R. v. Cook (N.), 2014 MBCA 29

Citation: R. v. Cook (N.), 2014 MBCA 29 Date: 20140313 Docket: AR 13-30-07976 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : ) T. L. Mariash HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent - and - ) ) ) Appeal heard: NORMAN HAROLD COOK ) February 5, 2014 ) (Accused) Appellant ) Judgment delivered: ) March 13, 2014 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). MAINELLA J.A. I. INTRODUCTION AND ISSUES [ 1 ] The central dispute in this appeal is over the range of sentence for a kidnapping where the victim was sexually assaulted during her captivity. [ 2 ] After a trial before a judge alone, the appellant was convicted and sentenced as follows: kidnapping ( s. 279(1) of the Criminal Code (the Code )) – nine years’ imprisonment; sexual assault ( s. 271 of the Code ) – seven and one-half years concurrent; and overcoming resistance to commit an offence by choking ( s. 246 (

a) of the Code ) – one and one-half years , consecutive to the sexual assault, but concurrent to the kidnapping. [ 3 ] Appropriate credit was deducted from the nine-year sentence for pre-trial custody, leaving the appellant with a sentence of seven years, eight months to be served from the date of sentencing. [ 4 ] The appellant requests that his sentence be varied on appeal to one of between five to six years’ imprisonment, less credit for pre-trial custody. [ 5 ] Two grounds of appeal merit consideration. [ 6 ] Counsel for the appellant argues that the appellant’s nine-year sentence is so harsh that it is demonstrably unfit.

He says the sentence is clearly outside the appropriate range of four to eight years and is disproportionate to sentences for similar offenders committing similar offences. [ 7 ] Counsel for the appellant also says that the judge erred in principle in arriving at the nine-year sentence by taking into

account irrelevant circumstances as aggravating factors; namely, the absence of remorse and the trauma caused to the victim by havingto testify at the preliminary inquiry and trial. [8] Leave to appeal sentence was previously granted by a judge of this court sitting in chambers. With the exception ofvarying the appellant’s sentence for sexual assault from seven and one-half years to six years’ imprisonment, to be served concurrently tothe nine-year kidnapping sentence, the appeal is dismissed for the following reasons. II.

BACKGROUND Circumstances of the Offences [9] The victim, a woman in her early 40s, was walking alone on Main Street in Winnipeg in the early hours of August 20,2011. At the time, she was recovering from significant injuries sustained several months earlier.

Her right arm was in a cast and she wasusing crutches. [10] The appellant, who was a stranger, followed the victim and then attacked her by putting his arm around her neck in whatthe victim described as a “sleeper hold.” He then forcibly dragged her to a nearby residence. [11] Once inside the residence, the appellant forced the victim into a bedroom where she was confined. The appellantbarricaded the bedroom door by pushing a fridge in front it.

The appellant then ripped the victim’s pants off and sexually assaulted herfor several hours by forcing fellatio, penetrating her vaginally and attempting anal intercourse. During the sexual assault, he slapped andstruck the victim to get her to cooperate. He also repeatedly choked her, with both hands around her throat for the purposes of subduingher, to the point that she began to lose consciousness at times. The victim unsuccessfully attempted to escape twice. On the thirdattempt she succeeded.

The police found her a few blocks from the residence, naked from the waist down and in severe emotionaltrauma. [12] The incident has had a crushing effect on the victim. She continues to suffer from fear, humiliation and an inability tohave personal relationships with men due to the kidnapping and sexual assault. The incident also aggravated her prior physical injuries. Circumstances of the Appellant [13] The appellant is 41 years old and is aboriginal. He has a lengthy criminal record, primarily for property crimes,assaultive behaviour and breaching court orders.

This was his first conviction either for a kidnapping or a sexual offence, and also hisfirst penitentiary sentence. His longest prior period of incarceration was a one-year sentence in 1999 for assault with a weapon and theft. [14] The appellant expressly waived the necessity of a Gladue report at sentencing (R. v. Gladue, (SCC),[1999] 1 S.C.R. 688 at 737-39). Counsel further conceded that, despite his client’s traumatic upbringing and difficulties with alcohol,which counsel detailed to the judge in his sentencing submissions, a proper application of s. 718.2(

e) of the Code in the circumstanceswould necessitate a lengthy prison term for his client. Decision of the Judge [15] The judge treated the offences as one incident mindful that the maximum sentence for sexual assault was ten years’imprisonment, while the maximum sentence for the offences of kidnapping and overcoming resistance to commit an offence by chokingwere each life imprisonment.

He stated (at para. 8): In the end result, in this case I consider the kidnapping to be the overarching charge that subsumes the sexual assault and choking, whichare independent criminal offences, albeit born out of the same factual scenario.

Therefore, to properly reflect the appropriate sentencefor each offence I will impose concurrent sentences for the kidnapping and sexual assault offences, but considering the gravity of thechoking offence it will attract a consecutive sentence to the sexual assault yet concurrent to the kidnapping. [16] In discussing the range of sentence, the judge commented that a kidnapping and a major sexual assault (as defined in R.v. Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382 at para. 13 (C.A.)) are “grave co-offences” (at para. 12), warranting alonger sentence than for sexual assault alone.

He stated (at para. 15): Clearly a six-year sentence for a violent sexual assault (s. 271) involving various sexual acts and brutality is within the range ofappropriate sentence. This may go up depending on other aggravating factors, for example the duration and nature of the violence andsexual acts or high risk to reoffend. Obviously a sentence for sexual assault cannot exceed the maximum 10-year sentence prescribed bylaw.

However, findings of guilt respecting additional charges such as choking or kidnapping change the maximum potential sentenceand thereby reflect the increased gravity and moral blameworthiness of the criminal activity, even where the sentences may beconcurrent. [17] The judge determined there was little in the way of mitigating factors to temper sentence, save that a weapon was notused and the crime was not well planned, and the appellant was intoxicated and acted when he saw an opportunity for sexualgratification because the victim was vulnerable. [18] The judge stated the aggravating factors to consider in determining sentence to be as follows (at para. 18):

.... (1) the kidnapping off of a public street of a stranger, a vulnerable woman who was obviously suffering from other injuries at thetime; (2) the prolonged time of the event, several hours; (3) the nature of the sexual assault including the various attempted sexual acts and the accompanying unnecessary physical violence; (4) the choking of the victim to attempt to facilitate the sexual assault; (5) the long-term physical and psychological injuries suffered by the victim during the assault; (6) the absence of any remorse or acceptance of responsibility by [the appellant]; and (7) the aggravation of the trauma this victim suffered by having to testify at the preliminary inquiry and trial. [emphasis added] [19] The judge determined that, while there may be worse examples of sexual assault and kidnapping, this was a situationwhere a sentence should emphasize deterrence, denunciation and retribution.

He stated (at para. 21): It is hard to imagine a more chilling scenario for a woman than to be dragged off of a street, forcibly held and raped and choked until sheis able to escape half naked. It is a vile, sordid assault that must be clearly condemned. It is deserving of not only denunciation anddeterrence, but of retribution or punishment (R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C.81; 120 W.A.C. 81; ; [1996] S.C.J. No. 28) for it is conduct that is shocking and offensive to society’s, and a woman’s,basic right and expectation of safety and to be treated with simple humanity or decency.

At the same time, the sentence cannot bevengeful; it must be balanced and proportionate. Position of the Appellant Alleged Unfit and Excessive Sentence [20] Counsel for the appellant argues that the appellant’s sentence is demonstrably unfit because it is clearly excessive. Hesays the case law supports a range of sentence for the offences of four to eight years, not nine years (R. v. Sinclair (J.G.), 2010 MBCA105, 262 Man.R. (2d) 23; R. v.

Traverse (L.) et al., 2008 MBCA 110, 231 Man.R. (2d) 123 (hereinafter referred to as Ladouceur); R. v.Blair (D.) et al., 2007 MBQB 287, 221 Man.R. (2d) 230, affirmed 2008 MBCA 68, 228 Man.R. (2d) 143; R. v. Beardy (J.A.) et al., (MB KB), 2012 MBQB 4, 273 Man.R. (2d) 147; and R. v.

Latreille, 2009 BCSC 1892 (QL)). [21] Counsel for the appellant argues that the kidnapping was at the lower end of the spectrum because of the followingcircumstances: it did not involve a weapon; it did not involve gang activity; it was relatively brief in duration; it involved one accusedrather than many; it was a crime of opportunity committed spontaneously; the amount of violence used was comparatively little; and thevictim’s forcible movement was only a brief distance.

Counsel submits that the end result is a disparate sentence that offends s. 718.2(b)of the Code when compared to the sentence imposed in Ladouceur. Alleged Errors in Principle

[ 22 ] Counsel for the appellant also argues the judge arrived at the nine-year sentence by improperly considering as aggravating factors that the appellant was without remorse and the victim had to go through the trauma of testifying twice. Position of the Crown [ 23 ] The Crown argues that, while the nine-year sentence was significant, it was also proportionate because of the seriousness of the offences and the high degree of moral culpability of the appellant.

It says the sentence is not clearly excessive, therefore, deference should be shown to it. [ 24 ] The Crown concedes that the judge considered irrelevant matters as aggravating factors for the purpose of sentence. A plea of guilty can be considered in mitigation as evidence of remorse, however, the reverse is not true; proceeding to trial cannot be considered as a lack of remorse to aggravate sentence ( R. v. Wishlow (A.C.) , 2013 MBCA 34 at para. 3 , 291 Man.R. (2d) 149 ).

In a similar vein, while saving a complainant from having to testify and publicly detail their victimization can be considered in mitigation of sentence, a sentence cannot be aggravated simply because an accused maintains the presumption of innocence and requires the Crown to prove its case (see Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012) at 333-37). [ 25 ] Nevertheless, the Crown argues these errors of the judge are harmless to the outcome.

It submits that this was a clear case where any resulting sentence would be informed by consideration of the principles of deterrence, denunciation and retribution. III. DISCUSSION Standard of Review [ 26 ] Great deference is owed by an appellate court to a judge’s sentencing decision. Variation of a sentence pursuant to s. 687 of the Code is limited to the situations of the sentence being arrived at due to an “error in principle,” or it being “demonstrably unfit” ( R. v. L.M. , 2008 SCC 31 at para. 14 , [2008] 2 S.C.R. 163 ). In R. v.

Ruizfuentes (H.S.) , 2010 MBCA 90 , 258 Man.R. (2d) 220 , Chartier J.A. (as he then was) explained these two situations this way (at para. 7): .... An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. .... “Unreasonableness” or “demonstrably unfit” in the sentencing context refers to an order falling outside the “acceptable range” of sentences under similar circumstances. ....

Analysis Introduction [ 27 ] Sentencing an offender for separate serious offences in one inter-related incident, such as this case, is a difficult challenge. The sentence imposed must be proportionate taking into account the moral blameworthiness of the offender, the gravity of the offence(

s) and society’s censure for the criminal conduct and the harm caused ( R. v. Nasogaluak , 2010 SCC 6 at para. 42 , [2010] 1 S.C.R. 206 ). [ 28 ] The judge correctly began his sentencing analysis by determining whether any of the sentences were to be served concurrently or consecutively or a combination of both given that factually what occurred was “one single, continuous criminal transaction” ( R. v.

Wozny (C.P.) , 2010 MBCA 115 at para. 46 , 262 Man.R. (2d) 75). [ 29 ] The rationale of the judge to focus on the kidnapping offence as the “overarching charge” (at para. 8) was correct given the nature of the crime of kidnapping. [ 30 ] Kidnapping is a continuing offence. It is an aggravated form of unlawful confinement. The kidnapping began when the victim was forcibly taken on Main Street. It continued throughout the major sexual assault and accompanying choking. The kidnapping did not end until the victim’s unlawful confinement was over, when she escaped on her third try ( R. v.

Vu , 2012 SCC 40 at para. 25 , [2012] 2 S.C.R. 411 ). [ 31 ] The submission of the appellant that a nine-year sentence for kidnapping is demonstrably unfit raises two questions: (1) how is the assessment of proportionality affected by the fact a major sexual assault was committed during the kidnapping; and (2) what is the appropriate range of sentence for a kidnapping where a major sexual assault occurs during the victim’s unlawful confinement?

Assessment of Proportionality [ 32 ] Distinctions imposed by Parliament in the maximum punishments of different offences committed together in one incident must be given meaning in practice. Therefore, the assessment of proportionality in this case begins with the fact that the maximum sentence for kidnapping under s. 279(1.1) (

b) of the Code is life imprisonment, as opposed to the offence of sexual assault,

where the maximum sentence under s. 271 of the Code is ten years’ imprisonment. [33] As this court recognized in Ladouceur at para. 29, it is an error in principle to treat a kidnapping merely as anaggravating feature of a sexual assault for sentencing purposes as opposed to treating it as a separate serious offence. [34] A related concern is reconciling the question of proportionality with the “no free ride” principle. In R. v.

Lagimodiere(S.M.E.), 2008 MBCA 137, 231 Man.R. (2d) 261, Scott C.J.M. explained (at para. 26): .... … [W]hen dealing with an offender who commits multiple offences over a short period of time, a delicate balancing act is required sothat, while maintaining the essential principle of proportionality, the accused does not get a “free ride”. [35] Once the judge determined it was proper to impose sentences for the two other offences concurrent to the kidnappingsentence, he was entitled to impose a higher sentence for the kidnapping offence to reflect the fact that a number of separate seriousoffences were committed together (R. v.

Maroti (M.), 2010 MBCA 54 at para. 28, 255 Man.R. (2d) 115; R. v. Duerksen (J.A.), 2012MBCA 41 at para. 5, 280 Man.R. (2d) 84; R. v. Taylor (M.A.), 2010 MBCA 103 at paras. 12-13, 262 Man.R. (2d) 43; and R. v. G.W.R.,2011 MBCA 62, 268 Man.R. (2d) 204). In Wozny, MacInnes J.A. explained (at para. 70): As I have already stated, it is a legitimate sentencing requirement when imposing a concurrent sentence to impose a more severe penaltygiven multiple offences and their number than one might give for the same offence individually or as compared with a couple or a fewoffences. [36] In

summary, the judge was correct to see the sentence for kidnapping being longer than for the offences committedduring the kidnapping. The Vu decision makes it clear that the kidnapping began with the victim’s forcible taking, it continued duringher captivity while other serious crimes occurred, and it only ended upon her successful escape. The assessment of proportionality forthe purposes of s. 718.1 of the Code, therefore, had to take into account two features of this case. The maximum punishment for theprincipal offence at the core of the inter-related criminal event was life imprisonment.

As well, any sentence imposed for kidnappingshould be more significant due to the fact that the offences of sexual assault and overcoming resistance to commit an offence by chokingoccurred during the kidnapping and concurrent sentences for those offences were imposed.

Range of Sentence for a Major Sexual Assault, Overcoming Resistance to Commit an Offence and Kidnapping [37] In order to address the appellant’s argument that the sentence imposed was demonstrably unfit because it was outsidethe suggested range of sentence of four to eight years, it is necessary to consider what is the range of sentences for the offences for whichthe appellant was convicted.

i) Range of Sentence for a Major Sexual Assault [38] This court has consistently taken the view that the starting point for a single major sexual assault (as defined inSandercock) perpetrated on an adult victim by a mature accused with no criminal record and prior good character is three years’imprisonment (R. v. Price, (MB CA), [1990] 1 W.W.R. 37 (Man. C.A.); R. v. Cameron (1991), (MB CA), 75 Man.R. (2d) 290 (C.A.); R. v. Denny (E.L.) (1992), (MB CA), 81 Man.R. (2d) 264 (C.A.); R. v. Leyte(S.S.) (1996), (MB CA), 110 Man.R. (2d) 235 (C.A.); R. v. Borkowsky (H.), 2008 MBCA 2, 225 Man.R. (2d) 127; R.v.

L. (J.C.), 2009 MBCA 52; R. v. J.M.F., 2009 MBCA 109, 251 Man.R. (2d) 3; and R. v. Geary (R.), 2010 MBCA 33, 251 Man.R. (2d)258). [39] The ultimate sentence will be increased or reduced from that starting point, taking into account relevant aggravating ormitigating factors relating to the offence and the offender (s. 718.2(

a) of the Code, R. v. J.R.A., 2012 MBCA 48 at para. 5, 280 Man.R.(2d) 123). ii) Range of Sentence for Overcoming Resistance to Commit an Offence [40] The offence of overcoming resistance to commit an offence contrary to s. 246(

a) of the Code is a serious offence againstthe person. The offence has an ulterior purpose mental element requiring an accused to have the specific intent to commit an indictableoffence, such as a sexual assault, as the reason for attempting to choke, suffocate or strangle the victim (R. v. Manowar, 2010 ONCA 871at para. 14 (QL)). The gravity of the offence is reflected by the fact that the maximum punishment is life imprisonment. [41] The Alberta Court of Appeal in R. v.

Lemmon (J.D.), 2012 ABCA 103, 524 A.R. 164, explained that the reason why thisoffence attracts the same possible penalty as attempted murder and aggravated sexual assault is because of the possible risks ofattempting to choke, suffocate or strangle someone to facilitate a criminal objective and the inherent cruelty of such behaviour (at para.28): .… Rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easilycapable of causing death, or brain injury with devastating lifelong consequences.

See R v Horvath (1982), (ON CA),2 CCC (3d) 196 (Ont CA), R v Wallin, 2003 BCSC 809, and R v Muckle, (unreported. July 28, 2006, Alt. P.C.). The difference in the

outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure. In the finalanalysis, this is

an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm. [42] The authorities on overcoming resistance to commit an offence such as sexual assault by choking suggest offenders willreceive a significant sentence for such conduct either for the s. 246(

a) offence by itself, or in aggravation for the underlying offencemotivating the choking. [43] In R. v. Durack, [1989] M.J. No. 467 (QL) (C.A.), the court reduced a sentence for overcoming resistance to commit anoffence from 14 to ten years, concurrent to a ten-year sentence for sexual assault. The accused choked a woman he was visiting tofacilitate a sexual assault in the victim’s bedroom in the presence of her two young daughters. The accused had a lengthy recordincluding convictions for rape, sexual assault and other violent crimes.

The victim was not rendered unconscious and did not suffer anylasting physical injuries because of the choking. The court treated the choking aspect of the sexual assault as reason to uphold themaximum sentence for sexual assault, ten years. [44] In R. v. Quast (S.N.) (1993), (MB CA), 83 Man.R. (2d) 319 (C.A.), the court held that eight yearsfor an aggravated sexual assault, choking in furtherance of an offence, and anal intercourse, was fit. In terms of a range, the courtsuggested that the sentence would have been appropriate even if it had been slightly shorter or longer than eight years. [45] In R. v.

A.J.B., 2007 MBCA 95, 220 Man.R. (2d) 8, the court upheld an effective sentence of six years for a majorsexual assault where the accused choked and threatened his common-law wife to facilitate the sexual assault.

The victim was notrendered unconscious and did not suffer any lasting physical injuries because of the choking. [46] In Lemmon, the court surveyed sentencing precedents for overcoming resistance to commit an offence as follows (atpara. 32): In terms of the appropriate length of such a sentence, I note that in R v Robinson (1993), 1993 ABCA 91 , 135 AR 342 (CA),this court increased a sentence from two and one half years to four years imprisonment for an offender who had choked a woman tounconsciousness while attempting to steal her car.

In allowing the Crown appeal, the court noted that the sentence for the choking maywell have been five years had the Crown at trial not proposed a sentence of three to four years for that offence. In R v CLJ, 2011 ABCA321, the court upheld the imposition of a five-year consecutive sentence for the choking of a six-year-old child to facilitate a sexualassault. In R v DJD, 2010 ABCA 207, 487 AR 84, the court allowed a Crown appeal and increased the sentence for a prolonged andvicious assault by imposing a two year consecutive term for strangling.

Likewise, in R v Burlock, [1994] OJ No 3799, the Ontario Courtof Appeal allowed an appeal by directing that a three-year concurrent sentence be made consecutive to the seven years imposed for thesexual assault. Conversely, in R v Kraftchick (1991), 44 OAC 313, the Ontario Court of Appeal upheld a two year consecutive sentenceimposed for choking to facilitate a sexual assault.

The appellant had sought to have that sentence made concurrent to the three years hereceived for the sexual assault. [47] In my view, primary consideration should be given to the objectives of deterrence and denunciation in sentencing for theoffence of overcoming resistance to commit an offence. The possible range of sentence is wide depending on the manner in which theaccused is charged and, if it is with multiple offences, how the judge imposes sentence on the multiple offences committed together.

Ultimately, what is important is that the seriousness of the conduct done to attempt to overcome resistance be reflected in the offender’stotal sentence in a meaningful way, particularly if the victim is rendered unconscious or suffers bodily harm from the choking,suffocation or strangulation (Lemmon at paras. 29-31). iii) Range of Sentence for Kidnapping [48] It is well accepted that kidnapping is “a terrible and violent crime” (Ladouceur at para. 59). At its core, the crime is anattack on, and infringement of, the personal liberty of an individual (R. v. D. (1984), 79 Cr.App.R. 313 at 318 (H.L.); and R. v.

Pouliot(1985), (QC CA), 18 C.C.C. (3d) 566 at 569-70 (Que. C.A.)). Also, history demonstrates that a kidnapping is often aprecursor to other serious criminality once the victim is in captivity. For police, the challenges in solving such crimes are well known. As Moldaver J. noted in Vu (at para. 32): Movement is insidious because it removes the victim from his or her normal surroundings. Locating the victim becomes that much moredifficult. The police are deprived of the clues about the victim’s whereabouts that are generally available in straightforward cases ofunlawful confinement.

When a kidnapping occurs, the range of possible locations where the victim might be held captive increasesexponentially and the likelihood that the victim will be found and rescued diminishes accordingly. …. [49] Because kidnapping is a grave and heinous crime that can be difficult to solve, sentences must reflect society’s concernsabout, and contempt for, such interference in personal liberty and the resulting trauma.

The objectives of denunciation and deterrenceshould be given primary consideration in sentencing kidnapping offenders, particularly where the manner of the commission ofkidnapping creates fear to public perceptions of community safety; for example, in circumstances such as the abduction of a child or astranger for a violent purpose, such as a sexual assault, or a kidnapping done for profit. [50] Counsel for the appellant concedes that the judge did not err in also considering the principle of retribution, in addition

to the principles of denunciation, deterrence and rehabilitation in this case (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500at paras. 80-82). [51] While retribution will not be a factor in every kidnapping sentencing, depending on the severity of the kidnapping andthe moral culpability of the offender, it may be considered. I accept that the judge did not err in this case by considering the principle ofretribution in imposing the sentence. Retribution is a particularly relevant sentencing factor in cases where a victim is forcibly takenfrom the street by a stranger for the purpose of sexual assault.

Such a criminal act bears a high degree of moral culpability based on theintentional risks taken by the perpetrator, the harm to a victim by it, and society’s abhorrence of predatory behaviour (M. (C.A.) at paras.81-82). [52] In terms of the length of kidnapping sentences, it is well recognized that because there is a wide range in the seriousnessof kidnappings there is also a wide variety of sentences. [53] The range of sentence for the “classic” premeditated kidnapping for ransom, where the victim is confined for a lengthyperiod of time and where he or she is bound, gagged or blindfolded, is between ten years and life imprisonment (R. v.

Mills (D.J.) et al.(1998), (BC CA), 112 B.C.A.C. 283 at para. 17; R. v. Li (B.) et al. (2002), (ON CA), 156O.A.C. 364; R. v. Thind, 2013 ONCA 719 (QL); and R. v. Raber and Hedch (1983), 1983 ABCA 325 , 57 A.R. 360 (C.A.)). [54] In R. v. Abrosimo (B.E.), 2007 BCCA 406, 245 B.C.A.C. 180, the court considered an appeal of a 12-year sentence for akidnapping during which a major sexual assault of a young girl occurred. The accused argued that sentences of ten years or more arereserved for premeditated kidnappings for ransom.

In rejecting a strict category approach to sentences for kidnapping, Frankel J.A.stated (at para. 21): While this Court has held that sentences of 10 years or more are appropriate in ransom cases, it does not follow that such a sentence willbe inappropriate in other circumstances. Regard must be had to the nature of the crime, and the offender. [55] The court upheld the 12-year kidnapping sentence and a consecutive six-year sentence for an unrelated major sexualassault on an adult victim. [56] In R. v.

Deo (H.S.) et al., 2007 BCCA 626, 249 B.C.A.C. 167, the court again rejected the suggestion that there is onerange of sentence for premeditated kidnappings for ransom and another range for all other kidnappings. Finch C.J.B.C. stated (at para.13): Given the infinite range of personal circumstances of those convicted of kidnapping, and the infinite variety of circumstances that canoccur in the commission of the offence itself, it seems evident to me that the full spectrum of penal consequences should be open to atrial judge when sentencing for this offence.

Although this Court sometimes expresses views as to an appropriate range of sentence forcertain classes of offences, it has no mandate to exclude from consideration any sentence that is permitted by law under the CriminalCode. [57] The case law suggests that sentences for kidnappings that lead to a major sexual assault can result in sentences as high as12 to 18 years’ imprisonment where there are significant aggravating factors.

Those factors include: significant premeditation; the useof a firearm or extreme violence during the sexually motivated kidnapping; the length of the kidnapping and the nature of theconfinement; multiple victims; serious harm, cruelty or degradation to the victim; threats to the victim or others; or where the victim isparticularly vulnerable due to their personal circumstances (R. v. Schira (M.G.), 2004 ABCA 369, 357 A.R. 225; R. v. Dunseath (K.L.)(1993), 1993 ABCA 386 , 145 A.R. 284 (C.A.); R. v. Walker, [1985] O.J. No. 104 (QL) (C.A.); R. v. Davis (G.) et al. (1999), (ON CA), 117 O.A.C. 81; Abrosimo; R. v.

Collins (K.D.) (1997), 1997 ABCA 397 , 209 A.R. 220 (C.A.); R.v. Meigs (E.T.), 2007 BCCA 394, 245 B.C.A.C. 102; and R. v. Cormier (R.J.), 2012 NBCA 76, 393 N.B.R. (2d) 118, leave to appeal toS.C.C. dismissed, [2012] S.C.C.A. No. 562 (QL)). [58] The cases of R. v. B.A., 2013 SKCA 75, 417 Sask.R. 140 and R. v.

P.S., 2007 ONCA 299, 223 O.A.C. 293, representexamples of kidnappings where a major sexual assault occurred, but the sentences imposed were far less than that of a premeditatedkidnapping for ransom. [59] In B.A., the court upheld a sentence of five years for kidnapping and five years concurrent for sexual assault. Theaccused took advantage of a passed-out victim at a party. He put her in his car and then drove her to a field where he sexually assaultedher. There was no penetration. The sexual assault was brief in duration. When the victim awoke during the sexual assault, sheattempted to escape.

The accused initially resisted, but once she screamed he stopped and she escaped. [60] In P.S., the court upheld a sentence of 54 months for kidnapping and sexual assault. The accused kidnapped his formergirlfriend from her residence, took her to a field and sexually assaulted her. [61] In R. v. Newhook (A.C.), 2008 NLCA 28 at paras. 44-45, 276 Nfld. & P.E.I.R. 190, the court observed that, in cases suchas P.S. where the kidnapping arises out of a domestic dispute, the sentences vary greatly and do not resemble those of a premeditatedkidnapping for ransom.

[62] I agree with the comments of the court in Abrosimo and Deo that a pigeonhole approach to kidnapping sentencingshould be avoided. There is not one range of sentences for premeditated kidnappings for ransom and then a lower range for all otherkidnappings.

The sentencing judge must assess the circumstances of the particular kidnapping as to its gravity and the moralblameworthiness of the particular offender. [63] However, some consistency in approach to assessing the principle of proportionality where the victim has beenkidnapped and then sexually assaulted is necessary to ensure a degree of parity for similar offenders.

Rather than considering merely themotive of the kidnapper, it is also appropriate to consider criteria well recognized for the purposes of s. 718.1 of the Code, such as thenature and length of the confinement during the kidnapping and the gravity of the sexual assault. [64] As noted in Vu, kidnapping is an aggravated form of unlawful confinement (at para. 25). It is well recognized that thedefinition of unlawful confinement will capture a variety of situations of restraint of a victim, some more serious than others (R. v.Luxton, (SCC), [1990] 2 S.C.R. 711 at 723; R. v.

Pritchard, 2008 SCC 59 at para. 24, [2008] 3 S.C.R. 195; R. v. Frank(D.R.), 2000 MBCA 133 at para. 40, 150 Man.R. (2d) 269; and R. v. Kematch (S.D.) et al., 2010 MBCA 18 at paras. 88, 97, 251 Man.R.(2d) 191). For purposes of a kidnapping sentence, assessment of the nature and length of a confinement is a relevant consideration forassessing proportionality (R. v. Tse, 2010 BCSC 1273 at para. 115 (QL); and Blair at para. 15). [65] In both B.A. and P.S., the nature and duration of the confinement was limited.

In both cases there was nothing beyondthe accused forcibly moving the victim to an open area, with no suggestion of a determined effort by the offender to confine or preventthe victim’s escape. [66] The case of R. v. Bermudez-Rivera, 2010 ONCA 653 (QL), illustrates the importance of evidence relating to anaccused’s intentions about unlawful confinement to aggravate the sentence for a kidnapping with the motive of sexual gratification. [67] The accused pled guilty to attempted kidnapping, thus, the maximum sentence was fourteen years’ imprisonment, notlife imprisonment.

He attempted to forcibly take a stranger off the street; when she resisted, he drove away. Items found in his carsuggested his intent for the kidnapping was sexual gratification. He also possessed a blindfold, handcuffs and a weapon demonstrating adetermination to confine any victim forcibly taken and to prevent an escape. The court upheld the five-year sentence for attemptedkidnapping despite totality concerns relating to an unrelated ten-year sentence the accused received consecutive to the attemptedkidnapping. [68] In terms of measuring the gravity of a sexual assault, the case law is well developed.

Factors such as the amount ofviolence, the use of a weapon or other exacerbating features will affect the gravity of the sexual assault (see Ruby at 922-29). [69] The cases relied on by the appellant to support the suggested range of four to eight years (Sinclair, Ladouceur, Blair,Beardy and Latreille) are, with the exception of Ladouceur, all cases that do not involve a major sexual assault committed during akidnapping and they can be distinguished on that basis given the different maximum punishments.

Ladouceur is the key authority toconsider, particularly in light of the impact of Vu and the appellant’s concerns about disparity. [70] The facts of Ladouceur involve two kidnappings and the sexual assault of the same young girl a few months apart, andan unrelated sexual assault of another young girl five years earlier. In each kidnapping incident, the victim was briefly confined,sexually assaulted and then released. [71] In allowing the Crown’s sentence appeal, the court viewed the two kidnappings and related offences to be worth fiveyears and six years consecutive, for a total of 11 years.

Applying the totality principle, the court reduced the sentences for thekidnapping to ten years in total, five years for each kidnapping consecutive to each other.

A further four years’ consecutive was givenfor the unrelated sexual assault of the second girl. [72] In my view, the Ladouceur decision does not assist the appellant for two reasons. [73] The court itself in Ladouceur (at para. 77), recognized the limited precedential value of its sentences looked at inisolation given the complexity of dealing with three serious incidents and the need to reduce the accused’s sentence for reasons of totality(the accused had a minimal and dated criminal record). [74] More importantly, the Ladouceur decision should not be read as a guidance case on kidnapping sentences, particularlyas it pre-dates Vu.

The court does not attempt to canvas the appropriate range of sentence for kidnapping in a comprehensive way or seta starting point for the scenario where a major sexual assault occurs during a kidnapping. Rather, the court was addressing errorscommitted by the sentencing judge in applying the principle of proportionality to multiple serious offences where consecutive sentenceswere appropriate for three separate incidents.

As commonly occurs in the complex process of balancing sentencing principles to ensurean individualized sentence, the result is, to a degree, a compromise. [75] While Ladouceur is of assistance in this case, it is not binding as to the appropriate range of sentence for kidnapping. iv) Review of the Appellant’s Sentence [76] In my view, the suggested range of sentence of four to eight years for kidnapping where the victim is sexually assaultedis too restrictive.

The maximum punishment for the offence is life imprisonment, and there is a wide variation of the seriousness ofkidnappings. [77] In some cases, a sentence of five years for kidnapping may be proportionate where the nature and length of theconfinement is relatively trivial and the gravity of the sexual assault lacks many recognized aggravating factors (see B.A.). [78] However, in other more serious kidnapping cases, such as this one, where there is a determined effort to prevent acaptive’s escape coupled with a major sexual assault with aggravating factors, the sentence will closely resemble that of a premeditated

kidnapping for ransom. [ 79 ] A sentence at or near ten years’ imprisonment was fit in the circumstances. [ 80 ] The circumstances of this kidnapping, while serious, did not involve a weapon, the unlawful confinement was hours not days, and no bodily harm to the victim occurred. In terms of premeditation, while the crime was opportunistic in one sense, the crime was also discriminating in terms of the selection of a vulnerable victim. The appellant kidnapped and sexually assaulted the victim because he believed her visible vulnerabilities would allow him to do so. That is hardly mitigating.

The sentence properly reflects the vulnerability of the victim, the nature and length of the confinement was not trifling, and the gravity of the sexual assault was aggravated because the physical violence used during the rape violated not only the victim’s sexual integrity and caused her lasting psychological damage, but also exposed her to the risks of asphyxiation. The sentence is also in keeping with the fact there are few mitigating factors, the criminal record of the appellant, while unrelated, is lengthy and consideration of the methodology required by s. 718.2 (

e) of the Code leads to the irresistible conclusion that a lengthy period of imprisonment was required. [ 81 ] Counsel for the appellant’s argument that the kidnapping was less serious because the victim was forcibly moved only a brief distance is not convincing. The victim was kidnapped while walking from a downtown restaurant. The location of her kidnapping was meaningless other than it was a location she passed through on her journey. The appellant was also a stranger.

Once her disappearance would have been reported, locating her would have been difficult for the police despite the fact that she was forcibly moved only a brief distance. Absent an eyewitness, the police would not have known where to start looking or who were potential suspects. As Moldaver J. cautioned in Vu (at para. 32 ), forcible movement is an insidious feature of the crime of kidnapping.

That feature of the crime must be reflected in any sentence. [ 82 ] Counsel for the appellant’s argument that a nine-year sentence is disproportionate in light of the sentence in Ladouceur and, therefore, contrary to s. 718.2 (

b) of the Code , is also not compelling. [ 83 ] The submission fails to recognize the nature of the supervisory role of an appellate court reviewing a sentence. Because sentencing is a highly individualized process, it is to be expected that sentences will vary, even for similar offenders committing similar crimes ( M. (C.A.) at para. 92 ). The role of the appellate court is not to look for disparity between sentences, as such will always exist. Only substantial disparity between sentences for similar offenders committing similar offences can justify appellate intervention ( R. v.

Reader (M.) , 2008 MBCA 42 at para. 13 , 225 Man.R. (2d) 118 ). [ 84 ] I am not satisfied that a substantial disparity exists between the sentence here and the sentence in Ladouceur . While it is true that the appellant received a nine-year sentence for one kidnapping and sexual assault of an adult while the accused in Ladouceur received sentences of five years each for two kidnappings and sexual assault of a child, such a crude comparison does not tell the entire story.

In the end, the accused in Ladouceur would have received an 11-year sentence for the two kidnappings, but for totality, and because of a “last look” totality reduction, he received a 14-year sentence for the two kidnappings and the other unrelated sexual assault. [ 85 ] In Ladouceur , the court had to impose a sentence for three serious sexually related offences mindful of the principle of totality. In this case, the judge had to balance three serious offences mindful of the nature of the kidnapping offence as described in Vu , the need to balance proportionality and the no free ride principle.

The appellant also had a far more significant criminal record than the accused in Ladouceur .

Finally, while the facts of Ladouceur are disturbing, they did not involve the additional choking offence with its added physical risks to the victim. [ 86 ] While the appellant has not demonstrated that a nine-year sentence for kidnapping is demonstrably unfit in the circumstances, the judge’s calculation of the penalty for the offences of sexual assault and overcome resistance in committing an offence by choking is problematic. [ 87 ] The major sexual assault committed here involved multiple degradations of the victim’s sexual integrity: fellatio, vaginal intercourse and anal intercourse.

While the victim suffered no injuries, during the sexual assault she was struck and choked to the point that she almost lost consciousness. The risk of harm was real, even if no injuries resulted. The long-term psychological harm to the appellant was also significant. The appellant, while a first time sex offender, has a long history of violence and is not a person of good character.

In considering the ranges discussed earlier for a major sexual assault and overcoming resistance to commit an offence by choking, I am satisfied that those offences taken together would warrant a range of sentence for the appellant of six to eight years’ imprisonment. [ 88 ] The total sentence imposed by the judge for the sexual assault offence and the overcoming resistance in committing an offence by choking was nine years, the same as for the kidnapping offence.

Logically, to account for the no free ride principle, which the judge was aware of in his reasons, the sentence for the kidnapping offence, which encompassed all of the criminality of the other two offences, and more, should have been greater in aggregate, not the same. [ 89 ] I am mindful of the need to ensure that the seriousness of the offence of attempting to overcome resistance to commit an offence is meaningfully reflected in the appellant’s total sentence. I see no error by the judge’s decision to impose a consecutive sentence to the sexual assault sentence to convey that message.

Given that the victim was not rendered unconscious by the choking and she has no injuries from the choking, I see no reason to disturb the length of the sentence the judge imposed for the offence of overcoming resistance to commit an offence by choking (one and one-half years consecutive to the sexual assault, but concurrent to the kidnapping). [ 90 ] The best way to address the judge’s error as to calculating the penalty for the sexual assault and overcoming resistance in committing an offence by choking is to vary the sentence of sexual assault from seven and one-half years to six years’ imprisonment, to be served concurrently to the kidnapping sentence.

Such a sentence is more in keeping with the range of sentence for major sexual assaults in similar circumstances. Effect of the Judge’s Error in Principle [ 91 ] The demonstration of an error in principle gives an appellate court jurisdiction to vary a sentence pursuant to s. 687 of

the Code , but does not require it to do so if the sentence is otherwise fit, despite the error ( Wishlow at paras. 4-5 ; R. v. Matte , 2012 ONCA 504 at para. 49 , 111 O.R. (3d) 791 ; and R. v. Nguyen , 2007 ONCA 66 at para. 4 (QL) ). [ 92 ] The judge’s error in considering irrelevant factors does not materially impact the final result. The kidnapping of a vulnerable person minding their own business by a stranger is a terrible crime standing alone.

When it is combined with a determined effort to sexually assault the victim, including choking her to subdue her for the purpose of domination, the simple reality is that the assessment of proportionality and resulting sentence is aggravated significantly to the point that it should resemble a sentence for a premeditated kidnapping for ransom. [ 93 ] I am also not persuaded by counsel for the appellant’s argument that the judge gave too little consideration to the principle of rehabilitation.

The judge took into account that the appellant was a disadvantaged aboriginal who suffered from alcohol abuse and had not spent any consequential time in custody for many years. It is conceded that the judge properly considered the methodology required by s. 718.2 (

e) of the Code . The appellant is a mature, violent offender. Given the seriousness of these offences, I can see no error in the judge placing little weight on rehabilitation where there was no reliable information or assessment before him to demonstrate the appellant could be rehabilitated such that his risk to society could be managed by a shorter period of incarceration. [ 94 ] In

summary, the judge was correct to emphasize the principles of deterrence, denunciation and retribution. Despite the judge’s error in principle in considering irrelevant matters as aggravating circumstances, I am not satisfied that a nine-year sentence for kidnapping is unfit in the circumstances. IV. CONCLUSION [ 95 ] The appeal is dismissed except to the extent that the appellant’s sentence for sexual assault is varied from seven and one-half years to six years’ imprisonment, concurrent to his kidnapping sentence. J.A. I agree: C.J.M. I agree: J.A.