Docket: CACR20 87 Bruce Arcand Appellant - v. -, 2013 SKCA 75

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 75 Date: 2013-07-11 Between: Docket: CACR20 87 Bruce Arcand Appellant - and - Her Majesty the Queen Respondent Between: Docket: CACR2099 Her Majesty the Queen Appellant - and - Bruce Arcand

Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Beverly Klatt for Her Majesty the Queen Bruce Arcand appearing on his own behalf by video conference on the conviction appeal John Epp for Bruce Arcand on the sentence appeals Appeal: From: QBNJ 22 of 2009, JC of Saskatoon Heard: January 22, 2013 Disposition: Conviction Appeal dismissed orally Sentence Appeals dismissed Written Reasons: July 11, 2013

By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson Ottenbreit J.A. I. Introduction [ 1 ] Bruce Arcand was convicted in the Court of Queen’s Bench of the following charges: Count 1 committing a sexual assault on T.S. contrary to

Section 271 of the Criminal Code ; and Count 2 kidnapping T.S. with intent to cause her to be confined against her will contrary to Section 279(1.1) (

a) of the Criminal Code . [ 2 ] He was sentenced to incarceration of five years less 40 days credit for time served on remand on the first charge and five years less 40 days credit for time served on remand on the second charge, concurrent to the first charge. As well, he was made subject to a 10 year firearms prohibition, a DNA order and a 20 year sex offender registry order. [ 3 ] Mr. Arcand appeals both his conviction and sentence. The Crown appeals the sentence. Mr. Arcand was self-represented on his conviction appeal and had the assistance of counsel on the sentence appeal. On the hearing of the appeal, Mr.

Arcand’s appeal from conviction was dismissed with brief reasons and written reasons to follow. With respect to conviction, these are the written reasons. The sentence appeals, however, were reserved. For the reasons hereinafter set out, both the sentence appeal of Mr. Arcand and the sentence appeal of the Crown are dismissed. II. Facts and Background [ 4 ] T.S. was having drinks with her parents at the Leask, Saskatchewan, bar in August 2008. While there, she met Mr. Arcand for the first time although Mr. Arcand was known to the victim’s family for many years.

He was invited to come back to her parents’ house for drinks. T.S.’s sister, A.S., drove T.S. and her parents back to her parents’ home. When they got there, A.S. went into the house leaving T.S. and her parents passed out in the vehicle. [ 5 ] Shortly after T.S.’s sister went into the house, Mr. Arcand pulled up to the house in his own vehicle. A.S. was in the house with her boyfriend, David. While David was sitting at the table having a beer, he looked outside and saw Mr. Arcand carry T.S. 10 or 12 yards to his car and put her in the passenger seat of his vehicle.

T.S. appeared very limp and had her eyes closed the entire time. It looked like she was either asleep or unconscious. He observed Mr. Arcand drive off with T.S. in his car. David told A.S. what he had seen. She looked out in time to see Mr. Arcand driving away with a passenger in the front seat who looked to be passed out with her head sideways. A.S. went outside and saw that the front seat of her vehicle was pulled right up and that her sister was not in it. Her parents were still in the truck asleep. [ 6 ] T.S. remembers waking up in a field with Mr.

Arcand on top of her trying to penetrate her vagina with his finger or penis. When she found Mr. Arcand on top of her, she told him to get off but he would not. Mr. Arcand held her hands above her head so she could not move. When she started screaming for help, Mr. Arcand let her get up. T.S. was not certain how she got away from Mr. Arcand but she was able to pull up her pants and underwear and went running into the bushes towards the highway. [ 7 ] She was eventually picked up and driven to a local store and was then able to get a ride back to her parents’ home.

Around 7:30 that evening, T.S. came home and her clothes and hands were dirty. She was very quiet and did not want to talk. After midnight she contacted the police to make a complaint. [ 8 ] Mr. Arcand denied taking and assaulting T.S. He testified that when he was coming to T.S.’s parent’s house, he first picked up a friend, Priscilla Starblanket, to drive him home and thereafter drove back to T.S.’s parents’ house. He testified that Ms. Starblanket waited in his car outside while he went into the house and had a few drinks.

He said when he left and was outside, T.S., who was drunk, got into their vehicle and the three of them drove away. Mr. Arcand testified that T.S. got obnoxious and was eventually kicked out of the vehicle by Ms. Starblanket who left T.S. near the outskirts of Muskeg First Nation. Ms. Starblanket testified for the defence in a

manner consistent with Mr. Arcand’s story. [9] The facts germane to the sentence appeals will be dealt with as part of that analysis. III. Decision of the Court Below [10] The trial judge began by instructing himself on reasonable doubt and credibility where the accused testifies, as stated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. He then went through the evidence of the various witnesses and explained why hebelieved some and not others. [11] He specifically found the evidence of David critical to the Crown’s case.

After considering David’s demeanour while he testified,the substance of his testimony, the fact that David had not been drinking prior to arriving at T.S.’s parents’ home and the fact that he hadonly consumed two or three beer before seeing Mr. Arcand carry T.S. to the car, the trial judge found him to be a credible witness. [12] The trial judge believed A.S.’s testimony and noted that she had spent much of the weekend as the designated driver and had notconsumed any alcohol or drugs. [13] The trial judge detailed Mr. Arcand’s testimony and gave examples of the testimony that were troubling.

Likewise he did the samewith respect to Ms. Starblanket’s testimony. After considering all the evidence, he believed neither Mr. Arcand nor Ms. Starblanket. [14] The trial judge unequivocally believed the testimony of T.S. as to the assault and all of her evidence in this regard. [15] In light of the foregoing, the trial judge convicted Mr. Arcand. The Crown sought incarceration of eight to ten years. Mr. Arcandproposed a conditional sentence or at most a sentence of two years plus one day.

The trial judge imposed the sentence of five yearsmentioned earlier. [16] In the sentencing process, the trial judge considered the following to be mitigating circumstances: (

a) there was no penetration; (

b) there were no injuries to the victim; (

c) he did not pursue her; (

d) he had a low risk assessment; and (

e) he has been able to maintain gainful employment. [17] He considered the following to be aggravating circumstances: (

a) his numerous convictions for assaulting people; and (

b) his willingness to take advantage of an intoxicated, unconscious person. IV. Issues [18] Mr. Arcand appeals his conviction on grounds which may be framed as follows: 1. T.S.’s testimony should not have been believed by the judge because she was not telling the truth; 2. Ms. Starblanket’s testimony should have been believed; 3. there was no DNA taken from T.S. to back up the allegations of sexual assault; 4. T.S. did not allow the doctor to fully administer the rape kit and the investigator did not have T.S.’s underpants; 5. T.S. went to the bar before reporting the assault; and 6. despite Mr.

Arcand being bigger than T.S., there was no bruising on her of any kind. [19] These grounds involve questions of fact and inferences drawn by the trial judge from the facts as well as findings of credibility. On the whole, these can be reduced to whether the verdict of the trial judge is unreasonable. V. Analysis A. Conviction Appeal [20] The standard of review for unreasonable verdict cases is well known. An appellate court must determine on the whole of theevidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

The standard ofreview does not permit an appellate court to simply substitute its opinion for that of the trier of fact (R. v. Yebes, (SCC),

[1987] 2 S.C.R. 168, at para. 25). Based on this standard of review, I cannot say that the trial judge erred in convicting Mr. Arcand. [21] With respect to the law, the trial judge properly instructed himself in accordance with R. v. W. (D.) on issues of credibility. In myview, he properly applied the principles of that case to the testimony and evidence he heard. [22] With respect to the trial judge’s factual findings, there was substantial evidence upon which the trial judge could come to theconclusions that he did. He believed A.S. and her boyfriend, whose evidence clearly indicated that Mr.

Arcand had taken T.S. from thevehicle while she was unconscious. He also believed T.S.’s testimony about the assault. The state of her clothes and the fact that herfingernails, which she normally kept clean, were dirty lent credence to her story that she was assaulted in the bush and thereafterattempted to get away. The trial judge did not believe either Mr. Arcand or Ms. Starblanket when they testified and made explicitfindings against their credibility. He gave reasons why he found T.S., A.S. and A.S.’s boyfriend credible and why he rejected theevidence of Mr. Arcand and Ms. Starblanket.

The trial judge was entitled to accept the evidence of T.S., her sister and her sister’sboyfriend and did not err in doing so. His findings of credibility with respect to those witnesses are justified and reasonable on the wholeand entitled to deference. [23] Mr. Arcand also argues that the trial judge erred in finding that the assault occurred because he failed to consider that:

(1) T.S.showed no bruising as a result of the incident despite the fact that he is a very large man and T.S. is of a slight build; (2) that T.S. did notreport the assault until sometime after it happened; and

(3) T.S. failed to cooperate in the taking of DNA samples and, as a result, therewas no DNA sample to corroborate the assault. [24] As an initial point, DNA evidence is not a requirement to prove that an assault occurred or for a conviction where other evidenceprovides such proof. In this case the trial judge was satisfied on the basis of testimonial evidence that the assault occurred and he wasentitled to rely on that evidence. The trial judge was aware of the other issues Mr.

Arcand raised in his grounds of appeal, such as lackof bruising and the delay in reporting the incident, and there is no indication that he failed to consider them. It was open to him toconclude that T.S.’s credibility was not diminished by them in the light of all the other evidence before him. I can find no error made bythe trial judge in that respect. [25] Based on the foregoing, I cannot say that the trial judge’s findings and the verdict are unreasonable. None of Mr. Arcand’ssubmissions warrant intervention by this Court based on the standard of appellate review. The appeal against conviction is dismissed.

B. Sentence Appeals [26] The standard of review is set out by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500:absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court shouldnot interfere with a sentence unless it is demonstrably unfit. [27] Mr. Arcand was 52 years old at the time of the trial and has lived at the Muskeg Lake Cree Nation his whole life. His pre-sentencereport indicates that he had a difficult upbringing.

His father, who was a Korean war veteran, worked as a farmer’s helper but earnedonly a meagre salary. There were 15 children in the family and often there was not enough food in the house for everyone. Both of hisparents consumed alcohol and domestic violence was commonplace. Mr. Arcand spent three years at St. Michael’s Residential School inDuck Lake and described this time as a living hell. He hated his religion, the nuns, the boys he lived with and recalls being the victim ofboth physical and sexual abuse. [28] Mr. Arcand has his Grade 12 GED.

He has been a roofer for the majority of his working career and owns his own company, B.A.Exteriors. Mr. Arcand has a criminal record that dates back to 1977 which includes property offences, driving offences and someassaults. [29] He started drinking and using marihuana at age 14 and throughout his teenage and early adulthood years tried to prove himself bydrinking and fighting. Mr. Arcand has been living in a common-law relationship with Lorraine Williams for over 30 years.

They have agood relationship but his on-going alcohol consumption problem has been difficult on their relationship. [30] In the past he has been convicted of assault on Lorraine on more than one occasion. He finds himself in the same cycle of drinkingand violence that he witnessed as a child with his parents. Mr. Arcand and Lorraine have four children and thirteen grandchildren. Hischildren are all involved in sports and reside within close proximity to his home. Despite his personal character flaws, he has attemptedto be a good father and a provider. [31] Although Mr.

Arcand has some physical health issues, he does not experience any problems with emotional health and has neverseen a mental health professional. [32] Mr. Arcand argues that the sentence is demonstrably unfit and unduly harsh and above the relevant range set by the court forsimilar offences. He maintains that the trial judge failed to give proper relief under Gladue principles because Mr.

Arcand was aresidential school student in his youth and a victim of sexual abuse, but also argues that the apology of the Prime Minister made on June11, 2008, to former students of Indian residential schools is an admission that by allowing Mr. Arcand to be abused in a residentialschool, the Government is partly to blame for Mr. Arcand’s criminal activity and that this was not given the proper consideration by thetrial judge. [33] Mr.

Arcand admits that the starting point for serious sexual assault is three years and submits that a sentence of three yearsimprisonment for each offence for which he was convicted is fit if it were to be served concurrently after taking into account Gladuefactors. He says, however, citing s. 718.2(

c) of the Criminal Code, that the five year sentence imposed is unduly harsh. Apart from thelength of the sentence, he argues the judge correctly exercised his discretion in imposing a concurrent sentence and a deferential standardof appellate review should apply on that issue. [34] The Crown argues that the sentence is disproportionate and unfit and that the trial judge erred by: (1) improperly considering asmitigating that there was no penile penetration, Mr. Arcand had no prior record for sexual offending, and that Mr. Arcand did not pursue

T.S. when she escaped from him; (2) failing to consider as aggravating the fact Mr. Arcand was on probation at the time of the offence,and that he was a friend of the family and in a position of trust; (3) failing to properly apply the Gladue factors; (4) imposing a sentencethat was, in total, too low; and (5) imposing concurrent sentences. The Crown argues that a sentence of at least four years for the sexualassault, a sentence in the range of four to five years for the kidnapping would be appropriate, and that a global sentence of at least sevenyears would be fit. [35] Although both Mr.

Arcand and the Crown argue that the trial judge misapplied Gladue, I cannot say he erred in this respect. Thetrial judge did not have the benefit of R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, which was not yet decided at the time ofsentencing. Accordingly, his reasons focus only on Gladue. In Ipeelee, LeBel J. confirmed Gladue as the governing authority withrespect to s. 718.2(e).

He stated that a sentencing judge must consider: (1) the unique circumstances of the offender that may have had arole in bringing the offender before the courts; and (2) the type of sentence that would be appropriate in the circumstances because of theoffender’s particular Aboriginal heritage (para. 72). He observed that s. 718.2(

e) directs a judge to recognize that a different sentencemay best meet the needs in a given community. [36] The trial judge acknowledged s. 718.2(e), that he had to consider Mr. Arcand’s aboriginal heritage and background in determininga fit sentence, and that he was required to take into account “the unique, systemic, or background factors … and that they may haveplayed a

part in the aboriginal offender’s conduct and types of sentencing procedures and sanctions which may be appropriate …because of his or her particular aboriginal heritage”.

I see no indication as argued by the Crown that the trial judge’s consideration of theGladue factors resulted in an inappropriate under-emphasis of the objectives of denunciation and deterrence. [37] After a careful review of the trial judge’s reasons, I am satisfied that the trial judge was alive to, and properly applied, the Gladueprinciples and his consideration of these principles was not inconsistent with the law as further developed in Ipeelee. [38] With respect to Mr. Arcand’s argument based on the Prime Minister’s apology, I cannot see how that apology has any additionalbearing on a lessening of Mr.

Arcand’s moral blameworthiness apart from the factors already to be considered under Gladue. AlthoughLeBel J. did state in Ipeelee, at para. 73, that systemic factors may “shed light on moral blameworthiness”, Mr. Arcand’s argument, if Iunderstand it correctly, is that the Government, by allowing Mr. Arcand to be abused in a residential school, partly caused his actions.

At worst, this argument is specious and at best it says no more than the residential school abuse, as part of the Gladue factors, must beconsidered in sentencing. [39] In my view, the Crown’s argument regarding aggravating and mitigating factors also fails. The trial judge made no error inassessing the aggravating and mitigating factors. I take his reference to the lack of penile penetration and lack of pursuit by Mr. Arcandas an attempt to determine the gravity of the offence on the spectrum of sexual assault offences. The Crown’s argument that Mr. Arcandwas in a position of trust is not supported by the facts.

Although he did not mention the fact that Mr. Arcand was on probation at thetime of the offence as an aggravating factor, this possible oversight ultimately has no meaningful effect on his global sentence. That hisconsideration of the aggravating and mitigating circumstances did not result in an under-emphasis on the gravity of the offence isconfirmed by the sentence of five years for the sexual assault. This is substantially in excess of the three year starting point for suchoffences. [40] Mr. Arcand also argues the sentence is unduly harsh citing s. 718.2(

c) of the Criminal Code. I take this argument to be that thesentence in total is demonstrably unfit. In support of this argument, the defence submits that the total sentence should have been in thethree to three-and-one-half year range. The Crown argues that it should be seven years. [41] The starting point for sentences for serious sexual assault is three years and assumes an offender of good character and no criminalrecord (R. v. Cappo (1993), 116 Sask. R. 15 (Sask. C.A.), R. v. Jackson, (SK CA), [1994] 3 W.W.R. 125 (Sask.C.A.)).

The trial judge observed that the offences were a major sexual assault and unlawful confinement, both of which were seriousmatters which required emphasis of the sentencing objectives of denunciation and deterrence. Given his age, Mr. Arcand has a lengthycriminal record of 36 prior convictions, some of which involve violence to women. A sentence of four years for the sexual assaultoffence by itself may have been appropriate looking at all the relevant circumstances and factors.

The real issue is the overall fitness ofthe sentence and the trial judge was obviously working toward crafting the overall sentence. [42] The kidnapping offence is, in itself, an offence which is equally as serious as the sexual assault and would attract, by itself, asubstantial incarceral sentence. If the trial judge had sentenced consecutively for each offence, a total sentence of five years would notbe out of line. This is clear from R. v.

Bermudez-Rivera, 2010 ONCA 653, at paras. 1-3, where the accused’s appeal of a sentence of fiveyears for an assault and attempted kidnapping of a young woman was dismissed. [43] The Crown does not, on this appeal, argue the sentence for sexual assault is demonstrably unfit as much as that a consecutivesentence for the unlawful confinement should have been imposed. Richards J.A. in R. v.

Agecoutay, 2009 SKCA 100, [2009] 11W.W.R. 606, at paras. 62, 63 and 64, said this about concurrent versus consecutive sentences: 62 In considering this submission, it is necessary to begin by emphasizing that a decision to impose concurrent rather thanconsecutive sentences, or visa [sic] versa, attracts considerable curial deference. The Supreme Court described the applicable standard ofreview as follows in R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948: [46] In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed byappellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length ofsentence, clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences.

Inboth setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-handknowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factorsor imposed a sentence which, considered in its entirety, is demonstrably unfit.

The Court of Appeal in the present case failed to raise alegitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result ofthe sentencing judge’s exercise of discretion, which is insufficient to interfere.

63 There are two situations where trial judges ordinarily opt for concurrent sentences. The first is where more than one conviction arises from a single criminal “adventure,” “enterprise” or “transaction.” The reason for imposing concurrent sentences in these situations is because that, when there are convictions for closely related offences, a concern about double punishment arises.

See: Allan Manson , The Law of Sentencing (Toronto: Irwin Law, 2001) at 101. 64 The second situation where concurrent sentences are typically imposed is where such an approach is necessary to avoid an overall sentence which is unduly long or harsh. This is the so-called totality principle. See: Criminal Code, s. 718.2(c). [ 44 ] The trial judge specifically noted as important the principle set forth in s. 718.2(

c) respecting consecutive sentences not being unduly long or harsh. He clearly had in mind a total sentence and I take it that he chose for this reason to make the sentences for both offences the same but concurrent in keeping with the second approach described above.

The trial judge’s decision to impose concurrent sentences is entitled to deference. [ 45 ] In this case, the trial judge correctly observed that the sentence must be fit for the offence and offender, correctly referred to the fundamental principles of proportionality under s. 718.1 as well as the principle of parity under s. 718.2 (b), and was also cognizant of mitigating and aggravating factors, as well as Gladue factors.

Given the constellation of facts and the balancing of aggravating and mitigating factors done by the trial judge, as well as the Gladue factors, the total sentence of five years is not demonstrably unfit and gives due regard to the principles of denunciation and deterrence. I cannot say the trial judge committed an error which warrants appellate intervention based on the appellate standard of review. [ 46 ] The total sentence of five years is, in my view, not demonstrably unfit. The appeals of both the accused and the Crown are dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 11 th day of July, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Ottenbreit J.A.” for Chief Justice Richards I concur “Jackson J.A.” Jackson J.A.