R. v. Bennett, 2021 NLSC 26

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bennett , 2021 NLSC 26 Date : February 24, 2021 Docket : 201908g0158 Her Majesty The Queen v. John George Bennett Restriction on Publication : By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Decision on Sentencing Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: February 10, 2021

Summary: The offender was sentenced for sexual assault by forcing anal intercourse with the victim. The offender maintained his innocence. He possessed no prior criminal history and his prospects for rehabilitation were reasonable. Taking into account the range of sentence for similar offences in similar circumstances, and given the significant amount of time spent in custody awaiting trial, the offender was sentenced to a further 90 days imprisonment and 18 months supervised probation with several ancillary orders to follow.

Appearances: Brandon G.W. Gillespie Appearing on behalf of the Crown Robert S. Roach Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Bennett, 2020 NLSC 147; R. v. Lacasse, 2015 SCC 64; R. v. A. (K.J.) (1988), (NLCA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. N.(T.), 2005 NUCJ 16; R. v. P.H., 2019 NLSC 154; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Anderson, 2018 NLCA 41; R. v. Tuglavina, 2011 NLCA 13; R. v. Zarpa, 2009NLTD 175; R. v. Wells, 2000 SCC 10; R. v. E.G.R., 2006 NLTD 84; R. v. Nadli, 2014 NWTSC 71; R. v.

Green (1998), (NL SC), 164 Nfld. & P.E.I.R. 261, 39 W.C.B. (2d) 80 (Nfld. S.C.(T.D.)); R. v. Noseworthy (1982), 40 Nfld. & P.E.I.R. 193, 9W.C.B. 91 (Nfld. C.A.); R. v. Freake, 2012 NLCA 10; R. v. Murphy, 2011 NLCA 16; R. v. Friesen, 2020 SCC 9; R. v. Marshall, 2019ONSC 6575; R. v. Rand, 2012 ONCA 731; R. v. D.D., 2015 ONSC 5865; R. v. Vachon, (28 February 2020), Happy Valley-Goose Bay,1717A00977, 1717A00929, 1717A00974, and 1718A00418; R. v. Morgan, 2020 ONCA 279; R. v. McKibbin, 2020 BCCA 337 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Mr. Bennett was convicted of sexual assault against L.H., after a trial by judge alone. This is the decision on sentence. [2] The evidence was reviewed in detail in the decision on verdict R. v. Bennett, 2020 NLSC 147. At paragraphs 2 and 3, Isummarized the circumstances as follows: 2. The incident occurred on the evening of November 26, 2017. The Complainant is aboriginal and from the community of N. Thetwo had been to a bar, returned home and commenced consensual vaginal intercourse.

According to the Complainant, the vaginalintercourse occurred in her room, and while she was laying on her back facing the Accused. The Accused then turned her around andbegan to penetrate her anus. The Complainant immediately pulled away and stated “No, I don’t do it that way”. The Accused obliged andthe Complainant returned to laying on the mattress, and the two resumed having vaginal intercourse. 3 The Accused then asked the Complainant to turn around again and this time, when she did, he held her by the hips and fullypenetrated her anus. He lay over top of her with his arms. She could not get away from him.

She stated “No” but the Accused did notstop. She eventually was able to turn to her side which resulted in the Accused stopping the intercourse. The Complainant went to thebathroom “to compose herself”. When she exited the bathroom she told the Accused to leave which he did. The Complainant was upset,crying and did not know what to do. She was concerned she may be bleeding. She telephoned a friend who encouraged her to call thepolice. She did call the police a couple of hours after the incident. Two officers arrived. They spoke with her and took her to a medicalclinic where she was examined by a nurse.

The officers observed that the Complainant was slurring her words and unsteady on her feet.She was reluctant to speak, being “cryptic” about what happened. She would not identify who sexually assaulted her, and referred to theincident as “it”. Because she had been drinking, the Complainant did not give a formal statement to the police until a day or two later. [3] The offender denied the allegation; although he testified he had no recall of the events. PRINCIPLES OF SENTENCING [4] The principles of sentencing are codified under the Criminal Code, R.S.C. 1985, c. C-46, at sections 718 to 718.2.

Section 718states: 718. Purpose

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [5] Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of theoffender, sometimes referred to as the level of “moral blameworthiness” of the offender, or the “proportionality principle”. Wagner, C. J.in R. v. Lacasse, 2015 SCC 64, explained the proportionality principle in sentencing, at paragraph 12: 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender.

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [6] The principle of proportionality includes a consideration of the kinds of sentences imposed for similar offenders in similarcircumstances. This is referred to as the “parity” principle and is codified under

section 718.2 (b): 718.2 (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [7] While parity is important, as stated by Wagner, C.J., in Lacasse, first and foremost, the sentence must “fit” the offender andthe circumstances. The fit or proportionate sentence must also reflect the fundamental principles under

section 718. It is ultimately anindividualized process. [8] Under sections 718.2 (

d) and (e), a court must consider also whether a lesser sanction than imprisonment may constitute the fitsentence. The sentence imposed must also promote respect for the law, and a just and peaceful society as stated in

section 718. [9] In R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.) at paragraph 32,the Newfoundland Court of Appeal provided useful guidelines in determining the appropriate sentence for sexual assault.

Theseguidelines assist how the sentencing judge gives effect to the principles codified in the Criminal Code and include, but are not limited to,the following: • The extent of the assault; • The degree of violence or force used; • The impact of the crime on the victim, family, and the offender; • The degree of trust; • Public abhorrence; and • The circumstances of the offender including his or her age, attitude towards the offence, his prospects for rehabilitation, and hisantecedents. [10] The considerations in A. (K.J.), as well as other considerations as they relate to the circumstances of this case, are addressedbelow.

The Extent of the Assault and the Degree of Violence Used [11] The offence of sexual assault under section 271(1) of the Criminal Code encompasses a broad range of conduct; includingforced anal intercourse. In these circumstances, L.H. was clear that while she consented to sexual contact insofar as vaginal intercoursewas concerned she did not consent to anal intercourse. Mr. Bennett ignored this explicit communication of a lack of consent byphysically restraining her and forcing his penis into her anus. I observed that L.H. was petite in stature and Mr. Bennett bigger and

heavy set. He was capable of overpowering her and he did overpower her to force her to have anal intercourse. This supports a serious view of this offence. The assault stopped because L.H. was able to extricate herself, but I also acknowledge that the assault lasted a matter of minutes, and to that extent the degree of violence was not as serious as in other circumstances. [ 12 ] The circumstances nonetheless show a lack of respect by Mr. Bennett for L.H.’s sexual integrity and personal dignity. In these circumstances, Mr. Bennett possesses a high degree of responsibility for this offence.

This was a violent assault. L.H. was entitled to have her wishes respected by Mr. Bennett. The sentence I impose must reflect this seriousness and his degree of moral responsibility. The Degree of Trust [ 13 ] Mr. Bennett was not in a position of authority toward L.H., nor was L.H. in a relationship of dependence upon the offender, as defined in the Criminal Code , but he was known to her as a friend, and to that extent she trusted that he would not abuse her. In that sense, Mr. Bennett violated L.H.’s trust (see R. v. N.(T.) , 2005 NUCJ 16 ).

Public Abhorrence of the Offence [ 14 ] The perpetration of violent sexual offences, as occurred here, is appropriately the object of public abhorrence. This abhorrence requires an emphasis on deterrence and denunciation. This is because the perpetration of this kind of violence is the antithesis of a just and peaceful society. As has been stated often by sentencing courts, but bears repeating, women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected.

This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact. [ 15 ] In support of the need for the emphasis on deterrence and denunciation, the Crown argued that this Court should also take judicial notice that aboriginal women are more likely to be sexually assaulted, as this kind of information is readily ascertainable from the Government of Canada. I do consider that the prevalence of sexual assault against aboriginal women in Labrador is a continuing and serious problem.

This is evident by the number of matters that come before this Court. [ 16 ] Having said that, as I stated in R . v. P.H ., 2019 NLSC 154 , I must be careful that Mr. Bennett is not sentenced as a statistic. He is an individual and his sentence must be tailored to his circumstances. The sentence must be proportionate not only to the gravity of the offence, but to his degree of responsibility and moral blameworthiness. The Impact on L.H. [ 17 ] L.H. prepared a victim impact statement. The statement was filed by consent and was read into the record by Crown counsel.

It is clear from her statement, that L.H. has suffered significant emotional and psychological impact from the trauma of the sexual assault. L.H. stated that Mr. Bennett “affected me in every way, physically, mentally and emotionally”. She stated that after the assault she was afraid to be alone, and took her son to a safe house. She also went to counselling for almost two months. She expressed fear of Mr.

Bennett even when initially speaking to the police, and continues to express fear of him. [ 18 ] The negative and long term impact on L.H. illustrates why this kind of violence is serious and requires a sentence that clearly expresses society’s abhorrence of this kind of criminal conduct. THE CIRCUMSTANCES OF THE OFFENDER

a) The Pre-Sentence Report [ 19 ] According to the Pre-Sentence Report (the “PSR”) filed by consent, Mr. Bennett has lived most of his life in Labrador and is Inuit. Although born in Barrie, Ontario he was raised in Labrador. He is now 38 years of age. He has two siblings. Both his parents were also from Labrador, as he believes were his paternal and maternal grandparents. He is aware that both his parents attended residential schools. His mother received monetary compensation for this. His father passed away six years ago, and his mother passed away more recently, in July of 2020. [ 20 ] Mr.

Bennett described his childhood as “rough and hard” and that he spent as little time at home as possible. He was not close to his siblings as a child. He also did not connect with his indigenous culture until adulthood. Although never married, he was in a relationship for eight to ten years. He has two children. [ 21 ] Mr. Bennett’s work history is positive. He attended a program with the Marine Institute and worked for thirteen years with the Nunatsiavut Group of Companies. He has also worked as a construction worker with the companies. He described his relationship with his employers as good.

Prior to being remanded into custody Mr. Bennett earned a seasonal income. Since being remanded into custody, Mr. Bennett described that he has amassed significant debt. [ 22 ] Mr. Bennett’s positive work history is mitigating, to the extent that it bodes well for his reintegration into society. I am taking this into account in determining the fit sentence.

b) The Role of Alcohol [ 23 ] Both parties had consumed alcohol on the evening the assault occurred. However, there is no evidence that Mr. Bennett has particular difficulties with alcohol consumption or abuse of other substances.

c) The Criminal History

[24] At the time of the commission of this offence, Mr. Bennett possessed no criminal history. He was released on judicial interimrelease when arrested for this offence; however was subsequently convicted of breaching the terms of that release by consuming alcohol. As the conviction for breaching the terms of his release occurred subsequent to the index offence, I view Mr. Bennett as a first timeoffender. This is a mitigating factor and I take this into account in determining the fit sentence in these circumstances.

d) The Attitude of the Offender [25] Mr. Bennett maintains his innocence. This he is entitled to do, and in no way can be considered an aggravating factor. Theauthor of the PSR described that when Mr. Bennett was asked about how he “feels about the matters before the court”, Mr. Bennettbecame “very agitated” and stated that “he lost all respect for the Court and the law”. This was repeated several times by Mr. Bennett. [26] He has no plans for when he is released from custody.

He fears he will be homeless, and that everything he has worked for isnow “gone”. [27] At the hearing, when given the opportunity to address the Court, Mr. Bennett expressed his frustration with having been incustody and the time it has taken for the matter to come to trial. This frustration was understandable. The arrival of the global pandemiccaused delay in many court proceedings, and Mr. Bennett’s matter did not escape this impact. He also expressed that he was not aviolent person. [28] The author of the PSR, after conducting a risk assessment, placed Mr. Bennett at a medium risk to re-offend.

SECTION 718.2(

e) CONSIDERATIONS [29]

Section 718.2(

e) requires that all available sanctions be considered as appropriate and relevant in the circumstances, taking intoaccount, in particular, Mr. Bennett’s indigenous circumstances and background.

Section 718.2(

e) states: 718.2 … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [30] In many circumstances, the background and circumstances of an indigenous accused has played a role in how that particularaccused comes to be before the court, and it is appropriate and necessary to acknowledge such circumstances as mitigating (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688). As stated in Gladue (at paragraph 80): 80.

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offenderand his or her community? What combination of systemic or background factors contributed to this particular offender coming beforethe courts for this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse inthe community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter ordenounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals betterachieved through healing? What sentencing options present themselves in these circumstances? [31] In this case, as stated, Mr. Bennett identifies as Inuit. As stated in R. v.

Anderson, 2018 NLCA 41 (at paragraph 43), “the Courtis required to be conscious” of these systemic realities of aboriginal communities in finding the fit sentence (see Anderson, also atparagraph 30). [32] However while his upbringing and circumstances were described as “rough”, Mr. Bennett has become a contributing andproductive member of his community. He has been fortunate in that regard. Although he did not embrace his Inuit heritage untilbecoming an adult, this does not mean that he has escaped those systemic influences that have caused many indigenous persons to bebefore the criminal courts.

For example, as was noted, both of his parents attended residential schools. I take into account his aboriginalbackground in Labrador in fashioning the fit sentence. [33] I have also taken into account that L.H. is part of that indigenous community. She is entitled to the same protection from thelaw as any citizen of this country (R. v. Tuglavina, 2011 NLCA 13 at paragraph 45).

As pointed out in Gladue at paragraph 79, while acourt must exercise restraint in the sentencing of aboriginal offenders, as a practical reality, the more serious the circumstances of anoffence, the less weight may be accorded such indigenous considerations in mitigation of sentence: 79. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered.

In somecircumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. (See also R. v. Zarpa, 2009 NLTD 175 at paragraphs 35 and 36, citing R. v. Wells, 2000 SCC 10 at paragraph 42; and R. v. E.G.R., 2006NLTD 84, at paragraph 18). [34] In R. v.

Nadli, 2014 NWTSC 71, in taking into account that the offender was aboriginal, and that his background revealed thetragic systemic influences typical to the circumstances of aboriginal persons, Charbonneau, J. stated at paragraph 60:

60. His victim is an aboriginal woman with struggles of her own. This offence took place on the Hay River reserve, an aboriginalcommunity. Mr. Nadli's community is an aboriginal community.

The principle of restraint is important and it is particularly importantwhen dealing with aboriginal offenders, but Courts must be cautious not to apply that principle in a way that results in the people wholive in those aboriginal communities not being adequately protected, or in a way that fails to reflect the seriousness of the harm that isdone to them when crimes are committed in their communities. [35] The above comments in Nadli are apposite here. RANGE OF SENTENCE AND POSITION OF THE PARTIES [36] The maximum available sanction for sexual assault under the Criminal Code is 10 years incarceration.

For offences involvingfull intercourse, it is often stated that the starting point for such sentences is three years incarceration which is then adjusted according tothe aggravating or mitigating factors. [37] The Crown submits the appropriate sentence in this case is a period of imprisonment of 3 and 1/2 half years, stressing the needfor deterrence and denunciation. The Crown submits the range for sexual assault where the offence is forced anal intercourse isgenerally between 3 and 4 years. The cases provided by the Crown support this position. [38] Counsel for Mr.

Bennett submits the appropriate sentence is time served taking into account that this will be Mr. Bennett’s firstperiod of lengthy incarceration, and the amount of time he has already spent on remand which, counsel submits, because of thepandemic, has been more onerous. Counsel also submits Mr. Bennett’s circumstances as an aboriginal person need to be acknowledgedin addressing his overall moral blameworthiness. Unfortunately, no cases were provided that imposed a period of imprisonment of lessthan 3 years, which is the time period Mr.

Bennett has already spent on remand. [39] In assessing the cases discussed below, it is important to remember that sentencing ranges are just that, ranges. They are notfixed points or “straightjackets” from which a sentencing judge may never deviate (Lacasse, at paragraph 57). I have reviewed all thecases provided by counsel and they are discussed below. [40] In E.G.R., the offender was a young aboriginal man, 22 years of age. He was sentenced to three years for a violent rape of thevictim. She was 16 years old at the time. The sexual assault stopped only because a passerby intervened.

The sentencing judgedescribed the range of sentence for similar offences between 3 and 7 years, referring to R. v. Green (1998), (NL SC),164 Nfld. & P.E.I.R. 261, 39 W.C.B. (2d) 80 (Nfld. S.C.(T.D.)) which at paragraph 16, in turn referred to the Newfoundland andLabrador Court of Appeal decision of R. v. Noseworthy (1982), 40 Nfld. & P.E.I.R. 193, 9 W.C.B. 91 (Nfld. C.A.). [41] Similar ranges have been reaffirmed repeatedly by the Newfoundland and Labrador Court of Appeal (see for example R. v.Freake, 2012 NLCA 10 at paragraph 23, and R. v. Murphy, 2011 NLCA 16; particularly at paragraphs 17-20).

In considering the kindsof sentences that have been imposed for sexual assaults involving intercourse, the court in Murphy recognized the difficulty in being toorestricted by ranges; and the need to ensure the sentence is appropriate to the circumstances. At paragraph 19 of Murphy, the Court ofAppeal stated: 19. One of the difficulties in setting ranges for sexual assault offences arises from the different circumstances in which they occur. Itis difficult to apply the same range simply on the basis that the assault involved sexual intercourse.

For example, a sexual assaultinvolving intercourse against a minor by a person in a position of trust will generally invite a more serious sentence. Differentconsiderations may be taken into account when the victim is unconscious as, for example, in R. v. Tuglavina, 2011 NLCA 13. Similarly,an assault against a spouse falls into a different category, as, for example, in R. v.

R.G. (2003) 2003 NLCA 73 , 232 Nfld. &P.E.I.R. 273 (NLCA). (These examples are intended only to demonstrate possible types of categories, not appropriate ranges ofsentence.) [42] The comments are concordant the direction from the Supreme Court of Canada in Lacasse, referred to at paragraph 5 of thisdecision. More recently, in R. v. Friesen, 2020 SCC 9, the Supreme Court also cautioned sentencing judges to be careful to notdetermine the sentence solely based on the kind of contact that occurred.

While the degree of physical interference is clearly relevant(see Friesen at paragraph 138), the fit sentence is not simply a function of the kind of sexual contact (see paragraphs 141-145). [43] Sentences in the range of 3 to 4 years imprisonment for forced intercourse have been similarly imposed in other jurisdictions. In R. v. Marshall, 2019 ONSC 6575, a 30 year old offender with mental health issues was sentenced to 3 years imprisonment for aviolent sexual assault of the 26 year old victim that included brief anal intercourse.

The offender was on probation at the time, andpossessed a previous criminal history that included offences of violence. Similar to the circumstances here, the offender and the victimknew each other since high school. Unlike the circumstances here, there was clear evidence that the offender was receptive tocounselling. He also had strong family support. [44] The presence of the previous violent history is a distinguishing feature, as is the offender’s attitude towards the offence inbeing receptive to counselling, but I find the circumstances otherwise similar to the present circumstances. [45] In R. v.

Rand, 2012 ONCA 731, a 4 year sentence of imprisonment was upheld on appeal on the offender for sexual assault. The offender had met up with the victim at a concert. She was intoxicated and he and the co-accused sexually assaulted her by forcingunprotected intercourse with her, including anal intercourse. The victim’s memory of the assaults was not strong. She awoke at afriend’s house and had no idea how she came to be there. Both offenders were identified through the presence of their DNA. Theoffender possessed a previous violent history.

Rosenberg, J.A., speaking for the Court of Appeal stated at paragraph 19 that the sentencewas “well within the appropriate range”; given the circumstances. I find the circumstances more serious than the circumstances here.

[ 46 ] In R. v . D.D ., 2015 ONSC 5865 , Fairburn, J. (as she then was) imposed a total sentence of 3 years and 7 months imprisonment (after giving credit of 1 month) for an offender who committed two sexual assaults on his domestic partner, as well as uttering threats. Each sexual assault attracted a sentence of 3½ years imprisonment. Although the two had been in a relationship, by the time the assaults occurred the victim wanted the offender to move out. The first sexual assault involved the accused returning home after an evening of drinking.

The victim locked her bedroom door, but the offender demanded to be allowed into the victim’s bedroom. Fearing for her son, she allowed the offender into her room. He swore at her and forced vaginal and anal intercourse with her telling her that he was “going to dominate you today, bitch.” The second sexual assault occurred only two days later, again in the home. The victim was an immigrant and a single mother. [ 47 ] Fairburn, J. found that the fact that the offender was the domestic partner of the victim was a significantly aggravating factor. The offender possessed an unrelated record.

He had never served a period of custody longer than 15 days. The offender also had a troubled past, that involved drug use. He accepted no responsibility for what happened. I find the circumstances of the sexual assaults in D.D. similar to what happened in the present circumstances. However, the previous criminal history and aggravating factor of the victim being the domestic partner of the offender at the time are distinguishing factors. [ 48 ] Crown counsel also provided the decision of Harris, P.C.J. in R. v.

Vachon , (28 February 2020), Happy Valley-Goose Bay, 1717A00977, 1717A00929, 1717A00974, and 1718A00418 , in which Mr. Vachon was sentenced to 3 years imprisonment for having sexual intercourse with a female victim who was intoxicated and unconscious at the time. Mr. Vachon was 62 years old. The circumstances of the assault and the offender are different; however Vachon is an illustration of the sentencing judge’s assessment that the imposition of 3 years sentence is the fit sentence.

THE FIT SENTENCE IN THESE CIRCUMSTANCES [ 49 ] As discussed earlier, there is a need for an emphasis on denunciation and deterrence for this kind of offence. The level of violence, the emotional harm suffered by L.H., and the prevalence of this kind of crime, not only in this community, but generally require a serious response by the Court. [ 50 ] I also consider that Mr. Bennett seems to show a lack of insight into the wrongfulness of the conduct, and an unwillingness to take responsibility because of little recall as to the events. Mr. Bennett exhibits no remorse for his conduct.

The absence of remorse is never an aggravating factor, but the presence of remorse can be a significant mitigating factor. Its presence can be mitigating because it is an indication of a willingness to take responsibility, which in turn can be a strong indication of an offender’s prospect for rehabilitation. Mr. Bennett does not have the benefit of this mitigating factor. [ 51 ] However, there are other factors in mitigation present in these circumstances. In mitigation, I am giving weight to the positive antecedents of Mr. Bennett. I am also giving weight to Mr.

Bennett’s circumstances as an aboriginal offender, and the role the systemic influences may have played in his being before the Court. Even with those systemic influences, his prospects for rehabilitation and re- integration into his community are reasonable. But it will be important for Mr. Bennett to address his attitude towards his intimate relationships. This is where supervised probation may be a positive tool for Mr.

Bennett. [ 52 ] Balancing the mitigating and aggravating factors in these circumstances, and considering the range of sentence as stated in the Criminal Code and as interpreted in the jurisprudence reviewed above, the fit sentence for sexual assault in these circumstances is the lower range of 3 years imprisonment. The time spent in custody on remand [ 53 ] Under

Section 719 of the Criminal Code , the sentencing court may take into account the time an offender has spent in custody on remand in fashioning the fit sentence. Mr. Bennett has been in custody pending resolution of this matter and it is appropriate to take that time into account. The time spent in custody was calculated using a ratio of 1 to 1.5. The time provided by counsel varied slightly. [ 54 ] I have reviewed the record and have calculated the remand time as follows: I will allow 1 day, for his first appearance in court while under arrest in November of 2017. In the spring of 2019, Mr.

Bennett was remanded back into custody. Although the Information records the date of cancellation of Mr. Bennett’s release order as May 2, 2019, I accept his counsel’s submission that he was in custody as of April 29, 2019. This date was not disputed by the Crown. [ 55 ] From April 29, 2019 to April 28, 2020 is 366 days (2020 being a leap year). From April 29, 2020 to December 31, 2020 is another 248 days, and from January 31, 2021 to February 24, 2021 is a further 55 days, for a total remand time of 670 days.

Multiplying 670 by 1.5 results in remand credit of 1005 days. 1005 days is the equivalent of 2 years and 275 days. Another 90 days incarceration would bring the sentence to 3 years. [ 56 ] Given this, and taking into account the aggravating and mitigating factors, including that Mr. Bennett is a first time offender and has otherwise been a law abiding citizen, I am satisfied that in these particular circumstances a further period of incarceration of 90 days, coupled with 18 months probation, adequately addresses the need for deterrence and denunciation.

Taking his time on remand into account, a further 90 days imprisonment effectively puts the sentence at 3 years. [ 57 ] Although counsel for Mr. Bennett submitted that the circumstances of remand were more onerous with the advent of the COVID-19 pandemic, and this should be a further mitigating factor to reduce the sentence, there was no evidence before the Court explaining how this was so. [ 58 ] I have no difficulty accepting that the circumstances of incarceration are difficult, and have not been made any easier with the advent of the pandemic.

The Court can certainly take judicial notice of the pandemic and its general impact (see for example, R . v . Morgan , 2020 ONCA 279 , per Nordheimer, J.A. at paragraph 18). [ 59 ] But if Mr. Bennett intended to assert that the presence of the pandemic has adversely affected his particular time spent on remand, or that his particular circumstances warrant further mitigation in sentence in light of the pandemic, some evidence to support the

assertion would have been helpful. For example, in R . v . McKibbin , 2020 BCCA 337 , although the sentencing judge made no error in sentencing an offender to six months in prison, on appeal there was fresh evidence before the appellate court, that showed that the offender had a serious underlying respiratory condition that put him at significant risk of death if he were to contract COVID-19.

The British Columbia Court of Appeal was satisfied that if this evidence had been placed before the sentencing judge, the result may have been different. [ 60 ] In these circumstances, I am not satisfied I can simply take judicial notice that the pandemic has made remand time for Mr. Bennett more onerous such that what would otherwise be the fit sentence should be reduced. I do take into account that Mr.

Bennett is a first time offender, that he has been well behaved while in custody, and has been in custody awaiting trial a long time. [ 61 ] Taking into account the time on remand, I am satisfied that a further 90 days in custody, coupled with a period of supervised probation of 18 months is the fit sentence in these circumstances. [ 62 ] Supervised probation is warranted in these circumstances to assist Mr. Bennett in his rehabilitation by attending such programming as is recommended by his probation officer, particularly programming that addresses attitudes towards personal relationships. [ 63 ] Mr.

Bennett is required to report to a probation officer upon release and thereafter as required until his period of probation is completed. He is to take such programming as is recommended by his probation officer. He is to keep the peace and be of good behavior, and he is to have no contact or communication either directly or indirectly with L.H. ANCILLARY ORDERS Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [ 64 ]

Section 271 of the Criminal Code is a primary designated offence under

section 487.04 (a)(xi.3). As a primary designated offence, a DNA Order is mandatory under

section 487.051(1). It is ordered that a peace officer be authorized to take or cause to be taken from Mr. Bennett, the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer. Firearms’ Prohibition [ 65 ] Section 109(1) (

a) of the Criminal Code requires a mandatory prohibition where the conviction for the indictable offence is ten years or more, and I order that such is imposed in this case. Mr. Bennett is prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition, and explosive substance for a period of ten years upon release from imprisonment. Order to Comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 ( SOIRA ) [ 66 ] Under

section 490.011(a)(xvi),

section 271 of the Criminal Code is a designated offence.

Section 490.012(1) requires an offender be subject to the SOIRA and an Order in Form 52 for a designated offence. I order that John Bennett is subject to such an Order for a period of twenty years, as per

section 490.013(2)(b). Order under

Section 743.21 [ 67 ] Further, I order that while serving the custodial portion of his sentence, under

section 743.21 of the Criminal Code Mr. Bennett is prohibited from contacting or communicating with the victim, L.H. CONCLUSION [ 68 ] For committing the offence of sexual assault against L.H., and taking into account the amount of time spent in custody, Mr. Bennett is sentenced to a further period of incarceration of 90 days, followed by 18 months supervised probation. The ancillary orders as discussed above, are imposed accordingly. _____________________________ Frances J. Knickle Justice