HIS MAJESTY THE KING - v. -, 2022 SKKB 220

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 220 Date: 2022 09 29 Docket: CRM-BF-00009-2021 Judicial Centre: Battleford BETWEEN: HIS MAJESTY THE KING - and - J.M. PUBLICATION RESTRICTION - By court order made under s. 486.4(1) of the Criminal Code , information that may identify the persons described in this decision as the complainant or the accused may not be published, broadcasted, or transmitted in any manner. Counsel: Frances A. Atkinson, K.C. for the Crown Jared B.

Aumiller for the accused ___________________________________________________________________________ SENTENCING DECISION SCHERMAN J. September 29, 2022 ___________________________________________________________________________ Introduction [ 1 ] On the complaint and evidence of M.R., I found J.M. guilty of one instance of sexual assault as set out in my written decision of February 7, 2022, R v J.M. , 2022 SKQB 36 .

This sexual assault occurred in the course of a relationship between M.R. and J.M. that included sexual relations spanning the period September 7, 2015 to sometime in 2016. [ 2 ] On November 29, 2019 M.R. first made a complaint that she had been sexually assaulted by J.M.. Sometime later she gave a statement to the RCMP and the Information charging J.M. with sexual assaults was sworn on September 30, 2020, some

four years after the relationship ended. [ 3 ] M.R.’s evidence with respect to the timelines and details of the various instances of sexual assault she alleged were generally vague and lacking in detail. This may have been a function of the fact that she provided her testimony to the court some five years after their relationship ended. [ 4 ] I found J.M. not guilty of sexual assaults in respect of most of the incidents complained of because I was not satisfied beyond a reasonable doubt the Crown had proven that M.R. was not consenting to those sexual encounters.

However, with respect to one incident, where M.R.’s evidence while concise was clear and uncontradicted in any way, I found a sexual assault had been proven by the Crown. [ 5 ] As stated at paragraphs 64 to 78 of my conviction decision, the law respecting consent, as stated by the Supreme Court of Canada in R v Barton , 2019 SCC 33 , [2019] 2 SCR 579, is that consent means that the complainant had affirmatively communicated by words or conduct agreement to engage in the specific sexual activity in question with the accused.

On the evidence I had before me, I was satisfied beyond reasonable doubt that consent, so defined, did not exist and therefore found J.M. guilty of a sexual assault. [ 6 ] The matter to be decided now is what is the appropriate sentence for the subject offence of this offender in the circumstances of this case.

Consideration of the circumstances and context within which an offence occurs is essential to assessing: i. the gravity of the offence; ii. moral culpability; iii. what sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender in committing it; and iv. what is called for to satisfy the objectives of general and specific deterrence. Relevant Sentencing Principles [ 7 ] In her sentencing decision in R v T.S.1 , 2021 SKQB 82 [ T.S.1 ], Klatt J. provided a concise

summary of relevant principles of sentencing which I adopt. She stated as follows: Relevant Sentencing Principles [20] The fundamental or overarching principle of sentencing is set out in s. 718.1 of the Criminal Code . A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender in committing it. [21]

Section 718 sets out the objectives of sentencing which include denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, reparations for harm to the victim and community, and the promotion of a sense of responsibility in offenders as well as acknowledgment of harm done. [22]

Section 718.2(

a) provides that where the offender, in committing the offence, abused an intimate partner it is an aggravating circumstance.

Section 2 of the Criminal Code defines “intimate partner” as including a “current or former spouse, common-law partner and dating partner”. [23] Further, s. 718.2 calls for the consideration of the following principles: 718.2 … (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to

victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [24] The fundamental principle of sentencing, or proportionality, is inextricably linked to the fundamental purpose of sentencing,which is the maintenance of a just, peaceful and safe society through the imposition of just sanctions. This means that after aproper consideration of all mitigating and aggravating factors, the sentence imposed is proportionate to the gravity of the offenceand the offender’s moral blameworthiness.

In R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], Lebel J. explained: [37] …Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resultingsentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, theprinciple ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotesjustice for victims and ensures public confidence in the justice system.

As Wilson J. expressed in her concurring judgment in Re B.C.Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [Emphasis added] The Crown’s submissions as regards the appropriate sentence [8] The Crown’s position is that given J.M.’s criminal record, including two assault offences, and thecircumstances of this case, the appropriate sentence should be five to seven years imprisonment, with an absolute minimum of four yearsimprisonment.

Crown counsel points to and relies on ss. 718.2(a)(ii) and (iii) and 718.201 of the Criminal Code, RSC 1985, c C-46,which state as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, … 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider theincreased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

I observe that s. 718.201 was not added to the Criminal Code until 2019, a date after the date of the offence I found J.M. guilty of. [9] Crown counsel says that: a. M.R. was an intimate partner of J.M. and he abused a position of trust or authority in relation to her; b. as directed by s. 718.201, I am required to consider the increased vulnerability of M.R. in respect of this offence, which theCrown says involved the abuse of an intimate partner; c. there are other aggravating factors including: i. J.M.’s offence history, including offences of personal violence; and ii. his lack of remorse.

[10] The Crown’s position is that the offence I found is a major sexual assault for which the starting point is threeyears imprisonment, to be adjusted up or down for aggravating and mitigating factors. The Crown says there are no mitigating factorsand notes that J.M. did not plead guilty.

The Crown says the aggravating factors present here support a sentence of five to seven yearsimprisonment. [11] In its submissions, the Crown referred the court to the following authorities as support for the penalty sought,namely: R v AB, 2021 SKCA 119; R v T.S.C., 2022 SKCA 1; R v Dyck, 2014 SKCA 93, 323 CCC (3d) 333; and R v A.V., 2020 ABQB 190.

The Defence’s submissions as regards the appropriate sentence [12] The Defence agrees that the offence involved is appropriately classified as a major sexual assault, but says thatnonetheless, determination of an appropriate sentence needs, after a proper consideration of all mitigating and aggravating factors and thecircumstances of the offence, to focus on determining a sentence that is proportionate to the gravity of the offence and the offender’smoral blameworthiness.

This determination must be made by consideration of the relationship between M.R. and J.M. both before andafter the offence. [13] Defence counsel says that: a. While M.R. was an intimate partner, J.M. did not abuse a position of trust or authority he had in respect of her. b. The Crown overstates the impact of the offence on M.R. c. The gravity of this offence and J.M.’s degree of responsibility or moral culpability places this sexual assault at the low end of therange of major sexual assaults. d.

While J.M. has a lengthy record, much of it is very dated and involved alcohol, which he has abstained from the use of for manyyears. e. While his 2004 conviction for common assault involved a then intimate partner, it was a not a sexual assault and he has no historyof sexual violence. His more recent conviction for assault occasioning bodily harm was against a male person, who was not an intimatepartner and it had no sexual assault component. f.

While J.M. maintains his position that what occurred was not a sexual assault, J.M. has remorse and has apologized to M.R. instatements made to the court, saying that he loved her at the time, would not have wanted to hurt her, and did not understand that shewould feel violated by the anal intercourse that occurred and that he regrets it. g. J.M. has a history of mental illness (a dated 2004 diagnosis of paranoid schizophrenia and his own statement that he is bipolar)but he takes no medication. h.

While he personally does not feel Gladue [R v Gladue, (SCC), [1999] 1 SCR 688] factors are applicable to him,he is nonetheless the child of a First Nations’ mother and Gladue considerations should still apply notwithstanding his personal view thatthey are not applicable. i. Denunciation, both specific and general, and deterrence are applicable principles, but both the denunciation and deterrence aspectscan be achieved by a sentence significantly less than the four year minimum the Crown seeks. j.

The Crown’s approach to an appropriate sentence does not give appropriate weight to s. 718.2 of the Criminal Code which statesthat all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to thevictim or the community should be considered for all offenders. [14] Defence counsel says that weighing all of the considerations, a sentence of 18 months followed by 36 months ofprobation conditions is the appropriate sentence. [15] In support of its position, the Defence referred to and relied on, or in some cases distinguished, the followingcases, namely: R v Campbell-Ball, 2019 SKCA 41 [Campbell-Ball]; R v Bird, 2021 SKQB 36; R v Lemaigre, 2018 SKCA 47; R v Graham, 2016 ONSC 7239; R v Nikdima, 2021 SKCA 60;

R v Halkett , 2016 SKPC 65 ; R v Taylor , 2001 SKCA 94 , 213 Sask R 227 ; and R v Khamb , 2020 BCSC 1090 . Analysis [ 16 ] The actions in respect of which J.M. has been convicted clearly fall within the category of a major sexual assault. Thus, the Crown’s position, citing R v Bear , 2022 SKCA 69 [ Bear ] , is that the starting point for a proportionate sentence is three years and that this should be increased in light of the aggravating factors the Crown relies upon. [ 17 ] In Bear , the Court said the following: [126]

Section 718.2(

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

i) K.K. was sleeping at the time of the sexual assault; (ii) the assault involved vaginal penetration; (iii) she was highly vulnerable because of her state of intoxication; and (iv) the offence had a lasting impact on her. I would agree that those are all properly characterized as aggravating. However, unlike the trial judge, in the present circumstances, I would consider the fact that Mr. Bear violated K.K.’s expectation that she would be safe and secure in her bedroom, in her own home, to be aggravating as well. . . . [128]

Section 718.2(

b) embodies the principle of parity. It provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Parity does not mean uniformity and nor does it trump proportionality in sentencing. Instead, parity informs the proportionality principle; it helps to define what is a proportionate sentence, as the Court explained in Friesen [2020 SCC 9]: [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( R. v. L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163 , at paras. 36-37 ; Ipeelee [2012 SCC 13 , [2012] 1 SCR 433 ] at paras. 78- 79). [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [129] The principle of parity does not detract from the need for sentences to be individualized. Differing personal circumstances between offenders can justify differing sentences for similar offences ( Pham [2013 SCC 15 , [2013] 1 SCR 739 ] at para 9).

As noted by the trial judge in this case, a review of decisions involving sexual assaults committed against sleeping victims reveal a general range of sentence of 30 months to four years imprisonment. Of course, not all cases will fit into such a range. While appellate courts may set sentencing ranges or starting point sentences for certain offences, such ranges and starting points are “guidelines, not hard and fast rules” ( Friesen at para 37). A fit sentence may be above or below an established range or starting point where the circumstances justify it.

The focus must remain squarely fixed on crafting a proportionate sentence for the offender before the court, for the offence committed, in the particular circumstances of the case. [130] Parity is also not a matching exercise. While the parity principle is grounded in concepts of fairness, it is rare that the circumstances of two offences and the offenders who commit them will match perfectly ( R v Klemenz , 2015 SKCA 89 at paras 45–46 ), [2016] 1 WWR 234).

A sentence must be individualized to the offender and the offence, within the limits permitted by the principles and purposes laid out in the Criminal Code ( R v Knott , 2012 SCC 42 at para 1 , [2012] 2 SCR 470 ). [ 18 ] The Supreme Court of Canada in R v Friesen , 2020 SCC 9 , 444 DLR (4th) 1 , made it clear that sentencing ranges and starting points are guidelines and not hard and fast rules.

After consideration of the starting point, aggravating and mitigating factors, and all other relevant circumstances, the sentence imposed must, at the end of the analysis, be proportionate to the gravity of the offence and the offender’s moral blameworthiness. [ 19 ] As regards aggravating factors, M.R. was an intimate partner and thus s. 718.2 (a)(ii) is a factor to be considered. The concept of whether and the extent to which J.M.’s actions constituted abuse of an intimate partner needs to be considered.

I found a sexual assault because J.M. proceeded to anal intercourse without obtaining M.R.’s prior consent to this specific sexual act. Given the relationship they had been in, it appears he presumed that M.R. would accept or approve, but he clearly was not entitled to make such an assumption. Making such an assumption is one form of abuse of an intimate partner. [ 20 ] The potential range and seriousness of intimate partner abuse is broad. Subjecting an intimate partner to an unconsented to sexual act in and of itself constitutes abuse.

Beyond the fact that the subject sexual assault was an abuse of an intimate partner, I received no evidence that the relationship between M.R. and J.M. involved other elements of abuse of an intimate partner. [ 21 ] There was nothing in the evidence given during trial that suggested the anal intercourse that occurred involved any use of force other than the act itself. Indeed, while M.R. testified that she found it surprising and painful, she was not sure if she mentioned that during the act and said she “might” have told him to stop during the act.

Defence counsel argues that M.R.’s evidence was J.M. did not ejaculate during the act and argues that the evidence leaves the impression that he did stop if asked, or that he would have stopped if asked.

[ 22 ] I find that both the abuse that occurred here and J.M.’s moral culpability to be of a lower level than what occurred in Bear where the offender engaged in vaginal intercourse with the complainant who was highly intoxicated and asleep and, as the Court of Appeal noted, was in no position to resist his advances. As the Court of Appeal stated at para. 124, “This demonstrates a serious lack of regard, on Mr.

Bear’s part, for K.K.’s personal integrity and well-being that speaks of a higher level of moral culpability.” In Bear the Court of Appeal concluded that an appropriate sentence was 30 months of imprisonment. [ 23 ] I do not accept the Crown’s submission that the abuse is elevated here because the accused abused a position of trust or authority in relation to the victim. As my conviction decision makes clear, I found that M.R. was throughout a controlling personality in their relationship. In a general sense, it was her decisions which determined what the elements of their relationship would be.

While J.M. clearly on occasion tested the limits of her stated boundaries, I am unable to conclude that he abused a position of trust or authority in relation to M.R. He was, in my opinion, never in a position of trust or authority. [ 24 ] The Crown relies on J.M.’s criminal record as aggravating, and it is, but with significant limitations. Much of the criminal record is significantly dated and does not involve offences of violence. His 2004 conviction for common assault did involve a then intimate partner, but was not of a sexual nature.

I have no details of the seriousness of that assault other than what I can infer from the penalty imposed of three months time served. [ 25 ] The more recent 2017 assault occasioning bodily harm was in respect of a male and again I have nothing that informs me of the nature or degree of that assault other than the penalty of 12 months probation following 174 days presentence custody. [ 26 ] The Crown argues that the offender’s lack of remorse should be viewed as an aggravating factor.

As held in R v Nash , 2009 NBCA 7 , 240 CCC (3d) 421, leave to appeal to the Supreme Court of Canada refused [2009] SCCA No 131 (QL) , failure to express remorse after a trial is generally not an aggravating factor on sentence, although it may be relevant in an assessment of the offender’s threat to public safety. Adjustment to the starting point in light of the relevant circumstances and aggravating and mitigating factors [ 27 ] The circumstances of the subject offence are, in my assessment, not as serious as most of the cases that have attracted the three year starting point penalty.

As stated by Caldwell J. in Campbell-Ball : [41] Even though the list is lengthy, it is difficult to find a case of major sexual assault that is directly comparable to any other case of major sexual assault. No two cases have the exact same set of aggravating factors or the same set of mitigating factors or personal circumstances of the offender. There are cases where weapons have been employed, but with different weapons used in different ways with different results.

There are other cases with multiple co-accused, but their criminal liability as parties to the offences differs, or the offenders’ roles in the offending differs, from the defendants in this case. There are sexual assaults that were committed by inveterate, violent offenders and others by first-time offenders. There are cases involving the sexual assault and confinement of sex-trade workers, of minors, of spouses and of strangers. There are varying degrees and durations of violence and of confinement.

There are cases of major sexual assault where the associated offences differ, including such offences as uttering threats, robbery, masking, etc., but excluding unlawful confinement or assault simpliciter, as was the case here. Some sexual assaults are crimes of opportunity and others of premeditation. Even though the circumstances of another case may be roughly comparable, the degree of physical and psychological aggression seems unique to each case, with differing physical and psychological harm done to the victim or victims.

In many cases, the sentencing courts have characterised the offender as acting with brutality, callousness, cruelty or sadism, or acting intentionally to degrade or to demoralise the victim; no two offenders’ conduct is the same across the cases. [42] In broad terms, all that can be said is that sentences for major sexual assaults (usually with a weapon or unlawful confinement or both) have fallen between three years and 12 years of imprisonment. In his sentencing decisions, the trial judge found similarly, stating (when sentencing both Mr. Campbell-Ball and Mr.

Kahin) that the range for sexual assault with a weapon in Saskatchewan “appears to be between 34 months and 12 years.” Ultimately, however, the case law serves primarily to reinforce the conclusion that each sentencing for a major sexual assault must turn on its own facts and the personal circumstances of the individual offender ( s. 718.2 ; R v Lacasse [2015 SCC 64 , [2015] 3 SCR 1089 ]). [ 28 ] There was no weapon or unlawful confinement here.

This was not a case where: i. there was violence or force collateral to or in addition to the use of force inherent in the act of anal intercourse itself; ii. the victim was not impaired or incapable of consent; iii. there was no power imbalance or abuse of a position of trust or authority; and iv. the sexual assault occurred within the background of what had otherwise been a consensual relationship. [ 29 ] The Presentence Report, Exhibit S1 on the sentencing, states that: In general, (J.) appears to have a general regard for society rules and norms.

He understands there needs to be laws put in place and knows there are consequences to negative actions. It also notes that his test assessment of probability for five year sexual recidivism of Level 2, or 5.3%, is relatively low. While J.M.

disputes the finding of sexual assault, he is willing to participate in any programming in relation to sexual offending. [30] In R v Gejdos, 2017 ABCA 227, 351 CCC (3d) 460, the court stated that the gravity and degree of responsibilityof a defendant is primarily informed by the circumstances existing at the time of the offence, not by whether the defendant is remorseful.As well, in R v McDonald, 2015 ABCA 108, 323 CCC (3d) 3, the court said that the effect of a criminal record in determining thepriority of sentencing objectives and a proportional sentence under s. 718.1 of the Criminal Code will vary with the circumstances and aprior criminal record does not automatically preordain the weight to be assigned to certain sentencing objectives. [31] As the Court of Appeal stated in R v J.P., 2020 SKCA 52, 62 CR (7th) 328, the requirement for proportionalitydemands that the systemic and background factors had on a defendant’s moral blameworthiness must be put into the balance whendetermining the period of incarceration and that a combination of Gladue factors and fetal alcohol spectrum disorder [FASD] will oftenserve to reduce the defendant’s moral culpability.

I conclude that the Court of Appeal contemplated that mental health issues other thanFASD can have a similar impact. [32] It is my assessment that the usual starting point of three years is not determinative here because the guidance itprovides as regards proportionality and the deterrence objectives must give way to the fundamental principle that the sentence imposedbe proportionate to the gravity of the offence and the offender’s moral blameworthiness.

When I assess the gravity of the offence and theoffender’s moral blameworthiness, I find both the gravity and the offender’s moral blameworthiness to be significantly less than the bulkof the cases where other offenders have received a three year sentence.

Specifically, I find the gravity of the offence and the moralculpability of J.M. to be of a somewhat lower level than the offender in Bear. [33] I have made this assessment having considered the Victim Impact Statement of M.R. dated December 6, 2019filed on the sentencing hearing and noting that at trial M.R. did not testify as regards the bulk of her statements in her dated VictimImpact Statement. Given that she testified, much of what is spoken of in the Victim Impact Statement should have been presented in herevidence at trial, if the Crown intended to rely upon it.

An example is M.R.’s statement that in the fall of 2018, two years after therelationship ended, her doctor diagnosed her with an interior anal prolapse. Without admissible evidence that this was caused by anoccasion of anal intercourse that occurred some two years previously is impermissible. [34] In her decision in T.S.1, Klatt J. was sentencing an individual who had previously been in an intimaterelationship with the victim.

The essence of her conclusion to impose a period of two years’ incarceration followed by probation for twoyears are found at paras. 52 to 57 where she says: [52] In a case such as this involving a major sexual assault, I find the objectives of deterrence and denunciation to be of particularimportance. The objective of specific deterrence is aimed at the individual offender and the imposition of a sentence that will deter himor her from committing crimes in the future.

A sentence that gives effect to general deterrence is aimed at deterring others fromcommitting this kind of crime. [53] Denunciation is reflective of society’s condemnation of the offender’s conduct. The only way the courts can give effect to thiscollective condemnation is through the sentences they pass (R v M. (C.A.), (SCC), [1996] 1 SCR 500 at para 81). [54] While it is true that the objectives of denunciation and deterrence apply in most cases, they are particularly relevant to offences thatare committed by normally law-abiding people. As I said, I have little doubt that Mr.

T.S.1 will find his way back into the criminaljustice system, but his lack of insight into his attitudes and offending is concerning. [55] On his own evidence, Mr. T.S.1 described his agreement with T.S.2 that they would not have a sexual relationship and admitted thatT.S.2 said “no” to sexual intercourse right before he forced himself on her. His testimony that “any woman would say no” if she did notwant it indicates that he does not understand that women are not presumptively available for sexual intercourse and that he cannot rely ona lapse of time or a woman’s silence as a sign that consent will be given.

While he does not now see that his attitudes (not his assertion ofinnocence) reflect the “rape myths” denounced by the Supreme Court of Canada (R v Ewanchuk, [1991] 1 SCR 330), I am optimistic thiswill change. [56] Mr. T.S.1’s offending is, sadly, not uncommon. His persistence in testing the waters, in the face of T.S.2’s communicated lack ofconsent is another discouraging indicator of the need to deter and denounce this behaviour. The sentence imposed must give effect tothese objectives. [57] As I said, I consider Mr. T.S.1’s youthfulness and lack of criminal history to be mitigating in these circumstances.

He is notensconced in a criminal lifestyle and appears motivated to participate in programming in the federal system that will assist him in hisrehabilitation. While I could not find that the Gladue factors significantly reduced his moral culpability, I believe a restorative justiceapproach, similar to that taken by the Court of Appeal in Chanalquay [2015 SKCA 141], is appropriate here. It is the one that bestembodies the fundamental principle of sentencing.

I find this sentence will answer the call for denunciation, deterrence and anacknowledgement of the harm caused to T.S.2 and society as a whole. [Emphasis in original] [35] J.M. is not as young as T.S.1 and has a criminal record, but the constellation of circumstances present in thiscase place the gravity offence and moral culpability on a plane similar to T.S.1. Another decision which provides me proportionalityguidance is the decision of Hildebrandt J. in R v S.M., 2021 SKQB 238, and her unreported sentencing decision of November 5, 2021 inCRM-BF-00067-2020.

The offence there consisted of the offender fondling the complainant’s breasts while she was asleep. Thecomplainant and offender had previously cohabited, had children together, and the offender was present in the complainant’s home foraccess to his children. The sentence imposed was a 10 month suspended sentence with a requirement to undertake personal counselling

and complete probation officer directed programming in anger management and in relation to domestic violence. Conclusion [ 36 ] After weighing all of the circumstances I have concluded that the gravity of J.M.’s offence and his moral culpability do not merit a three year period of incarceration much less the four years minimum sought by the Crown.

When I assess what is a sentence that is appropriate given proportionality concerns and all of the other considerations, I have concluded that a period of incarceration for two years in a federal penitentiary, where appropriate programming is more likely to be available, followed by a two year period of probation best serves the need for denunciation, deterrence and the other objectives of sentencing. [ 37 ] The probation terms shall be as follows: i. Keep the peace and be of good behaviour; ii. Appear before the court when required to do so by the court; iii.

Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation; iv. Report to a probation officer at 101 Railway Place, Meadow Lake, Saskatchewan, phone (306) 236-7527 (toll free 1-855- 835-8305) within two working days of your release from jail and after that as told to do so by your probation officer or designate; v. Live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the court; vi.

For the first 12 months of this order, stay inside your approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning, unless you have the prior written permission of your probation officer or designate or the court to be elsewhere; vii. Come to the door of your approved residence when asked to do so by a probation officer or designate or police officer who may be checking the residence and curfew conditions of this order; viii. Participate in assessments and complete programming for anger management, domestic violence or personal counselling as told to do so by your probation officer; ix.

Participate in assessments and complete programming for sexual offending as told to do so by your probation officer; x. See a medical doctor, psychiatrist and/or psychologist as told to do so by your probation officer, and follow directions as to appointments, counselling, treatment and prescriptions. You shall agree to the release of information about appointment times and prescriptions to your probation officer; xi. Have no contact of any kind in any way, directly or indirectly, with M.R.; xii. Not refer to M.R. in any way, directly or indirectly, while using electronic social media; xiii.

Not be at the residence, workplace or place of education of M.R.; xiv. Not possess any firearms or ammunition, cross​-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance, or other weapons or knife, except when using a knife to eat. [ 38 ] I also make the following ancillary orders: 1. There shall be an order, pursuant to s. 487.051 of the Criminal Code , that a sample of bodily substances be taken from J.M. that is reasonably required for the purpose of forensic DNA analysis; 2.

There shall be an order, pursuant to s. 490.012 of the Criminal Code , that J.M. comply with the provisions of the Sex Offender Information Registration Act , SC 2004, c 10 , for 20 years; and 3. There shall be an order, pursuant to s. 109(2) (

a) of the Criminal Code , that J.M. be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance for a period of 10 years after his release from imprisonment. [ 39 ] Given that J.M. has been and will be incarcerated for a significant period of time and has minimal employment prospects on release, I waive the victim impact surcharge. J. B. SCHERMAN