R v Norton, 2016 MBCA 79

Citation: R v Norton, 2016 MBCA 79 Date: 20160811 Docket: AR14-30-08309 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) R. D. Lagimodière and ) C. T. St. Croix ) for the Appellant Appellant ) ) T. T. Norton - and - ) on his own behalf ) ) Appeal heard: TIMOTHY TODD NORTON ) February 29, 2016 ) ) Judgment delivered: (Accused) Respondent ) August 11, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). CAMERON JA [ 1 ] This is a Crown application for leave to appeal and, if successful, an appeal of a sentence of 15 months’, plus one day, incarceration for an offence of sexual interference under

section 151 of the Criminal Code (the Code ). It raises the important issue of the manner in which “factual consent” is to be treated where a complainant over 14 years of age, but under 16, is deemed by law to be incapable of consenting to a sexual act with a person who is more than five years older than the complainant. [ 2 ] In this case, the sentencing judge erred by placing too much emphasis on whether the complainant factually consented to the sexual acts that form the basis of the charge. This caused her to consider a range of sentencing that was too low.

I would grant leave to appeal, allow the appeal and substitute a sentence of three years’ incarceration. However, I would stay the remaining portion of the sentence to be served. Facts [ 3 ] The accused entered a guilty plea to one count of sexual interference in relation to the 15-year-old female complainant. The sentencing hearing proceeded by way of an agreed statement of facts. [ 4 ] To summarize, the accused and another male (MM) (who was 17 years of age) went to a summer fair with the complainant. They then went to MM’s home where they proceeded to his bedroom to play video games and socialize.

The agreed statement of facts states: Once there [the bedroom], they proceeded to engage in sexual activity. [The accused] suggested a sexual position involving the three parties. The [complainant] did not vocalize her consent, nor did she protest. [The accused] at the time was 20 years of age, but the [complainant] understood from [the accused] that he was turning 20 in a month.

[The accused] positioned the [complainant] on her knees on the bed, leaned forward on her hands. [The accused] then proceeded to havesexual intercourse with the [complainant] while [MM] received oral sex. [The accused] was wearing a condom at the time of the sexualactivity. [The accused] did not make the required inquiries into the [complainant’s] age. [5] At the time of the offence, the accused was 20 years old. He was about three and one-half months over the five-yearage difference statutory exception found in

section 150.1(2.1)(

a) of the Code. The Sentencing Hearing [6] At the sentencing hearing, the Crown argued that the offence constituted a major sexual assault in that it included theact of non-consensual vaginal intercourse. In support of its submission that the accused should be sentenced to a period of three and one-half years’ incarceration, the Crown submitted, in part, that, “Even if the accused had a reasonable or honest belief in consent, [thecomplainant] is too young to legally be able to consent”.

It also argued that, in circumstances where a child is a victim, the fact ofconsent is not mitigating. [7] Counsel for the accused submitted that 14 months of incarceration would be an appropriate sentence, noting that hehad already served that much time in pre-sentence custody. She said that the accused and the Crown were not in agreement with respectto whether the complainant was a willing participant, although she said that the agreed statement of facts made it “a really difficult areafor, for both arguments”.

She argued that the complainant’s willingness to engage in the sexual activity meant that the offence could nolonger be categorized as a major sexual assault. [8] In response to the submissions of the accused, the sentencing judge said that the issue of whether or not thecomplainant provided consent appeared from the case law to “have great influence on how this particular set of circumstances ischaracterized”. She asked the Crown whether it intended to adduce any further evidence of lack of consent and the Crown respondedthat it did not intend to.

The Crown indicated that it was not relying on lack of consent as an aggravating factor. Rather, it was to beconsidered a neutral one. All parties agreed that factual consent in these circumstances was not a mitigating factor. Despite the concernsraised by the sentencing judge, both the Crown and counsel for the accused indicated their desire to proceed on the agreed statement offacts. [9] In her reasons, the sentencing judge reviewed the basis for the plea, including the agreed statement of facts.

She heldthat she could not determine the range of sentence without making a finding about whether or not the complainant factually consented tothe sexual activity. She said that the agreed statement of facts was not sufficient to satisfy her beyond a reasonable doubt that thecomplainant had not consented to the sexual acts. [10] The trial judge then reviewed the impact on the complainant and the aggravating and mitigating factors.

Afterconsidering the nature of the offence and the requirement for deterrence and denunciation, the trial judge imposed the 15-month periodof incarceration, which was comprised of time that the accused had served in pre-sentence custody, as well as an additional day. Issues and Positions of the Parties [11] The Crown appeals on the basis that the sentencing judge committed an error by overemphasizing the issue of factualconsent and that the sentence imposed was unfit.

It submits that an appropriate sentence would be a period of three years’ incarceration. [12] The accused was represented by counsel at the original sentencing hearing. However, despite the Court havingexplained the potential consequences of the proceedings (including the possibility that he might be reincarcerated), and providing himwith an adjournment to obtain counsel, he chose to represent himself at the appeal. [13] At the hearing, the accused commenced his submission by acknowledging the psychological effects that the offencehad on the complainant and expressing his remorse.

He outlined his work history since his release as well as his involvement in a youngadult ministry group. He spoke of the hardship that he has experienced since being released from prison. Discussion Standard of Review [14] The standard of review on a sentence appeal is that, absent an error in principle or a demonstrably unfit sentence, theappeal court is to review on the standard of deference. An error in principle includes failing to consider a relevant factor, taking intoaccount an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor.

In the recentcase of R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, Wagner J, writing for a majority of the Supreme Court of Canada, held wheresuch an error occurs, appellate intervention will be justified “only where it appears from the trial judge’s decision that such an error hadan impact on the sentence” (at para 44). [15] A “demonstrably unfit” sentence is one that falls outside the acceptable range of sentences under similar circumstances. See R v M (CA), (SCC), [1996] 1 SCR 500; R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220; and R

v Gabriel (QJ) , 2013 MBCA 45 at para 17 , 291 ManR (2d) 291 . A sentence may be demonstrably unfit even if no error was made in its imposition. See Lacasse at para 52 . [ 16 ] If an error as described in Lacasse has been made, deference to the original sentence need not be given. The appeal court can consider the matter afresh and impose the sentence that it deems appropriate in the circumstances or, it may find that, notwithstanding the error, the original sentence is still fit and uphold that sentence.

See, for example, R v Smoke (DD) , 2014 MBCA 91 at para 43 , 310 ManR (2d) 123 . [ 17 ] In my view, a review of the history of the legislation, as well as the corresponding development of the jurisprudence, aids in a determination of the emphasis to be placed on the issue of the willingness of the complainant to engage in sexual activity, as well as the appropriate range of sentence. The Legislation [ 18 ] The accused was convicted of the offence of sexual interference pursuant to

section 151 of the Code . That

section provides that it is an offence to touch, “directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years” for a sexual purpose. [ 19 ] When the offence of sexual interference was first enacted, 14 was established to be the age of consent with respect to sexual interference as well as other sexual offences, including sexual assault (section 271). An exception existed where the complainant was 12 or 13 years of age allowing for a defence if the accused was: a) 12 to 15 years old;

b) less than 2 years older than the complainant; and c) “neither in a position of trust or authority towards the complainant nor [was] a person with whom the complainant [was] in a relationship of dependency”. See

An Act to Amend the Criminal Code and the Canada Evidence Act , RSC 1985, c 19 (3rd Supp),

section 1. [ 20 ] The Tackling Violent Crime Act , SC 2008, c 6, (the TVCA ) changed the general age of consent from 14 to 16 (currently reflected in

section 150.1(1) of the Code ). While it maintained the exception with respect to 12 or 13-year-old complainants, it also enacted additional exceptions. Relevant to this case,

section 150.1(2.1) (

a) provides an exception where the complainant is 14 years or more but under the age of 16 if the accused is less than 5 years older than the complainant. [ 21 ] In the recent case of R v AB , 2015 ONCA 803 , 342 OAC 36 , Feldman JA considered the purpose of the current legislation in the context of a constitutional challenge. In finding that the limited close-in-age exception in

section 150.1(2.1) (

a) of the Code did not violate

section 7 of the Canadian Charter of Rights and Freedoms , she said (at para 38): The purpose of the law, stated succinctly, is to protect children from sexual contact with adults or the invitation to have sexual contact by adults.

The close-in-age exceptions reflect Parliament’s view that the inherent power imbalance between adults and children vitiates consensual sexual relations between them. [ 22 ] In considering the current age of consent, she said (at para 43): The age was raised from 14 in part because of evidence that children between 14 and 16 were being targeted by on-line predators and others, and because Canada had become an outlier by having a lower age of protection than other countries, thereby attracting international predators. [ 23 ] Not only has the general age of consent changed over time, the penalties for sexual offences involving children have as well.

Since its inception, the maximum penalty for the offence of sexual interference when prosecuted by indictment has been ten years’ incarceration. The maximum penalty for an offence prosecuted by

summary conviction was six months. There were no minimum penalties. In 2005, minimum penalties were enacted for the offence of sexual interference, including a 45-day minimum period of incarceration for offences prosecuted by indictment, and 14 days for those prosecuted by

summary conviction. At the same time, Parliament increased the maximum penalty for an offence prosecuted by

summary conviction to 18 months’ incarceration. See

An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , SC 2005, c 32,

section 3 . [ 24 ] Finally in 2012, Parliament increased the minimum sentences for both the offences of sexual interference and sexual assault where the complainant is less than 16 years of age. In each instance, the minimum penalty for an offence prosecuted by indictment was increased to one year incarceration, and for offences prosecuted by

summary conviction the minimum penalty was increased to 90 days’ incarceration. See the Safe Streets and Communities Act , SC 2012, c 1, sections 11, 25. [ 25 ] In my view, all of the above amendments reflect the intent of Parliament to widen the scope of protection for children and deter and denounce those who sexually offend against them. Case Law [ 26 ] The issue before the sentencing judge concerned whether the act committed by the accused constituted a major sexual assault. The argument being that, if the act constituted a major sexual assault, then the three-year starting point enunciated in R v

Sandercock (1985), 1985 ABCA 218 , 22 CCC (3d) 79 (Alta CA) would apply, thereby affecting the range of sentencing. [27] I would note that, at the time she sentenced the accused, the sentencing judge did not have the benefit of this Court’sdecision in the case of R v Sidwell (KA), 2015 MBCA 56, 319 ManR (2d) 144. In that case, Steel JA reviewed the Alberta Court ofAppeal decision in Sandercock, which held that a major sexual assault includes acts of oral and vaginal sex (see para 37). However, shecautioned that characterization of an offence as a major sexual assault was not the overriding concern.

Rather, she stated (at para 52): What is important is to find an appropriate sentence which responds to the conduct of the accused and the aggravating and mitigatingcircumstances, rather than determining specifically whether the accused’s conduct constituted a major sexual assault.

Sentencingprecedents should be sought out that involve similar sexual acts and circumstances. [28] Thus, the following review of recent case law will consider sentences imposed in similar sexual acts and circumstancesas well as the issue of whether such behaviour constitutes a major sexual assault. [29] The Saskatchewan Court of Appeal has repeatedly stated that facts similar to those in this case constitute a major sexualassault. In R v Revet (CJ), 2010 SKCA 71, 350 SaskR 292, a 39-year-old accused pleaded guilty to sexual assault for having had sexualintercourse two times with a 14-year-old complainant.

The complainant was a willing participant in the acts. In upholding his sentenceof three years’ imprisonment, Sherstobitoff JA, writing for a majority of the Court, said (at paras 24, 26): This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered astarting point from which a sentencing judge should start, increasing or decreasing the term according to the aggravating and mitigatingfactors: R. v. A.W.C. (2007), 2007 SKCA 87 , 304 Sask.R. 224; 413 W.A.C. 224; 2007 SKCA 87, and the cases cited therein.

There is no reason why the same starting point should not be used in a case such as this. Sexual assaults upon children are at least ashigh in terms of gravity, if not higher, than sexual assaults upon adult persons. [30] In R v Whiting (SC), 2013 SKCA 101 at paras 27, 38, 423 SaskR 177, the Court agreed that in cases of sexualintercourse with an underage willing complainant, the starting point for sentencing was three years.

However, based on the mitigatingfactors in that case, including the accused’s youthfulness, the fact that he had pursued an education and had a job, his lack of a criminalrecord, the support he had from family and a former girlfriend and the proximity in the ages of the parties, the Court imposed a sentenceof 14 months’ incarceration. [31] In R v Miller (K), 2016 SKCA 32, 476 SaskR 150, the Court considered a situation where a 20-year-old male wasconvicted of sexual assault and luring a 13-year-old complainant he had met online.

In that case, the Court held that the sexual assaultconviction itself would normally lead to a sentence of three years and that an additional sentence for luring, over and above the threeyears for sexual assault, would have been appropriate. However, based on the circumstances of the accused, including the passage of sixyears without further criminal activity, it imposed a three-year global sentence of imprisonment. [32] Just prior to the release of these reasons, the Alberta Court of Appeal, sitting as a five-member panel, released itsdecision in R v Hajar, 2016 ABCA 222 .

In comprehensive reasons, the majority of the Court considered the legislative history,scheme and intent of

section 151 of the Code, as well as evidence regarding the harm occasioned to the victims of such crime. Itconcluded that a starting point of three years’ incarceration for cases of sexual interference that are analogous to those of a major sexualassault would be appropriate.

The Court characterized such crime as a “major sexual interference.” It defined this category of offence asfollows (at para 53): Sexual interference constitutes a major sexual interference where the sexual interference is a serious violation of the physical and sexualintegrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause seriouspsychological or emotional harm, whether or not physical injury occurs. Vaginal intercourse, anal intercourse, fellatio and cunnilingusall fall into this category.

Thus, major sexual interference includes, but is not limited to, these sexual acts. [33] Regarding de facto consent, the Court rejected the argument that less harm was occasioned to the victim in suchsituations (see para 62). It recognized that harm is likely to be occasioned despite the fact that the victim may be unable to recognize itat the time of sentencing (see para 65).

It held that de facto consent is not the equivalent of true consent as described by the SupremeCourt of Canada in R v Ewanchuk, (SCC), [1999] 1 SCR 330 (see para 86 of Hajar). [34] It rejected the notion that de facto consent could be considered a mitigating factor for many reasons, including, that todo so, would defeat the intent of the legislation, and that it would shift the blame to the victim and likely result in them blamingthemselves (see Hajar at paras 94-98). [35] The Newfoundland Court of Appeal has not stated outright whether sexual offences committed in circumstances such as

these constitute a major sexual assault. However, it has said that, in cases of sexual intercourse with a willing complainant who is legallyincapable of providing consent, the normal sentencing range begins at three years. See R v Barrett (AW), 2012 NLCA 46 at para 49, 324Nfld & PEIR 246; R v Payne (LM), 2012 NLCA 72 at para 8, 330 Nfld & PEIR 181; and R v AB, 2015 NLCA 19 at para 26, 365 Nfld &PEIR 160. [36] There is little case law from the Ontario Court of Appeal in the context of a sexual offence with an underage willingcomplainant where the accused has not been found to be in a position of trust.

However, in situations where an accused induces thecomplainant to willingly participate, or where there is a position of trust, this inducement or “grooming” has been treated as anaggravating factor. See R v PM (2002), (ON CA), 155 OAC 242 at para 19; and R v B(D), 2013 ONCA 691 at para16, 119 OR (3d) 11. [37] In R v Woodward (TEC), 2011 ONCA 610, 284 OAC 151, the Court upheld a five-year sentence imposed on a 30-year-old male who had lured a 12-year-old female over the internet to meet him and, over time, groomed her to trust him and then engaged insexual intercourse with her.

Moldaver JA (as he then was) wrote (at para 75): Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentenceimposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of theappellant’s past criminal activity [for fraud, theft and possession of stolen property over the previous 15 years] and the lack of anymeaningful mitigating factors available to him, if anything, it was lenient.

While acknowledging that trial judges retain the flexibility tofashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirelyappropriate and did not render the global sentence excessive. [38] In the British Columbia case of R v Allen (WR), 2012 BCCA 377, 327 BCAC 236, a 51-year-old male and another adultmale invited a 14-year-old complainant to participate in a “three-way”.

The sexual acts involved oral sex and anal intercourse. Bothadults were HIV positive and did not use condoms. In considering the Crown appeal of the 18-month sentence imposed by thesentencing judge, the British Columbia Court of Appeal analyzed the case law regarding the range of sentences imposed for similaroffenders committing similar offences. However, it concluded that, “While a range may not be detectable from these cases they doreveal the escalation in recent years in severity of sentences imposed where children are the victims of sex offences” (at para 57).

Afterconsidering the principle of denunciation, and noting that “Parliament has made it very clear that the protection of children is a basicvalue of Canadian society which the courts must defend” (at para 60), the Court determined that the sentence did not adequatelydenounce the seriousness of the accused’s crimes and increased the sentence to three years’ incarceration. [39] In reaching its conclusion, the Court commented on the submission made by counsel for the accused that thecomplainant had consented to the “three-way”. Ryan JA stated (at para 67): Counsel did not press this as a mitigating factor.

He took the position there are cases of no consent where the behaviour is much worse. This submission would have had some force if the Crown was contending for a much higher sentence, but it was not. In this Court theCrown suggested a sentence in the range of four to six years, which, in my view, is an appropriate range for the circumstances of thisoffence. [40] Recently in Manitoba, this Court refused leave to appeal in the case of R v DRL, 2015 MBCA 73, 319 ManR (2d) 262.

In that case, the 55-year-old accused engaged in sexual acts, including oral and vaginal sex, on two occasions with the 15-year-oldcomplainant. In imposing a sentence of three and one-half years’ incarceration, the sentencing judge in R v DRL, 2014 MBQB 170, 309ManR (2d) 93, said that, “Regardless of whether there is a ‘starting point’ of three years . . . based on the facts of this case, a sentence ofat least three years is appropriate” (at para 14).

He reaffirmed case law rejecting arguments that a lower sentence is warranted where thecomplainant consented or was a willing participant in the activity (see para 15). [41] In dismissing the accused’s application for leave to appeal sentence, Hamilton JA for the Court stated (at para 23): I am of the view that the sentence is well within the range for these offences and this offender, and it is neither harsh nor excessive.

Furthermore, the trial judge addressed the relevant sentencing principles, including the legislated direction that deterrence anddenunciation are paramount sentencing principles in offences involving child victims. Conclusion [42] Parliament has decided that children below the age of 16 are too vulnerable to the pressures of older individuals to beallowed to decide whether they will or will not consent to sexual activity. It is the responsibility of society to protect them from suchpressures.

Thus, although coercion, deceit, violence or threats may constitute aggravating factors, factual consent will not constitute amitigating factor. See R v Pritchard (T), 2005 ABCA 240 at para 7, 371 AR 27; Revet at para 12; Barrett at para 48; and Allen at para

67. [43] Furthermore, I agree with the British Columbia Court of Appeal that sentences for sexual offences against minors areincreasing. Indeed, prior to the 2008 amendments to the Code imposing a minimum penalty, it was not uncommon for the court toimpose conditional sentences or lower incarceratory sentences for similar crimes.

See for example R v DJP, 2003 MBCA 12, 170 ManR(2d) 282; R v GCF (2004), (ON CA), 189 OAC 29; Pritchard; and R v MGB, 2007 ABCA 243, 417 AR 147. [44] Finally, in my view, regardless of whether offences of this nature are labelled as major sexual assaults (or major sexualinterferences), or not, the above analysis, which is consistent with the approach advocated in Sidwell, shows that cases involving similarsexual acts and circumstances suggest a starting point in the range of three years.

This starting point assumes a mature person with aclean record and good prior character (see R v Borkowsky (H), 2008 MBCA 2, 225 ManR (2d) 127; R v JRA, 2012 MBCA 48, 280 ManR(2d) 123; and Hajar at para 102). Decision and Sentence [45] As I earlier indicated, the sentencing judge said that the willingness of the complainant to engage in the prohibitedsexual activity was a matter that would have “great influence” in the characterization of the offence.

She further commented: While the Crown says that they are not relying on the fact that there was no consent to the sexual activity in question as an aggravatingfactor in sentencing, they are, in essence, doing so by asking the court to sentence [the accused] on the basis that this was a major sexualassault. [46] Thus, the sentencing judge felt that it was “necessary for the court to make some finding of fact in this regard”. Shethen discussed the law relating to consent and concluded: I am not satisfied that the Crown has proven beyond reasonable doubt that there was not consent here.

The Crown can therefore not relyon a factual lack of consent on the part of the complainant as a factor in sentencing. [47] While the sentencing judge correctly stated that the willingness of the complainant was not a mitigating factor, sheseems to have equated the failure of the Crown to prove a lack of factual consent as a circumstance that prevented her from consideringthe three-year starting point for the purpose of sentencing. In my view, she erred in reaching this conclusion by placing too much weighton the issue of whether the complainant was a willing participant in the sexual activity.

This error caused her to impose a sentence thatwas too low. [48] In light of the error made by the sentencing judge, I am free to consider the matter anew. [49]

Section 718.01 of the Code states that when imposing a sentence for an offence that involves the abuse of a personunder the age of 18 years, the court shall give primary consideration to the principles of denunciation and deterrence. [50] In Sidwell, Steel JA listed some aggravating and mitigating factors to be considered when adjusting a sentence up ordown the appropriate scale for similar sentences in situations where a person in a position of trust sexually offends on a minor. Shestated (at para 53): It is impossible to list all the aggravating and mitigating factors that courts might consider.

However, when weighing the nature of thesexual violation in a particular case, courts have looked to the following factors, among others: • The relative ages of the child and the accused; • The nature of the position of trust between the child and the accused; • The exact nature of the conduct involved; • The length of time the relationship existed and the frequency of the incidents; • Whether the sexual violations were accompanied by physical violence, threats of physical violence, or other forms of extortion or

psychological manipulations; and • The impact on the child. [51] In this case, the aggravating factors are that the sexual conduct involved two people, both older than the complainant. The sexual acts, engaged in at the suggestion of the accused, were “major”. At his sentencing, the accused admitted that he knew thatthe complainant “was going through a horrible time with her personal life” and that she “was looking for support, she was looking for afriend, she was looking for somebody to help her . . . to stand on her own, help her to make sense of what’s going on between her motherand father at the time”. Despite this, he proceeded to engage her in the sexual activity. [52]

Section 718.2(a)(iii.1) of the Code provides that evidence that the offence had a significant effect on the victimconsidering their age and other circumstances is to be considered an aggravating factor. In this case, the impact of the accused’s actionson the complainant and her family were profound. She became angry, depressed, started cutting herself and had to be hospitalizedseveral times. She missed a significant amount of school due, in part, to the gossip and rumours that were being spread about theincident.

Her father, who had passed away prior to the sentencing in this matter, had earlier provided a victim impact statement thatdescribed how the incident destroyed their lives. [53] While not aggravating, it is important to note that, at the time of his sentencing, the accused had 17 prior convictionscomposed of breaching court orders, obstructing justice, property-related offences and weapons-related offences.

This record disentitleshim to leniency. [54] As well, at the same time that he was sentenced for this offence, the accused was sentenced for other serious offences,including possession of a firearm without a licence and criminal harassment (involving his ex-partner). He was also sentenced forbreaching the recognizance that he had entered into when he was originally charged with this offence. The facts underlying that chargeare that, contrary to the condition that he not have unsupervised contact with persons under 16 years of age, he took a 15-year-old femaleout to lunch.

At that time, he told her that he had had sex with a number of virgins. [55] Factors that can be considered mitigating include the fact that the age difference between the accused and complainantwas only minimally above the five-year allowance. The accused entered a guilty plea, sparing the complainant from having to testify.

Also, although late in the proceedings, the accused expressed remorse and some insight into the consequences of his offendingbehaviour. [56] After balancing all of the above factors and in consideration of similar cases, in my view, a three-year sentence wouldbe appropriate. [57] However, that does not end the matter. As earlier stated, the accused was sentenced on November 26, 2014, to 15months’ time served in pre-sentence custody plus one day for this offence. The total sentence he received, for all of the offences he wassentenced for at that time, was 20 months’ incarceration.

At the appeal hearing, he advised that he was released from prison on January15, 2015, having served 19 months of his sentence. Following his release, he commenced a period of two years’ supervised probation. [58] In the recent case of R v McMillan (BW), 2016 MBCA 12, 326 ManR (2d) 56, Chartier CJM had the opportunity toconsider the issue of reincarceration of an accused person where he or she has already served the original sentence imposed.

Heobserved (at para 36): The question of whether to reincarcerate has been the source of much appellate consideration recently, particularly in the Ontario Courtof Appeal which has dealt with this issue six times in the last year. See R. v. Shi (F.), [2015] O.A.C. Uned. 647; 2015 ONCA 646; R. v.H.E. (2015), 2015 ONCA 531 , 336 O.A.C. 363; 2015 ONCA 531; R. v. Owen (P.) (2015), 2015 ONCA 462 , 336O.A.C. 95; 2015 ONCA 462; R. v. Dufour (C.) (2015), 2015 ONCA 426 , 336 O.A.C. 52; 2015 ONCA 426; R. v. Schertzer(J.) et al. (2015), 2015 ONCA 259 , 333 O.A.C. 308; 2015 ONCA 259; and R. v.

Ghadban (M.) (2015), 2015 ONCA 760, 342 O.A.C. 177; 2015 ONCA 760. Suffice it to say that a non-exhaustive list of factors to consider on the issue of whether tostay the remaining custodial portion of the sentence on a successful Crown appeal against sentence were conveniently set out by the NewBrunswick Court of Appeal in R. v.

Veysey (J.M.) (2006), 2006 NBCA 55 , 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA55 (at para. 32): (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or herfreedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties;and (4) the impact of reincarceration on the rehabilitation of the offender.

As can be seen by these factors, the analysis as to whether the accused should not be reincarcerated is fact-sensitive in nature. [59] In this case, there is no question that the offence that the accused committed was serious. This would tend to justify hisreincarceration. [60] However, other considerations counter the weight to be given to the seriousness of the offence. First, the accused has

served the entire term of the incarceration originally imposed on him by way of time spent in pre-sentence custody. [ 61 ] Furthermore, when sentenced, he was only credited on a 1:1 basis for his pre-sentence custody, presumably pursuant to section 719(3.1) of the Code . That

section created exemptions to enhanced credit allowance for pre-sentence custody for persons detained based on alleged misconduct while out on bail ( section 524(4) of the Code ) or for their criminal record ( section 524(8) of the Code ). Since that time, in the case of R v Kovich (GW) , 2016 MBCA 19 , 326 ManR (2d) 101 , a majority of this Court has held that section 719(3.1) was unconstitutional in its application to both sections 524(4) and 524(8) of the Code .

Further, in R v Safarzadeh-Markhali , 2016 SCC 14 , the Supreme Court of Canada held that section 719(3.1) was unconstitutional in its application to offenders who have been denied bail primarily on the basis of section 524(8) of the Code . In this case, absent section 719(3.1) , I see no reason why the accused would not have been credited on a 1.5:1 basis. Had that credit been applied, the accused would have been credited for 22 and one-half months’ pre-sentence custody. [ 62 ] It has been 18 months since the accused was released.

If he had been credited for the full 22 and one-half months, he would have already served his three-year sentence. [ 63 ] Regarding the impact of reincarceration on the rehabilitation of the accused, he advised the Court at the hearing of this appeal that after his release from prison, he was ostracized by his home community and was unable to return to reside there. He has since found a place to live in another nearby town. At the time of the hearing, he said that he was doing odd jobs including renovations, construction and working on a farm.

He had earlier managed to secure employment in highway construction, manufacturing and as a cook. He was actively seeking permanent employment and was also preparing a business plan in response to an offer that he had received from an acquaintance. He said he is involved in a young adult ministry group as part of his reintegration into the community. He has been compliant with his probation order. The Crown confirmed that he has not been otherwise criminally reinvolved. [ 64 ] As in McMillan , this is not an easy case. The offence and its resultant consequences are serious.

However, when all of the relevant factors are balanced, including:

a) had the three-year sentence been imposed, he would have already been out of prison;

b) he has made successful steps toward reintegration in the community which would likely be impeded if he were reincarcerated; and

c) he is successfully completing his two-year probation order (which is still in effect with regard to the other offences that he was sentenced for at the time), it is my view that the remaining custodial portion of his sentence be stayed. [ 65 ] In conclusion, I would grant leave to appeal, allow the appeal and substitute the sentence of 15 months plus one day with a sentence of three years’ imprisonment, less credit at 1.5:1 for the 15 months of pre-sentence custody (1.5 x 15 months = 22 months and 15 days of credit). I would stay the remaining custodial portion of the sentence. JA I agree: JA I agree: JA