R. v. J.J.W., 2012 NSCA 96

NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.J.W. , 2012 NSCA 96 Date: 20121002 Docket: CAC 353674 Registry: Halifax Between: Her Majesty the Queen Appellant v. J.J.W. Respondent Restriction on Publication: Pursuant to s. 486.4 , of the Criminal Code of Canada Judge: The Honourable Justice Linda Lee Oland Appeal Heard: June 1, 2012, in Halifax, Nova Scotia Subject: Sentencing - Reincarceration - Sex Offender Registration Information Act

Summary: The respondent was found guilty of sexual assault and two assaults on his then wife. He had no previous record, and was fired from his job. The judge sentenced him to a five month jail sentence for the sexual assault, a consecutive eight month conditional sentence with house arrest for one assault, and a consecutive three month conditional sentence for the other assault. He refused to make a SOIRA order. The respondent served both the custodial and conditional sentence portions of his sentence.

He is taking counseling and involved in a family violence program, and enrolled in a training course that will assist in finding employment should his efforts to be rehired at his previous job be unsuccessful. Issues: Whether the sentence was manifestly unfit and, if so, the offender should be reincarcerated. Whether the judge erred in declining to make a SOIRA order. Result: Appeal dismissed. There is no right to appeal for SOIRA orders under s. 490.012(1). The ground of appeal regarding that order is quashed.

The sentence the judge imposed is demonstrably unfit. It gave the respondent ’ s personal circumstances excessive importance, contravened the principle of parity, and failed to appropriately consider deference and denunciation. However, reincarceration would not serve the interests of justice. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 29 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.J.W. , 2012 NSCA 96 Date: 20121002 Docket: CAC 353674 Registry: Halifax Between:

Her Majesty The Queen Appellant v. J.J.W. Respondent Restriction on Publication: Pursuant to s. 486.4 , of the Criminal Code of Canada Judges: MacDonald, C.J.N.S., Oland and Beveridge, JJ.A. Appeal Heard: June 1, 2012, in Halifax, Nova Scotia Held: Appeal against sentencing is dismissed per reasons for judgment of Oland, J.A.; MacDonald, C.J.N.S. and Beveridge, J.A. concurring Counsel: Mark Scott, for the appellant Vince A. Gillis, Q.C., for the respondent Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii). Reasons for judgment : [ 1 ] The Crown appeals the sentence imposed by Judge A. Peter Ross of the Nova Scotia Provincial Court on the respondent, J.J.W. for two assaults contrary to s. 266(

a) and 266(

b) respectively and sexual assault contrary to s. 271(1) (

a) of the Criminal Code . For the reasons I will develop, I would dismiss the appeal. Background [ 2 ] The events giving rise to the charges of assault and sexual assault took place in August and November, 2007. In each case, the victim was the respondent ’ s then wife, AB. The sentence imposed was informed by the judge ’ s decision on conviction. Consequently, I will begin with that decision. [ 3 ] The judge found the respondent guilty of an assault on AB on August 12, 2007. When the respondent and AB were inside Smooth Herman ’ s nightclub, the conduct of a friend upset the respondent.

Later when he was outside and coming to pick up his wife, the respondent saw the friend on the sidewalk. In his decision, the judge stated that the respondent: ...basically attacked [C], and, as I say, even by his own admission in the process grabbed his wife and threw her, or pushed her away. He attempts to minimize what he did, at least that’s my conclusion having heard all the evidence and considered it. Ms. [B], herself, described having been thrown quite forcibly. As she said, he threw me into the middle of the street. She was shocked, it wasn’t just a push ...

The respondent did this to his wife in front of family and acquaintances. Other witnesses testified how AB was slammed or thrown to the ground, and rolled into on-coming traffic. [ 4 ] The charge of sexual assault and second charge of assault arose from events at the couple ’ s bedroom on November 24, 2007. The judge described how, although the relationship was strained, the parties maintained a sexual relationship. It is apparent from his decision that the judge did not accept all of AB ’ s detailed description of that evening.

At the same time, he stated that in certain places, the respondent ’ s credibility was strained. The judge explained where he had difficulties with the evidence and why. He also observed that the respondent admitted that he had sexually assaulted his wife to one of his children, his wife ’ s parents, and his own father and brother. [ 5 ] The judge continued: . . . I don’t think I can conclude beyond a reasonable doubt that there was no consensual sexual contact that evening. I know this is what [A] says. It seems to me it’s possible that there was some consensual conduct ... contact, and conduct between the two.

But at some point she refused to kiss him, and as I said, he snapped, and I do find that the crown has proven beyond a reasonable doubt that the anal intercourse engaged in that evening was without her consent . There’s no indication whatsoever of any objectively reasonable and subjectively honest but false belief in consent that emerges from any of the evidence. He also physically assaulted her a few minutes later when he woke up by kicking her, and throwing her down.

And I’m convicting him ... finding him guilty, rather, of a sexual assault upon [AB], and also of committing the simple assault on the 266 as a result of those findings, and those conclusions. (Emphasis added)

[6] I now turn to the judge’s decision on sentencing. The judge noted that the Crown had proceeded byway of indictment and the respondent was to be sentenced according to the law in 2007. He stated that a number of principles wereengaged, including those pertaining to consecutive or concurrent sentences, and totality. The judge referred to a number of cases,including this court’s decision in R. v. Adams, 2010 NSCA 42 (which was referred to in our decisions in R. v. Naugle, 2011 NSCA 33and R. v. Bernard, 2011 NSCA 53), and the Supreme Court of Canada decision in R. v.

M. (C.A.), (SCC), [1996] 1S.C.R. 500. [7] The judge referred to the victim impact statement. He stated that the impact on the victim “certainly issignificant” and noted that the impact of the sexual assault is primarily psychological as opposed to physical. The victim impactstatement poignantly conveys the victim’s trauma and pain, and how the respondent’s actions severely affected her dignity and self-esteem. It began: I was raped and beaten by my husband. There was no consent to anything and he lost control and raped me because I said NO. It wasmy punishment for not responding to him the way he wanted me to.

What he did is unforgivable. He hurt me. He humiliated me andhas made me feel ashamed of myself. I walk around smiling but hide the hurt, anger, and sadness I feel for what has happened. I stillthink sometimes that it must of [sic] been my fault but am learning that I didn’t make him hurt me - that was a choice he made. I didn’tdo anything that justified what he did. It has taken me the last year talking to Dr. [M] to start believing this. I lost something that nightand struggle to get it back. I lost a bit of my self respect and all of my trust.

I’ve never been around violence before and when ithappened, I froze. I couldn’t fight back and stop what was happened [sic] because of shock and fear and I am still trying to get over theguilt of saying no. The victim spoke of the psychological damage done to her and her children, the destructive and divisive effect of the sexual assault onthe family, and her emotional struggles and loss of trust. [8] With respect to the circumstances of the offender, the judge referred to the pre-sentence report andletters from certain individuals.

The pre-sentence report read in part: EMPLOYMENT The offender reported he was employed as a fire fighter with ... from 1995 to May 20, 2011, at which time he was terminated as a resultof the current convictions. He advised grievances have been filed concerning same. The offender reported extensive fire fighter training and various certificates of achievement including assistance with Hurricane Katrina. He advised he created and trained the ... Fire Services and is a qualified instructor of First Aid, CPR and WHIMS. [AH], Supervisor, ... Fire Services, was contacted for this report.

Mr. [H] confirmed he supervised the offender for many years anddescribed the offender as a motivated, good worker who took direction well. Further, Mr. [H] reported the offender was President oftheir International Union and in that capacity, was responsible for addressing many grievances. ... According to Mr. [H], the offender has an excellent work record and he would like him to be granted a second chance to pursue hiscareer as a Fire Fighter, suggesting “he was very good at his job”. Previous employment for the offender includes employment as an Airport Fire Fighter at the ... from 1992 to 1995.

He advised he leftthis employment when he was successful in acquiring a position with .... The offender reported an extensive volunteer background including the ... Camp, fundraising for Muscular Dystrophy, Crones [sic] andColitis, Instructing the Babysitting Course at ..., Soccer Coach and Hockey Games for Local Charities.

The respondent had no previous criminal record. In the pre-sentence report he was described as a good parent who was in a new relationship. His father who has terminal cancer relies on him heavily. [ 9 ] The Crown sought a total sentence of two to three years imprisonment. The defence suggested a conditional sentence. The judge ’ s decision reads in part: ... The

section 271 offence, the sexual assault involves the forced anal intercourse. I heard evidence about the use of the vibrating device, taking clothing off, forced oral sex, mutual forced oral sex, et cetera, but what I could be sure was proven beyond a reasonable doubt was the forced anal intercourse. Looking at that conduct, it is extremely, of course, serious conduct , as the Crown has quite correctly pointed out.

Looking at that charge, even if it stood alone, considering this offence as though it were the only offence charged, even with that, I do think that a sentence of less than two years would be fit and appropriate and that, therefore, a conditional sentence is a possibility based on the length of the sentence. I do not think that Mr. [W] poses a danger to the community at this point and so I don’t think a conditional sentence would endanger the community.

At the same time, however, I do not think that a conditional sentence of imprisonment would be consistent with the fundamental principles of sentencing as they apply to these circumstances here. As the Crown has pointed out, the accused forced anal sex upon the victim against her will and despite her protestations he did so to express dominance and control. He impacted the victim significantly, primarily in a psychological sense but significantly and seriously nonetheless . At the same time, Mr. [W] has suffered some consequences as a direct result of the conviction.

He was fired from his job and his job is, obviously, very important to him. I know he’s fighting that dismissal but he can’t be sure that he’ll be successful and even if eventually he wins at arbitration he will still have suffered this consequence to some extent. Secondly, Mr. [W] has been on conditions since February the 4th, 2008. This is more than three years and he has been before the court for quite a long time awaiting trial and sentence . This is certainly, in part, owing to his own elections, re-elections and the inherent time it takes to bring these [matters] to a conclusion.

At the same time, having this hanging over his head, I think has been difficult for him and, undoubtedly, difficult for the victim, too. But looking at what the sentence ought to be is the impact on him that is significant here. And thirdly, the principle of totality comes into play in fashioning the length of sentence for the

Section 271 offence. I can only speak to one sentence at a time, to one charge at a time, and there are three . I’m beginning with the most serious but in passing sentence for this offence I do so knowing the sentences that I will be imposing momentarily for the two 266 offences. And I have, thus, determined for the three reasons given here, the consequences to employment, the awaiting trial and being on conditions and a reduction in accordance with the totality principle, I have determined that the sentence for the sexual assault should be reduced from what it would otherwise be if it stood alone . (Emphasis added) [ 10 ] The judge sentenced the respondent to: (

a) a five month jail sentence for the sexual assault; (

b) a consecutive eight month conditional sentence of imprisonment with house arrest for the assault the same night; and (

c) a consecutive three month conditional sentence of imprisonment for the earlier assault. In

summary, the sentence was a five month jail sentence and an 11 month conditional sentence. [ 11 ] The judge also ordered a DNA and a 10 year firearms ban. After hearing submissions, he refused to make an order pursuant to the Sex Offender Information Registration Act , S.C. 2004, c. 10 ( “ SOIRA ” ).

Issues [12] The issues on appeal are: 1. Whether the sentence was manifestly unfit; 2. Whether the judge misapplied the principle of totality; and 3. Whether the judge erred in law, and in law and fact, in declining to make a mandatory SOIRA order pursuant to s. 490.012 of theCriminal Code. Demonstrably Unfit Sentence [13] The standard of review for sentence appeals is well established. The approach to be taken on appellatereview is a deferential one. In R. v.

L.M., 2008 SCC 31, LeBel J. writing for the majority stated: [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trialjudges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordereda different one. The court must be “convinced it is not fit”, that is, “that ... the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15).

This Court also made the following comment in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: ...absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of our criminaljustice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M. (C.A.), at para. 91).

In sum, in the case at bar, the Court of Appeal was required -- for practical reasons, since the trier offact was in the best position to determine the appropriate sentence for L.M. -- to show deference to the sentence imposed by the trialjudge. [14] In Shropshire and M. (C.A.), the Supreme Court of Canada held that an appellate court should only varya sentence if the sentence is “clearly unreasonable” or “demonstrably unfit”. In R. v. W. ( G.), (SCC), [1999] 3 S.C.R.597, Lamer C.J. emphasized at ¶ 19 that those two standards mean the same thing. [15] In R. v.

Nasogaluak, 2010 SCC 6, the Supreme Court affirmed the sentencing principles in Shropshireand M. (C.A.). At ¶ 46, LeBel J. stated: [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In M. (C.A.), Lamer C.J.cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, the failure toconsider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, atparas. 14-15; R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1 S.C.R.948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, however, this does not mean that appellate courts can interferewith a sentence simply because they would have weighed the relevant factors differently:

To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing orbalancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with thesentence on the ground the trial judge erred in principle. Sentencing judges enjoy a broad discretion. That discretion is fettered in part by case law that has, in some circumstances, set downranges so as to give effect to the parity principle.

However, ranges are only guidelines and a sentencing falling outside the regular rangeis not necessarily unfit (¶ 44). [16] The Crown pointed out that the judge himself described the sexual assault here as “extremely . . . seriousconduct”. Forced anal intercourse is a major sexual assault. According to the Crown, the sentence of five months imprisonment that thejudge ordered for that offence inadequately reflects the objectives of denunciation and deterrence.

It submits that, having regard to thenature of the offence committed and the circumstances of the offence and the offender, the sentence is simply not sufficient. The Crownalso argues that the judge failed to consider the totality of the circumstances in ordering a conditional sentence of imprisonment for theassault convictions, and he overemphasized the impact of the conviction and the process on the offender. [17] The Crown relied on a number of cases to establish the range of sentence for major sexual assaults and toshow that the sentence here was manifestly unfit.

These included cases from jurisdictions where the starting point approach has beenfollowed. In Alberta, the starting point for non-consensual vaginal intercourse and other equally serious sexual assaults is three years,presuming a mature person with no criminal record and without pleading guilty: R. v. Sandercock (1985) 1985 ABCA 218 , 40Alta. L.R. (2d) 265, 48 C.R. (3d) 154, 22 C.C.C. (3d) 79 (Alta. C.A.). In R. v.

Arcand, 2010 ABCA 363, the majority of a five memberpanel of the Alberta Court of Appeal discussed the use of starting points on an appeal of sentence by an aboriginal man with no priorcriminal record who sexually assaulted an unconscious woman. The majority wrote: [175] Rape and other major sexual assaults are grave and serious acts of violence. As the Supreme Court explained in R. v. McCraw: Violence is inherent in the act of rape....

It seems to me that to argue that a woman who has been forced to have sexualintercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women.... Violence and the threat ofserious bodily harm are indeed the hallmarks of rape.... rape is a crime that is likely to have serious psychological consequences andmay, as well, have serious physical effects....[Emphasis added by Alberta Court of Appeal] [176] While these comments were made in the context of rape, that is non-consensual vaginal intercourse, they apply with equal force toother major sexual assaults.

When an offender commits a major sexual assault, including rape, against a person, this act of violencecauses harm. It is harm to both the victim and society. A major sexual assault constitutes a serious violation of a person’s body and anequally serious violation of their sexual autonomy and freedom of choice. These breaches of one’s physical integrity and privacy areindisputable and undeniable. That harm, and it is substantial, is inferred from the very nature of the assault.

Add to this the seriousbreach of a person’s human dignity and the gravity of a major sexual assault perpetrated on a victim becomes readily apparent. [177] In addition to this very grave harm, there is also intrinsic to major sexual assaults the likelihood of other very real psychological oremotional harm. That includes fear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment, inability totrust, inability to form personal or intimate relationships in adulthood with other socialization problems and the risk of self-harm or evensuicide.

While these effects fall into the psychological or emotional harm category, they may be equally or even more serious than thephysical ones but much less obvious, indeed even unascertainable at sentencing. ... [179] There is another aspect of the harm caused by an offender who commits a major sexual assault. That is the harm caused to societyby this kind of criminal activity. Harm to one member of the community affects the rights and security of others. This is particularlystriking in cases involving violence against women.

[18] Saskatchewan has adopted a similar starting point for major sexual assaults. See, for example, R. v.Iron, 2005 SKCA 84, at ¶ 12. [19] In Newfoundland, the range for serious sexual assault with intercourse is stated in R. v. H.A.V., 2000NFCA 14 to be three to five years. The range was confirmed in R. v. Freake, 2012 NLCA 10. See however, R. v. Squires, 2012 NLCA20 where the Court of Appeal discussed that range in the context of that particular case. [20] The Crown points out that in R. v.

P.V.K. (1992), (NS SC), 116 N.S.R. (2d) 110(S.C.T.D.), Saunders, J. (as he then was) in sentencing a man found guilty of sexually assaulting his daughter over several years, stated: 25 I have considered the approach taken in Alberta beginning with the 1985 decision of the Alberta Court of Appeal in R. v.Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382 (C.A.), which reaffirmed its commitment to “the starting point approach” tosentencing in cases of sexual assault. By this method typical categories are stated with precision.

A “major sexual assault” would qualifyupon evidence of the blameworthiness of the offender and the effect upon the victim. The starting point for a major sexual assault isthree years’ imprisonment “assuming a mature accused with previous good character and no criminal record”. Such a starting pointwould not include major aggravating factors pointing to a planned and deliberate attack.

Certain mitigating factors would include a guiltyplea where it spared the victim from testifying or waiting to testify, waiving certain constitutional rights in deference to an expeditedtrial, remorse, immaturity or the totality principle following consecutive sentences. There, as here, the primary goals in sentencing forsexual assault are deterrence and denunciation. After considering a decision of the Manitoba Court of Appeal, he indicated in ¶ 28 that, in his respectful view, there was much to be saidfor the approach taken in those provinces. The trial judge in R. v.

O.B. (No. 4) (1995), (NS SC), 141 N.S.R. (2d)339 (S.C.) at ¶ 9 agreed with this comment. Sandercock was quoted by this Court in R. v. Blackburn (1986), (NSCA), 75 N.S.R. (2d) 30 (C.A.) at ¶ 13. [21] Nova Scotia has not adopted a starting point approach.

Rather, this Court has chosen to remain focussedon the principles of sentencing as set out in the Criminal Code and the Supreme Court of Canada’s affirmations that the approach onreview on sentencing appeals is one of deference to the decisions of the sentencing judge. [22] Since sentencing is such an individualized process and done in the context of the particularcircumstances of each case, it is notoriously difficult to find cases that are factually similar.

The Crown presented the followingsummaries, among others, in support of its argument that the five month jail sentence for sexual assault was demonstrably unfit: (

i) R. v. T.V.G. (1994), (NS SC), 133 N.S.R. (2d) 299 (S.C.) -- The offender and victim had been separated a few daysbefore the offence. The offender called her the night preceding the offence causing the victim to be afraid. She took her children nextdoor to her father’s house. When she returned to pick up some clothing, the offender confronted her, forced her into the bedroom, andraped her despite her struggles. The offender questioned the victim about her boyfriends as he repeatedly penetrated her. The Courtviewed the assault on the former common-law wife as aggravating.

The accused came from a stable, hard-working family. Offender andvictim had two daughters. Victim Impact Statement demonstrated nervousness on behalf of the common-law wife. Sentence: two yearsand eight months’ incarceration; (ii) R. v. B.(D.), 2005 NWTSC 89 -- Offender pleaded guilty to sexual assault on his common-law spouse. He was a twenty-five year oldaboriginal with a work history and volunteer work. He and the victim had two children. He assaulted the victim two months prior to thesexual assault.

The Court concluded that sexual assaults committed by a man against his wife are more serious than other sexual assaults.The range in that jurisdiction for a first offence involving full sexual intercourse was two to four years’ imprisonment. Sentence: twoyears less one day; (iii) R. v. S.D.M. (1995), (NS SC), 141 N.S.R. (2d) 203 (S.C.) -- Twenty-six year old offender with driving offencessentenced to two years’ imprisonment for sexual assaults on common-law spouse. Record did not manifest violence, though indicated alack of control and responsibility on the offender’s part; (iv) R. v.

Toor, 2011 ONCA 114 -- Appellant was a first time offender convicted of assault causing bodily harm, sexual assault andsexual assault causing bodily harm. He had punched the victim, dragged her across the floor, and violently forced sexual intercourse on

her. Children were present. Appellant had subjected her to a situation of psychological imprisonment within the family unit. Sentence offour years upheld on appeal; ... (vi) R. v . Smith, 2011 ONCA 564 -- Numerous counts involving two victims on the sentence appeal. The facts involved a death threat toD.Q., and assaults on M.O., including a sexual assault. The Court endorsed the proposition that in cases of sexual assault involvingforced intercourse with a spouse or former spouse, sentences generally ranged from twenty-one months to four years.

The Court notedthat the Crown had chosen to not cross-appeal sentence, and therefore would not impose a sentence exceeding three years’ incarceration; (vii) R. v. M.(B.), 2008 ONCA 645 -- Accused had been sentenced to nine months’ imprisonment with two years’ probation and SOIRAOrder for seven years of compliance. The Crown appealed. The Court allowed the appeal, increasing the imprisonment term to two yearsless one day, and a mandatory twenty year SOIRA Order. The Respondent had engaged in anal intercourse with his developmentallydelayed wife without her consent.

The Court indicated that prior abusive conduct may be relevant to the sentencing to show the characterand background of the offender, particularly to assess the need for individual deterrence, rehabilitation, or the protection of the public.Sentence at trial failed to send the message that those who victimize their partners within the context of the marital relationship mustknow that serious consequences will follow; (viii) R. v. Cook (1994), (MB CA), 92 Man.R. (2d) 231 (C.A.) -- Accused pleaded guilty to one count of sexualassault on his common-law wife and sentenced to four years’ imprisonment.

A knife was used involving forced anal and oral intercourse.A four year sentence was upheld on appeal; ... (

x) R. v. D.W.G., 1999 ABCA 270 -- Crown appeal of four month sentence plus one year probation for a sexual assault on thecommon-law wife. The Respondent served four months in remand. The facts illustrated a violent attempt at rape. The victim, trying tosleep, was confronted by her common-law husband who had been drinking. He slapped her, stripped her naked, choked her with one ofhis forearms across her throat, and attempted to have intercourse. He was too drunk to complete the sex act and she was eventually ableto get away. The Court of Appeal took the view that the sentence was not fit.

A sentence at first instance of three and one-half yearswould have been appropriate. The sentence, however, was reduced to eight months due to the fact that the Respondent had alreadycompleted the custodial portion of his sentence and four months’ pre-trial custody. [23] In these summaries, the lowest sentence for sexual assault is two years less a day in each of B.(D.) andM.(B.). [24] The respondent also relies on case law to buttress his argument that the judge’s sentence should not bedisturbed. However, his authorities are largely distinguishable. I will now discuss his cases. [25] In R. v.

R.G., 2003 NLCA 73, the offender was sentenced to six months imprisonment for

an act ofnon-consensual sexual intercourse with his spouse. In upholding the sentence, the Court of Appeal indicated that “in this Province thenormal range of sentence for sexual assault involving penetration is three to seven years.” However, it concluded the trial judge wascorrect in concluding that “the circumstances of this case are quite unusual and that this case is an appropriate one for a sentence belowthe normal range.” There the couple remained together after the assault and had consensual relations for another seven months. Thewife gave a statement to the police only after their separation.

Moreover, the offender had served his sentence and been released. Noneof these facts are present in the matter under appeal. [26] The respondent also pointed to another case from Newfoundland and Labrador, R. v. G.W.P., 2006NLTD 136. In that case, the spouse of the complainant was sentenced to five months imprisonment for an unsuccessful attempt to havenon-consensual sexual intercourse with his wife. The two had been arguing, and he pushed the complainant onto the bed and pulleddown her clothes and restrained her in an attempt to have sexual intercourse.

She said it lasted about 15 to 20 minutes and was quitefrightening. Unlike the situation here, there was no penetration. In addition, the judge there relied upon R.G. which I have alreadydistinguished on the facts.

[27] The respondent referred in R. v. R.H. (1994), 1994 ABCA 21 , 149 A.R. 230 (Alta. C.A.) wherethe offender forced his common-law spouse to have non-consensual sexual intercourse. The parties subsequently reconciled andmarried. The Court of Appeal increased the sentence from six months imprisonment to 15 months. It stated that a proper sentence was18 months but the fact that the accused had already served the sentence created an expectation on his part.

Neither the reconciliation ormarriage justified a reduction in sentence. [28] The respondent argues that in R.H. the sentence was 15 months, while he received a 16 month sentence,five of which were conventional jail time and the remainder house arrest but, nonetheless, a sentence totalling 16 months. However, thesentence in R.H. was only for the sexual assault and did not include assaults which the respondent incorporates into his calculation. Moreover, R.H. is no longer the law in Alberta.

Arcand has confirmed Sandercock which established a starting point of three yearsimprisonment. [29] Finally, the respondent drew our attention to R. v. L.F.W., 2000 SCC 6. The accused, a 55 year old manwith no previous criminal record, was convicted of indecent assault and gross indecency against his cousin over a six year period whenshe was between six and twelve. The trial judge sentenced him to a 21 month global sentence of imprisonment, to be served in thecommunity. The Newfoundland Court of Appeal affirmed that sentence. The Supreme Court of Canada heard the appeal in L.F.W.together with the appeal in R. v.

Proulx, 2000 SCC 5 and other cases. It applied the general principles governing the conditionalsentencing regime set out in Proulx to the facts of that case. [30] The respondent is correct that L.F.W. “is yet another precedent speaking to the need for appellate reviewto be deferential to the sentence imposed by a trial judge” and that there the Supreme Court of Canada “adopted a non-interventionistposition”. However, the deferential approach on appellate review of sentence is not in dispute.

Furthermore, that case does not concerna sexual assault of the kind which is the subject of this appeal, and so is not helpful in determining the adequacy of the sentence. [31] At the hearing of the appeal, the respondent acknowledged that he had not been able to find any case lawwhere the sentence was as low as five months for sexual assault involving penetration. [32] I agree with the Crown that a five month sentence for this sexual assault, forcible anal intercourse, isdemonstrably unfit.

In doing so, I recognize that sentencing judges are entitled to considerable deference from the appellate courts, andthat ranges as established by case law are only guidelines intended to assist sentencing judges. However, the discrepancy between thesentence here imposed for a grave sexual assault, one committed by the appellant to dominate and control his wife, namely five monthsimprisonment, and the next lowest sentences found in the case law for similar major sexual assaults in comparable circumstances,namely two years less a day, is simply too large to ignore. The sentence contravenes the principle of parity.

Persons convicted of serioussexual assaults must appreciate that the principles of sentencing include specific and general deterrence and denunciation, and suchoffences will attract serious consequences. The five month sentence of imprisonment for sexual assault on a spouse does not send thatmessage. In my view, considering the principles of sentencing as set out in the Criminal Code, it is clearly unreasonable. [33] Moreover, the reasons given by the judge show that he erred in principle.

He pointed to threeconsiderations in arriving at a sentence of five months incarceration: delay in the proceedings, loss of employment, and the principle oftotality. [34] If the delay in the completion of the trial process is lengthy and beyond the control of the offender, or ifthere is delay attributable to Crown conduct, delay can be a mitigating factor on sentence: see R. v. Spencer (2004), (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.) at ¶ 41. [35] The Information charging the respondent was sworn on February 5, 2008. The Court AppearanceRecord is straightforward.

It shows that at his first appearance in April 2008, the respondent elected trial before a judge and jury. InDecember 2008, he re-elected to judge alone and, at that time, the trial was set down for March 2, 2010. It was subsequentlyrescheduled to May 6, 2011. There is no indication of any unusual matters that slowed the court process. Nor is there any suggestion ofdelay attributable to actions or failures to act by the Crown.

[36] In Spencer, Doherty J.A. for the Ontario Court of Appeal wrote: 43 In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender’sbail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have somemitigating effect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence.... [37] Here, after the Information was sworn in February 2008, the respondent entered into an undertaking.

When he first appeared in court that April, he again entered into an undertaking. Both those undertakings required him to keep thepeace, not possess a firearm, not consume intoxicating substances, not be at a certain location, and not communicate with thecomplainant. These conditions are neither onerous nor unusual.

He was at liberty throughout the proceedings until his convictions inMay 2011. [38] In my view, although the judge correctly noted that the appellant had been on conditions for more thanthree years and he had been before the courts for “quite a long time” which had been difficult for both the appellant and the victim,neither the terms of the appellant’s undertakings, nor the length of time needed to complete the trial process, warranted any mitigation ofhis sentence. [39] I turn then to the second reason the judge gave for reducing sentence, namely the respondent’s loss, as aresult of conviction, of his long-time employment as a firefighter.

Clayton C. Ruby et al., Sentencing, 7th ed. (Markham, Ont:LexisNexis, 2008) at § 5.230 - 5.231 reads: §5.230 Loss of employment is a serious blow for anyone, and it may mean the destruction of an entire family. It is, therefore, alwaysserious, and must be considered as part of the circumstances in which penalty is being imposed ... Any job loss is mitigating. §5.231 A loss of employment is a frequent result of criminal conviction for persons in every walk of life, particularly for those in thepublic service such as police, school teachers, firefighters and professionals.

The possibility of future loss of employment may be takeninto account. Loss of a pension would be significant. Bankruptcy as a result of the arrest is a mitigating factor. [40] Loss of employment as a mitigating factor is reflected in the case law. See, for example, R. v. Ens, 2011MBQB 301, at ¶ 20; R. v. Maguire, 2005 CarswellOnt 1696 (S.C.), at ¶ 23; R. v. Campbell (1992), (PE SCTD), 102Nfld. & P.E.I.R. 259 (P.E.I.S.C.T.D.), at ¶ 8-11. However, while it may mitigate the need for specific deterrence for a guilty plea, itdoes not displace general deterrence and denunciation: see R. v. Jaikaran, 2007 ABCA 98.

Moreover, an error in assessing mitigatingcircumstances, such as job loss, may offend the principles of proportionality and parity and lead to an increased sentence on appeal: seeR. v. Van de Wiele, (SK CA), [1997] 3 W.W.R. 477 (Sask.C.A.). [41] The third reason the judge gave for a reduction in the sentence for the sexual assault was the applicationof the totality principle. He stated that in passing sentence for that offence, he did so knowing that he would also be imposing sentencefor the two assault offences. [42] The totality principle applies when several sentences are imposed.

It calls on the judge to take a last,careful look at the total of all the sentences to ensure that it does not offend the principle of proportionality. While the application of thetotality principle can lead to a reduction of the overall sentence, it does not always do so. Here, although the judge referred to the Court’sdecision in Adams, it is not apparent from his reasons that he conducted the requisite analysis. [43] In my view, the sentence itself and the judge’s three reasons for reducing sentence show error inprinciple.

It appears that the judge gave the respondent’s personal circumstances excessive importance. Although he took specificdeterrence into account, he failed to consider appropriately general deterrence and denunciation. The SOIRA Appeal

[ 44 ] The judge refused to make the SOIRA order sought by the Crown. In doing so, he relied upon a statutory exemption. He reasoned: ... I think the central feature of these crimes is violence and not sexual proclivities or sexual propensities. It is not a case a childhood sexual abuse, you know, the pedophile or anything of that sort. The conduct arose within a domestic context. He has a new partner who says it’s a good relationship.

I don’t think that there’s really any public interest or public protection served in requiring sexual offender information registration in this particular case in comparing the type of conduct to the impact and privacy. There is a serious disproportionality and so I’m going to decline to impose the requirement to register under that legislation. Before this Court, the Crown submitted that the judge erred in law, and in law and fact, in declining to make the order pursuant to s. 490.012 of the Criminal Code .

In two unsolicited post-hearing submissions, it provided additional information to the Court. [ 45 ] The authority for a sentencing judge to direct a person sentenced on conviction of a crime to register under the SOIRA is found in the Criminal Code .

Section 490.011 sets out the definition of “ designated offence. ” Those offences are divided among six paragraphs. Since sexual assault (s. 271) is found under paragraph (

a) of the definition of “ designated offence ” , s. 490.012(1) applies. It reads: 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (

d) or (

e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013. [ 46 ]

Section 490.012(1) uses the word “ shall ” rather than the permissive “ may. ” As a result, in cases governed by that provision, an order is mandatory on application by the prosecutor after conviction of a designated offence. [ 47 ] Prior to the Protecting Victims From Sex Offenders Act , S.C. 2010, c. 17, s. 490.012(4) of the Criminal Code provided for a possible exemption: 490.012(4) The court is not required to make an order under this

section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act . [ 48 ] The s. 490.012(4) exemption called for a balancing of interests.

The impact of registration on the offender ’ s interests as an individual, including his or her interest in privacy or liberty, was to be weighed against the public interest in protecting society through the effective prevention and investigation of sexual offences through registration of information about sex offenders. Only where the impact of registration on an offender ’ s individual interests would be grossly disproportionate to the public interest is an exception to registration to be granted.

The burden of establishing a grossly disproportionate impact rested on the offender. [ 49 ] I turn then to the standard of review on an appeal of a SOIRA order. In R. v. Debidin , 2008 ONCA 868 , Watt J.A., for a unanimous court, wrote: 71

Section 490.014, which confers on the prosecutor and offender the right to appeal the refusal or grant of a SOIRA order and describes the dispositive authority of the appeal court, is silent about the standard of review that prevails. Similar language appears in s. 487.05(4), which governs appeals from grants or refusals of DNA orders. In each case, an appeal court may alter a decision only where the sentencing judge has: i. erred in principle;

ii. failed to consider a relevant factor; iii. overemphasized an appropriate factor; or iv. made a clearly unreasonable decision. Redhead at para. 13; R.C. at paras. 48-49; R. v. Turnbull (A.) (2006), 2006 NLCA 66 , 261 Nfld. and P.E.I.R. 241 (N.L. C.A.),at para. 21. [50] On appeal, the Crown argued that the judge erred by declining to make a SOIRA order pursuant to the s.490.012(4) exemption.

The respondent made submissions towards having the judge’s reasoning in refusing that order upheld. [51] In a letter sent to the Court a month after the hearing of the appeal, the Crown correctly pointed out thats. 5 of the Protecting Victims From Sex Offenders Act, which came into force April 15, 2011, eliminated the exemption under s.490.012(4) and made offenders found guilty of the designated offences subject to an order for automatic inclusion in the nationalregistry.

Any judicial discretion to decline to impose such orders for the reasons set out in former s. 490.012(4) vanished. [52] The sentencing hearing in this matter took place on July 13, 2011. The s. 490.012(4) exemption was notavailable when the respondent was sentenced. This was not brought to the judge’s attention nor, indeed, to this Court’s attention beforeor at the hearing of the appeal.

The Crown acted properly in writing to this court when it realized that the submissions by it and defencecounsel were not well-founded in the law. [53] In its most recent letter, the Crown drew to the Court’s attention the very recent decision of the NewBrunswick Court of Appeal in R. v. Chisholm, 2012 NBCA 79. There, Drapeau C.J.N.B. writing for the court reiterated that appeals arecreatures of statute and that there must be a statutory basis for appellate intervention.

After reviewing the relevant provisions of theCriminal Code and the jurisprudence pertaining to whether such orders are sentences, he concluded that there is no right of appeal forSOIRA orders issued under s. 490.012(1), as here. As a result, the Crown’s appeal against the duration of the order had been initiatedwithout lawful authority, and its Notice of Appeal was quashed. [54] Although the question in Chisholm pertained to the duration of the SOIRA order, here the appeal is of thejudge’s decision not to impose any such order. However, that difference does not affect the careful analysis undertaken in Chisholm.

Inmy view, the reasoning is persuasive. Accordingly, the Crown had no right of appeal from the judge’s decision. I would quash itsground of appeal regarding SOIRA. The Appropriate Sentence and Reincarceration [55] The judge sentenced the respondent to a five month jail sentence for the sexual assault on his formerspouse, an eight month conditional sentence with house arrest for the assault on her the same night, and a three month conditionalsentence for the earlier assault. The sentences were consecutive.

The respondent has served the term of imprisonment for sexual assault,the conditional eight month sentence with house arrest for the assault that same night, and the final conditional three month sentence forthe first assault. There have been no reporting problems. [56] The lowest sentence in the jurisprudence presented by the parties for sexual assault alone is two yearsless a day. In seeking a conditional sentence at trial, counsel for the defence could not and did not strenuously argue that a penitentiaryterm would not be fit. Rather, he stated: “less than two years is not inappropriate.

I’m not saying that more than two years is outside the range either.”

[57] Where I determined that the trial judge committed an error in principle, the sentence he imposed is nolonger entitled to deference and it falls to this court to impose the sentence it thinks is fit. What is an appropriate sentence for thisoffender in the particular circumstances of these offences? Does that sentence include imprisonment? [58] The Crown submits that, in light of a sentence that it describes as “woefully inadequate sentence”, theappellant should be reincarcerated.

In its written submission on appeal, the Crown reiterates its recommendation at trial for a sentence oftwo to three years imprisonment for the sexual assault and two assaults. Asked at the hearing to refine its recommendation, the Crownsuggested two and one-half years, perhaps adjusted down to two years because of the reincarceration, less time already served. [59] The Crown relies on several cases where courts ordered reincarceration because the sentence imposed attrial was so manifestly unfit. In R. v. Escott (1985), 10 O.A.C. 89, 1985 CarswellOnt 1461 (C.A.), the respondent plead guilty toaggravated assault.

After drinking heavily, he picked up a prostitute, choked her with his hands until she lost consciousness, and left herunconscious on the road with a belt tied tightly around her neck.

He was 21 years old when he committed this crime, and had no priorrecord. [60] The Ontario Court of Appeal held at ¶ 7 that the 90-day intermittent sentence followed by 3-yearsprobation was “wholly inadequate to reflect the gravity of the offence and to express society’s revulsion of the conduct involved in thecommission of the offence.” It took into account the respondent’s sincere efforts in the eight years since the offence to rehabilitatehimself, his abstention from alcohol, his success in university, his employment, and his compliance with the terms of his probation.

Itrecognized the strong character evidence presented in support of the respondent. Nevertheless, the Ontario Court of Appeal determinedthat reincarceration was required: 13 An appellate court is always reluctant to re-incarcerate an accused after he has served the sentence imposed by the trial judge andwill only do so where the sentence is so inadequate that the interests of justice require the court’s intervention. This is such a case.

The respondent received credit for the 90 days he had served and was ordered to spend one year less 90 days in prison. [61] The Crown also drew our attention to two recent decisions of the Ontario Court of Appeal which dealtwith reincarceration, namely R. v. D.G.F., 2010 ONCA 27, and R. v. Leo-Mensah, 2010 ONCA 139, leave to appeal to the SCC refused[2010] S.C.C.A. No. 170. In D.G.F., the appellant plead guilty to two counts of sexual assault, three of making child pornography, andone each of possessing and distributing child pornography. The facts were horrific.

The victim of his sexual assaults was his own fouryear old daughter. The child pornography he transmitted included images of her. His actions included a live sexual assault of hisdaughter which the respondent transmitted by webcam in an internet chat room set up for pedophiles. The respondent, 35 years old atsentencing, had no criminal record.

Although the Crown requested a seven-year sentence, the trial judge gave the offender 28 monthscredit for time in pre-trial custody and ordered 20 more months in custody, followed by three years on probation. [62] Writing for the court, Feldman J.A. observed at ¶ 29 that the range for such offences can extend “wellinto the double-digit level.” She determined that the effective sentence of four years imposed by the trial judge was manifestly unfit andfailed to reflect the gravity of the conduct and the moral blameworthiness of the offender.

She stated: 33 In most cases, this court is reluctant to re-incarcerate an offender who has served the sentence originally imposed and has beenreleased into the community: see, for example, R. v. C.N.H. (2002), (ON CA), 62 O.R. (3d) 564 (Ont. C.A.); R. v.Mann, [1995] O.J. No 474 (Ont. C.A.). The factors referred to, Crown delay and the respondent’s progress in the community, wouldalso militate against an order that would require the offender to be re-incarcerated: R. v. Crazybull, 1993 ABCA 197 , [1993]A.J. No. 473 (Alta. C.A.); R. v. Banci, [1982] O.J. No. 58 (Ont.

C.A.). 34 However, this is a case where the sentence imposed was so far below the sentence that was required and was “so inadequate thatthe interests of justice require the court’s intervention”: see R. v. Cheng (1991), 50 O.A.C. 374 (Ont. C.A.), at para. 5. The appellate court imposed the sentence of seven years which had been recommended by the Crown at trial and had been the basis forthe respondent’s guilty plea.

Although the respondent had already been on release for nine months and was receiving treatment andmaking progress, and although the Crown had caused pre-appeal delay, the respondent was re-incarcerated.

[63] The Crown also pointed to Leo-Mensah to support its argument for reincarceration. There therespondent who prepared income tax returns provided false charitable donation receipts to clients. Over a three-year period, hesubmitted over 800 returns which led to over $3,000,000 in tax refunds. At trial, he plead guilty to two counts of tax evasion and one offraud.

The judge gave him double credit for pre-trial custody, sentenced him to one further day in jail, and ordered a fine of $145,766. [64] The Ontario Court of Appeal determined that the judge had made several errors, including the impositionof a sentence below the range for large-scale fraud cases which usually attract a penitentiary sentence unless there were extraordinarymitigating circumstances.

After determining that the sentence was manifestly unfit, it reiterated: 15 While this court has been reluctant to re-incarcerate an offender who has served the sentence originally imposed and been releasedinto the community, reincarceration is warranted where the original sentence was so far below that which was required that the interestsof justice require the court intervene: see R. v. D.G.F., 2010 ONCA 27 at paras. 33-34. In my view, this is such a case and a period ofreincarceration is necessary.

It allowed the Crown’s appeal and imposed a further two-year period of incarceration. [65] In his submissions on a fit sentence and against reincarceration at the hearing of the appeal, therespondent argued vigorously that he had already served most of the sentence imposed by the trial judge, he was doing well, and nopurpose would be served by his reincarceration. He relied heavily on the recent decision of this court in R. v. Best, 2012 NSCA 34. There the trial judge found the appellant guilty of break and enter and aggravated assault committed with another person.

He ordered a90-day intermittent sentence followed by a two-year term of probation, based on the offender’s secondary involvement in the assault (notlanding any blows) and the apparent spontaneity of the attack. [66] On appeal, MacDonald C.J.N.S. writing for the court, concluded that the sentence was unfit - it shouldhave been around the three-year mark. However, he declined to substitute an additional sentence involving incarceration. In his reasons,the Chief Justice explained why exceptional relief could be given.

In doing so, he addressed relevant criteria as set out in certain caselaw: [34] ...in my view, this is one of those rare cases where, despite the initial inadequate sentence, it is no longer in the interests of justiceto re-incarcerate Mr. Best. I say this because he has completed his term of incarceration and is well into his period of probation. Furthermore, by all accounts he is doing well. In these exceptional circumstances, I am convinced that sending him back to jail wouldnot serve the interests of justice. [35] I realize that this represents an exceptional form of relief. However it is not unique.

For example, in R. v. Butler, 2008 NSCA102, the Crown appealed a community sentence for armed robbery (robbing a taxi driver at knife point by an offender suffering fromaddictions). This court found this disposition to be demonstrably unfit in the circumstances and declared a 30-month sentence to beappropriate: ... [36] However, despite this conclusion, the court resolved not to incarcerate Mr.

Butler: ¶39 Although I have concluded that the sentence imposed by the trial judge, notwithstanding the need for rehabilitation,inadequately reflects denunciation and general deterrence, in view of the sentence served and the post-sentence update, I am notpersuaded that it is in the interests of justice to now substitute incarceration for the conditional sentence. (See, for example, R. v. C.S.P.2005 NSCA 159, [2005] N.S.J. No. 498 (Q.L.) (C.A.); and R. v. Hamilton, (ON CA), [2004] O.J. No. 3252 (Q.L.)(C.A.) and R. v. Edmondson, 2005 SKCA 51, [2005] S.J.

No. 256 (Q.L.) (C.A.); leave to appeal refused [2005] S.C.C.A. No.273). ¶40 Mr. Butler has successfully completed the six month addiction program at Booth Centre. He is pursuing anupgrading program with a view to entering Community College for which he has funding in place. It would not be in the interests of

justice to now commit him to a prison environment which may adversely affect his rehabilitation (R. v. Bratzer, supra, at para. 47 andR. v. Parker (NS CA), [1997] N.S.J. No. 194 (Q.L.) (C.A.)). I have considered, as well, the fact that Mr. Butler,having spent five and one half months on remand, prior to trial, is now aware of the realities of prison life. Indeed, that experience maywell have motivated him to get his life in order and will hopefully keep him moving forward on that path. (R. v. C.S.P., supra; R. v.Hamilton, supra; R. v. Edmondson, supra; R. v. Symes, [1989] O.J. No. 528 (Q.L.) (C.A.); R. v.

Shaw, [1977] O.J. No. 147 (Q.L.)(C.A.); R. v. Boucher, (ON CA), [2004] O.J. No. 2689 (Q.L.)(C.A.); R. v. Hirnschall, (ONCA), [2003] O.J. No. 2296 (Q.L.) (C.A.); R. v. Fox, [2002] O.J. No. 2496 (Q.L.) (C.A.); and R. v. G.C.F., (ON CA),[2004] O.J. No.3177 (Q.L.) (C.A.)). [37] A similar approach has been taken by other Canadian appellate courts. For example, in R. v. Shaw, [1977] O.J. No. 147, tworespondents were convicted of “serious drug trafficking offences” for which the trial judge gave them no jail-time, but rather, strictprobation for two years.

The sentences were imposed ten months after the offence, and at the time of the appeals the two respondentshad carried out four months of their two-year probation order. Post-sentence reports meanwhile indicated that their work records wereexemplary, and that their community involvement was providing needed services in the community. The Ontario Court of Appealobserved: “[i]t is apparent that the rehabilitation program directed by the trial judge is working” and “[t]o impose a custodial term nowwould be a sentence far more crushing than it would have been if it had been imposed at the time of trial”.

The court moreover stated: ¶15 Although as I have observed this was a case in which an appropriate sentence should have included the imposition ofa custodial term, in the circumstances which now confront this Court general principles of sentencing are not paramount. [38] Then in R. v. Boucher, (ON CA), [2004] O.J. No. 2689, the respondent was sentenced to two years (less oneday) plus two years of probation for attempting to murder his estranged wife. The Ontario Court of Appeal held that this sentence wasunfit and that a term of six years less time on remand was more appropriate.

However, the sentence at trial was varied only to increasethe probation period to three years. The court stated: ¶33 ... [A]t the time this appeal was heard, [the respondent] had been out of custody for several months. On the recordbefore us, there is no indication that the [respondent] has made any attempt to contact the complainant, or otherwise repeat his previousmisconduct, since being released. This court has commented on other occasions about the potentially deleterious impact ofre-incarceration, particularly in relation to its effect on rehabilitation....

In all of the circumstances, I do not consider that it would be inthe interests of justice to re-incarcerate the appellant at this time. See also: R. v. C.S.P., 2005 NSCA 159 and R. v. G.C.F., (ON CA), [2004] O.J. No. 3177 (ONCA). DISPOSITION [39] Therefore, despite the judge issuing a sentence that was demonstrably unfit, it is no longer in the interests of justice tore-incarcerate the respondent.

In the result, I would dismiss the appeal. [67] For a recent appellant court decision where it was held that although a fit sentence would have been fouryears imprisonment, in the particular circumstances of that case, the interests of justice were best served by allowing the conditionalsentence of two years less a day to run its course, see R. v. Kane, 2012 NLCA 53. [68] In R. v.

Veysey, 2006 NBCA 55, the New Brunswick Court of Appeal provided a helpful overview ofsome of the facts taken into account when appellate courts decide the difficult issue of reincarceration when the sentence imposed at trialwas too low: 32 We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit. The factthat the original sentence has been fully served does not, by itself, warrant special consideration.

At the same time, we are left with theSupreme Court's caution that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice.Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identifythe circumstances in which reincarceration would work such a result. In short: What constitutes special circumstances? Having regardto the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether astay should be granted.

This is not to suggest that the list is exhaustive. Other pertinent factors may exist. However, for purposes of

deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted;(2) the elapsed time since the offender gained his or her freedom 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.

In addition to the factors in this non-exhaustive list, others include that relied upon by the Crown in this case, namely where the sentenceimposed was so manifestly unfit that reincarceration is required; and the hardship occasioned by imposing sentences of imprisonment onappeal, such as where, had the offender received the appropriate sentences at trial, they would have been released from custody on parolemonths ago: see R. v.

Hamilton, (ON CA), 2004 CarswellOnt 3214 at ¶ 165. [69] The crimes committed by the respondent - two assaults and a sexual assault, all against the woman whowas then his wife - were serious offences. The evidence established a basis for the trial judge’s concern about the respondent’s“propensity towards violence”. [70] In the first assault, in order to engage another person, the respondent shoved the victim aside and ontothe ground. This sudden and public assault demonstrates his callous disregard for her personal safety.

The respondent committed areprehensible sexual assault by forcing anal intercourse on his victim. He responded to her saying “no”, which she was entitled to do, bydomineering and humiliating her. He damaged her psychological health. The respondent then committed a further assault by kicking hisvictim following the sexual assault. [71] The victim of the crimes committed by the respondent was his then wife, the mother of their children. His offences are ones which involved domestic violence, and for which the level of moral blame worthiness is high.

They are factuallydistinguishable from the break and enter and secondary involvement in an aggravated assault on an acquaintance in Best, and the robberyof a taxi driver in Butler and the drug trafficking in Shaw, both of which are relied upon in Best. [72] The respondent has served the five month custodial portion of his sentence and all of the eight monthsconditional sentence with house arrest. He has just finished the final three month conditional sentence. [73] Another relevant factor concerns the length of any delay in proceeding to the appeal and the partyresponsible for such delay.

Neither the Crown nor defence counsel suggests there was any such delay here. [74] This brings me to the impact that reincarceration would have on the rehabilitation of the respondent. The court was not presented with a post-sentence report. However, both Crown and defence counsel indicated that the respondent hasbeen seeing a psychiatrist and is involved in a family violence program. The Crown does not say that he is not making progress or thathis efforts are other than sincere. However, it suggests that if the respondent is reincarcerated, he can continue his involvement in thatprogram while imprisoned.

The respondent is seeking reinstatement to his position as a firefighter and his grievance arbitration was tobe heard following his appeal. His counsel suggested that the arbitration would be “pretty much” determined if the respondent wasreincarcerated. The respondent is also enrolled in a heavy equipment course. [75] I have given the determination of an appropriate sentence and whether such a sentence should includereincarceration most anxious consideration. The reincarceration aspect is a close call.

Having reviewed the case law, I agree with theCrown’s position that, for this offender and these offences, a fit sentence for the sexual assault and two assaults would have been twoand one-half years in custody. However, while the sentence imposed was demonstrably unfit, in my opinion it is no longer in theinterests of justice to reincarcerate the respondent. [76] As the cases cited by the Crown illustrate, even if an offender has already been released from custodyand there are mitigating factors, an appellate court will reincarcerate an offender if the interests of justice require.

The interests ofjustice require a holistic assessment of the objectives of sentencing and the offender’s circumstances and what would be accomplished byhim spending more time in custody. Resolution of this issue is not simply a mathematical or formulaic exercise, and number crunchingalone will not determine whether reincarceration should be ordered. There is no stringent formula to follow, nor would one beappropriate. [77] In this case, the sentence was for 16 months with 11 of those served in the community.

When thisappeal was heard, the respondent had completed the five month custodial portion of his sentence and the eight month conditional

sentence portion which included house arrest. When this decision is released, he will have served the final three month conditional sentence. He followed the terms of those conditional sentences without fail. He is involved in a family violence program, and taking training that will assist in his finding employment should his efforts to be reinstated as a firefighter be unsuccessful. If those efforts should be successful, reincarceration could adversely affect his employment. In my view, returning him to custody would have a negative impact on the respondent ’ s rehabilitation.

It would not serve the interests of justice. Disposition [ 78 ] I would quash the ground of appeal regarding the judge ’ s decision not to impose a SOIRA order, and would dismiss the appeal. Oland, J.A. Concurred in: MacDonald, C.J.N.S. Beveridge, J.A.