up”: eleven months in prison;

(7) McCarthy committed a series of assaults on the complainant,described by the trial judge as a “vicious beating”, which resulted in damage to her eye, bruising, cuts, and internal bruising of her ribs,“involving his kicking her in the stomach causing her to fall into the bedroom, smacking a part of a vacuum down on the floor near her,punching her in the leg, striking both her legs and her stomach and while she was on the floor bending her leg upward so as to attempt tobreak it, [he] then punched her head which she covered with her hands, at which time he then punched her exposed sides [knocking] herout for a short time and he continued to hit her, knocking her wind out and then hit her directly in the face behind her right eye andcontinued after her when she moved to the couch where he noticed the golfball size of the swelling on her face and stopped”: elevenmonths in prison;

(8) McCarthy threw a rock larger than a baseball at the complainant striking her foot and bruising it: one month inprison;

(9) McCarthy threw stones at the complainant, one of which struck her in the forehead, and he grabbed her jaw and face: twomonths in prison. Cameron J.A., for the Court, wrote that these offences: [19] … demonstrate a disturbing lack of understanding of the need for control of anger and a lack of respect for the rights of womenwith whom he is involved. When balancing that against the objective of the totality principle we conclude that a total period ofimprisonment of 40 months is appropriate. [52] In R. v.

G.W.P., 2006 NLTD 136, 259 Nfld. & P.E.I.R. 214, the offender was sentenced to five months imprisonment forassaulting his wife by throwing a bowl at her. Fragments of the shattered bowl severed tendons in her foot resulting in profuse bleeding,surgery and a recovery period of several months. At the same time the offender was sentenced to three months imprisonment forassaulting his wife by punching her on the mouth causing swelling and bleeding.

The offender did not have a prior related criminalrecord, but at the same time as these offences were dealt with, he was also convicted of one count of assault with a weapon, four countsof common assault, one count of sexual assault, and one count of uttering threats. [53] In the case now before this Court, it is clear from the above review that five years imprisonment for assault causing bodilyharm is, in the circumstances, a demonstrably unfit sentence. Mr.

Squires, who was 43 years of age at the time of the first offence, has acriminal record for common assault: one conviction in 2003 (twelve months imprisonment), one in 2001 (one day imprisonmentconsecutive to thirty days for breaches of court orders), and two in 1998 (thirty days intermittent imprisonment for each, servedconsecutively). While this record was somewhat dated at the time of the offences in 2007 and 2008, it is a factor to be considered indetermining an appropriate sentence since Mr. Squires has failed to correct his conduct.

However, this assault was not a beating, but oneblow which caused serious injury. It occurred during a heated argument and in response to the complainant attempting to prevent Mr.Squires from leaving her residence with the cell phone. That is, of course, not an excuse. Violence of this type, striking another in thehead with the kind of force used here, cannot be tolerated. In the circumstances, particularly in light of Mr. Squires’ criminal record, anappropriate sentence is twelve months in prison.

Common Assault [54] With respect to the conviction for common assault resulting from the incident in the truck when Mr. Squires grabbed thecomplainant’s neck and pulled her hair, the trial judge, without reference to case law, imposed a sentence of twelve months: 21. The common assault is both the least of the four crimes committed, and the first of the four crimes committed against the presentcomplainant. It is the sixth such offence for which the accused has been convicted.

In the past, his common assault sentences havebeen, for the most part, relatively brief: thirty days on three separate assault convictions in 1998, ninety days intermittent in 2001 inAlberta, but twelve months for the last common assault, on July 10, 2003, in Placentia. His sixth sentence for common assault shouldnot be less than his fifth, and so, a sentence of twelve months is appropriate for that offence. [55] It is an error in principle to determine a fit sentence for an offence based simply on the sentence for a previous conviction.

While an offender’s criminal record, particularly for the same offence, is a relevant consideration, each offence must be considered basedon the particular factual circumstances. (See: R. v. H.J.P. (1995), (NL CA), 133 Nfld. & P.E.I.R. 20 (NLCA), atparagraphs 15 to 21.) Accordingly, the trial judge’s sentence for the common assault conviction must be varied and a fit sentencedetermined by this Court.

[56] As noted above, Mr. Squires has three prior convictions for common assault, two in 1998 and one in each of 2001 and 2003. The first three assaults resulted in sentences of imprisonment of thirty days or less. This Court has no information regarding theconviction in 2003 resulting in a twelve month sentence. A review of case law indicates twelve months is well above the rangeapplicable in the circumstances of this appeal. [57] In R. v.

G.W.P., supra, the offender was sentenced for four assaults against his wife: (1) the offender grabbed his wife by thethroat so that her head hung over the edge of the bed and she was unable to breathe: four months imprisonment; (2) the offender punchedhis wife on the back of her head and grabbed her by the throat: three months imprisonment; (3) the offender hit his wife on the back ofher head with his fist causing her to become dizzy, then grabbed her by the hair and then by the throat which caused her to cough upblood: four months imprisonment; and (4) the offender grabbed his wife by the throat until she had trouble breathing: four monthsimprisonment. [58] In R. v.

Pardy (1996), (NL SC), 145 Nfld. & P.E.I.R. 78 (NLTD), Pardy was sentenced to twenty-one daysimprisonment for pushing his girlfriend to the ground and kicking her. In R. v. Hillier, [2010] N.J. No. 203 (Pv. Ct.), Hillier wassentenced to three months imprisonment for striking his girlfriend in the face. In R. v. Payne, 2011 NUCJ 16 , [2011] N.J. No.40 (Pv. Ct.), Payne was sentenced to three months imprisonment for grabbing his wife’s wrist and twisting it, striking his wife in themouth, and pushing his wife against a wall and striking her in the head three times. In R. v. Major, [2011] N.J. No. 122 (Pv.

Ct.), Majorwas sentenced to two months imprisonment to be served conditionally for striking his former spouse and pulling her hair. [59] In the circumstances of the appeal now before this Court, in light of this case law, considered in the context of Mr. Squires’criminal record for assault and the need for specific as well as general deterrence, an appropriate sentence for the offence of commonassault is three months imprisonment. Sexual Assault – Fitness of Sentence [60] Mr.

Squires has submitted that the trial judge erred in imposing four years imprisonment for each of the two sexual assaultoffences because those sentences are excessive and, therefore, demonstrably unfit. [61] An assessment of this submission requires a review of the case law. To set the stage, it is helpful to begin with a review of thecircumstances in the case now before this Court. Mr. Squires and the complainant habitually met in his truck where they engaged insexual relations involving intercourse. They frequently had arguments, particularly related to the other party’s unfaithfulness anduntrustworthiness.

The first instance of sexual assault occurred in August 2007 during an argument when Mr. Squires became angrybecause he believed the complainant was seeing another man. He yelled at the complainant, pushed her onto the sleeping bunk and hadnon-consensual sexual intercourse with her. When she asked him to stop he made a remark to the effect, “You think you can screwaround on me”. [62] After this incident, the complainant continued regular meetings with Mr. Squires in the truck and at her residence. The secondsexual assault took place in the truck in September 2008.

This was almost a year after the incident in which Mr. Squires struck thecomplainant when they fought over the cell phone. In response to a request from Mr. Squires, the complainant met him in his truck in aparking lot. Again, they argued. This time, it was the complainant’s suspicion that Mr. Squires had been seeing other women. Whileshe was looking for the cell phone to see if there was incriminating information on it, Mr. Squires “reached out and grabbed her, andpulled her down into the bunk in the sleeper” (paragraph 6, above). Again, Mr.

Squires forced himself on the complainant and engagedin non-consensual sexual intercourse. The trial judge noted that, following this encounter: 59. The accused got out of the tractor. The complainant found his cell phone, and on it, a text message signed “hugs ’n kisses”. Theaccused jumped in the cab, trying to grab the cell phone. The complainant said “I should go to the hospital now, and get the rape kitdone”. The accused did not reply. [63] As noted in paragraph 7, above, Mr. Squires joined the complainant at her residence the following Friday, but left on Saturdayafter another argument.

The complainant had discovered evidence leading her to believe that Mr. Squires had been with another woman.

Shortly thereafter, she contacted the police. [64] Searching for parity in sentencing by identifying situations involving similar offenders convicted of similar offences in similarcircumstances, and determining a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender inthis case requires comparison with cases involving sexual assault with intercourse between parties having an on-going sexualrelationship, particularly where there was no violence beyond that which is inherent in non-consensual intercourse. [65] In R. v.

R.G., 2003 NLCA 73, 232 Nfld. & P.E.I.R. 273, the complainant and her spouse of thirteen years had separatebedrooms. When the complainant refused her spouse’s demand for sexual intercourse, he forced himself on her. They continued to livetogether and subsequently had consensual sexual intercourse.

The trial judge imposed a sentence of six months imprisonment, citingseveral factors: there was no violence apart from the act itself; the incident was an isolated one; the parties continued to live together forabout eight months following the incident; and the complainant did not appear to continue living with her spouse out of fear. CameronJ.A., for the Court, indicated that a six month sentence was outside the range which she described as three to seven years sinceintercourse was involved.

However, the sentence was not disturbed because “the circumstances of this case are quite unusual” and asentence below the normal range was appropriate. Nonetheless, Cameron J.A. would have imposed a “somewhat longer sentence” butfor the fact that the sentence had been served and the offender had been released (paragraph 19). [66] In R. v. G.W.P., supra, the offender, the spouse of the complainant, was sentenced to five months imprisonment for anunsuccessful attempt to have non-consensual sexual intercourse with his wife.

The two had been arguing, and he pushed the complainantonto the bed “and pulled down her clothes and restrained her in an attempt to have sexual intercourse. There was no penetration. Shesaid it lasted about 15 to 20 minutes and was quite frightening” (paragraph 18). [67] In R. v. R.H. (1994), 1994 ABCA 21 , 149 A.R. 230 (ABCA), the offender forced his common-law spouse to havenon-consensual sexual intercourse. There was a history of assaults causing physical injury, but this was not such an instance. The parties

subsequently reconciled and married. The Court of Appeal increased the sentence from six months imprisonment to fifteen months. [68] In R. v. R.S.R. (1993), 1993 NSCA 41 , 118 N.S.R. (2d) 95 (NSCA), the offender forced his wife to have non-consensual sexual intercourse. He suffered from a bipolar disorder and alcohol abuse. He had a prior conviction for assaulting thecomplainant. The trial judge imposed a sentence of two years less a day. The Court of Appeal stated that, but for the offender’s mentalcondition, a longer sentence would have been warranted. [69] In R. v.

D.B.C. (1995), 1995 NSCA 195 , 145 N.S.R. (2d) 72 (NSCA), the Court dismissed an appeal by the Crownagainst a sentence of thirty months imprisonment. The offender came home after a night of drinking and ingesting drugs, had anexchange of words with his common-law spouse, then “grabbed her by the hair, dragged her upstairs, removed her clothes, held herdown by the throat and had intercourse with her. She repeatedly asked him to stop. He struck her when she screamed” (paragraph 2). [70] In R. v.

Smith, 2011 ONCA 564, Epstein J.A., for the Court, stated: [87] Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21months to four years: see R.v. R. (B.S.) (2006), (ON CA), 81 O.R. (3d) 641 (Ont. C.A.), R. v. Jackson, 2010 ONSC3910 (Ont. S.C.J.), R.v. M. (B.), 2008 ONCA 645 (Ont. C.A.), R. v. Nolan, 2009 ONCA 727 (Ont. C.A.), R. v. Toor, 2011 ONCA 114(Ont. C.A.). [71] In the first of the cases cited by Epstein J.A., R. v. R. (B.S.), the offender was sentenced to thirty months imprisonment.

CronkJ.A. explained: [84] Although the appellant had no prior criminal record, the offences were serious and occasioned considerable emotional trauma toM.R. They occurred in the context of a domestic relationship while young children were present in the home, in close proximity. … Inaddition, the offences were not isolated occurrences. They took place against the backdrop of a lengthy abusive relationship. … [72] The following sentences, while not involving an on-going sexual relationship, are useful for purposes of comparison indetermining proportionality. In R. v.

T. (1996), (NL CA), 141 Nfld. & P.E.I.R. 148 (NLCA), the forty-four year oldoffender, who had a criminal record, had his sentence for sexual assault against his daughter’s eighteen year old friend reduced by amajority in this Court from five years imprisonment to three. The offender had forcibly removed part of the complainant’s clothing and,on two previous occasions, while driving the complainant home, had forcibly removed some of her clothing and attemptedunsuccessfully to have sexual intercourse. [73] In R. v.

J.R. (1997), (NL CA), 157 Nfld. & P.E.I.R. 246 (NLCA), Cameron J.A., for the Court, increased asentence of fifteen months imprisonment to three years, referring to some of the aggravating factors that may be relevant in determiningan appropriate sentence in a given situation: [17] Factors which are considered aggravating and which influenced the length of the sentences in many of the cases cited and uponwhich there is no evidence in this case are: a prolonged period of assaults (eg. R. v. W.B., [1994] N.J. No. 259; (NLSC), 122 Nfld. & P.E.I.R. 32; 379 A.P.R. 32 (Nfld. T.D.) and R. v.

B.J.S. (1996), (NL SC), 142 Nfld. & P.E.I.R. 54;445 A.P.R. 54 (Nfld. T.D.)); the presence of threats or other physical violence in addition to the sexual assault; and proven psychologicaldamage to the victim. Here, as already noted, there exist aggravating factors which while in evidence before the trial judge did not playa

part in his decision: the pregnancy of a 13 year old girl resulting from the assault [by her stepfather] and imposing on the victim, achild herself, the burden, psychological or otherwise, of the responsibility of raising a child; the loss of school by the victim; and the factthat the victim appears to have been compelled whether by emotional attachment or by coercion to lie under oath respecting herrelationship with the respondent. (Underlining in original.) [74] The difficulty in determining ranges of sentence in the context of sexual assault offences is summarized in R. v.

Vokey (2000),2000 NFCA 14 , 186 Nfld. & P.E.I.R. 1 (NLCA). In his dissenting decision, O’Neill J.A. explained: [27] A review of the decisions of the courts in this Province indicates a broad range of sentences imposed for sexual assaultsinvolving children, some much younger than the complainant here, and where the offenders have been in positions of trust. Sentences ofless than two years have frequently been imposed.

Indeed, depending on one’s definition of “range”, it is, in my view, difficult toconclude that there is any range, in practice or in theory, applied in the imposition of sentences for sexual assaults, even where thecircumstances of the offences are reasonably similar. [75] In Vokey, the majority increased the sentence from eighteen months to be served conditionally to three years imprisonment,with a reduction for the eight months already served prior to the appeal decision. The complainant was a fifteen year old babysitter whowas sleeping on the chesterfield in the living room since Mrs.

Vokey was not expected home and Mr. Vokey was expected very late. Cameron J.A., for the majority, quoted the facts from the trial decision: [3] … “Mr. Vokey, age 41, returned home between 3:00 and 4:00 a.m. He said he had been drinking and was impaired by drugs, but this factorwas not relied upon as a defence to the charge. The incident began by Mr. Vokey telling [the complainant] his wife didn’t love him, andhe wanted ‘to feel like a man’. He began rubbing [the complainant’s] stomach and breasts over her nightdress. He then performedcunnilingus on her.

This was followed by sexual intercourse. [The complainant] did not consent to any of these acts. She told him she‘didn’t want to’, kept telling him to stop, and said ‘no’ to his request for sexual intercourse. He held her so she could not move or getaway from him. “The remaining episodes occurred from September 1996 to April 1997 when Mr. Vokey, at the request of [the complainant’s] mother,drove [the complainant] home from cadet meetings. During these drives home, there were several episodes in which Mr. Vokey touched

[the complainant] in the genital area, inside her clothes, without her consent.” [ 76 ] In my view, the time has come to revisit the lower range of sentence of three years imprisonment, referenced in Vokey , where a sexual assault involves intercourse. A review of case law leads to the conclusion that, to achieve parity and proportionality, the range of sentence for sexual assault requires an assessment of all factors in conjunction, and that sexual intercourse, alone, is not an appropriate single factor on which to rely.

While the fact of intercourse is clearly a serious consideration, it must be assessed in the context within which it arises. [ 77 ] Where, as here, a sexual assault involves intercourse occurring in the context of an on-going sexual relationship, an appropriate lower end of the range is eighteen months imprisonment.

The case law cited above supports this conclusion and demonstrates that additional factors that may assist in determining an appropriate sentence, taking into account the seriousness of forced intercourse, would include: - Was there violence in addition to that inherent in the act itself; - Were there threats, perceived or actual, or related acts of violence or intimidation; - Was this an isolated incident; - Did the parties subsequently continue in a consensual sexual relationship not based on fear or psychological coercion; - Did the complainant suffer proven psychological damage or emotional trauma; - Did the sexual assault occur in the context of an otherwise abusive relationship; and - Did the sexual assault involve degrading acts? [ 78 ] Factors such as these and any others arising in a particular case, together with the offender’s criminal record and any other aggravating or mitigating circumstances, will govern the determination of an appropriate sentence. [ 79 ] In the case now before this Court, there was no violence other than that inherent in the act itself; there were no threats or related violence or intimidation; the two incidents occurred more than a year apart during which the parties continued a consensual sexual relationship; the complainant did not suffer from fear or psychological coercion; the offences did not involve degrading acts; and the assaults did not occur in the context of an otherwise abusive relationship. [ 80 ] However, a factor which must be considered in this case is Mr.

Squires’ previous criminal record. According to the record provided to the Court, the convictions for sexual assaults resulted in sentences of two years imprisonment in 1990, four months in 1991, and two years in 1993. The sexual assault offences now before this Court occurred in August 2007 and September 2008. [ 81 ] The relevance of a criminal record, particularly for the same or a similar offence was discussed in R. v. H.J.P. , supra , at paragraphs 14 to 21 .

Steele J.A., for the Court, summarized: [21] I understand the position to be simply this: a fit sentence anticipates punishment commensurate to the seriousness of the offence, to be determined, firstly, by recourse to the appropriate “range of sentence” and, secondly, attuned by heedful reference to the generally accepted principles of sentencing.

If the offender has a criminal record, particularly for offences that are the same or similar as the offence for which he is again to be sentenced, reasons for leniency ordinarily applicable (e.g. youth, guilty plea, rehabilitation possibilities, and the like) fade and vanish, the recidivist having forfeited prospects for compassion, the emphasis shifting more to the primary objective of protecting society.

A criminal record will frequently invite a more stringent punishment, not because of the criminal record per se, but to reinforce the deterrent factor, it being apparent that previous discipline and penalties failed. That being said, the proportionality principle – that the sentence be proportionate to the crime – still prevails, if for no reason other than it is essentially fair.

In truth, it is assumed that the so called “range of sentence” and “fitness of sentence” are sufficiently adaptable and flexible in scope to permit, even encourage, sentences that will adequately protect the general public from repeat offenders who have become a menace to society. (Emphasis added.) [ 82 ] In the case now before this Court, there is a fourteen year gap between the first of these offences and the last of the same or similar offences for which Mr. Squires was previously sentenced.

However, his subsequent record for offences of assault, failure to comply with court orders, and mischief relating to property, while not resulting in sentences of significant length, are indicative of the need for specific deterrence. [ 83 ] Applying the principles of parity and proportionality based on relevant case law, the four year sentence for each sexual assault imposed by the trial judge is excessive and demonstrably unfit when considered in the context within which the offences were committed. The sentences must, therefore, be varied. [ 84 ] But for Mr.

Squires’ criminal record and the fact that he has been convicted of more than one offence, an appropriate sentence for each of the two sexual assaults would be eighteen months. In the circumstances, considering the nature of the sexual assaults, Mr. Squires’ criminal record and the fact that he was convicted of more than one offence, an appropriate sentence for each sexual assault is thirty months. Totality [ 85 ] In

summary, the sentence imposed on Mr. Squires as set out above is: common assault: three months; assault causing bodily harm: twelve months; sexual assault: thirty months for each of the two convictions, all to be served consecutively for a total of seventy-

five months imprisonment. The circumstances are not such as to warrant ordering any of the sentences to be served concurrently. It is necessary, then to consider the application of the principle of totality ( R. v. Hutchings , 2012 NLCA 2 ). The question is whether a sentence of seventy-five months is unduly long or harsh in the sense that it is disproportionate to the gravity of the offences and the degree of responsibility of the offender. [ 86 ] In this case, the four offences were committed against the same complainant over a two year period.

During this time, the complainant continued her relationship with Mr. Squires. There was no indication she did this out of fear or intimidation. The relationship was tempestuous. The argumentative interaction of the parties led to the commission of the offences. This does not excuse Mr. Squires’ conduct in committing the assaults. [ 87 ] However, taking into account the number and seriousness of the offences, the circumstances of their commission, and Mr.

Squires’ criminal record, a sentence of seventy-five months imprisonment is clearly unduly long or harsh because it is disproportionate to the gravity of the offences and Mr. Squires’ degree of responsibility as contemplated by

section 718.1 of the Criminal Code . [ 88 ] A proper total sentence is three years and three months imprisonment, less eleven months for pre-sentence custody. To achieve this result, the sentences set out above shall be adjusted as follows: - sexual assault (August 2007): thirty months imprisonment (less eleven months pre-sentence custody); - sexual assault (September 2008): thirty months concurrent (changed from consecutive for totality); - assault causing bodily harm: nine months consecutive (reduced from twelve months for totality); - common assault: three months concurrent (changed from consecutive for totality).

SUMMARY AND DISPOSITION [ 89 ] The appeal against conviction is dismissed. The appeal against sentence is allowed and the sentence varied to a term of imprisonment of three years and three months, less eleven months for pre-sentence custody. ______________________________ B. G. Welsh J.A. Separate Concurring Reasons by Rowe J.A.: [ 90 ] I have read the reasons of my sister Welsh. I agree with her in the result and in her analysis, save as to some of what she has written in the

section on “Sexual Assault – The Fitness of Sentence”. [ 91 ] In particular, the discussion set out in paragraphs 76-78 in which she suggests that the lower end of the range for sexual assault involving intercourse become eighteen months is not one that is needed for the proper disposition of this case. I prefer to leave such matters for another day. [ 92 ] Based on the factors set out by Justice Welsh (aside from paragraphs 76-78), I too find the four year sentence demonstrably unfit.

I would have imposed a sentence of three years for each sexual assault. [ 93 ] For the reasons she sets out, I agree with Justice Welsh that, applying totality, a fit overall sentence would be three years and three months, less eleven months for pre-sentence custody. In that context, I concur in the sentences set out in paragraph 88 as a means to achieve this overall result. _________________________________ M. H. Rowe J.A. Dissenting in part, Reasons by Hoegg J.A.: [ 94 ] I agree with my colleagues that Mr. Squires’ convictions appeal fails for the reasons stated by Justice Welsh.

Sentencing Appeal [ 95 ] I agree with my colleagues that the trial judge’s erroneous application of sections 718.2(a)(ii) and (iii) of the Criminal Code to Mr. Squires’ sentencing was not material and therefore does not undermine the validity of the sentence. I also agree that Mr.

Squires cannot benefit from the jump principle because he is not a good candidate for rehabilitation. [ 96 ] I agree with my colleagues that the sentences imposed by the trial judge for common assault and assault causing bodily harm are demonstrably unfit in that they are excessive and unjustifiably above the normal ranges of sentence for the same offences committed in similar circumstances. However, I do not agree with my colleagues that the four-year sentences imposed on Mr. Squires for each of the two sexual assaults are demonstrably unfit.

It is my view that these sentences fall squarely within the range of sentence for sexual assault with intercourse, and that there is no legitimate basis to declare them demonstrably unfit.

[97] My colleague Welsh J.A. justifies her conclusion that the four-year sentences are demonstrably unfit by setting up a distinctionbetween sexual assaults involving intercourse which are committed in the context of an ongoing relationship and other sexual assaultsinvolving intercourse, and then declaring a lower range of sentence for those assaults which take place within an ongoing relationship(paragraphs 76 to 78). My colleague Justice Rowe rests his sentencing position on the factors set out by Justice Welsh aside fromparagraphs 76 to 78.

Those other factors are set out in paragraph 79. [98] With due respect to my colleagues, I disagree with Justice Welsh’s reasoning in paragraphs 76 to 78, and I disagree that thefactors contained in paragraph 79 support a finding that the trial judge’s four-year sentences are demonstrably unfit. The factorsreferenced in paragraph 79, other than the sexual assaults occurring during a continued consensual sexual relationship, are ones which, ifpresent, would be aggravating. Their absence does not make them factors justifying lowering the sentence imposed by the trial judge. The Law [99] In R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500, Lamer C.J. reviewed the history and purpose of the principlesof sentencing. In so doing, the Chief Justice referred to

section 718.3(1) of the Criminal Code, which vests judges with the discretion todetermine appropriate sentences for offenders.

He explained, at paragraphs 91 and 92 of the decision, that sentencing judges: 1) havehad the comparative advantage of having seen and heard the witnesses and trial submissions, and in cases of guilty pleas, have been ableto directly assess the sentencing submissions; 2) are uniquely qualified in experience and judgment from having served on the front linesof the criminal justice system; and 3) are closely connected to the communities they serve, which connections inform “just andappropriate” sentencing to protect their communities. [100] Chief Justice Lamer summarized the circumstances when an appellate court can vary a sentence: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a courtof appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. He went on to affirm the court’s previous decision in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 emphasizing that aCourt of Appeal should “only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is asubstantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.” (See M.(C.A.), at paragraph 92.) [101] In R. v.

W.(G.), (SCC), [1999] 3 S.C.R. 597, Lamer C.J. further clarified the standard for appellate variation ofsentence: [19] I emphasize also that in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, and M. (C.A.), this Court held that avariation of sentence (after leave to appeal has been granted) should only be made by an appellate court if the sentence imposed is“clearly unreasonable” or “demonstrably unfit”, these two standards in my view meaning the same thing.

In Shropshire, the Courtconcluded (at para. 50) that unreasonableness in the sentencing context refers to an order falling outside the “acceptable range” ofsentences under similar circumstances… [102] Several years later, in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court affirmed the sentencing principlesof Shropshire and M.(C.A.) in the context of recent amendments to the sentencing provisions of the Criminal Code.

Justice LeBelrestated that judges are owed considerable deference when the fitness of a sentence is being reviewed: [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In M. (C.A.), LamerC.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, thefailure to consider a relevant factor, or the over-emphasis of a relevant factor … .

He also restated that sentencing judges enjoy a broad discretion “to craft a sentence that is tailored to the nature of the offence and thecircumstances of the offender”, and went on to say that this discretion is fettered by case law that has set down ranges so as to give effectto the parity principle. He noted that ranges are guidelines rather than rules, and that a sentence falling outside the regular range is notnecessarily unfit (paragraph 44).

Justice LeBel concluded by saying that the power of appellate review of sentence “does not mean that appellate courts can interfere witha sentence simply because they would have weighed the relevant factors differently” and quoted with approval Laskin J.A.’s words atparagraph 35 of R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.): Only if … the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence. … [103] In

summary, the law cannot be clearer. Absent error, an appellate court cannot interfere with a sentence unless it isdemonstrably unfit; a demonstrably unfit sentence is one which is clearly unreasonable, or a “marked departure” from the range. [104] My colleague Justice Welsh enables her finding that the four-year sentences are demonstrably unfit by setting, contrary toprecedent in this Court ( See R. v. Vokey, supra, R. v. Barrett, 2011 NLCA 5 and R. v. Freake, 2012 NLCA 10), a lower range for sexualassaults that take place within an ongoing intimate relationship.

The fact that a complainant continues in a consensual relationship withan offender for a period of time after being assaulted is not a principled justification for lowering the sentence that would otherwise begiven. [105] Setting a lower range of sentence for sexual assaults with intercourse that occur within an ongoing relationship is a statement

that those assaults are less serious than sexual assaults with intercourse that are committed upon complainants who are not in ongoingrelationships. This message directly contradicts the intention of Parliament, stands in direct opposition to much recent jurisprudence, andsends a message to this distinct group of complainants that they are less worthy of the law’s protection than other complainants. [106] In 1982,

An Act to Amend the Criminal Code in Relation to Sexual Offences and other Offences Against Person and to AmendCertain other Acts in Relation Thereto or in Consequence Thereof, S.C. 1980-81-82, c. 12 was passed by Parliament. This legislation,which was a comprehensive overhaul of sexual offences contained in the Criminal Code, repealed former

section 143 of the Code, whichwas the offence of rape. Under that section, a man having non-consensual intercourse with his wife was not considered rape. Thus,marriage was a defence to a rape charge. The newly created offence of sexual assault did not provide for the defence of marriage. Thenew legislation was also gender neutral. This legislation shows Parliament’s recognition that relationship status is not a factor affectingthe commission of a sexual assault. [107] In 1995, Parliament passed

An Act to Amend the Criminal Code (Sentencing) and Other Acts of Consequence Thereof. Thislegislation added

section 718.2 to the Code, which states, in relevant part: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, … shall be deemed to be aggravating circumstances; [108] This new legislation shows Parliament’s recognition of the vulnerability of complainants who suffer abuse within a marriage orcommon law relationship by declaring the occurrence of assaults in these circumstances to be an aggravating factor on sentencing.

According to Clayton Ruby, it is “but an example of a broader principle that the law responds to vulnerable victims”. (Clayton C. Ruby,Sentencing, supra, at paragraph 5.43.) [109]

Section 718.2(a)(ii) is limited in application to offences involving assaults which take place within the relationships of formal orcommon law marriage. The vulnerability of the complainants in these relationships does not automatically kick in when the relationshipis formalized by a legal marriage or when parties themselves recognize each other as common law spouses.

Although formal andcommon law marriage usually indicate a level of seriousness and economic entanglement not present when couples do not live together,the existence of intimate relationships short of marriage, where the offender and victim are not living together, can also involvevulnerability. This vulnerability arises by virtue of the closeness and trust involved in relationships – people do not expect to be violatedby those they know and trust. When such violations occur, the law finds them aggravating, not mitigating. [110] In R. v.

McLeod (2003), (ON CA), 177 O.A.C. 385, the Ontario Court of Appeal overturned a lower courtsentencing on a murder charge for two reasons, of which one was that the sentencing judge failed to treat the fact that the murder victimhad been in an intimate boyfriend-girlfriend relationship with the offender as an aggravating fact. The court extended the principleaddressed by

section 718.2(a)(ii), saying: 17. … the trial judge appears to have been of the opinion that a distinction should be made because Mr. McLeod and the deceasedwere boyfriend and girlfriend rather than spouses or living together. Although

section 718.2(a)(ii) speaks of spouses and does notmention a boyfriend-girlfriend relationship the same principle is applicable. See R. v. McMaster (1998), (ON CA),122 C.C.C. (3d) 371 (Ont. C.A.) and R. v. Barry, [1993] O.J. #3955 (Ont. C.A.), where the victim murdered in each case was thegirlfriend of the appellant and the period of parole ineligibility was 12 years. In those cases the court was also dealing with a murderwhere the victim is involved in a relationship of trust and intimacy between the victim and the attacker. [111] In R. v. Carlick, 2011 BCSC 1392, the same reasoning was applied.

In Carlick, the offender killed his girlfriend in his ownhome. Although the offender and victim had not been living together, the fact that they were in an intimate relationship was consideredan aggravating factor on sentence. [112] R. v. Hindessa, 2009 CarswellOnt 9747 involved sentencing for the second degree murder of the offender’s girlfriend. Insentencing, Molloy J. found that the victim was vulnerable as she and the offender had been in a domestic boyfriend-girlfriendrelationship, although they had not been spouses.

She treated the violation of their intimate relationship as an aggravating factor onsentence. See also R. v. Prakash, 2009 ONCJ 197, where the domestic nature of a break, entry and theft was considered an aggravatingfactor on sentence. [113] Similarly in R. v. Rahaman, 2008 ONCA 1, which involved offences of assault and confinement of a former girlfriend, theappeal court held that violence arising out of an existing or failed domestic or romantic relationship required that denunciation anddeterrence be considered predominant objectives in sentencing. (See also, R. v.

Wenc 2009 ABCA 328 on this point.) [114] Relationship status was considered by this Court in R. v. R.G., supra. In R.G., the offender pleaded guilty to the sexual assault ofhis wife and was sentenced to six months incarceration.

Although the Court would otherwise have given the offender an increasedsentence, the Crown’s appeal was dismissed “in view of the fact that the offender had already served his sentence and was released.” Inher analysis, Cameron J.A. referred to the Crown’s argument that the fact that a “victim and a perpetrator are married or in a commonlaw relationship is not a mitigating factor” and specifically agreed

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