R v Abreha, 2022 ABKB 830

Court of King’s Bench of Alberta Citation: R v Abreha , 2022 ABKB 830 Date: 20221209 Docket: 201287117Q1 Registry: Calgary Between: His Majesty the King Crown - and - Yoseph Mulugeta Abreha Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify SBB must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for the Decision of the Honourable Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] The Crown charged Yoseph Mulugeta Abreha with the following offence: That he, on or between September 13, 2019 and October 6, 2019, at or near Calgary, Alberta, did commit a sexual assault upon [SBB], contrary to

section 271 of the Criminal Code of Canada . [ 2 ] This Court heard this matter from 4 April 2022 through 8 April 2022, by way of a jury trial. It delivered its jury charge on 7

April 2022, and the jury rendered a verdict of guilty on 8 April 2022. [ 3 ] The jury convicted him of that charge. II. Background [ 4 ] A brief factual background will put these sentencing reasons into perspective. [ 5 ] In October of 2019, SBB was 19 years old. She was doing temporary work through Diversified Staffing. Her work involved shovelling snow, demolition, and general clean-up. [ 6 ] On 6 October 2019, she was assigned to shovel snow at a retirement home. It was at this job site that she met the offender, Mr. Abreha. Mr. Abreha also obtained his work through Diversified Staffing. SBB had never met Mr.

Abreha before. He started a conversation with her, which was just small talk. [ 7 ] Around the middle of the day, Mr. Abreha asked SBB if she wanted to "come over for drinks." She assumed that they would have a couple of drinks and she would go home, as she was supposed to babysit for her sister that evening. She told Mr. Abreha this. At the end of the day, they met at their work site, and walked to the bus stop. As they were walking, SBB smoked a joint (marijuana). They took the bus downtown. When they arrived at the C-Train station, their plans changed. They were going to meet some of Mr. Abreha's friends.

When they exited the train, they met his friends who were in a vehicle. They all got into the vehicle and went to a restaurant where they had a bite to eat. SBB did not contribute to Mr. Abreha's conversation with his friends, as they were speaking a different language. Mr. Abreha did not introduce SBB to his friends. They consumed no alcohol during the meal. [ 8 ] After the meal, which lasted less than 30 minutes, SBB and Mr. Abreha went to a liquor store, where Mr. Abreha bought some alcohol, as SBB and Mr. Abreha were going to his house "to have a couple of shots." SBB did not know where Mr. Abreha lived.

They walked to his residence. During the walk, they did not touch each other and there was no conversation about whether he could touch her. The walk from the liquor store to Mr. Abreha's residence took about 15 minutes. When they arrived, SBB had a cigarette, then they went to Mr. Abreha's bedroom. She sat on the edge of the bed. Mr. Abreha left the bedroom to get a couple of glasses. He returned, closed the door, and they began drinking. [ 9 ] When they arrived at Mr. Abreha's residence, SBB had her shoes on, and she asked Mr. Abreha whether she should remove her shoes.

He said, "no, it was fine." [ 10 ] SBB was sitting on the edge of the bed, and Mr. Abreha was sitting on a chair near a desk in the bedroom. They were about six feet apart. There was no discussion about whether he could touch her until later in the evening when he asked her if he could kiss her. She said no. To ask her this question, he moved his chair closer to her. This made her uncomfortable, as "they had just met that day." He backed off. [ 11 ] By this time, SBB was getting "tipsy." She was not sure how the alcohol was affecting Mr. Abreha. They continued to drink.

He was getting closer to her, and he burned himself with her cigarette. She was starting to lay on his bed because she was quite drunk at that point. She passed out. Her last memory before passing out was that he was getting closer to her. [ 12 ] That evening, she was wearing either tights or sweatpants. She wore no panties. She had on a salmon pink t-shirt, steel-toed boots, long crew socks, and a jacket. She took off her jacket as soon as she entered the bedroom and placed it in the corner. As she was passing out, she felt her boots being removed, then her pants.

She remembers nothing after that. [ 13 ] She woke up and threw up on herself. When she awoke, her socks were in her bag. She had not put them there. Her boots were on. Mr. Abreha was annoyed that SBB had thrown-up on his bed. She asked Mr. Abreha about the location of her cellphone. He said he did not know. She recalled that it was in her pocket when she began drinking. She eventually found it near the wall next to the bed. [ 14 ] She was still drunk, but she knew he had done something to her. Her vagina was wet, and her socks were in her bag. She wanted to get out of his house.

He stood up but offered her no assistance. There was no conversation. She got out of Mr. Abreha's residence as quickly as possible. She put on her jacket as she was walking away from Mr. Abreha's residence. [ 15 ] She walked to the bus stop and took transit home. She felt "disturbed and violated," and was trying to recall how her socks ended up in her backpack. She arrived home at around midnight. [ 16 ] She "went into denial." There was no communication between Mr. Abreha and her after this incident. Eventually, her roommate bought her a pregnancy test kit, which indicated that she was pregnant.

This was about five months after the incident. She terminated the pregnancy. [ 17 ] She contacted the police and provided a sample of her blood. A blood test was also taken from the fetus. [ 18 ] During cross-examination, she was asked whether she removed her clothing, consented to have sex with Mr. Abreha, and dressed herself afterwards. SBB strongly denied all these suggestions. She testified that she would have a memory of removing her clothing and putting her clothing back on. [ 19 ] This Court qualified Dr. Melanie Green, as a Forensic Specialist in the analysis and

interpretation of forensic DNA typing profiles and the application of the principles of population genetics and statistics to the analysis of these profiles. It also qualified her as an expert in the

interpretation of results obtained from the examination of DNA exhibits. It permitted her to give an opinion in her areas of expertise. Dr. Green's evidence provided strong evidence to support Mr. Abreha's paternity of the fetus. In his address to the jury, Mr. Abreha's counsel conceded this.

[ 20 ] In this Court's charge to the jury, it said: You must find Mr. Abreha not guilty of sexual assault unless the Crown has proved beyond a reasonable doubt each of the following essential elements of the offence: 1. that Mr. Abreha touched [SBB] directly or indirectly; 2. that the touching by Mr. Abreha was intentional; 3. that the touching by Mr. Abreha took place in circumstances of a sexual nature; 4. that [SBB] did not consent to the sexual activity in question; and 5. that Mr.

Abreha knew that [SBB] did not consent to the sexual activity in question. [ 21 ] As mentioned earlier in these reasons, the jury found Mr. Abreha guilty of sexual assault under Criminal Code s 271. [ 22 ] Criminal Code s 724(2) provides: 724(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 23 ] Although SBB does not recall the circumstances of the sexual assault, except the resulting effect of her pregnancy, the jury's finding of Mr. Abreha's guilt beyond a reasonable doubt leaves no doubt that Mr. Abreha touched SBB directly, it was intentional, it was of a sexual nature, SBB did not consent to the touching, and Mr. Abreha knew that she did not consent to the touching.

The other relevant fact that was disclosed by the evidence is that Mr. Abreha engaged in sexual intercourse with SBB which resulted in her pregnancy. His semen ended up in her body, as the fetus contained his DNA. [ 24 ] This Court also finds, beyond a reasonable doubt, that SBB was not conscious, or at least was in such as state that she could not consent to the sexual act when Mr. Abreha engaged in sexual intercourse with her. He knew, or ought to have known that she was incapable of consenting to his unwanted touching because of her total or partial incapacitation. III. Mr. Abreha's Circumstances [ 25 ] Mr.

Abreha was born on April 1st, 1996, in Addis Ababa, Ethiopia. His parents divorced when he was about three or four years old. His mother moved to Canada. Mr. Abreha lived with and was raised by his father in Ethiopia. [ 26 ] Mr. Abreha moved to Canada in 2017 at the age of 21, to support his mother and his young half-brothers, to help his half- brothers get an education, and to live a better quality of life. Mr. Abreha is now a permanent resident of Canada. He states that before his run-ins with the law, he supported his mother financially. [ 27 ] Mr. Abreha was married in 2019.

He and his wife are now permanently separated. Mr. Abreha maintained a close relationship with his mother, visiting her at her home frequently, and talking to her on the phone daily. He speaks weekly with his father, who still lives in Ethiopia. He states he speaks often with his uncle, Mr. Tesfe, who lives in Ontario. He has close, positive, supportive relationships with his all his immediate and extended family members. [ 28 ] Mr. Abreha completed high school and a three-year business diploma in Ethiopia, as well as a Medical Office Administration Certificate at Reeves College in Calgary.

He states he has no desire to further his education. [ 29 ] Mr. Abreha has had various jobs in Canada including warehouse work, construction, custodial work, irrigation, working at Cargill Meat Solutions and as a long haul trucker. Mr. Abreha indicated he was working as a trucker since early 2020. His ultimate goal is to purchase his own truck. [ 30 ] At the time Mr. Abreha committed the offence for which this Court is sentencing him, he was 23 years old and had no criminal record. On 17 December 2021 Mr. Abreha was sentenced for a sexual assault committed on or about August 24, 2019. For that offence, Mr.

Abreha received a 27-month sentence, which included credit for time spent in custody, such that the remainder of his sentence was served in a provincial institution. IV. Determination of a Fit Sentence A. General Principles [ 31 ] This Court will not take account of Mr.

Abreha's criminal record for sexual assault, given the so-called "Coke rule." In R v Andrade , 2010 NBCA 62 at para 2 , 260 CCC (3d) 353, 79 CR (6 th ) 302 (CA), Justice Robertson, for the court, described the rule saying, "a harsher sentence for a second offence cannot be imposed unless, at the time the second offence was committed, the offender had already been convicted with respect to the first." In the case at bar, Mr. Abreha had not been convicted of previous offence when he committed the sexual assault against SBB.

He was, however, subject to judicial interim release in respect of offence he committed about

one and one-half months earlier. In R v Morgan , 2004 BCCA 628 at para 12 , Chief Justice Finch said: The appellant's conduct shows his unwillingness or inability to abide by court orders for bail or probation, and confirms his ongoing abuse and demeaning attitude towards young females. The subsequent history of offences diminishes the prospects of rehabilitation and renders highly improbable the propriety of a probation order in this case.

It was proper for the judge to consider deterrence, denunciation and protection of society as the primary considerations in crafting a sentence. [ 32 ] In other words, this Court can use the previous charge and the fact that he was on judicial interim release when he committed the offence against SBB to assess Mr. Abreha's character, the likelihood of his rehabilitation, the need for specific deterrence, and any need to protect the public from him.

But this Court must not impose a harsher sentence because of the previous charge, as he was not yet convicted of it when he committed the offence against SBB. [ 33 ] Criminal Code s 718 provides: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 34 ] In R v Glessman , 2013 ABCA 184 at para 8 , 553 AR 138, Justice Picard, for the court, held that denunciation and deterrence are "key and paramount to achieving the proper balance in sentencing for" sexual assault under Criminal Code s 271. See also R v Arcand , 2010 ABCA 363 at para 8 ; R v Sandercock (1985), 22 CCC (3d) 154 (ABCA) at para 14 ; R v Shrivastava , 2019 ABQB 663 at para 30 .

In R v Bissonnette , 2022 SCC 23 , 414 CCC (3d) 1, 80 CR (7 th ) 127, the court described these principles: • Denunciation: requires that a sentence express society's condemnation of the offence that was committed. The sentence is the means by which society communicates its moral values. Denunciation must be weighed carefully, as it could, on its own, be used to justify sentences of unlimited severity: Bissonnette at para 46 . • Deterrence: specific deterrence, is meant to discourage the offender before the court from reoffending.

General deterrence is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender has been convicted: Bissonnette at para 47 . [ 35 ] This Court must also consider the other objectives, including Mr. Abreha's prospects of rehabilitation, when it is crafting a fit sentence for the offence that Mr. Abreha has committed. [ 36 ] The Court in Bissonette goes on to provide the "cardinal principle" of sentencing: But sentencing must in all circumstances be guided by the cardinal principle of proportionality.

The sentence must be severe enough to denounce the offence but must not exceed "what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence" ( R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 42 ; see also R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 37 ). Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system. The application of this principle assures the public that the offender deserves the punishment received ...

Bissonnette at para 50 . See also Criminal Code s 718.1. [ 37 ] Criminal Code s 718.2 provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender … (

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

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 38 ] In R v Parranto , 2021 SCC 46 , 411 CCC (3d) 1, 75 CR (7th) 217, the majority said:

... sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender's individual circumstances and moral culpability.

At the stage of individualizing the sentence, the sentencing judge must therefore consider "all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them" [ R v Ipeelee , 2012 SCC 13 at para 75 , [2012] 1 SCR 433, 91 CR (6th) 1, 280 CCC (3d) 265]. [ 39 ] In Arcand , the majority provided the following caution: ... [T]hough individualized to the case, the sentencing process is not exclusively about the offender. The process is also about the harm to the victim and the community from the crime.

Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence. Arcand at para 67 . [ 40 ] Because of the parity principle that is articulated in Criminal Code s 718.2(b), this Court must consider other cases which may assist it in that analysis. See R v Friesen , 2020 SCC 9 at paras 39-41 . B. Starting Point [ 41 ] The Alberta Court of Appeal has provided trial courts in this province with a starting point for a major sexual assault.

Although not binding in theory or in practice, starting points remain "guidelines, not hard and fast rules": Parranto at para 36 , quoting R v Friesen , 2020 SCC 9 at paras 36-37 , 62 CR (7 th ) 1, 391 CCC (3d) 309. Why is this? The majority in Parranto said that "starting points are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence ... [and] they offer judges a place to begin their thinking": Parranto at para 44 . It went on to say: Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles.

The principles of denunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives "cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives" ... When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives, including rehabilitation and restraint. ...

Parranto at para 45 . [ 42 ] In Parranto , the majority described the starting-point methodology as having three stages, being "(1) defining the category of an offence to which the starting point applies ; (2) setting a starting point; and (3) individualization of the sentence by the sentencing court": Parranto at para 18 . [ 43 ] The majority in Arcand defines the category of an offence to which the starting point applies as a "major sexual assault," which it described as: A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs.

The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two. Arcand at para 171 . [ 44 ] It included within this description non-consensual vaginal intercourse: ibid . In the case at bar, Mr. Abreha committed the sexual act of "non-consensual vaginal intercourse" with SBB.

As the Arcand court stated, “this was incontrovertibly a major sexual assault – and of an unconscious complainant”: Arcand at para 266 . [ 45 ] The Alberta Court of Appeal in Sandercock said, "The starting point for a major sexual assault is three years, assuming a mature accused with previous good character and no criminal record": Sandercock at para 17. Three years imprisonment points to the gravity of the offence, which this Court accepts.

It agrees with Provincial Court Judge Brown where she observed: The time honoured 3-year starting point sentence for a major sexual assault ( Sandercock ) does, indeed, seem to be a mid-point when compared to comparator cases from jurisdictions that favour the range approach to appellate guidelines, 18 months to 4 ½ years. R v Cummings , 2022 ABPC 191 at para 26 . [ 46 ] This Court has considered the several cases that the parties provided to it to determine a fit sentence, many of which Justice Antonio summarized in Shrivastava at paras 35-41 .

It is important to remember, however, that a court's determination of a sentence that is fit and proper is governed by the facts and parties before it. Sentencing is an individualized process. The cases the parties have provided to it outline some of the very important factors that this Court must consider. C. Individualization of the Sentence [ 47 ] This Court now turns to the third stage of the starting point methodology, namely, the individualization of the sentence. [ 48 ] In the case at bar, SBB provided this Court with her victim impact statement.

She was traumatized and is "broken." The assault has changed her personality and its effects manifest themselves in nightmares. She gets nauseated when she thinks about it. She says, "I'm assuming it will be like that ... till the day I die." As well, the harm to SBB is even more manifest, as Mr. Abreha impregnated her as a result of the non-consensual vaginal intercourse he perpetrated on her, as a result of which she had to go through the physical and emotional trauma of terminating her pregnancy. [ 49 ] SBB consumed alcohol to the point where she "passed out." Is this relevant? In Sandercock , the court said:

Negligence of the victim as to his or her own safety is generally not relevant. The blameworthiness of the offender is not in the least diminished because the victim imprudently provides the offender with an opportunity for crime, nor does it necessarily follow that such imprudence lessens the likely pain, outrage and indignity which then visits the victim. Sandercock at para 30. [ 50 ] This Court must consider the factors outlined in Code s. 718.2. 1. Mitigating Factors [ 51 ] Mr. Abreha is relatively young.

In R v AV , 2020 ABQB 190 , Justice Devlin was dealing with an individual who committed several sexual assaults against his intimate partner when he was 21 years old. At the time of sentencing, the offender was 24 years old. Justice Devlin referred to the offender as a "youthful first offender." In the case at bar, Mr. Abreha was 23 years old at the time he committed the sexual assault against SBB.

Justice Devlin said: Both the Criminal Code and the common law instruct Courts to exercise restraint in the use of imprisonment for young people being sentenced for the first time for considerations of proportionality allow ... AV at para 25 . [ 52 ] He went on to provide the following quotation from R v Thurairajah , 2008 ONCA 91 at paras 41-42 , in which Justice Doherty said: Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation.

General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence.

But see R v TCF , 2022 ABKB 643 at paras 75-77 , where Justice deWit held that youthfulness and a lack of a criminal record is significant mitigating factor. [ 53 ] In Shrivastava , Justice Antonio, as she then was, said that the "mitigating role of immaturity is reduced" when the sexual assault was not one of momentary impulse, much like the situation with which this Court is dealing. [ 54 ] Although Mr.

Abreha's youth must not gain prominence over denunciation and general deterrence because of the violent nature of his offence against SBB, it is a factor that will form part of this Court's consideration in assessing the proportionality of his sentence. [ 55 ] His youth also points towards the factor of rehabilitation. As stated by Chief Justice Finch in Morgan , the subsequent history of offences "diminishes the prospects of rehabilitation." As well, this Court finds it troubling that there is no evidence before it of any steps that Mr.

Abreha has taken towards his rehabilitation during the period he was incarcerated for the other offence. Nonetheless, because of his youth, rehabilitation remains a factor that this Court has considered. [ 56 ] Mr. Abreha also argues that his admissions before trial are mitigating factors, citing R v Soto , 2016 ABCA 85 at para 7 (per Justice O'Ferrall), and this Court's decision in R v Beaver , 2019 ABQB 235 at paras 51-52 . Certainly, in the case of a trial involving a judge and jury, admissions that shorten the trial time are of a benefit to the efficient administration of justice.

However, one must look at the nature of the admissions to determine their mitigating effect. In this Court's view, there is a spectrum of admissions from the relatively benign to those that go the heart of the issue before the trial court. This Court agrees with Mr. Abreha's submission that this Court must give the degree of weight to an admission depending on where it falls on that spectrum. In the case at bar the admissions slightly shortened the trial time, but the admissions were not of great substance.

In the case at bar, this Court will give some weight to the admissions, but not a significant amount. [ 57 ] Mr. Abreha also provided this Court with letters of support from his family members and the John Howard Society. In particular, his counsel pointed to the fact that before he was incarcerated, Mr. Abreha was supported by and he supports his mother. She was present in the court room. [ 58 ] The parties have drawn this Court to the fact that Mr. Abreha might face consequences in relation to his immigration status. In Shrivastava , Justice Antonio said: In R. v.

Suter , 2018 SCC 34 (S.C.C.) at paragraph 47 , the Supreme Court defined collateral consequences as "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender". Collateral consequences do not relate to the gravity of the offence or the degree of responsibility of the offender and therefore, are not necessarily aggravating or mitigating factors.

They "nevertheless speak to the 'personal circumstances of the offender'" and, in part, stem "from the application of the sentencing principles of individualization and parity... s. 718(2) (

b) of the Criminal Code )": Suter at para 48 . Collateral consequences are not the dominant consideration in sentencing and do not justify the imposition of "inappropriate and artificial sentences": R. v. Pham , 2013 SCC 15 (S.C.C.) at para 15 ... Shrivastava at para 60-61 . [ 59 ] In R v Pham , 2013 SCC 15 at para 16 , [2013] 1 SCR 739, 76 Alta LR (5 th ) 206, 544 AR 40, to which Justice Antonio referred, Justice Wagner, as he then was, for the court, said:

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk. [ 60 ] In the case at bar, this Court finds that Mr. Abreha's immigration status does not mitigate any sentence this Court imposes for the serious violent crime that he committed.

As the court said in R v Deck , 2006 ABCA 92 at para 17 , 208 CCC (3d) 341, 384 AR 106, "Stigma for the offender is an inevitable feature of the criminal justice process ... In that light, it does not always justify a reduction in sentence." 2. Aggravating Factors [ 61 ] There are a number of aggravating factors that are present in the case at bar. In R v Friesen , 2020 SCC 9 at paras 138-39 , 391 CCC (3d) 309, 62 CR (7 th ) 1, Chief Justice Wagner and Justice Rowe, for the court, said: ... [T]he degree of physical interference is a recognized aggravating factor.

This factor reflects the degree of violation of the victim's bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim's sexual integrity. The degree of physical interference also takes account of how specific types of physical acts may increase the risk of harm. For instance, penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy ... Penetration, whether penile, digital, or with an object, may also cause physical pain and physical injuries to the victim ... [Citations excluded].

See also Deck at para 20 . [ 62 ] Mr. Abreha inserted his penis into SBB's body, without her consent. This reflects a high degree of violation of SBB's body, which is an aggravating factor. But that aggravating factor is already built into the categorization of his act as a major sexual assault, so the penile penetration is not a further aggravating factor. [ 63 ] Unprotected sexual intercourse is a further aggravating factor. This Court has no evidence that he inserted his unprotected penis into her body or whether the protection he used failed, so it will not consider this an aggravating factor.

But his act impregnated her, which resulted in her having to endure a termination of her pregnancy. This Court can take judicial notice of the physical, emotional, and psychological injuries that resulted from this: Arcand at para 171 . [ 64 ] SBB was "passed out" drunk when Mr. Abreha violated her body. He took advantage of her vulnerability, which "aggravated the gravity of the offence": AV at para 79 ; Arcand at paras 282-84 . There was a predatory aspect of his actions, which "aggravated [his] degree of responsibility or blameworthiness": AV at para 88 .

This Court is careful not to "double count" this aggravating factor. It merely says this to point out that Mr. Abreha's actions in violating SBB's sexual integrity while she was passed out is an aggravating factor. [ 65 ] In Friesen , the court said: All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim's human dignity ... Friesen at para 89 . See also R v Shrivastava at para 55 . [ 66 ] Mr.

Abreha objectified SBB and disregarded her human dignity when he decided to commit the sexual violence against her after she rebuffed him when he asked if he could kiss her. 3. Indigeneity [ 67 ] SBB self-identifies as an Indigenous female victim. In his written brief, Mr. Abreha argues that her Indigeneity was not raised until after he was convicted, and that he needed to know this information before proceeding to trial.

He went on to argue that the Crown cannot now rely on SBB's Indigeneity in its sentencing submissions as he concedes that if this Court accepts this fact, it is a "statutorily aggravating factor." Finally, he argues that "there is no evidence of Ms. SBB’s heritage before this Court, and, in the absence of some evidence, this allegation cannot be properly considered in sentencing Mr. Abreha": Abreha Brief at para 29. [ 68 ] This Court wished to make a few comments concerning these arguments.

The provision of the Criminal Code that requires this Court to consider SBB's Indigenous identity is Criminal Code s 718.04, which provides: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 69 ] This section, although forming part of the Criminal Code sentencing regime, makes no mention of a victim's Indigenous identity as an aggravating factor.

It says that her status results in this Court having to give "primary consideration to the objectives of denunciation and deterrence" at the sentencing stage, not at the trial stage. Because it is not an aggravating factor, Mr. Abreha conceded that it was no longer an issue for him. [ 70 ] Despite this concession, this Court feels it still must address his argument. SBB self-identified as an Indigenous person. She

did so in response to a request from Mr. Abreha's previous counsel one-week after the jury found Mr. Abreha guilty. This fact was communicated to Mr. Abreha's current counsel. Jonathan Rudin in his text Indigenous People and the Criminal Justice System (Toronto: Emond Montgomery, 2019) says at 53: For defence counsel, the first issue that must be determined is whether your client is an Indigenous person. That is not as easy as it might initially seem. You cannot determine if someone is an Indigenous person based on how they look or their first or last name.

The reality of the social dislocation that has taken place in Indigenous communities means there are some Indigenous people who have grown up in Europe and speak accented English and some who carry the names of their adoptive parents or a non​Indigenous birth parent, which suggests an ancestry at some distance from Canada. Some Indigenous people will appear to be African Canadian, others Caucasian. It is important not to fall victim to your own stereotypes of what you think an Indigenous person should look like. [ 71 ] Earlier, he said: For the most part we allow people to self-identify.

For example, if someone identifies as Irish Canadian ... We don't ask Irish Canadians to provide proof of their Irish heritage and we generally don't pepper them with skill-testing questions about the history of Ireland. We don't hold it against them if they embrace that part of their heritage later in life or if they have only recently discovered their link to a country across the ocean. For Indigenous Canadians, however, the situation is different. ... [I]t is not unusual for non-Indigenous people to determine for themselves whether someone who asserts Indigenous identity really qualifies as being Indigenous.

Non-Indigenous Canadians rarely see anything wrong with requiring Indigenous people to "prove" their Indigenous identity. The practice of non-Indigenous people arrogating to themselves the right to determine if a person is Indigenous has a long and inglorious history in Canada. Rudin at 50. [ 72 ] He then provides examples of that history, and continues: This background of government-conferred identity for Indigenous people has emboldened non-Indigenous people to challenge people asserting their Indigenous identity.

This history is very much in play when defence counsel, Crown prosecutors, and judges face Indigenous people who come before the courts. Rudin at 53. [ 73 ] He concludes by cautioning courts when he says: Inviting courts to determine if someone is or is not an Indigenous person after the individual has made that assertion is not just fraught with moral, ethical, and legal concerns, all of which are heightened by the impacts of colonialism but most importantly are irrelevant to applying the law.

Rudin at 103. [ 74 ] All of this means is that it would be dangerous for this Court not to accept SBB's self-identification of her Indigenous identity. In R v AD , 2019 ABCA 396 , 98 Alta LR (6th) 104, the court was considering an appeal of a sentence in which the victim's Indigenous identity was not considered by the sentencing judge. The court said: Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public.

The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence. AD at para 29 . [ 75 ] Thus, SBB's Indigenous identity is a "relevant factor," separate from aggravating and mitigating factors. It is a "circumstance" of SBB. [ 76 ] Furthermore, as Justice Picard, for the court, held in Glessman , denunciation and deterrence are "key and paramount to achieving the proper balance in sentencing for" sexual assault under Criminal Code s 271.

Does SBB's Indigenous identity add to these "key and paramount" factors, or simply reinforce them?

This Court finds the latter, as something cannot become "more key" or "more paramount." [ 77 ] As for the timing of the disclosure of SBB's Indigenous identity, Justice Moldaver, for the majority, said the following in R v Barton , 2019 SCC 33 at para 206 , [2019] 2 SCR 579, 376 CCC (3d) 1, 54 CR (7 th ) 231: ... [I]n some cases it may be both necessary and appropriate to establish certain biographical details about an individual such as his or her race, heritage, and ethnicity where that information is relevant to a particular issue at trial ... [Emphasis added]. [ 78 ] In the case at bar, there was nothing in SBB's heritage or ethnicity that was relevant to any issue in the trial.

That evidence was irrelevant to this Court's consideration of the essential elements of sexual assault. A. Crown’s Position on Sentence

[ 79 ] Based on the foregoing factors, the factors set forth in the Criminal Code and the

interpretation of those factors as set forth in the cases it provided to this Court, the Crown seeks a custodial sentence in the range of 4 to 4½ years imprisonment. B. Mr. Abreha’s Position on Sentence [ 80 ] Based on those same factors, Mr. Abreha asks this Court to impose a sentence of 30 months, or 2 ½ years. V. Conclusion [ 81 ] All of this takes us back to the principles on which this Court must base its determination of a fit and proper sentence. Sexual assault is serious and one that society considers particularly harmful.

Courts place considerable weight on denunciation and deterrence, specific and general, when they sentence individuals for committing major sexual assaults. Society denounces sexual assault. This should go without saying. Thus, this Court must impose a sentence that expresses that denunciation. [ 82 ] As well, this Court must send a message that will attempt to deter others, and Mr. Abreha's specifically, from not violating a person’s dignity, equality, security of the person and sexual autonomy. Will one sentence of one man result in deterring others to commit the same or similar acts?

A cynical person would say no, but the courts must continue to strive to meet that object, one sentence at a time. [ 83 ] Mr. Abreha's’s moral blameworthiness is very high in this instance. He had non-consensual, sexual intercourse with an unconscious woman which resulted in her unwanted pregnancy. [ 84 ] This offence seemed to those who provided letters of support to be out of Mr. Abreha’s character.

That may be so, but he did violate SBB’s sexual integrity for his own gratification. [ 85 ] This Court has also considered his youthfulness, which gives it some hope concerning his future rehabilitation, and his opportunities to become a contributing member of society. Mr.

Abreha, please stand up. [ 86 ] Taking into consideration the principles of sentencing set forth in the Code , including, the aggravating and mitigating factors, your circumstances, and the factors outlined in Code s. 718.2, this Court concludes that a fit and proper sentence would be for you to be incarcerated in an appropriate facility for a period of 45 months. You will, from that time, be given enhanced credit for the 54 days you spent in pre-trial custody of 1.5:1, for a total of 81 days. [ 87 ] This Court feels that the aggravating factors outlined above place your case above the Sandercock starting point.

The mitigating factors reduce the sentence that this Court would have otherwise imposed on you. [ 88 ] Having found you guilty of the designated offence of sexual assault pursuant to Criminal Code s 271, and the Crown having applied for an order that you be registered with the Sex Offender Information Registration Act , this Court orders that you be so registered for a period of 20 years. In so doing, this Court has considered that this order is not disproportionate to the impact on your privacy or liberty. It has considered the circumstances of the offence and your personal situation.

The offence itself is of a sexual nature and there is a public interest in protecting society through the effective investigation of crimes of this nature, which can be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act . [ 89 ] As well, sexual assault pursuant to Criminal Code s 271 is a primary designated offence under Criminal Code s. 487.04 .

Accordingly, pursuant to Criminal Code s 487.051, this Court orders that you submit to the authorities for the taking one or more of your bodily substances required for the purpose of forensic DNA analysis. [ 90 ] Pursuant to Criminal Code s 743.21, this Court orders that you are prohibited from communicating with SBB and the witnesses during your custodial period. [ 91 ] Mr. Abreha has made an application to this Court that it exempt him from paying the victim fine surcharge.

Inasmuch as you have been incarcerated for a period of time before the trial of this matter, and the fact that this Court is sending you to jail for a further period, it waives the victim fine surcharge. Heard on the 2 nd day of December, 2022. Dated at the City of Calgary, Alberta this 9 th day of December, 2022. K.D. Yamauchi J.C.K.B.A.

Appearances: Donna Spaner Crown Prosecution Service for the Crown Jeremy Newton and Gilliana Shiskin for the Accused