R v CRN, 2024 ABKB 15

Court of King’s Bench of Alberta Citation: R v CRN, 2024 ABKB 15 Date: 20240108 Docket: 211143979Q1 Registry: Red Deer Between: His Majesty the King - and - CRN Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the victim, witness or justice system participant shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on January 10, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment.

_______________________________________________________ Reasons for Sentence of the Honourable Justice Eleanor J. Funk _______________________________________________________ I. Introduction [ 1 ] I provided an oral

summary of these reasons in open court. Immediately afterwards, I provided these Reasons for Sentence to Counsel. [ 2 ] On April 20, 2023, I found CRN guilty of sexual assault, contrary to s 271 of the Criminal Code : R v CRN , 2023 ABKB 229 . The matter of sentencing is now before me. II. Facts [ 3 ] In the fall of 2021, CRN and the Complainant both attended Red Deer Polytechnic. They were casual acquaintances. On the date of this offence, they attended back-to-back college basketball games, at which the Complainant and her stepsister became quite intoxicated.

CRN was not drinking and, sometime during or after the games, a plan was made that involved CRN being the designated driver for the Complainant and her stepsister. [ 4 ] CRN drove the sisters to a local pub, where he also joined the group of friends inside. Almost immediately, the Complainant was cut off from alcohol service, due to her level of intoxication. [ 5 ] After leaving the pub, CRN drove the sisters to a house party, where he also joined them inside. At the party, the Complainant and her stepsister continued drinking.

They were both heavily intoxicated. [ 6 ] Sometime around 3 a.m., CRN drove the Complainant to her friend’s house, where she planned to spend the night. CRN followed the Complainant into the house, and down to the basement, where the Complainant would be sleeping. The Complainant said she was not bothered by CRN’s presence there; she was drunk and tired and just wanted to sleep. [ 7 ] CRN laid down in the bed beside the Complainant. He kissed her; touched her chest, under her clothes; and touched her vagina. CRN had oral and unprotected vaginal sex with the Complainant.

The Complainant testified that she consented to none of this and repeatedly asked CRN to stop. CRN said that he asked the Complainant three times if she was OK or wanted to keep going. Having received no verbal consent, CRN said that he was “letting her body language decide”. To the police, CRN said that at some point, the Complainant “didn’t seem so into it.” He asked if she was okay and “when she didn’t say ‘no’, [he] kept going”. [ 8 ] I found CRN was negligent in not taking further steps to ascertain the Complainant’s consent when she did not verbally respond to his questions.

In convicting him, I found his negligence turned to recklessness when CRN was put on notice that the Complainant “didn’t seem so into it” and continued with his sexual advances. III. The Positions of the Parties A. The Crown Position [ 9 ] The Crown submits a fit and proper sentence is 3 to 3.5 years’ incarceration. [ 10 ] The Crown additionally seeks various ancillary orders, including: a mandatory DNA order ( CC 487.051 ) ; a weapons prohibition ( CC 109); and a SOIRA order for 20 years ( CC 490.012). B.

The Defence Position [ 11 ] The Defence seeks a Conditional Sentence Order (CSO), followed by a period of probation. [ 12 ] The ancillary orders are not contested, except for registration under SOIRA . IV. Victim Impact Statements [ 13 ] The Complainant and her mother both filed victim impact statements. The Complainant described herself and her life before this offence. She was 20 years old and in her third year of college. She was outgoing and had a wide social circle. She enjoyed meeting and talking with people.

The Complainant enjoyed a busy social life that included going to athletic events, parties, or hanging out with friends. It was not uncommon for her to spend the night at various friends’ homes. [ 14 ] Since this offence, the Complainant described feeling that her sense of self and security were stolen from her. She has struggled with feelings of shame, anger, depression, and guilt. While the Complainant continued with her studies, her interactions with other people changed. She largely stopped allowing new friends into her life. Feeling unsafe in larger groups of people, she kept her social circle small.

Where she previously felt strong and safe, she now feels vulnerable and weak.

[ 15 ] The Complainant’s mother described the changes she saw in her daughter after this offence. She described the Complainant speaking of feeling fearful around new people; she became withdrawn and stopped telling stories about work and school. The Complainant stopped socializing and kept to a very small group of friends.

Her grades fell and she slipped from the Dean’s List at school. [ 16 ] While sentencing is, by its nature, focused on the circumstances of the offence and the offender, through victim impact statements, the offender and the Court are provided some additional insight into the seriousness of the offence as it relates to the impacts on the victim. [ 17 ] I thank the Complainant and her mother for their participation in this sentencing through completion of their victim impact statements. V. Aggravating and Mitigating Factors A. Mitigating Factors [ 18 ] CRN was 18 years old at the time of this offence.

He is now 20 years old. He comes before the Court with no previous convictions. He is employed; has family support; and appears to be involved in a healthy and stable relationship. These are not mitigating factors per se but are factors for me to consider, particularly in relation to the principle of exercising restraint in sentencing. [ 19 ] There is no dispute that CRN was young and immature at the time of this offence. His lack of maturity and insight were apparent through his testimony at trial and continued to be apparent through his comments as reflected in the pre-sentence report (PSR).

I am satisfied that his youth and immaturity operate to mitigate his moral blameworthiness to some extent: R v KS , 2023 ABKB 363 , at paras 46-49 . B. Aggravating Factors [ 20 ] CRN did not plead guilty; he was convicted at trial. This is not an aggravating factor; it is merely the absence of a mitigating factor. [ 21 ] CRN engaged in oral and vaginal sex with the Complainant. His actions were highly invasive in relation to her personal autonomy and dignity. The nature of this sexual touching falls within the category of “major sexual assault” and attracts a three-year starting point.

The seriousness of the offence is captured in the starting point; it is not double counted as a further aggravating factor. [ 22 ] Similarly, the inherent harm done to the Complainant and her family are reflected in the three-year starting point. They are not a further or additional aggravating factor. [ 23 ] The Complainant was in a bed at her friend’s house and highly intoxicated when CRN sexually assaulted her. She was in a vulnerable location and in a highly vulnerable state.

This is aggravating. [ 24 ] By engaging in unprotected vaginal intercourse, CRN exposed the Complainant to the risks of pregnancy and sexually transmitted infection. This is aggravating. VI. Circumstances of the Offender A. Pre-Sentence Report [ 25 ] Following CRN’s conviction at trial, I ordered the preparation of a PSR. CRN is currently 20 years old. He comes from a loving and stable family.

He was attending Red Deer Polytechnic and played on the college volleyball team, until being charged with this offence. [ 26 ] CRN is currently employed with a construction company and hopes to complete his carpentry ticket. He has a work history that is typical of someone his age. [ 27 ] CRN reported to being in a relationship with his girlfriend. He hopes to work and travel in his twenties, and then settle down and consider marriage and having a family in his thirties. [ 28 ] CRN demonstrated a lack of insight in relation to his offending behaviour and its impact on the Complainant.

While he offered, through the PSR, to apologize to the Complainant, if given the opportunity, he expressed and demonstrated no insight in relation to what impact his offending behaviour might have had on her. Instead, his focus in the PSR was on the negative impact these events have had on himself and on his family. [ 29 ] The author of the PSR only interviewed CRN’s mother. She described him in positive terms. [ 30 ] Overall, the PSR is neutral. B. Criminal Record [ 31 ] CRN has no previous convictions.

He has been on release, with conditions, for this offence since November of 2021, with no allegations of breach. VII. Relevant Law [ 32 ] The offence of sexual assault carries a maximum penalty of 10 years; there is no mandatory minimum penalty. Accordingly, a conditional sentence is legally available: CC 271; CC 742.1.

[ 33 ] The Alberta Court of Appeal has stated the starting point sentence for major sexual assaults is three years: R v Sandercock , 1985 ABCA 218 , at para 17 ; R v Arcand , 2010 ABCA 363 , at paras 170-171 . [ 34 ] The Supreme Court of Canada, in R v Friesen , 2020 SCC 9 , confirmed the gravity of sexual offences involving all victims in stating that the gravity and blameworthiness of sexual offending is magnified by offending against a child victim, but the fundamental wrongfulness, harm, and blameworthiness of sexual offences persists regardless of the victim’s age: Friesen at para 44 . [ 35 ] I am guided by the principles and purposes of sentencing found in CC 718 to 718.2. [ 36 ] The fundamental principle of sentencing is proportionality.

The sentence imposed must be proportionate to the gravity of the offence and the moral blameworthiness of the offender: CC 718.1 [ 37 ] For a major sexual assault, the primary sentencing objectives are denunciation and deterrence: CC 718(

a) and (b); Arcand , at para 274 ; R v Hajar , 2016 ABCA 222 , at para 2 . [ 38 ] When imposing a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, I must give primary consideration to the objectives of denunciation and deterrence: CC 718.04. [ 39 ] The Criminal Code also directs me to consider measures that assist in rehabilitating offenders and in providing reparations for harm done to victims or the community, and to promote a sense of responsibility in the offender: CC 718 (d)-(f). [ 40 ] The sentence I impose here should be similar to sentences imposed for similar offences committed by similar offenders: CC 718.2(b). [ 41 ] I should not impose a sentence of incarceration if less restrictive sanctions may be appropriate in the circumstances.

I should consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and are consistent with the harm done to the victim or to the community: CC 718.2(

d) and (e). [ 42 ] Sentencing is, at its core, an individualized process whose focus is primarily on the gravity of the offence and the circumstances of the offender. VIII. Analysis [ 43 ] The gravity of this offence is high. CRN engaged in oral and unprotected vaginal sex with the Complainant.

I have found the Complainant was in a vulnerable location and was in a vulnerable state due to her high degree of intoxication. [ 44 ] The gravity of the offence is further demonstrated through the Complainant’s victim impact statement and the profound impact this has had on her life. [ 45 ] This is a major sexual assault for which there is a three-year starting point. While starting points provide guidance to sentencing Courts, they are not de facto minimum sentences.

They do, however, provide further indication of the seriousness with which society and the Courts treat these offences. [ 46 ] CRN’s moral blameworthiness is also high. He knew that the Complainant was highly intoxicated. By engaging in unprotected vaginal sex, he exposed the Complainant to the risks of pregnancy and sexually transmitted infection. By his own admission, when “she didn’t say ‘no’, [he] kept going”. In so doing, CRN demonstrated a complete lack of regard for the Complainant’s wishes and for well-established principles concerning consent.

His moral blameworthiness is attenuated, somewhat, by his youth and immaturity. [ 47 ] When I consider the principle of parity, I find guidance in the following cases: [ 48 ] In R v Simkins , 2023 ABPC 30 , the offender was convicted at trial where consensual sexual touching became non-consensual fellatio. He was sentenced to two years less a day under the terms and conditions of a conditional sentence order.

The Court was satisfied that a conditional sentence would not endanger the safety of the community nor offend the principles of sentencing in this particular case. [ 49 ] In R v Hay , 2023 ABCJ 191 , the offender was acquitted at trial of sexual assault. The Court of Appeal overturned that acquittal and returned the matter to the trial court for sentencing. The offender and complainant met on a dating app; they were mature adults when they met and started dating. On the night of the offence, they were having consensual sex that included oral sex and vaginal intercourse.

At some point, the offender digitally penetrated the complainant’s anus; he later penetrated her anus with his penis. The complainant instantly got angry; the offender put up his hands and apologized. He did not use any lubricant or a condom; the complainant sustained a minor injury. The offender was sentenced to two years less a day, served under the terms and conditions of a conditional sentence order. [ 50 ] In R v TCF , 2022 ABKB 643 , the offender was convicted of sexual assault after he, and two other offenders, were involved in sexual activity with the 17-year-old complainant.

Their sexual activity included “rough sex and multiple partners”. The offender continued to have oral sex with the complainant after she revoked her consent, by making sounds that indicated that she was in pain. He took no steps to determine whether the complainant was consenting after this point and continued to have oral sex with her. [ 51 ] The Court found that the immaturity in reasoning and irresponsibility of younger offenders is a significant mitigating factor, relying on R v Scott, 2015 ABCA 99 .

The Court stated, “this is especially so in the circumstances of this case where T.C.F.’s decision to engage in the type of sexual activities in question and continue with them after consent had been rescinded showed clear immaturity and irresponsibility and a lack of empathy which most people will acquire through life experiences.” He was sentenced to two years’ incarceration. [ 52 ] In R v Abreha 2022 ABKB 830 , the offender was convicted of sexual assault by a jury. The facts involved a complainant and

offender who did not know each other well. On the night of the offence, they spent some time together, including at the offender’s home, where they consumed alcohol. The complainant passed out on the offender’s bed. She recalled her boots and pants being removed as she passed out. When she woke up, still drunk, the complainant knew the offender had done something to her. Five months later, the complainant learned she was pregnant and terminated the pregnancy. DNA testing confirmed the offender’s paternity.

The offender had no criminal record at the time he committed the offence but was sentenced for another sexual assault that he committed just prior to the second offence. While the sentencing judge could not impose a harsher sentence for this prior sexual assault, the Court could use the previous charge and the fact that he was on judicial interim release when he committed the second offence to assess the offender’s character, the likelihood of his rehabilitation, the need for specific deterrence, and any need to protect the public from him.

He was sentenced to 45 months’ incarceration. [ 53 ] In R v KS , 2023 ABKB 363 , the offender was convicted at trial. He and the complainant were both young and intoxicated at the time of the offence. The offender choked and slapped the complainant; he forcibly put his penis in her vagina and then in her mouth, without a condom. His penis was bleeding when it was in her mouth.

He was sentenced to four years’ incarceration. [ 54 ] From these authorities, I find the range of appropriate sentence here is from two years less a day, served under the terms and conditions of a conditional sentence, to four years’ incarceration. In coming to this range, I have considered only Alberta cases in which the offenders were convicted at trial of major sexual assaults. [ 55 ]

Section 742.1 of the Criminal Code directs that I may impose a conditional sentence where the sentence imposed is less than two years. This means that I may only grant a conditional sentence if the sentence imposed does not exceed two years less a day. [ 56 ] At the first stage, I must consider if a penitentiary sentence or probationary sentence are appropriate. If so, then a CSO is not available. Here, the starting point presumptively places this sentencing in the penitentiary range. Starting points are just that, a place to start.

From here, I must consider the relevant mitigating and aggravating factors. [ 57 ] In considering the appropriateness of a CSO, I must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing: CC 742.1(a). [ 58 ] CRN has no previous convictions and has been on release without allegation of breach for over two years. These factors attenuate the risk of reoffending. [ 59 ] Troubling for me from CRN’s testimony during trial was his obvious lack of understanding of the nature of consent.

The law is long settled that silence or acquiescence do not equal consent. I would have expected that CRN has heard this message at school and at home. CRN’s overall course of conduct, in continuing with his sexual advances, without any verbal consent and reliance only on his perceptions of the Complainant’s body language, demonstrates to me his fundamental lack of understanding of the principles of consent. [ 60 ] Perhaps more troubling to me, for the purposes of sentencing, is that the PSR does not reflect any greater insight or understanding around issues of consent.

Instead, CRN told the PSR author that he feels his side of the story was not heard in court and was not taken into account. It is precisely CRN’s side of the story upon which I found him guilty and continue to have concerns over his lack of understanding about his offending conduct. [ 61 ] CRN indicated to the PSR author his willingness to attend for sexual offender counseling, if ordered to do so.

The fact that he has not proactively engaged in any type of sexual education or counselling also leaves me with concerns over his understanding and awareness of his offending conduct. [ 62 ] CRN’s demonstrated lack of understanding of consent at the time of this offence, and his apparent continued lack of understanding, is a significant factor in my consideration of the appropriateness of a conditional sentence. IX.

Conclusion [ 63 ] Having found CRN guilty of an offence that attracts a three-year starting point; and having considered the relevant aggravating and mitigating factors; along with CRN’s lack of insight into his offending behaviour and lack of proactive steps to address his offending behavior, I am satisfied that a penitentiary sentence is appropriate.

Accordingly, a CSO is not available. [ 64 ] When I situate the circumstances of this offence and this offender within the appropriate sentencing range, I find the fit and proper sentence is two years incarceration, in a federal penitentiary, followed by two years of probation: CC 731(1)(b). [ 65 ] The terms of probation will include, in addition to the mandatory conditions found in CC 732.1(2)(a)-(c): i.

CRN will report to a probation officer within two working days of his release from custody and will continue to report thereafter when required by the probation officer and in the manner directed by the probation officer: CC 732.1(3)(a)(i). ii. CRN will abstain from communicating, directly or indirectly, with the Complainant, CC 732.1(3)(a.1). iii. CRN will perform 240 hours of community service, to be completed within the first 18 months of the Probation Order: CC 732.1(3)(f).

I direct that at least half of these hours be served in an area of promoting awareness of sexual education and consent in sexual interactions. He will provide his Probation Officer with proof of completion of these community service hours within one month of their completion. iv. If CRN agrees, and subject to his acceptance into a program, he shall actively participate in a treatment program approved by his Probation Officer, specific to sexual offenders: CC 732.1(3)(g).

He will sign any necessary releases and waivers and will provide proof of completion of such counselling to his Probation Officer. [ 66 ] To my mind, this sentence strikes the appropriate balance between the need for denunciation and deterrence and the obvious

need for rehabilitation and reparations to the community. X. Ancillary Orders [ 67 ] Pursuant to CC 109, CRN will be subject to a mandatory weapons prohibition for 10 years. [ 68 ] Pursuant to CC 487.051(1), CRN will provide a sample of his DNA in Form 5.03. [ 69 ]

Section 737 of the Criminal Code imposes a victim fine surcharge of $200. Under CC 737(2.1), I can order that CRN pay no victim fine surcharge if I am satisfied that it would cause undue hardship. Given that CRN will be incarcerated for a period of time, and is otherwise of limited financial means, I order he not be required to pay a victim fine surcharge. [ 70 ] Pursuant to CC 743.21(1), CRN is prohibited from communicating, directly or indirectly, with the Complainant during any part of his custodial sentence. XI.

SOIRA Registration [ 71 ] The Crown requests that CRN register in the national sex offender registry ( SOIRA ), as required by CC 490.012(1). [ 72 ] CRN seeks an exemption on the basis that registration and the ongoing reporting requirements of SOIRA are grossly disproportionate in his circumstances: CC 490.012(3)(b). A. Previous SOIRA provisions found unconstitutional [ 73 ] In R v Ndhlovu , 2022 SCC 38 , the Supreme Court of Canada held the mandatory registration obligations found in CC 490.012 violated s 7 of the Charter and were of no force and effect by operation of s 52 of the Constitution Act .

The Court suspended its declaration of invalidity for one year, allowing Parliament an opportunity to implement legislative changes. B. Sentencing courts’ response to Ndhlovu [ 74 ] During the year in which the Court’s declaration of invalidity was suspended, various sentencing courts have considered individual exemptions, pursuant to s 24(1) of the Charter , primarily to exempt low-risk offenders from SOIRA’s registration and reporting requirements. C. Parliament’s response to Ndhlovu [ 75 ] Parliament responded to the Supreme Court’s decision in Ndhlovu with Bill S-12,

An Act to amend the Criminal Code , the Sex Offender Information Registration Act and the International Transfer of Offenders Act . Bill S-12 received Royal Assent on October 26, 2023. [ 76 ] Under the amended provisions, sentencing courts must make SOIRA orders when sentencing offenders convicted of a designated offence if: (

a) The designated offence was prosecuted by indictment; (

b) The sentence imposed for the designated offence is a term of imprisonment of two years or more; and (

c) The victim of the designated offence is under the age of 18 years: CC 490.012(1). [ 77 ]

Section 490.012(2) mandates SOIRA orders in other circumstances that do not apply to the facts before me. [ 78 ] Where the mandatory provisions do not apply, CC 490.012(3) states the court shall make a SOIRA order unless satisfied the offender has established that: (

a) There would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Act ; or (

b) The impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act . [ 79 ] Subsection (4) sets the factors the court must consider in determining whether to make an order under subsection (3): (

a) The nature and seriousness of the designated offence; (

b) The victim’s age and other personal characteristics; (

c) The nature and circumstances of the relationship between the person and the victim; (

d) The personal characteristics and circumstances of the person; (

e) The person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (

f) The opinions of experts who have examined the person; and

(

g) Any other factors that the court considers relevant. [ 80 ]

Section 490.0131 directs sentencing courts to give reasons for any decision made under CC 490.012(3) or CC 490.013(3)(b). D. Assessment of the new SOIRA provisions [ 81 ] The new SOIRA provisions came into effect approximately one month before this sentencing. Accordingly, there are few reported decisions applying the new legislative framework. 1.

No connection between making the order and SOIRA’ s purpose [ 82 ] The purpose of requiring offenders to register and report under SOIRA is to help police services prevent or investigate crimes of a sexual nature. [ 83 ] In Ndhlovu , the Supreme Court held that SOIRA’s mandatory reporting regime was overbroad to the extent that it captured offenders who are not at an increased risk of reoffending.

Registering offenders who are not at an increased risk of reoffending bears no connection to SOIRA ’s purpose: Ndhlovu , at para 79. [ 84 ] The majority explained, at para 85, that “no increased risk of reoffending” might be assessed by considering an offender’s personal circumstances.

Examples of factors that might predict increased sexual recidivism include “age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem solving”: Ndhlovu , at para 94. [ 85 ] In KS , Justice Feth (as he then was) declined to grant an exception due to a lack of evidence showing that KS was not at an increased risk to reoffend or of a low risk profile.

The Court noted that while the violent sexual assault appeared to be out of character, little explanation was provided for the underlying cause or whether KS had gained any insight about his behaviour: KS , at paras 111and 115. [ 86 ] In R v Sulub , 2023 ABKB 431 , Justice Leonard dismissed the offender’s application for an exemption.

The Court observed that to be exempted from SOIRA, “it is not absolutely necessary for the offender to demonstrate that he falls within the lowest 10% in terms of sexual recidivism risk or otherwise have personal characteristics that make him less likely to reoffend.” These were simply examples used in Ndhlovu to determine overbreadth: Sulub , at para 71 . [ 87 ] In dismissing Mr. Sulub’s application, the Court was mindful that he was a first-time offender, with community supports, and an ability to maintain employment.

Concerning, however, were the circumstances of the offence that included the complainant and offender being previously unknown to each other and the offence taking place late at night in the offender’s car, after the Complainant randomly waved down the offender. Justice Leonard found “this type of offence ...goes to the very heart of the purpose of SOIRA ”: Sulub at para 72 . [ 88 ] In R v AL , 2023 ABKB 505 , Justice Michalyshyn granted a SOIRA exemption, finding the offender proved he was not at an increased risk to reoffend.

In coming to this conclusion, the Court considered the expert report that had been provided, along with AL’s remorse and victim empathy: AL at paras 38 and 44 . [ 89 ] In R v Fagan , 2023 ONSC 823 , Justice Moore considered, at para 42, the following non-exhaustive list of circumstances when assessing the likelihood of rehabilitation and risk of re-offence in general: i. Does the offender have a criminal record? ii. Is the record for the same or similar offences? iii. Is the record recent or is there a large gap? iv. Does the offender have remorse for their offence? v.

Does the offender demonstrate insight into their offending behaviour? vi. Has the offender taken steps to address the behaviour or factors underlying the behaviour such as alcohol or substance use? vii. Does the offender have positive community support? viii. Is there any expert evidence of risk? ix. What is the offender’s age and physical health/mobility? x. Are there any unusual or atypical sexual interests or sexual preoccupations? xi. Is there lifestyle instability? xii.

Are there poor cognitive skills? [ 90 ] When considering the offender’s individual circumstances Justice Moore concluded he did not fall into a low risk to re-offend category or that risk of reoffending would be “remote” or “implausible” that his information will ever prove useful to the police: Fagan , at para 45 . 2. The impact on the offender would be grossly disproportionate to the public interest

[ 91 ] In Ndhlovu , after finding SOIRA ’s mandatory reporting conditions were overbroad, the Court held it was not necessary to decide whether they were also grossly disproportionate. The Court did not foreclose the possibility that SOIRA ’s effects may be grossly disproportionate to their purposes in some cases.

In so doing, the Court was mindful that SOIRA ’s impacts are considerable on all offenders: Ndhlovu , at para 116. [ 92 ] While the majority in Ndhlovu did not consider if SOIRA’s mandatory registration and lifetime reporting requirements were grossly disproportionate, the Alberta Court of Appeal, including Khullar JA, who dissented on the issue of overbreadth, found the registration and reporting regime was not grossly disproportionate and did not violate s. 7 of the Charter .: R v Ndhlovu , 2020 ABCA 307 at para 142 . [ 93 ] Since Ndhlovu , courts have generally cautioned that the standard for gross disproportionality is “stringent” and “stringent and demanding”.

It is not enough to find that an individual’s personal circumstances outweigh the public interest in SOIRA ’s reporting regime.

Instead, the impact on the offender must be grossly disproportionate to the public interest: AL at paras 13-15 ; R v JS , 2023 MBKB 26 at paras 13 -16; R v OR , 2023 MBKB 32 at para 14 ; R v Capot Blanc , 2023 NWTTC 7 at para 54 . [ 94 ] Justice Watt, in R v Debidin , 2008 ONCA 868 , said, at para 61: To rebut the presumption of a SOIRA order by establishing the exemption under s 490.012(4), the offender must establish more than a simple imbalance between the impact of the order on him or her and the public interest described in the subsection.

A simple preponderance of individual impact over public interest is not sufficient to rebut the presumptive effect... It is only where the balance reveals that the individual impact is grossly disproportionate to the public interest that the presumption... is rebutted. [ 95 ] In JS , the offender applied to terminate his SOIRA ongoing reporting obligations on the grounds they were grossly disproportionate on him. JS resided in a First Nations community. His annual SOIRA reporting required him to travel to a RCMP detachment 40 kilometers from his home.

He was unable to drive due to health issues and there were no means of public transportation available to him. His wife worked full time and was required to take time off from work each time JS was required to report. This created additional financial hardships for JS. If his physical condition worsened, or he was unable to secure a ride to the detachment, JS risked the consequences of non-compliance: JS at paras 3-6. [ 96 ] The Court noted that JS’s current circumstances made his continued reporting more onerous than was initially the case.

The likely progression of his disease would continue to impact his mobility. The Court was additionally mindful that the standard of gross disproportionality was high, requiring “a marked and serious imbalance between the objective of the legislation and the impact on the registrant.”: JS at para 21. [ 97 ] In terminating JS’s continued reporting obligations, the Court considered the offence, while serious, had been committed over 20 years earlier; the risk of recidivism was low; JS had a minor and unrelated criminal record; along with JS’s physical and financial hardships.

Justice McKelvey concluded that continued reporting “overshoots the purpose of the provision.”: JS at paras 22-25. 3. Is expert opinion evidence always required? [ 98 ] CC 490.012(4) lists the factors the court shall consider in determining whether to make an order under subsection (3). One of the enumerated factors is the opinion of experts who have examined the person: CC 490.012(4)(f). The question then arises as to whether expert opinion evidence is always required when an offender seeks a SOIRA exemption.

In my opinion, it is not. [ 99 ] The Supreme Court in Ndhlovu specifically turned its mind to using expert opinions when assessing risks. The Court stated at para 109: ...judges make risk assessments routinely, including those informed by expert assessments. Notwithstanding these assessments may not be certain, they are capable of being well informed by an individual’s personal circumstances and the best expert evidence.

Clearly, there are instances where a sentencing judge can reasonably conclude that it is remote or implausible that an offender’s information will ever prove useful to police. [ 100 ] Since Ndhlovu , courts that have considered granting exemptions under s 24(1) of the Charter have not insisted on expert evidence in all cases. [ 101 ] In JS , Justice McKelvey noted that “[a] risk assessment is one routinely made by sentencing judges that does not always require expert evidence”: JS at para 24. [ 102 ] Justice Michalyshyn, in AL , canvassed the caselaw and noted, at para 19, that “ Ndhlovu creates no absolute requirement of statistical or other expert evidence relating to proof that an applicant is not at an increased risk of reoffending.” Justice Michalyshyn noted that a lack of expert evidence regarding recidivism did not bar courts from considering an offender’s SOIRA application in other cases, including Sulub ; R v TS, 2023 ABKB 157 ; KS; Capot Blanc at para 27 ; R v Luis , 2022 CM 4016 at para 126 ; and R v Cusick , 2022 ONCJ 590 at para 122 . [ 103 ] In Hansard , the Hon.

Paula Simons explained that while there is a presumption that offenders will be included on the sex offender registry, the offender can challenge the registration.

Then the judge will decide whether placement on the registry is warranted, paying attention to factors including the nature and seriousness of the crime, the victim’s age and other personal characteristics, the nature of the relationship between the victim and the perpetrator, the accused’s own circumstances, whether or not the perpetrator has a criminal history and the opinions of expert witnesses: Canada, Parliament, Debates of the Senate , 44th Parl, 1st Sess, Vol 153, No 121 (9 May 3023) at 1540. [ 104 ] While not specifically addressed by Parliament, I am satisfied that expert evidence is not always required for applications under CC 490.012(3).

Such a requirement would be contrary to the realities of sentencing, as noted by the Supreme Court in Ndhlovu , that judges routinely make risk assessments that do not always require expert evidence.

[ 105 ] Such a requirement could additionally overwhelm the resources of service providers and may prove to be financially out of reach for many offenders. What’s more, a mandatory requirement for expert evidence could engage the Charter protected interests of offenders. E. Has CRN established a SOIRA order should not be granted? [ 106 ] I convicted CRN of sexual assault; this is a designated offence. I have sentenced him to two years’ incarceration.

Because the Complainant was over the age of 18 years, CRN is not captured by the new mandatory registration and reporting provisions: CC 490.012(1). [ 107 ] CRN asks that I not make a SOIRA order on the basis that the impacts would be grossly disproportionate: CC 490.012(3)(b). [ 108 ] The factors that I must consider have largely been reviewed in earlier portions of these reasons, very briefly: (

a) CRN engaged in non-consensual oral and unprotected vaginal sex with the complainant; this is a “major sexual assault”. (

b) At the time of the offence, the Complainant was 20 years old; she was a student at Red Deer Polytechnic; she also worked at the school gym. On the date of this offence, she was highly intoxicated. (

c) CRN and the Complainant knew each other as acquaintances from school. During the evening before and early morning hours of the date of this offence, they had spent time together, along with others, at a school basketball game, then at a bar, and later at a house party. CRN was sober and acted as the Complainant’s designated driver. After leaving the house party, CRN drove the Complainant to her friend’s house, where she planned to sleep. He followed the Complainant into the house, and into the basement, where the Complainant would be sleeping. The sexual assault happened in the Complainant’s bed, at a friend’s house. (

d) CRN was 18 years old at the time of the offence; he is now 20. He was a student at Red Deer Polytechnic and played on the school’s volleyball team. He was asked to leave the school, and the volleyball team, when he was charged with this offence. He had hoped to complete his education and become a teacher. Since being charged with this offence, CRN has been employed in the construction industry. To the PSR writer, he reported being in a stable relationship with his girlfriend. He has the love and support of his family. (

e) CRN has no previous criminal convictions and has been on release for over two years, since being charged with this offence, with no allegations of breach. (

f) There is no expert opinion evidence. (

g) Throughout his life, CRN has been involved in athletics, both as a participant and as a coach. Going forward in life, he would like to continue to pursue these activities. He is concerned that a SOIRA order would foreclose his ability to participate in coaching and teaching, an impact he submits is grossly disproportionate to society’s interest as achieved through the imposition of a SOIRA order. 1.

Is there “no connection” between making a SOIRA order and SOIRA ’s purpose? [ 109 ] In considering the “no connection” test, courts have focused primarily on whether the offender has demonstrated there is no enhanced risk of reoffending. [ 110 ] CRN is a youthful, first-time offender. He comes from a loving and supportive family and has otherwise engaged in pro-social activities, including enrolling in post secondary education, maintaining employment, and participating in organized sports as a player and a coach. He has filed a number of letters of support that generally speak to his good character.

He has been on release conditions for over two years, with no allegations of breach. [ 111 ] I have no evidence to suggest that CRN presents with any atypical or unusual sexual interests or preoccupations. He has a stable lifestyle. He does not have poor cognitive skills. [ 112 ] I have already expressed my concerns over CRN’s lack of insight into his offending behaviour and his lack of steps to address that behaviour.

What I have described as his basic lack of understanding on issues of consent may, in part, be explained by his youth and immaturity. [ 113 ] I have specifically tailored the sentence that I imposed to address my concerns over any potential risk of reoffending. By structuring CRN’s sentence in this way, I am confident that the lessons he will learn through counselling and community service will ensure that he poses no enhanced risk of reoffending. Without an enhanced risk, I am satisfied that requiring SOIRA registration and ongoing reporting for CRN bears no connection to SOIRA ’s purpose. 2.

Would the impact of a SOIRA order on CRN be grossly disproportionate to the public interest served by granting an order? [ 114 ] As stated, the standard of gross disproportionality is high, requiring a marked and serious imbalance between SOIRA ’s objectives and the impacts on the offender. The Court in Ndhlovu acknowledged that SOIRA ’s registration and ongoing reporting requirements are onerous for all offenders. This is particularly so where there is little risk of reoffending. [ 115 ] CRN seeks a SOIRA exemption on the basis that it would be grossly disproportionate.

He points to his youth, lack of criminal record, and the future impacts on his ability to engage in coaching and teaching activities. These impacts, on their own, do not establish a gross imbalance between the impacts on CRN and the public interest in granting an order. Instead, these are the types of impacts that many offenders would experience. [ 116 ] A SOIRA order would subject CRN to continuous disclosure and monitoring requirements for 20 years. I have imposed a

sentence that includes a period of probation that includes terms to address risk factors that may exist, including a requirement for appropriate counselling and community service work. [ 117 ] When I consider all these factors, I am satisfied that the impacts of a SOIRA order would be grossly disproportionate to the public interest that would be served by granting such an order. F.

Conclusion on SOIRA registration [ 118 ] Having found that granting a SOIRA order in these circumstances bears no connection to SOIRA ’s purpose and would be grossly disproportionate to the public interest, CRN’s application under CC 490.012(4) is granted. [ 119 ] I thank both counsel for their helpful submissions. Heard on the 1 st day of December, 2023. Dated at the City of Red Deer, Alberta this 8 th day of January, 2024 . Eleanor J. Funk J.C.K.B.A.

Appearances: Davin Mitchell for the Crown Richard Muenz for the Accused _______________________________________________________ Corrigendum of the Reasons for Sentence of The Honourable Justice Eleanor J. Funk _______________________________________________________ Para 2, line 2: R v CRN , 2023 ABKB 229