R v Chanalquay, 2015 SKCA 141

Court of Appeal for Saskatchewan Docket: CACR2576 Citation: R v Chanalquay, 2015 SKCA 141Date: 2015-12-17 Between:Her Majesty the QueenAppellantAndJoseph Francis ChanalquayRespondentBefore: Richards C.J.S., Lane and Whitmore JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice WhitmoreOn Appeal From: CNJ 44/13, J.C. of BattlefordHeard: 18 June 2015Counsel: Beverly Klatt for the Appellant Bruce Campbell for the Respondent Richards C.J.S. I.

Introduction [1] This appeal obliges the Court to consider R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and R v Ipeelee,2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. The central issue is whether those cases were properly applied in relation to the sentencing ofthe respondent, Joseph Chanalquay. [2] Mr. Chanalquay is a member of the Buffalo River Dene Nation. He was convicted of sexual assault for having sexualintercourse with a woman who had fallen asleep during the course of a drinking party. [3] In sentencing Mr.

Chanalquay, the trial judge decided to give significant weight to various Gladue factors that he saw asshedding light on Mr. Chanalquay’s moral culpability with respect to the offence. He also considered several of Mr. Chanalquay’spersonal circumstances to be mitigating and, in the end, imposed a sentence of two years less a day in jail. [4] The Crown appeals this sentence. It argues that Mr. Chanalquay’s sentence is demonstrably unfit. [5] As explained below, I have concluded that the trial judge misapplied the admittedly difficult concepts found in Gladue andIpeelee.

It is possible to sustain a jail term of two years less a day on the facts of this case but only if it is imposed in combination with aperiod of probation aimed at restorative justice goals. II. background A. The Offence [6] On the evening of September 9, 2012, Mr. Chanalquay and a number of other people were drinking at his house. At somepoint the victim, a woman in her 20s, fell asleep on the couch. She was fully clothed. [7] The victim testified that she awoke to find her pants pulled down and Mr. Chanalquay on top of her having sexualintercourse.

She got up from the couch, pulled up her pants and ran home. [8] The RCMP were called. They took a statement from the victim and then brought her to the hospital for examination. Avaginal swab revealed the presence of Mr. Chanalquay’s DNA. [9] Mr. Chanalquay initially denied having had sex with the victim. However, at trial, he testified that he had asked the victim ifhe could perform oral sex on her and that, when she told him how good he was at it, he had asked if he could have sex with her and shehad consented. [10] The trial judge found the victim to be credible and did not believe Mr. Chanalquay.

As a result, he found Mr. Chanalquayguilty of sexual assault. B. Mr. Chanalquay’s Circumstances [11] As noted above, Mr. Chanalquay is a member of the Buffalo River Dene Nation. He is presently 48 years old and has alwaysresided on the Buffalo River Reserve. Mr. Chanalquay was raised by his parents and his grandparents. He chose to live most of the time

with his grandparents. They took him out on the trap line and taught him to hunt and trap. Consequently, he did not receive a full education and has limited reading and writing skills. [ 12 ] Both of Mr. Chanalquay’s parents abused alcohol when he was a child. There were times when he and his siblings were left alone and Mr. Chanalquay says that sometimes there was no food in the house and the children would go to their grandparents’ home because they were hungry. [ 13 ] Mr. Chanalquay’s father had attended a residential school. He stopped drinking in 1976 when Mr. Chanalquay was nine years old. Mr.

Chanalquay’s father subsequently became a community leader and has been the Chief and a NADAP worker and has held various other positions on the Reserve. [ 14 ] Mr. Chanalquay reports being sexually abused by an aunt on three or four occasions while living as a child at his grandparents’ house. He also reports being sexually abused on one occasion as a 10 or 11-year-old by an adult male who lived on the Reserve. [ 15 ] Sophie Sylvestre has been in a common-law relationship with Mr. Chanalquay for the past 11 years. He characterizes their relationship as good and describes Ms.

Sylvestre as the most supportive and influential person in his life. The quality of their relationship is confirmed by Ms. Sylvestre who says she will stand by Mr. Chanalquay regardless of the outcome of the current proceedings. [ 16 ] Mr. Chanalquay had only one child, a daughter. He did not raise her but did maintain a relationship with her and provided financial support while the child was growing up. She committed suicide four or five years ago. Mr. Chanalquay says he experiences an ongoing sense of loss because of this. [ 17 ] Mr.

Chanalquay began consuming alcohol on weekends when he was about 18 years of age. He indicates that his normal drinking pattern for many years was to consume alcohol one or two nights per month. He denies drinking to an extreme state of intoxication, indicating that he typically consumed up to eight drinks per episode but admitted that he had been drinking for a period of two days when the offence in issue here occurred. He says he does not remember everything that happened due to his state of intoxication. [ 18 ] Mr. Chanalquay does not identify himself as associating with a negative peer group.

He had apparently been sober for five months at the time the pretrial sentence report was prepared. He said that, since he had stopped drinking, he did not seem to have any friends and mostly associated with Ms. Sylvestre. Mr. Chanalquay also acknowledged having smoked marijuana on a daily basis. However, he quit drugs a year before the pre-sentence report was prepared and did not identify drug use as a problem. [ 19 ] Mr. Chanalquay believes he has a grade eight education. Nonetheless, he did complete a heavy equipment operator’s course at SIAST and has been trained in construction work.

He had obtained safety certificates which were valid as of the date of the pre-sentence report. [ 20 ] Mr. Chanalquay was renovating homes on the Reserve when he was charged with the offence underpinning this appeal. Prior to that, he had worked as a heavy equipment operator in Fort McMurray. [ 21 ] Mr. Chanalquay has a limited and dated criminal record consisting of convictions between 1986 and 2006 for failing to stop at the scene of an accident, driving “over .08,” obstruction and failing to appear. [ 22 ] I note as well that Mr. Chanalquay filed eight letters of support with the trial judge.

They describe him as being a respected and trusted member of his community who both now and historically has taken care of his extended family. Mr. Chanalquay attends church every Sunday. [ 23 ] Both the Saskatchewan Primary Risk Assessment test and the Static-99R test assessed Mr. Chanalquay as being a low risk to reoffend. [ 24 ] The victim did not give an impact statement. We know nothing concrete about the effect the assault had on her. III. the sentencing decision [ 25 ] Mr. Chanalquay was convicted after trial.

As is his right, he continues to contend that the sexual relations with the victim were consensual. [ 26 ] The Crown asked for a sentence in the range of three-and-a-half to five years. Mr. Chanalquay sought a community-based sentence. [ 27 ] The trial judge began his sentencing decision by saying it was clear that Mr. Chanalquay had been affected by a range of Gladue factors. He then went on to briefly summarize the general principles that established the framework in which his decision had to be made.

He concluded this part of his decision by saying: … I must weigh these so-called Gladue factors in conjunction with those other fundamental principles of sentencing that I have referred to, bearing in mind the concept of proportionality of the sentence to the gravity of the offence and the degree of responsibility of the offender. [ 28 ] The trial judge identified denunciation and deterrence as the primary sentencing considerations which needed to be factored into the decision along with Gladue matters.

In so saying, he stressed that sleeping or unconscious women are too often victims of sexual assault and said the courts must denounce such assaults and impose penalties capable of deterring them. He described Mr. Chanalquay’s conduct in taking advantage of the sleeping victim as the only aggravating factor which needed to be taken into account.

[ 29 ] With respect to what he called mitigating factors, the trial judge referred to several considerations: (

a) no violence had been involved in the assault other than that which was inherent in the nature of non-consensual sex; (

b) there were systemic and personal Gladue factors at play; (

c) Mr. Chanalquay had significant support from Ms. Sylvestre and his extended family; (

d) Mr. Chanalquay has no significant criminal record; (

e) Mr. Chanalquay had complied fully with his release conditions while awaiting trial; (

f) Mr. Chanalquay has community support and a history of volunteerism in the community; and (

g) Mr. Chanalquay provides important assistance to his elderly father. [ 30 ] In the end, the trial judge characterized the offence here as being totally out of character for Mr. Chanalquay. He acknowledged a three-year jail term as the starting point for his deliberations but, in light of Gladue considerations and the mitigating factors he had identified, the judge imposed a sentence of two years less a day.

He said this: … It is my conclusion that it is appropriate to give significant weight to the Gladue factors, both systemic factors and personal factors, because I have concluded that particularly as they play out through the consequences of his alcohol abuse they shed light on Mr. Chanalquay’s moral culpability in the circumstances of this case. As I’ve said before, I’m satisfied this offence was an offence totally out of character from [ sic ] Mr. Chanalquay and I have no doubt that it was simply a crime of impulse and opportunity that was occasioned because he was in the middle of a multi-day drinking binge.

While he denies the offence occurred, the denial does not, in the current circumstances, alter my conclusion that the offence was out of character for Mr. Chanalquay. I’m of the view that the community in which he lives with a culture of abusing alcohol, the Gladue factors, including his sexual abuse as a child and the abuse of the alcohol -- or the alcohol abuse problem he has all contributed.

While this cannot excuse his wrongful act, these factors must be considered in my sentencing ... [ 31 ] The trial judge also made ancillary orders relating to a firearms prohibition and the Sex Offender Information Registration Act , SC 2004, c 10. IV. analysis [ 32 ] The Crown submits that the trial judge erred by, in effect, reducing Mr. Chanalquay’s sentence because of Gladue considerations. More particularly, it suggests the trial judge failed to properly appreciate that, in applying s. 718.2 (

e) of the Criminal Code , the question is not whether there are Gladue factors in the mix, but whether those factors diminish the offender’s moral culpability. The Crown stresses that this Court has repeatedly said a person who has, or attempts to have, sexual relations with a sleeping or unconscious person should face a heavy custodial sentence. A. The Basic Principles [ 33 ] Before turning to the particulars of this case, it may be helpful to revisit some of the basic principles that animate the operation of s. 718.2 (

e) of the Criminal Code . At the time of the trial, it read as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 34 ] The proper approach to the application of s. 718.2(

e) was first elaborated by the Supreme Court in Gladue . Some of the key points made in that decision are set out below: (

a) The purpose of s. 718.2(

e) is to ameliorate the problem of overrepresentation of Aboriginal people in prisons by encouraging judges to consider a restorative justice approach to sentencing (para 93). (

b) In appropriate cases, the goals of restorative justice may take on greater weight and traditional sentencing goals will be less relevant (para 77). (

c) The effect of s. 718.2(

e) is to alter the method of analysis sentencing judges are required to use in determining an appropriate sentence for an Aboriginal offender (para 75). (

d) In sentencing an Aboriginal offender, a judge must consider: (

i) the unique systemic or background factors that may have played a

part in bringing the offender before the courts; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage or connection (para 66).

(

e) Judges must take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but case-specific information will have to come through counsel or pre-sentence reports (para 93). (

f) Systemic and background factors, on their own, do not necessarily dictate any particular sentence for Aboriginal offenders. They provide a context for considering case-specific information (para 88). (

g) The lack of alternative sentencing programs particular to an Aboriginal community does not eliminate the obligation of a sentencing judge to impose a sanction that takes into account principles of restorative justice (paras 74, 93). (

h) If there is no alternative to incarceration available, the length of the jail term imposed on the offender must be carefully considered (para 93). (

i) Section 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal (para 88). [ 35 ] In Ipeelee , the Supreme Court provided further explanation with respect to the operation of s. 718.2 ( e ). In that case, the Court made three points of particular relevance here: (

a) There is no discretion as to whether s. 718.2 (

e) should be considered in a case involving an Aboriginal offender. The application of the Gladue principles is required in every case (para 86). (

b) An offender is not required to establish a causal link between background Gladue factors and the commission of the offence in issue before a judge is entitled to consider such factors in his or her sentencing decision (paras 81-82). (

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83). [ 36 ] It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders. The Supreme Court’s reasoning is far more nuanced than that. Its approach is very much tied to the concept of restorative justice and the decision in Gladue , in particular, returns repeatedly to that concept in explaining how it is that sanctions other than incarceration might satisfy the sentencing objectives referenced in

Part XXIII of the Criminal Code . It is essential that this basic theme be remembered. In very simplified terms, the fundamental dynamic underlying s. 718.2 (

e) when a trial judge sentences an Aboriginal offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2 (

e) means what it says: “all available sanctions other than imprisonment that are reasonable in the circumstance should be considered….” [ 37 ] I observe as well that the analysis mandated by s. 718.2( e ), as explained in Gladue and Ipeelee , is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoning which leads to a fit sentence ( Gladue at para 88 ).

It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide. [ 38 ] Further, and relatedly, s. 718.2(

e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2(

e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation ( Gladue at para 78 ). As the Supreme Court has said, “The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances” ( Gladue at para 81 ). In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives.

The question in sentencing an Aboriginal offender, as for other offenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para 80 ) [ 39 ] As noted above, the methodology mandated by the Supreme Court directs sentencing judges to consider two matters when dealing with s. 718.2( e ): (

a) systemic and background factors which played a

part in bringing the Aboriginal offender to court, and (

b) the types of sentencing procedures and sanctions that may be appropriate for the offender in light of his or her Aboriginal heritage. It is important to appreciate the ways in which these two considerations can influence a sentencing decision. Let me comment briefly on each of them. [ 40 ] First, systemic and background factors. In Ipeelee , the Supreme Court said these factors may speak to the culpability of an Aboriginal offender if they reveal something of his or her level of moral blameworthiness and, as a result, may affect the nature of an appropriate sentence ( Ipeelee at para 73 ).

Systemic and background factors are, of course, not the only considerations which are relevant in determining an offender’s blameworthiness. The sorts of factors that normally come into play on this front remain relevant to an assessment of the culpability of an Aboriginal offender. The circumstances of such an offender “which could reasonably and justifiably impact on the sentence imposed” may speak to his or her moral culpability to an extent which would lead to a different sort of sentence than what might normally be imposed for the same offence.

But, there is no invariable rule on this front ( Ipeelee at para 71 ). Sentences have to be determined on a case-by-case basis taking into account all relevant considerations ( Gladue at para 88 ). [ 41 ] The second and ultimately most important aspect of the Gladue framework that must be considered by a sentencing judge is the types of sanctions which might be appropriate. In this regard, and keeping in mind that the root purpose of s. 718.2(

e) is to address the overrepresentation of Aboriginal offenders in Canadian jails, a sentencing judge must carefully consider available alternatives to incarceration. Programming specific to an Aboriginal community may be particularly significant in this regard. However, the absence of programs and treatment aimed directly at Aboriginal offenders does not eliminate a judge’s obligation to consider a restorative justice approach. Such things as other kinds of programming or sentencing alternatives available to all offenders may also be helpful in crafting an effective sanction.

These restorative-type aspects of a sentence will normally be brought into play by way of the terms of a conditional sentence or probation order.

[ 42 ] Thus, while s. 718.2( e ), as interpreted by Gladue and Ipeelee , mandates a particular kind of analysis when sentencing an Aboriginal offender, it does not create a wholly new sentencing paradigm. Sentencing judges must attempt to give meaningful effect to the remedial purpose of s. 718.2(

e) and must be highly alert to the ongoing problem represented by the troubling incarceration rates of Aboriginal people. But, the ultimate sentencing objective is clear: considering all of the relevant sentencing principles, including s. 718.2( e ), what is a fit sentence for the offender given his or her circumstances, the nature of the crime, the situation of the victim, and the interests of the community? ( Gladue at para 75 .) [ 43 ] I note that this means a sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue.

He or she must also, to the extent reasonably possible, attempt to understand the relevant dynamics of the community and the circumstances of the victim. After all, the victims of crimes committed by Aboriginal offenders are all too frequently other Aboriginals, often ones with precisely the same Gladue backgrounds as the offenders. They must not be overlooked. In order to understand all of this, it may sometimes be necessary for a trial judge to demand more than is typically provided in this province by way of a pre-sentence report. B.

The Sentence in this Case [ 44 ] As noted above, the Crown submits the trial judge made errors in sentencing Mr. Chanalquay. It asks that his jail term be increased. [ 45 ] The Crown is, of course, correct in submitting that the sexual assault of a sleeping or unconscious woman is a serious crime and should be dealt with as such. This Court has repeatedly said these kinds of assaults should not be approached in such a way as to effectively reward an offender for taking advantage of a helpless victim rather than one who is in a position to resist the assault.

See, for example: R v Cappo (1993), 116 Sask R 15 (CA) at para 13 [ Cappo ] ; R v M.J.H. , 2004 SKCA 171 at para 16 , 257 Sask R 1 [ M.J.H. ]. [ 46 ] The trial judge was alert to the problem of men taking it upon themselves to engage sexually with sleeping or unconscious women.

Speaking of this sort of crime, he said, “It happens far too often and so it’s necessary for the Courts by their sentences to denounce that kind of conduct and to impose penalties that deter others.” He was also aware of the precedents in this jurisdiction to the effect that the starting point sentence for a serious sexual assault is three years of imprisonment. [ 47 ] As I read his decision, the trial judge began with these premises and went on to find that Mr.

Chanalquay should receive a sentence of two years less a day in jail because of both Gladue factors and because of what he saw as various other mitigating considerations. [ 48 ] I acknowledge that operationalizing Gladue and Ipeelee can be challenging. In my respectful view, these challenges led to two problems in the line of analysis employed by the trial judge. The first problem concerns the judge’s assessment of the connection between the Gladue factors he identified and the moral culpability of Mr. Chanalquay. In this regard, the judge referred to the culture of alcohol abuse in Mr.

Chanalquay’s community, Mr. Chanalquay’s own relationship with alcohol and the sexual abuse Mr. Chanalquay suffered as a child. I say this because, as noted above, the judge stated as follows when coming to his conclusions on this issue: It is my conclusion that it is appropriate to give significant weight to the Gladue factors, both systemic factors and personal factors, because I have concluded that particularly as they play out through the consequences of his alcohol abuse they shed light on Mr.

Chanalquay’s moral culpability in the circumstances of this case. … I’m of the view that the community in which he lives with a culture of abusing alcohol, the Gladue factors, including his sexual abuse as a child and the abuse of the alcohol -- or the alcohol abuse problem he has all contributed. (Trial Transcript at T48) [ 49 ] At an earlier point in his decision, the trial judge also noted the issues of poverty that had affected Mr. Chanalquay, his feelings of abandonment by his parents in his childhood and his father’s residential school experience as being Gladue factors.

However, the judge does not appear to have placed any real weight on these matters at the critical points of his decision-making. [ 50 ] It is true, of course, that Ipeelee says there is no requirement that “an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge” (para 81).

A direct cause-and-effect correlation will simply not be possible to establish in most cases. [ 51 ] However, at the same time, I understand the Court in Ipeelee to have also warned against an approach to assessing the impact of Gladue factors on moral culpability which is entirely abstract and not rooted in the factual realities of the case before the sentencing judge. In this regard, LeBel J. wrote as follows: [83] … Systemic and background factors do not operate as an excuse or justification for the criminal conduct.

Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. (Emphasis added) [ 52 ] A sentencing judge should not simply stack up all of the Gladue -type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability. The required analysis is more demanding than that.

To determine the extent to which Gladue factors impact on an offender’s moral culpability, a sentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should then consider the extent to which the unique circumstances of the offender “bear on his or her culpability” ( Ipeelee at para 83 ) in the specific context of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but

for circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue. It might be that theGladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. [53] The trial judge in this case does not appear to have taken this approach. There are clearly Gladue considerations involved hereand the judge had some basis for concluding, as he did, that those factors were playing themselves out in Mr. Chanalquay’s bingedrinking.

However, other than the broad notion that alcohol consumption typically serves to lower inhibitions, it is not clear howMr. Chanalquay’s intoxication can be taken as saying anything particularly revealing about his culpability for the sexual assault of thevictim in this case. The same might be said about the Gladue considerations said to lie behind Mr. Chanalquay’s drinking. Seen withinthe proper framework of principle and in light of the record here, Gladue factors would not seem to warrant the “significant” weightgiven to them by the judge in assessing, and accordingly reducing, Mr.

Chanalquay’s moral culpability. [54] The second problem with the trial judge’s reasoning is that his assessment of Mr. Chanalquay’s moral blameworthiness seemsto have led him directly to a conclusion that Mr. Chanalquay’s sentence should be reduced from the normal starting point of three years.In other words, the judge appears to have overlooked the notion that a finding of reduced moral culpability rooted in Gladue factors doesnot automatically lead to a shorter period of incarceration. More importantly, the judge also appears to have effectively applieds. 718.2(

e) of the Code as if it was a directive to shorten jail terms imposed on Aboriginal offenders. As explained above, this is not theimport of Gladue and Ipeelee. The sentencing judge should have asked himself how a restorative justice approach might have allowedhim to reduce or limit the term of imprisonment imposed on Mr.

Chanalquay while still meeting the sentencing objectives of the casebefore him. [55] The search for a fit sentence involves consideration of the sanction that is appropriate “[f]or this offence, committed by thisoffender, harming this victim, in this community” (Emphasis in original) (Gladue at para 80). On the one hand, and very centrally, thisrequires an appreciation of the reality of the offence committed by Mr. Chanalquay—sexual intercourse with a sleeping woman. This is aserious crime which, as noted, would normally attract a sentence in the range of three years.

See: Cappo; M.J.H.; R v Roberts (1995), (SK CA), 128 Sask R 158 (CA). [56] On the other hand, and as identified by the trial judge, there are a number of factors that suggest Mr. Chanalquay is anoffender who can be dealt with effectively by way of a non-penitentiary sentence: (

a) Mr. Chanalquay is a low risk to reoffend as per the assessment of the trial judge and the pre-sentence report. It is notnecessary to incarcerate him in order to protect the victim or his community. Personal deterrence is not an issue here either.Mr. Chanalquay’s actions on the night of September 9, 2012 were found to have been wholly out of character. (

b) Mr. Chanalquay is a respected and valuable member of his community, a role model and a volunteer. His incarceration willdeprive the community of important and useful leadership. (

c) Mr. Chanalquay has a limited and dated criminal record. He has managed to largely steer clear of the criminal justice systemeven though he was raised and lives in an environment where that is not easy to do. (

d) After the offence, Mr. Chanalquay took steps to address the issues as he has with alcohol. He had been sober for five monthsas of the date of the pre-sentence report. He also stopped smoking marijuana. (

e) Mr. Chanalquay plays a vital role in looking after his elderly father. As one sister indicated, “[M]y dad relies on him foreverything.” Another wrote, “If he goes away there will be no-one to take care of [my father].” (

f) Mr. Chanalquay is a key member of his extended family, acting as a much-loved near-father to some of his nieces. (

g) Mr. Chanalquay has a history of gainful employment. As indicated above, he was a heavy equipment operator in FortMcMurray and was employed as a construction worker at the time he committed the offence in issue here. On this front, he is obviouslya valuable role model and income earner in his community. (

h) Mr. Chanalquay has significant support from his common-law partner and his extended family. In short, there are several considerations here which suggest that neither Mr. Chanalquay, his family nor his Reserve overall will be wellserved if he is obliged to serve penitentiary time. [57] However, all things considered, I conclude that the bare sentence of two years less a day imposed by the trial judge cannotstand. It does not take adequate account of the gravity of the offence committed by Mr. Chanalquay, the situation of his victim, the needto reintegrate Mr. Chanalquay into his community, or Mr.

Chanalquay’s own need to address his issues with alcohol. [58] That said, in the circumstances of this case, it is appropriate to consider whether the trial judge’s assessment of a proper jailterm for Mr. Chanalquay can nonetheless be left intact if it is cast as part of a more comprehensive sanction that reflects the restorativejustice approach emphasized in Gladue and Ipeelee. In this regard, I note that, in the period of time between the offence and hisincarceration, Mr. Chanalquay complied with the terms of his release.

He appears to have made good progress in dealing with the alcoholabuse that was a significant part of the context in which this crime was committed. This resolve not to drink also helped him to avoidassociating with individuals who might have drawn him into further difficulties. It is important, both for Mr. Chanalquay and hisReserve, that this progress continue after he is released from jail. His reintegration into his community must be both respectful of thevictim and as successful as possible.

He needs to build on what he has already accomplished. [59] In light of all of this, and bearing in mind Gladue and Ipeelee, I conclude that the two year less a day jail term imposed by thetrial judge can be sustained if it is supplemented by a probation order aimed at restorative justice goals. That order will be for a term of18 months and will include conditions that Mr. Chanalquay: (

a) report to a probation officer within one week of his release from custody and thereafter report as required by the officer;

(

b) keep the peace and be of good behaviour; (

c) abstain from communicating directly or indirectly with the victim unless she initiates such communication; (

d) abstain from going to the victim’s home in Dillon, Saskatchewan unless invited to do so by the victim; (

e) refrain from consuming alcohol or drugs; (

f) take such programming in relation to alcohol or sexual offending as may be directed by the probation officer; (

g) make reasonable efforts to seek and maintain employment; and, (

h) perform 180 hours of community service over a period of 18 months, as approved by the probation officer. [ 60 ] On the particular facts of this case, a jail sentence of two years, combined with the probation order prescribed above, will both protect the public, respect the victim of Mr. Chanalquay’s crime, provide adequately for denunciation and deterrence, and serve to help ensure Mr. Chanalquay’s ongoing success as a member of his family and his community. V. conclusion [ 61 ] The Crown’s appeal is allowed and the sentence varied as described above. “Richards C.J.S.” Richards C.J.S. I concur. “Lane J.A.” Lane J.A. I concur. “Whitmore J.A.” Whitmore J.A.