Docket: CACR2041 Her Majesty the Queen Appellant - v. -, 2012 SKCA 6

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 6 Date: 20120112 Between: Docket: CACR2041 Her Majesty the Queen Appellant - and - Kim Tuffs Respondent Restriction on Publication: An order has been made in this case pursuant to s. 486.4(1) of the Criminal Code directing that the identity of the complainant and any information that could disclose the identity of the complainant shall not be published in any document or broadcast in any way. Coram: Lane, Smith and Caldwell JJ.A. Counsel: W. Dean Sinclair for the Crown

William H. Roe, Q.C. for the Respondent Appeal: From: QBNJ 29/10, J.C. Saskatoon Heard: January 12, 2012 Disposition: Appeal allowed (orally) Written Reasons: January 26, 2012 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Caldwell Lane J.A. [ 1 ] After a trial at which he denied the accusations, the respondent was convicted of sexual assault and given a suspended sentence with 18 months probation.

The Crown appeals the sentence as unfit contending in the main the trial judge erred in principle, overemphasized the respondent’s personal circumstances and failed to give appropriate weight to the principle of parity. The respondent contends the trial judge carefully articulated his reasons, was fully alive to the issues, considered all of the appropriate sentencing principles and imposed a fit sentence in the circumstances. [ 2 ] The Court rendered its decision orally allowing the appeal finding the sentence imposed was unfit, with brief written reasons to follow.

These are the reasons. [ 3 ] No issue is taken with the standard of review and the essential facts. The facts are fully canvassed in the conviction decision of the trial judge but a brief review is in order. The parties, the complainant an off-duty RCMP police officer and the respondent a businessman in a nearby community, were separately visiting the same friends in Kindersley. After an evening of socializing and drinking, they eventually ended back at their mutual friends’ residence.

The complainant testified she was sleeping in the basement of the residence and the respondent, without her consent, got on the bed behind her (she being under the covers and the respondent on top) and placed one of his hands down her pants touching her vagina and said words to the effect “I know you say no, but I know you want it.” She further testified the respondent grabbed her hair to force her head around in an attempt to kiss her.

She was able to push him off her and testified that at some point “something clicked in his head that, okay, well maybe I shouldn’t be doing this” and later said it just ended after something clicked as if the respondent recognized it was something he should not be doing. She testified that there was no penetration. [ 4 ] The complainant’s testimony as to the duration of the incident was uncertain and ranged from a couple of minutes to 30 seconds but she was not sure of the exact length of time. [ 5 ] She reported the incident to a fellow officer at the local detachment the next day.

The officer took photographs of the injuries.

The officer to whom she reported noted a little bit of bruising but primarily reddening on the complainant’s neck and shoulders and near the bottom of her hairline. [ 6 ] The trial judge convicted the respondent describing the incident as a sexual assault at the lower end of the scale and his initial reaction, after the conviction but prior to the later sentencing hearing the matter, as one which would not likely result in a jail term. [ 7 ] At the sentencing hearing, the Crown sought a custodial sentence of two years or two years less a day and the respondent argued for a non-custodial sentence.

The trial judge reviewed the cases and found the cases submitted by the Crown were not helpful as most referred to serious sexual assaults. He then turned to the case authorities submitted by the respondent finding they gave more guidance with respect to the principle of parity than the decisions cited by the Crown. It is to be noted that none of the cases submitted to the trial judge by the respondent involved the application of physical force.

Before this Court, the Crown contended the offence was very serious even if it was not a major sexual assault and maintained its position there ought to be a period of incarceration of two years or two years less a day.

[ 8 ] The trial judge noted a conditional sentence was not available for this offence and acknowledged “that cases such as this most often result in the imposition of a period of incarceration. This is because a period of incarceration is normally the type of sentence that is required to reflect society’s view that such actions cannot be condoned and to give appropriate weight to denunciation and general deterrence.” (Trial transcript p. T298) [ 9 ] He then, however, went on to say: However, in this case, Mr. Tuffs, I’m not going to send you to jail.

Your wife and children depend upon you and sentencing you to prison would be unduly harsh on both you and your family. It is also apparent that you are relied upon in your community as a well- respected pillar who volunteers your time and money unselfishly. The fact that I have found you guilty of the stigmatizing offence of sexual assault undoubtedly in my mind is the harshest penalty that can be imposed upon you an otherwise outstanding citizen in your community. You are now branded as a sexual offender and will be saddled with a criminal record.

You will be required to be registered with the National Sexual Offender Registry which means that you will be lumped together with all of the other registered sexual offenders in this country. The finding of guilt and the consequences that flow from it are punishments far more severe for a person of your status than any term of imprisonment that I can impose. Your father, a retired member of the Royal Canadian Mounted Police and your wife have stood by you throughout these proceedings. You should be thankful for that.

However, you will also have to bear the price for the shame that you have brought to them and the other members of your family. As I have stated, that punishment is beyond any other punishment that I could impose and in the unique circumstances of this case, justify a deviation from what would normally result in a custodial sentence. [Trial transcript pp. T298-T299] [ 10 ] We are all of the view that sexual assaults of this nature should draw a period of incarceration and, therefore, the sentence imposed was demonstrably unfit.

The respondent used physical force which distinguishes this case from the cases of fleeting touching. (See, for example, R. v. Chrispen , 2009 SKCA 63 , 331 Sask. R. 212 where a conditional sentence was imposed.) [ 11 ] In our view, the sentencing judge erred by overemphasizing the circumstances of the respondent and sentencing him on the basis of his status in the community. The harsh effect on a convicted accused’s family and the stigma of conviction are not uncommon consequences of a conviction and sentence.

The fact the accused is a pillar of the community can be both a mitigating factor but also an aggravating factor as an accused may be in the position where he or she ought to know better. It is noted the respondent is now 37 years of age with no prior criminal record. [ 12 ] However, we agree with the trial judge this was a case of sexual assault on the lower end of the scale.

Although there was a claim of bruising, the testimony of the investigating officer said it was slight and there was more of a “redness.” The duration of the incident was very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said he was sorry and left. This is not to minimize the effect on the complainant who filed a victim impact statement stating she was required to take time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep.

She said she was forced to see a psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as a result of the assault. [ 13 ] We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and the immediate reaction of the respondent that he had gone too far, a sentence of one year incarceration satisfies the sentencing principles and, in particular, does not offend the principle of parity. See, for example, R. v.

Iron , 2005 SKCA 84 , 269 Sask. R. 51 where the accused, with a prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop until the victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having served part of the conditional sentence imposed by the lower court. [ 14 ] The sentence below is therefore, in part, set aside and a sentence of one year incarceration is imposed.

The orders to provide a DNA sample, compliance with the Sex Offender Information Registration Act , S.C. 2004, c. 10, the firearms and weapons prohibition, and the victim surcharge order are, however, continued.