Docket: CACR2264 Konrad Durell Dyck Appellant - v. -, 2014 SKCA 93

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 93 Date: 2014-09-12 Between: Docket: CACR2264 Konrad Durell Dyck Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Jackson and Whitmore JJ.A. Counsel: Adam Fritzler for the appellant W. Dean Sinclair for the respondent Appeal: From: Provincial Court Heard: May 22, 2014 Disposition: Appeal allowed Written Reasons: September 12, 2014 By: The Honourable Madam Justice Jackson

In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore Jackson J.A. I. Introduction [ 1 ] Konrad Dyck applies for leave to appeal a 10-year sentence, calculated as follows: (

i) nine years for an aggravated sexual assault, contrary to s. 273 of the Criminal Code , RSC 1985, c. C-46 and (ii) one year consecutive for evading a peace officer, contrary to s. 249.1(1) of the Code . Mr. Dyck spent approximately 15 months on remand before pleading guilty. The learned sentencing judge granted him 18 months credit for that time, leaving him with eight years and six months to serve at the time of sentencing. [ 2 ] Mr. Dyck appeals his sentence primarily on the bases that the sentencing judge: (

i) relied on decisions like R. v. Asapace , 2011 SKCA 139 , 377 Sask. R. 210, which he submits are not applicable, given the circumstances of his offence and his personal circumstances, (ii) failed to give sufficient consideration to the likelihood of his rehabilitation contrary to s. 718(

d) of the Code , and (iii) failed to give any effect to his guilty plea, his efforts at rehabilitation post arrest and his very real remorse. The appellant argued that these errors led the sentencing judge to impose a demonstrably unfit sentence. [ 3 ] Mr. Dyck also appeals the sentencing judge’s calculation of remand credit in light of the Supreme Court of Canada’s recent decisions in R. v. Summers , 2014 SCC 26 , 308 C.C.C. (3d) 471 and R. v. Carvery , 2014 SCC 27 , 308 C.C.C. (3d) 375. [ 4 ] In

summary, and for the reasons that follow, I would grant Mr. Dyck leave to appeal and allow the appeal from sentence in relation to the aggravated sexual assault conviction. I would fix the sentence for that offence at six years. A consecutive sentence of one year for the charge of evading the police is a fit sentence. A total sentence of seven years does not offend the principle of totality. I would grant Mr. Dyck 23 months remand credit, according to the principles stated in Summers and Carvery . II. Background [ 5 ] Determining exactly what the facts are in this case was a difficult task.

Both parties were intoxicated by drugs and alcohol, and describe the events differently. A further difficulty stems from the fact that the Crown did not file a medical report in order to demonstrate to the Court precisely what happened to the victim. Most of the information, regarding the extent of the complainant’s physical injury, comes from her victim impact statement, which was prepared almost 11 months prior to sentencing and was not accepted in its entirety by Mr. Dyck. The balance of the information—upon which the sentencing judge relied—came from Crown counsel, but some of this was contradicted by Mr.

Dyck. [ 6 ] The core facts, accepted by Mr. Dyck, are these. The complainant in the assault was Mr. Dyck’s girlfriend, S.M. Sometime before the incident in question, S.M. told Mr. Dyck she had been engaged in prostitution during their relationship. As a result, Mr. Dyck ended the relationship. The couple made efforts to reconcile. On the day in question, S.M., upset about the possibility of a pending break-up, took a large quantity of pills. Nonetheless, they engaged in consensual sex, which at some point became non-consensual. Mr.

Dyck caused serious injury to S.M., requiring her to be hospitalized for one week, and to undergo at least two surgeries. The Crown advised the sentencing judge that these surgeries were to repair her vagina. The nature of the injuries is not described, but they affected bowel function, and required hospitalization for one week. She continued to have difficulty as of when the victim impact statement was written. Exactly how the injuries were caused is not known, but according to the Crown’s submissions at sentencing the injuries to her vagina and anus were caused by the insertion of something.

The Crown did not allege at sentencing that a weapon or any object other than Mr. Dyck’s body caused the injury. [ 7 ] The victim stated Mr. Dyck choked her; she had marks on her throat consistent with this. Mr. Dyck minimized this aspect of the offence. Neither the victim nor Mr. Dyck testified at the sentencing hearing, notwithstanding the variations in their recollections as to what had happened. The Crown stayed a third charge of choking for a purpose. [ 8 ] These were the facts as described by Mr. Dyck’s counsel: His version is that he learned about [S.M.] being a prostitute at the end of their relationship.

She had previously denied it to him. She claimed she was only working as a stripper at stag parties. They had broken up briefly, but had gotten back together after she had reassured him. He found out information from her cell phone and her Facebook account on the day of the offence that she was, in fact, prostituting herself. … The mood of the accused continued to get worse because of what he found out and because he felt she had lied to him and because the two of them did have unprotected sex during their relationship.

Later that night, D.J., who was another resident of the house, came and got Konrad to tell him that [S.M.] was downstairs, naked, and apparently asleep or passed out. Konrad took her upstairs and put her in bed, and then continued to drink and do drugs with [R.R.]. After an unknown length of time Konrad went into her room to check on [S.M.] and found her awake. He questioned her about her activities as a prostitute and she grabbed his hand. She kissed him and they began to have consensual sex, and then things go badly again. He questions her more about her life as a prostitute.

He became angry and hit her, but the combination of drugs and alcohol overcome him and his memory has major holes in it after that point in time. He acknowledges he may have choked her at one point in time, but not necessarily to overcome resistance to an offence that was being committed . He also advised that on other occasions in the past they did

have consensual anal sex, but that was obviously not what happened in this case. I only mention it for part of the context of their previousrelationship. He later c[a]me to in her bed after an unknown amount of time and he saw blood. He then found [S.M.] in the bathtub, and they argue,and he admitted he poured a drink on her. He left the house shortly thereafter [emphasis added]. (T22–23) [9] As I have indicated, S.M. filed a victim impact statement. She is a young person, being only 20 years old. She continued toexperience anxiety when alone.

She had lost her confidence, is less outgoing, and has difficulties trusting people. She questioned herability to parent. She felt guilty and ashamed about what had happened to her and had sought counselling, which was helping. At the timeof sentencing, almost 11 months later, no up-to-date information as to her health was given to the sentencing judge. [10] The facts in relation to the evading police charge were uncontroverted. After assaulting the victim, Mr. Dyck fled to BritishColumbia, ostensibly to visit his child from another relationship. He was found about six weeks later.

Two police vehicles attempted to“box” Mr. Dyck’s vehicle in while he was stopped at a red light. Mr. Dyck initially managed to evade the police. Shortly thereafter hecrashed his vehicle and the police apprehended him. [11] Mr. Dyck was 23 and 24 years old when he committed the within offences. He had a troubled childhood and lived in adysfunctional home, with abusive parents, admitted to be so by his mother—who filed a letter with the sentencing judge. Mr. Dyck haddifficulty with authority as a child, which continued into his teenage years and adult life.

He was prescribed Ritalin before the age of 10.He began offending at the age of 20. In the ensuing four years, he committed 22 offences (not including the within offences), all of themassociated with alcohol consumption and a lack of respect for authority, including crimes of mischief, driving while under the influence,and obstructing and evading the police. He has one assault charge on his record, which was as a result of throwing his cell phone at aformer partner and hitting her, for which he received a suspended sentence and one year probation in 2008.

He was on probation when hecommitted the offences in question. [12] He has had one previous long-term partner with whom he has a child. It was this child he planned to visit before being arrested onthe within charge. [13] Mr. Dyck has been employed at various restaurant and construction jobs since his middle teens. Prior to sentencing, he had been in21-hour lockup or in protective custody. He earned his Grade XII equivalent during his remand time. He also engaged in a course ofBible study, which he undertook on his own. III.

Decision of the Sentencing Judge [14] The sentencing judge found that the range of sentences for aggravated sexual assault of this nature is between eight and 11 years.To determine the range, he referred to three decisions: Asapace (eight years), R. v. Jack (1992), 15 B.C.A.C. 116 (10 years), and R. v.Broekaert,[1] 2003 MBCA 10, 171 CCC (3d) 97 (12 years). [15] The sentencing judge found that denunciation and deterrence, both general and specific, were important objectives in fixing a fitsentence in this case.

He also mentioned that he had considered rehabilitation and the totality principle, in arriving at a sentence of nineyears for the aggravated sexual assault. [16] With respect to the evading police charge, the sentencing judge noted that Mr. Dyck had been convicted of flight or evading policeon two prior occasions.

Given this, and the fact that he was trying to “avoid answering to the offence of aggravated sexual assault” (T39),the sentencing judge found that a consecutive term of incarceration of one year was warranted. [17] Regarding credit for remand time, the sentencing judge indicated that he declined to exercise his discretion to give Mr. Dyck 1.5months credit for each month on remand because of his deliberate decision to leave the Province of Saskatchewan and to flee frompolice. In the result, he credited him with 18 months rather than 23. IV. Fitness of the Sentence A.

Did the sentencing judge impose a demonstrably unfit sentence? [18] The standard of appellate review for sentences is fixed by R. v. M.(C.A.), (SCC), [1996] 1 SCR 500, 73 B.C.A.C.81 at para. 90 where Lamer C.J., speaking for the Court, stated the following: 90 Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitlyvested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. Ass. 717(1) reads: 717.

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposedis, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits theoffence.[2] [italic emphasis added] Lamer C.J. cautioned courts of appeal not to intervene to minimize disparity in sentencing unless the sentence imposed is “in substantialand marked departure from the sentences customarily imposed for similar offenders committing similar crimes” (para. 92). [19] The Supreme Court of Canada has also expressed the standard of appellate review for sentencing in terms of permitting

intervention only when the sentence is “clearly unreasonable” (see R. v. L.M., 2008 SCC 31 at para. 15; [2008] 2 S.C.R. 163). TheSupreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6 at para. 46; [2010] 1 S.C.R. 206 made it clear that “clearly unreasonable”and “demonstrably unfit” are words describing the same standard. [20] Notwithstanding this deferential standard of review, the Supreme Court of Canada has also made it clear that appellate courts havea duty to ensure that demonstrably unfit sentences are set aside.

The Supreme Court of Canada has recently stated an appellate court mustbe satisfied that every sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of theoffender. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, speaking for the Court on this point, LeBel J. wrote: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing –the maintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish toaccord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity ofthe offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson J. expressed in her concurring judgment in Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R.486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. … [39] There are limits, however, to the deference that will be afforded to a trial judge. Appellate courts have a duty to ensure thatcourts properly apply the legal principles governing sentencing.

In every case, an appellate court must be satisfied that the sentenceunder review is proportionate to both the gravity of the offence and the degree of responsibility of the offender. [italic emphasis added] [21] Applying these principles to the case at hand, I have concluded that a 10-year sentence for this aggravated sexual assault andevading the police is a demonstrably unfit sentence. A 10-year sentence is not proportionate to the gravity of the offences or the moralresponsibility of the offender.

After having extensively reviewed the authorities across Canada, I have determined that no other court ofappeal has imposed or sustained a sentence of nine years for aggravated sexual assault in similar circumstances. Mr. Dyck committed aserious offence and caused significant harm, for which a lengthy penitentiary term is warranted, but to sustain this sentence overlyemphasizes the principles of denunciation and retribution and, if sustained, would distort sentencing ranges for other offences. [22] In my respectful view, the sentencing judge committed two errors of principle.

First, he misstated the range for aggravatedsexual assaults, making eight years the bottom of it. Second, he gave no weight to the circumstances of the offender, erroneouslyequating him to the offenders in Asapace, Jack and Broekaert.

In the result, the sentence imposed by the sentencing judge offends thefundamental principle of sentencing that every sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender (s. 718.1). [23] My conclusions in that regard are best illustrated by a review of Asapace (eight years), Jack (10 years), and Broekaert (12years) and the other decisions cited by the Crown on appeal before us: R. v. Peskey, 1989 CarswellMan 386 (WL), [1989] M.J. No. 160(QL) (Man. C.A.) (eight years plus seven and one-half months remand); R. v.

Challis (1990), (NS CA), 95 N.S.R.(2d) 57 (C.A.) (14 years); and R. v. Hachey, 1998 ABPC 87, aff’d 1999 ABCA 64, 232 A.R. 150 (19 years from date of sentence pluseight months in remand for which an unspecified amount of credit was given). These six decisions are reviewed in detail in“Appendix A.” [24] In addition to aggravated injury, the above mentioned decisions involve a combination of the following factors: (

i) use of an object or weapon to inflict injury (Asapace, Jack, Broekaert, Challis, and Hachey); (ii) prolonged abuse (Broekaert, Peskey, Hachey); (iii) permanent injury (Hachey); (iv) confinement (Jack, Peskey, Hachey); (

v) mental disorder elevating the risk of reoffence (Broekaert, Challis, Hachey); (vi) lengthy related record (Asapace, Challis, Hachey) and, in the case of Asapace, a record of offences against the same victim; (vii) the sentence imposed was intended to be a sentence that accounts for other offences (Peskey—also sentenced with endangering thelife of the victim by administering a poison; Asapace—nine offences, including prior and subsequent assaults on the same victim); (viii) no guilty plea (Asapace, Challis); (ix) an express finding of no remorse (Asapace, Jack); and (

x) dim prospects for rehabilitation (Asapace, Jack, Broekaert, Challis, and Hachey).

These factors are not present in the case at hand. [25] Other decisions offer sentences at the lower end of the spectrum. In P.(F.K.), 1985 SKCA (SentDig) 90, this Court reduced a sevenyear sentence to five years for an aggravated sexual assault committed by an 18 year old. The offence involved “fractures of the jaw andribs and extensive cuts and bruises.” The accused had a lengthy record, including two assaults and two breaking and entering with intentconvictions. He pled guilty. [26] In R. v. Green (1998), (NL SC), 164 Nfld. & P.E.I.R. 261 (Nfld.

T.D.), the victim went to the accused’s home.When she was passed out the accused “fondled her, removed her clothing and put his clenched fist in her vagina as far as his wrist”(para. 4). The complainant awoke around 3:00 a.m., and she found herself in a pool of blood. When the accused realized the severity ofthe complainant’s injuries, he contacted a Clinic and helped a nurse find the complainant and take her to the Clinic. The accused was athis house when the investigating officers arrived, admitted he was responsible, and pled guilty. Mr. Green had no criminal record and hehad a positive history of employment.

The sentencing judge held that cases in which the accused were sentenced to a period of seven tonine years were “not analogous to the fact situation in the present case mainly due to the fact that the offenders in all the authoritiessubmitted to me by the Crown had lengthy criminal records involving serious acts of violence” (para. 17). He imposed a sentence of fiveyears. A similar case to Green (involving a guilty plea, no weapon, an unrelated record, and similar injury committed by inserting a fistin the vagina and the anus) is R. v.

Sherrard, 2012 NUCJ 4, where the Court also imposed a sentence of approximately four and a halfyears. [27] Lesser sentences than these also exist: (

i) R. v. Melo (1991), 44 O.A.C. 244—The accused forced his estranged wife to have sexual intercourse. The accused assaulted thevictim, forced her into the bedroom, pushed her onto the bed and held a pillow over her face, and removed clothing. Sentence: 18months. (ii) R. c. M.(E.), 2007 QCCQ 12730—The victim, who was the accused’s spouse, had major abdominal surgery. Soon after this, theaccused forced the victim to have non-consensual sexual intercourse. The victim was hospitalized for seven days “for the aggravation ofher surgical wounds” (R. c. M.(E.) (2007), R.

Paul Nadin-Davis, Canadian Sentencing Digest 2008 (Scarborough: Carswell, 2008) atpara. 97.2, Westlaw Canada online), and suffered from nightmares, panic attacks and anxiety. She was required to take medication forher emotional suffering. The accused was 25 years old and unemployed. The accused had a history of abusing drugs and alcohol, he hadhad behavioural problems since he was 16 years old, and he had been sexually assaulted when he was a child. He was at a moderate tohigh risk of reoffending. The accused’s record included a previous conviction for sexual assault.

He had been serving a conditionalsentence in relation to drug-related charges. Sentence: 42 months. (iii) R. v. Hera, 1993 CarswellOnt 2107 (WL) (Ont. Gen. Div.) varied by [1995] O.J. No. 364 (QL) (C.A.)—The accused was foundguilty of aggravated sexual assault and an unspecified related offence. The accused, who was the victim’s son or beloved nephew, waswell respected in his community. The victim was vulnerable by virtue of her age, her isolation, her infirmity and by virtue of her implicittrust in the accused. At trial, a sentence of five and one-half years was imposed.

Sentence: The Court of Appeal found the crime to be a“serious” one, but reduced the sentence to four years, saying the accused was a first offender of previous good character whose conductseems to have been the result of alcohol and frustration. (iv) R. v. G.D.D., [1998] O.J. No. 4846 (QL) (C.A.)—The accused was convicted of eight counts, arising from two separate incidentsof sexual assault committed against his former common-law spouse. The first count was for sexual assault. The remaining counts, whichrelated to the second incident, included aggravated sexual assault.

The second incident was the more serious of the two, and it wasdescribed as “cruel, premeditated and horrific” (para. 10). The accused did not have a criminal record. The accused was initiallysentenced to three years on the count of aggravated sexual assault and to concurrent sentences of three years imprisonment on theremaining counts. The Ontario Court of Appeal allowed the Crown’s appeal against sentence. Because the two incidents were differentin nature, they should have resulted in consecutive sentences. A sentence of two years on the first count and five years on the remainingcounts was appropriate.

However, once the totality principle was taken into account, the Court held that the appropriate total sentencewas six years (two years on the first count and four years for the aggravated sexual assault, and four years on each of the remainingcounts, to be served concurrently with the sentence imposed with respect to the aggravated sexual assault). [28] From this review of the authorities, some observations may be made that are relevant to the within appeal. First, the sentencingjudge in the within case erred by stating the range for aggravated sexual assault is eight to 11 years.

This range does not account for thelower end of sentences given for aggravated sexual assault. Sentences vary markedly and depend upon a wide variety of circumstances,making the establishment of one range difficult and of little utility. Certain patterns emerge, depending on the degree of injury, whether aweapon was used, and the degree of dangerousness of the other offender, but other variables, including these pertaining to the accused’spersonal circumstances, make any conclusions regarding patterns of general use only. [29] Second, a sentence of 10 years gives no credit to Mr.

Dyck for his guilty pleas and no credit for efforts at rehabilitation sincecommitting the offences. After being apprehended, it was Mr. Dyck’s intention from the outset to plead guilty in British Columbia andserve his sentence there. He asked for his Saskatchewan charges to be waived into that province for the purposes of pleading guilty to alloffences. He was originally charged with the two offences already mentioned plus a charge under s. 246 of the Code, choking for apurpose. He denied that charge, resulting in him being brought back into Saskatchewan.

After arriving here, the Crown agreed to dropthe s. 246 charge, and Mr. Dyck agreed to plead guilty to the two remaining offences. The Crown expressly acknowledged that the delaybetween his apprehension and sentence was caused by scheduling and other difficulties, and not because of a lack of desire on

Mr. Dyck’s part to plead guilty. [30] The pre-sentence report indicated that he grew up in a troubled home with little supervision and with little motivation to completehigh school. While on remand, however, Mr. Dyck completed his GED achieving a 90% average. There is no indication of anyunderlying psychosis. While he has been a user of drugs and alcohol, the pre-sentence report indicated that the Addiction TreatmentCentre had assessed him in 2008 as having no drug or alcohol dependence. [31] Third, proof of injury is an essential part of the ratio of the six decisions relied upon by the Crown.

In each of them, the sentencingjudge was also the trial judge, or the preliminary inquiry judge, or was presented with an agreed statement of facts or a medical report. Inthis case, all that the sentencing judge had were the submissions of the Crown, which were far from definitive, and some of which thedefence did not accept, and the victim impact statement. The victim did not have a clear recollection of what had happened, as she hadingested a significant quantity of drugs when she thought that Mr. Dyck was going to break up with her. Mr.

Dyck stated that he too hadingested drugs and consumed large amounts of alcohol. In such circumstances, accurate and precise medical information proving theinjuries to the victim was critical to supplement the victim’s memory.

Without it, this case clearly does not fit within the group of casesrepresented by the six decisions that the Crown relies upon as support to sustain a 10-year sentence. [32] Crown counsel in the within appeal did not file a medical report, but he indicated that the surgeons described “significant rectal andvaginal trauma” (T9) requiring surgery “to repair vaginal lacerations.” Crown counsel did not know how many surgeries but he said “it’smore than two” (T9). The police observed blood staining on the mattress, floor and towelling.

When asked by the sentencing judge howlong the assault went on, Crown counsel said he could not “really tell” but “it went on long enough that the victim -- well, to inflictserious injury” and “at the very, very least we can say this is more than just fleeting.” (T13). S.M. had marks on her neck. Mr.

Dyckacknowledged “he may have choked her at one point in time, but not necessarily to overcome resistance to an offence that was beingcommitted” (T23). [33] In light of these matters, a global sentence of 10 years simply cannot be sustained without doing harm to the sentencing principlesand, indeed, ranges for other offences. A 10-year sentence is demonstrably unfit, and must be set aside. B.

What is a fit sentence in this case? [34] Since the sentence imposed must be set aside, it is necessary to determine what a fit sentence is in this case. [35] This Court has repeatedly stated that sentences for major sexual assaults must reflect the seriousness of such crimes. To thatend, in 1992, this Court established a starting point sentence of three years for a major sexual assault committed contrary to s. 271 of theCode (see R. v. Bird (S.D.) (1992), 105 Sask. R. 16 (C.A.)). The three-year sentence threshold assumes a mature accused of goodcharacter with no record (see R. v. Cappo (T.) (1993), 116 Sask.

R. 15 at para. 15). Since Bird, this Court has repeatedly sustained orimposed sentences for sexual assault, committed contrary to s. 271 of the Code, based on a starting point of three years (see, for example,R. v. Kasokeo, 2009 SKCA 48, 324 Sask. R. 156; R. v. K.M., 2012 SKCA 95, 399 Sask. R. 234; and R. v. Whiting, 2013 SKCA 101, 423Sask. R. 177). Three years is a starting point only. It may be increased or decreased depending on the gravity of the offence and thedegree of responsibility of the offender.

The maximum punishment for sexual assault committed contrary to s. 271 of the Code is 10years. [36] An aggravated sexual assault committed contrary to s. 273 of the Code is a far more serious offence than a sexual assaultcommitted contrary to s. 271 of the Code, and will almost invariably attract a sentence greater than the starting point sentences for majorsexual assaults. A sexual assault becomes an aggravated sexual assault when the accused wounds, maims, disfigures, or endangers thelife of the complainant (see s. 273(1)).

Unlike an offence under s. 271 of the Code, the maximum punishment for aggravated sexualassault is life imprisonment. [37] Neither this Court nor any court has established a starting point sentence for aggravated sexual assaults. Parliament, however,has established a minimum sentence for aggravated sexual assaults committed in certain circumstances: (

i) five years for a first offence of aggravated sexual assault, if a restricted or prohibited firearm is used and the offence iscommitted at the direction or benefit or in association with a criminal organization (s. 273(2)(a)(i)); (ii) seven years for a second offence of aggravated sexual assault, if a restricted or prohibited firearm is used and the offence iscommitted at the direction or benefit or in association with a criminal organization (s. 273(2)(a)(ii)); (iii) four years in any other case where a firearm is used in the commission of the offence (s. 273(2)(a.1)); (iv) five years if the victim is under the age of 16 years (s. 273(2)(a.2)).

None of these circumstances pertain to the within appeal, but they are further evidence of Parliament’s intention to treat aggravatedsexually assaults as serious offences attracting significant penalties. [38] In fixing a sentence in the within appeal, it is useful to consider the aggravating and mitigating circumstances applicable to anaggravated sexual assault. A review of sentences for aggravated sexual assault committed in Canada demonstrates that aggravatingfactors include the following: [3] (

a) The offender, in committing the offence, abused the offender’s spouse or common-law partner (s. 718.2(a)(ii) of the CriminalCode). This principle has been extended to former partners (see R. v. Cook, 2009 QCCA 2423, 250 C.C.C. (3d) 248 (leave to appeal toS.C.C. refused). (

b) The victim is under 18 years of age (s. 718.2(a)(ii.1) of the Code). For example, see: R. v. Lemay, 2007 BCCA 501 at para. 1; R.v. J.B. (2004), (ON CA), 187 O.A.C. 307 at para. 1; R. v. Poslowsky (1998), (BC CA), 126C.C.C. (3d) 475 (B.C.C.A.) at para. 18; Peskey at para. 2; R. v. L.A.B., [1985] B.C.J. No. 2590 (QL) (B.C.C.A.) at para. 4; R. v. S.(W.B.);

R. v. P.(M.) (1992), (AB CA), 73 C.C.C. (3d) 530 (Alta. C.A.) at 549 and 551 [S.(W.B.)]. (

c) The accused abused a position of trust or authority in relation to the victim (s.718.2(a)(iii) of the Code). For example, see: R. v.J.J.L., 2007 ABPC 194 at paras. 18–19; and S.(W.B.) at 537, 556–57. (

d) The degree of violence used during the sexual assault. For example, see: Asapace at paras. 17 and 79; Jack at p. 116; Broekaertat para. 19; Hachey at para. 5; R. v. Sidhu, 2005 BCCA 308 at para. 9; R. v. J.R.B., [1995] O.J. No. 3635 (QL) at para. 13 (Ont. Ct. J.(Prov. Div.)); R. v. Parker (1996), (BC CA), 78 B.C.A.C. 1 at para. 2; R. v. Hamilton (1991), (MB CA), 75 Man. R. (2d) 308 (C.A.) at para. 4; R. v. Ogushing, [2005] Q.J. No. 131 (QL) (C.Q. (Crim. & Pen. Div.)) at para. 10; andR. v. A.L.R. (2002), (NL SC), 216 Nfld. & P.E.I.R. 291 (NL. S.C.T.D.) at para. 23. (

e) The degree to which the victim is injured beyond the act of sexual assault itself. For example, see: Asapace at paras. 17 and 79;Jack at p. 116; Hachey at para. 3; Broekaert at para. 7; R. v. DaPonte, 2012 BCSC 52 at paras. 6 and 38; J.J.L. at para. 61; Lemay atparas. 3–4; R. v. Neganoban, (ON SC), [2005] O.T.C. 362 (QL) (S.C.) at para. 6; J.B. at para. 8; Hamilton at para. 3;R. v. Schwartz (1991), 1991 BCCA 1 , 1 B.C.A.C. 192 (WL)(C.A.) at para. 42 (leave to appeal to S.C.C. refused); S.(W.B.) at551,555 and 558; R. v. Humble, 1990 CarswellBC 1076 (WL) (C.A.) at para. 5; R. v.

McNamara, 1990 CarswellBC 1314 (WL) (C.A.) atpara. 6; R. v. Kraftchick (1991), 44 O.A.C. 313 (WL) at para. 11; R. v. Henry (K.R.), 2000 BCPC 154 at para. 3, aff’d R. v. Henry, 2002BCCA 575 at para. 8; Ogushing at para. 10; and R. v. Craig, [1992] O.J. No. 4092 (QL) (Gen. Div.) at para. 12, aff’d R. v. Craig, [1996]O.J. No. 1504 (QL) (C.A.). (

f) An object or weapon is used in the commission of the offence. For example, see: Asapace at para. 79; Challis at para. 2; Jack atp. 116; Broekaert at para. 5; Hachey at para. 48 of the trial decision; Humble at para. 3; R. v. Deforge, [1986] B.C.J. No. 648 (QL)(C.A.); L.A.B. at para. 1; R. v. Anderson, 2012 ONCA 373 at paras. 7 and 19, 292 O.A.C. 365, aff’g 2011 ONSC 5551; R. v. Hamilton(1991), (MB CA), 75 Man. R. (2d) 308 (C.A.) at para. 3. (

g) The accused has a lengthy criminal record that shows a history or pattern of disregard for the law or the rights of others. Forexample, see: Asapace (see trial decision, unreported), Hachey at para. 15 of the trial decision; DaPonte at para. 50; and R. v. Patey(1992), (NS CA), 114 N.S.R. (2d) 434 (WL) (C.A.) at para. 8. (

h) The accused has a criminal record with related convictions. A record with sexual assaults is more aggravating than a record withassaults. For example, see: Ogushing at para. 10; R. v. Sidhu, 2005 BCCA 308 at paras. 2–4 and 9, 213 B.C.A.C. 185; Henry at para. 10;and Osecap, 2006 SKCA 69 at para. 5, 289 Sask. R. 4. (

i) The degree to which the offence was planned or deliberate. For example, see: Asapace (unreported trial decision), Broekaert atpara. 29, Challis at para. 4, Hachey at paras. 48 and 69 of the trial decision; DaPonte at paras. 39–40; Ogushing at para. 10; J.R.B. atpara. 13; and Parker at para. 2. [39] Factors mentioned as mitigating in the context of a charge of aggravated sexual assault include: (

a) The accused entered a guilty plea. The value of a guilty plea is increased when it is entered in a timely manner. For example, see:J.J.L. at paras. 66–67; Ogushing at para. 11; Neganoban at para. 2; J.B. at para. 1; A.L.R. at para. 27; Hachey at paras. 66 and 68 of thetrial decision; J.R.B. at paras. 10, 13; Patey at para. 8; Schwartz at para. 38; Lemay at para. 7; Craig at para. 1; and S.(W.B.) at 551–552and 558. (

b) The accused is remorseful. For example, see: J.J.L. at paras. 67, 68; Neganoban at paras. 8, 27; and A.L.R. at para. 27. (

c) The accused cooperated with the police. For example, see: J.J.L. at para. 69. (

d) The accused is young. For example, see: J.J.L. at paras. 70–73; A.L.R. at para. 9; Lemay at para. 7; and Hamilton at para. 5. (

e) The accused is a first-time offender. For example, see: J.J.L. at para. 73; Lemay at para. 7; A.L.R. at para. 31; Poslowsky atpara. 11; Hamilton at para. 5; J.B. at para. 30; and G.D.D. at para. 11. (

f) The accused is willing to seek treatment. For example, see: Neganoban at para. 27; and J.B. at para. 30. (

g) The accused suffers from health problems. For example, see: Ogushing at para. 11. (

h) The accused was under the influence of alcohol at the time of the offence. For example, see: A.L.R. at para. 37. But seeSherrard at para. 16 and J.R.B. at para. 9. [40] Of the aggravating factors present in this case, the most disturbing is the extent of the injury. While the evidence is not as completeas it might be, it is clear that the victim suffered significant injury. She underwent at least two surgeries. She was hospitalized for oneweek, taking three months to recover and continued to suffer difficulties with her bowels six months after being assaulted.

Otheraggravating factors include the relationship between the parties. He was a domestic partner or former partner. She was also vulnerablebecause she had ingested an excessive quantity of sleeping pills and other drugs. Mr. Dyck did not seek aid for her. To the contrary, heacted contemptuously of her. Further, Mr. Dyck cannot be treated as a first offender. His record, while not as egregious as some, shows alack of respect for authority, and he has one previous domestic assault, although he received a suspended sentence and probation for it.He fled the jurisdiction.

When the pre-sentence report was prepared, and Mr. Dyck’s risk of re-offending was assessed, his age, gender,record, choice of peer group and past attitude made him a medium risk to reoffend generally and a moderate to high risk to re-offendsexually.

[ 41 ] On the other hand, Mr. Dyck did plead guilty, and he indicated his intention to do so from the point of apprehension in British Columbia. He is remorseful. Like the victim, Mr. Dyck was also under the influence of alcohol and drugs, but this is only of limited mitigation as Sherrard and J.R.B. illustrate. He is young, and has never previously served a sentence greater than a six-month conditional sentence and short periods of imprisonment, not greater than 30 days.

He has also taken steps post-apprehension to seek education and treatment. [ 42 ] This combination of aggravating and mitigating factors nonetheless requires a significant penitentiary term in the order of the sentences imposed in P.(F.K.) , Green , and Sherrard . Mr. Dyck’s record and his previous domestic assault conviction compel me to impose a sentence somewhat greater than what the accused in those cases received.

Having regard for the proven severity of the injury, the circumstances in which it was committed, the impact on the victim and her vulnerability, his record, the guilty plea and his efforts and prospects for rehabilitation, a fit sentence for the aggravated sexual assault is six years. [ 43 ] In light of his previous record for similar offences, Mr. Dyck did not seriously contest the fitness of the one year sentence for evading the police or that it should be consecutive, subject to his submissions in relation to the fitness of the sentence for the aggravated sexual assault.

Section 718.2(

c) of the Code requires that a court that imposes a sentence shall also take into account that combined consecutive sentences should not be unduly harsh or long. In my view, a global sentence of seven years in the context of this appeal does not offend that principle. C. Credit for Remand Time [ 44 ] Mr. Dyck spent approximately 15.5 months on remand. His counsel asked that he be given credit at the rate of 1.5.

The sentencing judge gave him 18 months of credit only, saying that he would not give him more credit because he fled the jurisdiction and evaded the police. [ 45 ] The sentencing judge did not have before him the decisions in Summers and Carvery. While certain exceptions continue to apply, the Court indicated in Summers that “[t]he loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely” (para. 71). See R. v. Houlder , 2014 ONCA 372 at para. 2 and R. v.

Baron , 2014 MBCA 43 at para. 12 , [2014] 7 W.W.R. 235. [ 46 ] At least in the circumstances of this case, leaving the jurisdiction and evading the police are not relevant circumstances when determining whether to give credit for pre-sentence custody. None of the statutory exceptions mentioned in s. 719(3.1) of the Code are engaged. Mr. Dyck must receive credit for his remand time at the rate of 1.5 to 1. V. Conclusion [ 47 ] Mr. Dyck is granted leave to appeal, the appeal is allowed and the sentence imposed is set aside. His sentence should have been calculated as follows: (

i) six years for the aggravated sexual assault; and (ii) one year consecutive for evading the police. He is to be granted 23 months of credit for remand, leaving him with five years and one month to serve at the time of sentencing in the Provincial Court. The ancillary orders, with respect to the taking of DNA samples and registration under SOIRA and the 10-year firearms’ prohibition order, remain. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of September, 2014. “Jackson J.A.” Jackson J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Whitmore J.A.” Whitmore J.A.

Appendix “A” a. R. v. Asapace , 2011 SKCA 139 , 377 Sask. R. 210 [1] Mr. Asapace was found guilty after trial of aggravated sexual assault against C.Y. (s. 273) and uttering a threat to C.Y. to cause her death, contrary to s. 264.1(1)(

a) of the Code . He pled guilty to assault (s. 266), assaulting a peace officer (s. 270(1)(a)), assault causing bodily harm (s. 267(b)), failure to attend court (s. 145(2)(a)), failure to comply with undertakings (s. 145(3)), and failure to

comply with a recognizance (two counts, s. 145(3)). He was sentenced to eight years for the aggravated sexual assault and one yearconsecutive for uttering death threats. All of the other sentences were made concurrent. [2] Mr. Asapace, who was C.Y.’s former common law partner, surprised C.Y. and her new partner in their bedroom. After beatingthe new partner, Mr. Asapace turned to C.Y. The aggravated sexual assault involved beating her with a baseball bat and a plastic coathanger, kicking her in the stomach, kneeing her and repeatedly punching her face while being required to perform fellatio.

The trialjudge described extreme acts of fellatio while continuing to forcibly strike the victim who was already suffering a significant headwound. [3] C.Y. required eight staples to close her head wound and a half-cast to hold her ankle so she could walk. She experiencedextensive bruising to her face, back, thighs and knees, as well as scarring, loss of scalp hair and temporary vision loss. She spent one dayin hospital. He appealed his convictions on the aggravated sexual assault and uttering death threat charges as well as his sentences. [4] Mr. Asapace was 40 years old.

He had been committing offences for approximately 25 years. In addition to the many offencesfor which he was being sentenced on this occasion, his record included two assaults, six thefts, two breaking and entering andcommitting, nine breaking and entering and theft, one attempted breaking and entering with intent, one driving over .08, two narcoticpossession offences, one failure to attend, one possession of stolen property, one dangerous operation of a motor vehicle, one statutoryrelease violation, one public mischief, and one offence of being unlawfully at large. [5] This Court sustained Mr.

Asapace’s convictions and his nine year sentence saying that a nine year global sentence is at the highend of the range, but it was nonetheless fit, having regard for the fact that almost all of the offences were committed against the samevictim and the “particularly execrable” (para. 79) nature of the aggravated sexual assault. b. R. v. Jack (1992), 15 B.C.A.C. 116 [6] Mr. Jack pled guilty to aggravated sexual assault (s. 273) and received a sentence of 10 years, which the Court of Appealsustained. Mr. Jack met the complainant at a bar. She accompanied him home.

After a night of drinking at his home, he sexuallyassaulted her, resulting in what the sentencing judge called “mutilation.” She had a three-and-a-half to four inch long tear in the vaginalarea plus a four or five inches tear of the anal cavity. The sentencing judge found that the injuries were caused by the forcible entry of aforeign object, requiring surgery, initially for a colostomy, which was later reversed. The complainant was kept in Mr. Jack’s home forabout two days before his brother called an ambulance, which resulted in her wounds becoming infected. She was hospitalized for threemonths.

The medical report from the attending doctor offered the opinion that the object used to penetrate the complainant’s body wouldhave been approximately four to five inches in diameter.[4] Mr. Jack was 29 years of age with a record of minor offences and one assaultfor which he had received one year of probation. [7] The sentencing judge spoke of no evidence of remorse, saying that his guilty plea was late, and that Mr. Jack continued to denyhis role in the events. He was concerned about the protection of the public.

When the Court of Appeal sustained the sentence, itconcluded that the sentencing judge did not err by finding that protection of the public was the paramount sentencing objective to beapplied in the circumstances of Mr. Jack’s case. c. R. v. Broekaert, 2003 MBCA 10, 171 CCC (3d) 97 [8] Mr. Broekaert pled guilty to one count of aggravated sexual assault (s. 273) after a preliminary inquiry at which the complainanttestified and the Crown presented medical evidence. The sentencing judge found the facts as follows: Mr.

Broekaert grabbed thecomplainant while she was walking home and dragged her to a construction site where he ripped all of her clothes from her body and toreout her pubic hair. He used a beer bottle or screwdriver, which he inserted in her vagina and anus, causing such severe injuries that sheunderwent three surgeries, requiring 72 staples, a colostomy for four months, and hospitalization for three and a half weeks. At the timeof sentencing, some 21 months later, she continued to suffer from infection and pain. [9] Mr. Broekaert was 31 years old and had a minor record. He was a professed alcoholic.

He had a grade nine education. Medicalevidence showed that he was suffering from a moderate personality disorder. The sentencing judge was concerned that Mr. Broekaerttold both physicians who had examined him that he had no recollection of being involved in the crime, claiming total amnesia, and thathe thought he may have been wrongly convicted, notwithstanding the existence of DNA evidence linking him to the crime and his ownearlier admission that he remembered “grabbing a woman off the street around the neck and dragging her into the back of a constructionarea” (para. 13).

The sentencing judge found that “[w]hile the accused is far from being the worst offender given his lack of relatedrecord, the facts of this case certainly make it close to being the worst offence” (quoted in para. 21). She found the protection of thepublic to be the paramount principle (para. 27). [10] The Crown and defence presented a joint sentencing submission of seven to eight years. The sentencing judge, who was thepreliminary inquiry judge, rejected the joint submission.

She stated: “Under all of the circumstances, bearing in mind the pre-sentencecustody time of approximately three months having been served by the accused and equating this to six months, I would impose asentence of eleven and a half years” (quoted in para. 21), with the strong recommendation that Mr. Broekaert “serve his sentence at theRegional Psychiatric Centre in Saskatoon.” d. R. v. Peskey, 1989 CarswellMan 386 (WL), [1989] M.J. No. 160 (QL) (Man. C.A.) [11] In Peskey, the accused was convicted of sexual assault, endangering the life of the victim and administering a poison.

The victimwas a 15-year-old prostitute who came to the accused’s residence. The accused subdued her by using chloroform, and “she wasrepeatedly raped and held in bondage by him” (para. 2). The victim was left in the room until the next morning, naked and handcuffed.The accused was sentenced to eight years imprisonment. He had spent about seven and one-half months in pre-sentence custody. TheManitoba Court of Appeal dismissed the accused’s appeal against sentence. e. R. v. Challis (1990), (NS CA), 95 N.S.R. (2d) 57 (C.A.)

[12] In Challis , the accused was convicted following a jury trial of aggravated sexual assault and the use of a weapon while committing the assault. At a motel where the victim worked as a maid, the accused grabbed her from behind, held a knife to her throat and dragged her into his room. He cut her thumb with the knife, and threatened to kill her. The accused bound and gagged the victim, performed sexual acts on her, and had sexual intercourse with her. The accused applied the pointed end of the knife to the victim’s vagina and threatened her. The accused was 24 years old.

He had no record, but psychiatric and psychological reports filed at trial led the judge to conclude that “the acts of the appellant were planned and deliberate and, that in their commission, he was not under the influence of alcohol or drugs” (para. 4). The trial judge sentenced the accused to 14 years imprisonment. The Nova Scotia Court of Appeal affirmed the sentence and imposed the mandatory five-year firearm prohibition. f. R. v. Hachey , 1998 ABPC 87 aff’d 1999 ABCA 64 [13] The full magnitude of the crime, and the accused’s moral culpability, are described in the reported sentencing decision.

The sentencing judge classified the case as falling within “‘stark horror’ and ‘worst case’ scenarios” (para. 1). [14] The 21 year old victim was found in a locked laundry room in her apartment after having been lured out of her suite by the accused, who was unlawfully in the building. She was “perilously close to death” (para. 69). Her injuries and treatment were described in an agreed statement of facts as follows: [8] … She was having trouble breathing and was unresponsive and functioning at a very low neurological rate when she was rushed to hospital. Doctors intubated her and put her on a ventilator.

They discovered a 24 centimetre laceration on her forehead which exposed her skull. She was bleeding inside her brain and she suffered from facial bone fractures, a broken jaw, a shattered chin, a cut to her inner lip, scratches and bruises to her right shoulder and cuts to her neck, throat and upper torso. Both eyes were black from trauma. She had six broken ribs, a broken thumb, a cracked right elbow joint and suffered massive trauma to the anus and bowel.

From the photos introduced into evidence and the victim impact statements, it is clear this victim, on admission to hospital, did not remotely resemble that which she once was. Even her parents did not recognize her at first, such was the disfigurement from the assault.

TREATMENT: [9] Multiple emergency surgeries ensued: a craniotomy to relieve the pressure from blood collecting in her brain from the subdural haematoma; open reduction surgery for her broken jaw, which then had to be wired shut; a shattered chin necessitated implant of a platinum plate; forty stitches were required to close the huge ‘y-gash’ on her forehead; and a colostomy to aid in the repair of the deep tears to her anus and sphincter muscle was necessary. The victim remained in a neurological coma for thirteen days, was semi-comatose for nine days and in a deep stupor for weeks after that.

Her neurological improvement was gradual. At one point, when pneumonia developed, a tracheotomy had to be done and her life was precarious yet again. PHYSICAL PROGNOSIS: [10] The victim suffers permanent memory loss of the incident due to the subdural haematoma. She must have plastic surgery to attempt to cover the large Y-shaped gash in her forehead; she may be facially disfigured for life. As yet, she has not had the lost tooth replaced; that is the least of her worries.

As many of her brain cells and neurons were destroyed by the attack, she suffers motor skill deficits (poor hand-eye co-ordination) and will require long term physiotherapy to address those problems. She retains a dark scar on her throat from the tracheotomy. It is necessary for her to continue to wear the colostomy pouch. She did not contract the AIDS virus. [15] The accused had a related record, including three previous break and enters, possession of a weapon, and three assaults. [16] The sentencing judge imposed a 19-year sentence, which was sustained by the Alberta Court of Appeal. End of Appendix