R v Campbell-Ball, 2019 SKCA 41

Court of Appeal for Saskatchewan Citation: R v Campbell-Ball , 2019 SKCA 41 Date: 2019-05-07 Docket: CACR3058, CACR3059 and CACR3110 Between: Her Majesty the Queen Appellant And Jonathan David Campbell-Ball, Jama Roble and Abdirahman Kahin Respondents Docket: CACR3066 Between: Jonathan David Campbell-Ball Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A. Disposition: Crown sentence appeals dismissed (CACR3058, CACR3059 and CACR3110); Conviction appeal dismissed (CACR3066) Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Mr. Justice Barrington-Foote On Appeal From: CRM 193 of 2016, Regina Appeal Heard: December 14, 2018 Counsel: Sharon R. Fox for Jonathan David Campbell-Ball Tyne D. Hagey for Jama Roble Jill M. Drennan for Abdirahman Kahin W. Dean Sinclair, Q.C. for Her Majesty the Queen Caldwell J.A. I. Introduction [ 1 ] These reasons address four appeals. Jonathan David Campbell-Ball has appealed against his convictions (CACR3066) and the Crown has appealed against the sentences imposed on Mr. Campbell-Ball (CACR3058), Jama Roble (CACR3059) and Abdirahman Kahin (CACR3110).

The three defendants were charged under a joint indictment alleging they had committed the offences of sexual assault with a weapon ( Criminal Code , s. 272(1) (a)), trafficking in persons ( s. 279.01(1) (a)), procuring ( s. 286.3(1) ), unlawful confinement ( s. 279(2) ), sexual assault ( s. 271 ), and assault ( s. 266 ), all in relation to the same complainant. [ 2 ] In his conviction appeal, Mr. Campbell-Ball alleges the trial judge failed to act on concerns about the reliability of the complainant’s evidence and failed to give adequate reasons for finding him guilty of three offences.

Having reviewed the transcript of trial and the trial judge’s oral reasons for judgment, I find no merit to Mr. Campbell-Ball’s appeal against his convictions. I would dismiss the convictions appeal. [ 3 ] In each of the appeals against sentence, the Crown asserts the notional sentences imposed on the defendants do not reflect the gravity of the offences committed or the defendants’ moral culpability in their commission.

T he Crown says the trial judge erred in principle by failing to consider or to give weight to the aggravating factors present in this case and by incorrectly applying the secondary principle of parity in sentencing. In short, I am not persuaded by the Crown’s argument that the sentences are not proportionate and that they are, therefore, demonstrably unfit. I would dismiss each of the sentence appeals, subject only to extending the duration of the SOIRA order ( Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ]) imposed on Mr. Kahin to a lifetime order.

II. background [ 4 ] After a joint trial, the trial judge found all three defendants had subjected the complainant to physical and psychological abuse involving the criminal offences of unlawful confinement, sexual assault, sexual assault with a weapon and assault. The findings of fact made by the trial judge in his unreported decision were as follows: Facts Throughout the testimony of the Crown’s principal witness, [the complainant], the accused were uniformly referred to by pseudonyms.

For ease of reference, throughout my reasons, without intending any disrespect, I have adopted these pseudonyms and refer to the accused as follows: Mr. Kahin as Adam; Mr. Campbell-Ball as Romeo; and Mr. Roble as Jordan.

During early 2015, [the complainant] lived in Calgary but travelled back and forth to Victoria, working as an escort. She was addicted to crystal meth and escorted primarily to support her addiction. Drug usage had been an issue in her life since 2011. She started escorting in approximately 2013. [The complainant] first met Romeo in the summer of 2015. They were both living in Calgary at the time. She was attracted to him. They saw each other periodically and became sexually involved. He provided her with drugs on occasion. During the same summer, she also met Jordan. He was a friend of Romeo.

She did not like him. In November 2015, [the complainant] was visiting her family in Calgary. She was getting frustrated with her situation and wanted to get out. It was unclear who initiated the communications, but she and Romeo began Facebooking. She decided to come to Regina to see Romeo and to make money. She wanted Romeo to provide security for her and in exchange, was prepared to divide her earnings 50/50. Initially she planned to travel by bus, but Romeo was trying to arrange a flight.

He was unsuccessful, and she ultimately paid her own way, travelling by air, using the last of her funds. [The complainant] arrived in Regina very early morning November 27th. She was excited and looked forward to seeing Romeo. She waited some time at the airport, and when he arrived, he was drunk. He had a friend waiting in the car to drive them. She didn’t know the friend. They drove over to what she described as a “non-flashy” hotel. We now know it to be the Coachman Inn. They entered a room on the second level.

There were three males and one female present in addition to Romeo and the driver who accompanied her to the room. One of the males was Jordan. She met him previously in Calgary. The female was sleeping or passed out. The males were drinking and talking. Almost immediately following introductions, one of the males, Adam, took her to the washroom. They engaged briefly in small talk, following which he asked for oral sex. She agreed. In her words, she felt that she had to “prove” herself. Shortly thereafter, someone knocked on the washroom door. A shorter male entered, and Adam left.

After brief small talk, the man offered $20 for oral sex, indicating he was not supposed to do that. She performed oral sex, following which he requested and she agreed to engage in intercourse. When asked why she agreed to engage in this conduct, [the complainant] replied, “I just thought it was expected of me, I guess.” When the shorter male finished, he left the washroom, and shortly thereafter Romeo came in. He was still drunk. They decided to have sex, but Romeo was unable to perform. They left the washroom. Back in the main room, two males, unknown to [the complainant], left the hotel.

The remaining males were drinking Hennessy, laughing and speaking in a language that she didn’t understand. She sat on Adam’s lap. Jordan got up from his chair and told her to go with him. Although she didn’t want to go, she accompanied him to the washroom. He closed the door. He told her that he wanted oral sex. She baulked at the request, indicating that she and Romeo had “a deal going on,” but he insisted. When she continued to refuse, he smacked her on the side of the head and said that she’d be working for him and had to do as he said. She was crying, concerned that things had turned bad.

She complied with his demand for oral sex and couldn’t recall if that was followed by intercourse. Following her dealings with Jordan, they left the washroom. The other female, later identified as Sheila, was waking up. They were introduced. They were told to take their clothes off. One of the males told them to lie on the bed, face down on their stomachs, facing the headboard. Sheila whispered to just do as they say. It will be okay. Adam and Romeo were behind the two women as they lay on the bed. [The complainant] was unsure of Jordan’s location. The women were looking at each other and holding hands.

Sheila told her to just do as they say, and it will be over fast. [The complainant] assumed someone was inserting the Hennessy bottleneck into Sheila’s anus. [The complainant] was in shock. Shortly thereafter Sheila got up and went to the washroom. Following the incident, with Sheila, [the complainant] felt something touch her anus. She jumped. She was crying. Sheila returned and laid beside her on the bed comforting her. The bottle did not enter her body. Adam and Romeo were still behind her. She didn’t know where Jordan was.

After she felt the first touch, she heard Adam tell Romeo “to do it.” The first incident was followed almost immediately by a second. [The complainant] continued to cry, saying she didn’t want to do it. She jumped away. The bottle went in “just little bit.” The next incident proceeded in the same manner, except this time the bottleneck entered into her anus a couple of inches. She wanted it over with, so she just waited. In a few seconds, one of the men said it was finished. The incident was over. It had been painful, but [the complainant] was not physically injured.

The two women got up off the bed and went to the washroom. They showered. Either during or immediately following the shower, the men asked the women to perform oral sex on each other. All three men stood by watching and laughed as they complied. Following the shower incident, they all shared three lines of MDMA, then sat around and talked. [The complainant] and Sheila got into bed. Adam was also in that bed. Jordan was on the adjoining bed. Adam asked the women for oral sex. [The complainant] said, “No.” She repeated her refusal several times, but Adam pushed her head down under the blankets until she complied.

To her recollection, this incident carried on for approximately 20 minutes. Immediately following the incident with Adam, Jordan told them to come to his bed. Sheila stayed with Adam, and [the complainant] joined Jordan. The guys were all laughing as Jordan asked [the complainant] to lick his anus. She refused. Jordan insisted and struck her head. She complied. Jordan instructed the women to repeat after him, “Who runs the world? Big black cock.”

In addition, at approximately the same time, Jordan asked her to lick his toes. He was standing at the time. [The complainant] complied. At one point, Jordan kicked her in the back of her head. [The complainant] was naked and crying at the time. During this incident, shortly before licking Jordan’s toes, while she sat on the side of the bed, Jordan told Romeo to hit her in the face. Romeo complied once, but Jordan told him to hit her again, this time harder. Romeo struck her again. Sometime later that morning, the driver from earlier that evening returned to the room.

The guys were all talking and laughing about the antics of the previous evening, including the toe incident. He asked her to come into the washroom with him. She complied. She provided oral sex. She said she did so because, “I just like didn’t know what else to do. Like I was just listening to them because I was scared.” The driver left shortly thereafter. Although [the complainant] could not recall precisely who was involved, there was general conversation about guns and killing the women and burying them on a Native reserve. She took the words seriously, although it appears the men were laughing at the time.

The women were allowed to sleep shortly thereafter. When [the complainant] woke, the manager was in the process of kicking them out of the hotel. They gathered their belongings and left. The first night in the hotel, for all practical purposes, ends the allegations of sexual encounters between [the complainant] and any of the accused. Apart from subsequent testimony that may impact [the complainant’s] credibility or reliability, events founding counts numbered 1, 4, 5, and 6 had all been addressed by this point. Subsequent Events When the group left the hotel, they went to a Subway restaurant to eat.

After eating, they purchased cigarettes at a gas station. When they left, [the complainant] drove. Adam sat in the front seat with her. He directed her to the home of the mother of a friend. The men spoke briefly about drugs and then they all left the house, leaving [the complainant] and Sheila with the two resident women. [The complainant] laid down and went to sleep. Several hours later the men returned, and the group moved to The DoubleTree by Hilton. At the hotel, [the complainant] and Sheila started discussing escorting and making money. Sheila had a phone.

Together they posted ads on Backpage, which was a website for escorts. [The complainant] understood that the guys owned the phone, but this was never confirmed. Sheila was responsible for answering the calls. The first response that [the complainant] recalled was a customer who requested a duo. This service was performed in the room. Sheila received the payment from this customer, and she, being [the complainant], received nothing. The second customer dealt only with Sheila, while [the complainant] waited on the hotel balcony to allow them privacy.

Following the second encounter, [the complainant] decided that she wanted to leave that particular situation. She talked to Sheila about leaving, but she was not interested. How [the complainant] planned to leave the situation was not at all clear. However, it appears that Sheila contacted their original duo customer who picked them up and drove to another hotel. Sheila had made arrangements for [the complainant] to meet another customer. [The complainant] met the customer, had anal sex with him for a total price of $20. She then decided to contact a friend, Matt, in Calgary, seeking help.

She was rather confused about how events unfolded, but her intention was to have her friend in Calgary reach out to a vice officer she had met previously and request help. Contact was made with the Calgary officer and arrangements put in place for [the complainant] to meet members of the Regina police outside the Sandman Hotel. In addition to [the complainant], the Crown called a series of witnesses to conclude the investigation. Constable Keegan Birrell attended the Sandman Hotel to meet [the complainant] as she left the building at approximately 4:30 AM, November 28th.

Constable Gary Naylen was involved in the arrest of the accused at the DoubleTree Hotel. Constable James Maynes, a member of the Regina Police Service Vice Unit attended to the coachman and seized a Hennessy Bottle from the hotel laundry. This bottle was subsequently examined at the RCMP forensic laboratory. The results of the examination are contained in an agreed statement of fact marked as Exhibit P2. In

summary, human DNA found on the neck cap area of the bottle matched a sample provided by [the complainant]. DNA obtained from two cigarette butts located in the bottle originated from two males. Romeo and Jordan are both possible contributors. Adam is not a possible contributor. Detective Adena Warren, a member of the Child Abuse Unit with the Calgary Police Service, had dealt briefly with [the complainant] in early November 2015. She had offered to assist if [the complainant] ever required help with her personal circumstance.

Shortly after midnight November 28th, Warren noted a message on her phone from an individual named Matt and another from [the complainant], both requesting assistance. She first contacted Matt who provided her with background information, following which she exchanged text- message communications with [the complainant]. As a result of the communications, arrangements were made with the Regina Police Service to meet [the complainant] outside the Sandman Hotel. [ 5 ] Given his findings, the trial judge acquitted the defendants on charges of trafficking in persons and of procurement.

However, he entered convictions on the sexual assault, sexual assault with a weapon, assault and unlawful confinement charges. The trial judge sentenced Messrs. Campbell-Ball and Roble together and sentenced Mr. Kahin, separately, sometime later, as follows: Accused Conviction Sentence Campbell-Ball Sexual assault with a weapon— s. 272(1) (a) 60 months Unlawful confinement—s. 279(2) 30 months concurrent Assault—s. 266 60 days concurrent Remand credit: (28 months) Global sentence after remand credit: 32 months

Roble Sexual assault—s. 271 48 months Unlawful confinement—s. 279(2) 30 months concurrent Assault—s. 266 60 days concurrent Remand credit: (37 months) Global sentence after remand credit: 11 months Kahin Sexual assault with a weapon— s. 272(1) (a) 60 months Sexual assault—s. 271 48 months concurrent Unlawful confinement—s. 279(2) 30 months concurrent Remand credit: (42 months) Global sentence after remand credit: 18 months Accused Conviction Sentence III. conviction appeal [ 6 ] Only Mr. Campbell-Ball has appealed against his convictions. In short, the trial judge convicted Mr.

Campbell-Ball of sexual assault with a weapon, unlawful confinement and assault because he found the complainant’s evidence had established, beyond a reasonable doubt, the facts necessary to satisfy the elements of those offences. Importantly, the complainant was the only witness to testify about the actus reus of the offences that the Crown alleged Mr. Campbell-Ball had committed at the Coachman Inn. Neither he nor his co-accused, nor anyone else who had been in the hotel room, testified. [ 7 ] Mr.

Campbell-Ball appeals against his convictions saying the trial judge failed to assess the reliability of the complainant’s evidence, failed to apply the criminal standard of proof, and failed to give adequate reasons for the verdicts. As these grounds all relate to the trial judge’s assessment of the complainant’s evidence, I will address them together. [ 8 ] It is relevant that, at trial, Mr. Campbell-Ball had attempted to undermine the complainant’s credibility by suggesting she was lying or attempting to manipulate the trial judge.

That is, he had argued the complainant’s evidence was false, not that it was unreliable. The other defendants had also challenged her credibility. One defence theory was that what had happened at the Coachman Inn was a consensual orgy in which the complainant came to regret her participation. [ 9 ] A review of the transcript of the trial judge’s oral reasons shows he properly drew a distinction between the complainant’s credibility and the reliability of her evidence. He found the complainant to be articulate, self-assured and mature and went on to conclude that she was a credible witness.

However, the trial judge did express concern about the reliability of the complainant’s evidence. He expressly referred to the complainant’s drug use and how that might have affected the reliability of her evidence, particularly in relation to events that occurred after she and the defendants had left the Coachman Inn. The trial judge said: Clearly [the complainant’s] credibility and the reliability of her testimony is central to a determination in this case.

Although corroboration is not required for conviction, there is no direct independent corroboration of her factual assertions in respect of any of the alleged offences. The presence of her DNA on the Hennessy bottle provides some potential corroboration of the sexual assault with a weapon. Similarly, the various texts and Facebook messages must be reviewed to assess her version of events respecting the initial decision to attend Regina and her expectations in that regard.

However, in the final analysis, apart from inferences to be drawn from other facts, it is the testimony of [the complainant] that must carry the day for the Crown to succeed. The absence of defence evidence does nothing to detract from the Crown’s obligation to prove their case respecting each offence and each accused beyond a reasonable doubt. I note without further comment or criticism, that Sheila was not called as a Crown witness. I must not speculate as to what her testimony would have been.

However, considering the obvious extent of her involvement in most of the events related by [the complainant], her testimony may have been very informative. [The complainant] was 26 years old at the time of trial. She presented as an articulate, mature individual. She is self-assured to the extent that she does not easily accept assertions put to her. She firmly, but politely, rejects

interpretations of events put to her with which she disagrees. [The complainant] was residing in an addiction rehabilitation facility. She had remained drug free since December 10th, 2016, which she described as the date she “became sober.” Her purported motivations for remaining sober were her 6-year-old son and her family. Previous attempt at rehabilitations at ages 15 and 17 were unsuccessful. Those efforts were promoted by her parents, whereas now the motivation comes from within. Overall, I am satisfied that [the complainant] was a credible witness.

She candidly acknowledged that many of her sexual encounters with several different males who were basically unknown to her on the night of November 27th were consensual. Her consent appears to have been granted through some rather perverse sense of duty arising from her occupation as an escort. Her consent was withheld or withdrawn primarily in situations involving threatened or actual physical violence, or in situations which were, in and of themselves, utterly disgusting. Concerns I have respecting [the complainant’s] testimony arise in the area of reliability rather than credibility.

As indicated elsewhere in my reasons, she was seriously addicted to drugs at the time these events transpired. Although addicted, she had not used drugs or alcohol for some brief period prior to her arrival in Regina. She did not use drugs until after the shower incident in the Coachman Inn when they all shared three lines of MDMA. [The complainant’s] recollection became least reliable when relating events following the group’s departure from the Coachman Inn.

[10] Ultimately, the trial judge’s concern about the reliability of the complainant’s evidence relating to events after she had left theCoachman Inn led him, at least in part, to acquit Mr. Campbell-Ball on the procuring and human trafficking charges.

Nonetheless, thetrial judge gave logical and persuasive reasons for relying on her evidence of what had happened inside the Coachman Inn, where theunlawful confinement, assaults and sexual assaults were said to have occurred. [11] In short, I find the trial judge understood credibility and reliability were the core issues in the trial, understood the differencebetween the two, found the complainant credible, identified a concern with the reliability of some of the complainant’s evidence,weighed all of her evidence in accordance with his assessment of its reliability, and found the complainant’s evidence was sufficientlyreliable to find Mr.

Campbell-Ball guilty beyond a reasonable doubt of certain offences but not reliable enough to convict him of otheroffences. Given this, there is simply no merit to Mr. Campbell-Ball’s allegation that the trial judge failed to analyse the reliability of thecomplainant’s evidence. It is clear that he did just that. [12] As to the standard of proof, Mr. Campbell-Ball says the trial judge failed to ask himself whether the absence of certainevidence or inconsistencies in the complainant’s evidence gave rise to a reasonable doubt about his guilt.

The defendants raised theseissues with the trial judge, who later expressed his verdicts in terms of the Crown having proved the offences beyond a reasonable doubt.Accordingly, I could take Mr. Campbell-Ball as saying, in this appeal, that the trial judge must have failed to appreciate the standard ofpersuasion. If so, I find nothing in the record to support that allegation. [13] On the other hand, if the trial judge is taken to have understood the standard, then Mr.

Campbell-Ball’s allegation is betterunderstood as a failure to address gaps and inconsistencies in the complainant’s evidence that went not only to her credibility but also tothe reliability of her evidence. That is, Mr. Campbell-Ball asserts that, had the trial judge addressed the inconsistencies when assessingthe reliability of the complainant’s evidence, not just her credibility, he would not have been persuaded beyond a reasonable doubt aboutMr. Campbell-Ball’s guilt. Although Mr.

Campbell-Ball says there are others, in his factum he points to these inconsistencies in thecomplainant’s evidence in challenge to its reliability: (

a) at trial, the complainant said she had told Mr. Roble “no” when he demanded fellatio, but at the preliminary inquiry sheindicated that she did not say “no”; (

b) at trial, the complainant said she had told Mr. Kahin “no” when he demanded fellatio, but at the preliminary inquiry she saidshe had never told him “no”; (

c) at trial, the complainant testified she said “no” to being anally penetrated by the Hennessey bottle, but that does not appear ineither of the two statements she made to the police, her testimony at the preliminary inquiry, or a

summary of the events, which shecreated with her sexual assault counsellor; (

d) at trial, the complainant testified she had been screaming, hysterical and crying throughout the sexual assault with theHennessey bottle, but she had not mentioned that previously; (

e) the complainant minimized her drug use, but text message evidence from her phone and the

summary she created with hersexual assault counsellor indicate that the complainant was under the influence of drugs; and (

f) the complainant lied to a police officer about the “guys” taking her phone and obfuscated in her testimony about thatcircumstance. [14] Furthermore, Mr. Campbell-Ball also suggests in his factum that the identified inconsistencies demonstrate that thecomplainant was willing to “play semantics to justify her answers when confronted with a direct contradiction,” which challenges thetrial judge’s finding that the complainant was a credible witness.

Addressing credibility first, I agree the inconsistencies can reasonablybe said to undermine the complainant’s evidence because they all are concerns about her truthfulness. [15] However, when I examine the trial judge’s reasons, I am not persuaded that he overlooked or failed to consider theinconsistencies in his assessment of the complainant’s credibility, or the reliability of her evidence. As the trial judge’s reasons indicate,he well understood the complainant’s credibility and the reliability of her evidence were at the core of this trial.

The three defendants hada common strategy of painting the complainant as a liar. Because of this, the prosecutor spoke to the issue in his closing address,acknowledging there were inconsistencies in the complainant’s testimony but noting she had not exaggerated or embellished hertestimony. In keeping with their strategy, the defendants’ respective trial counsel each squarely raised the inconsistencies in thecomplainant’s testimony, or the fact the inconsistencies existed, in their closing address to the trial judge.

But, the prosecutor and trialcounsel all spoke in terms only of the verdict resting exclusively on whether the trial judge found the complainant credible or not. Giventhis, I am not persuaded the trial judge could have failed to take the inconsistencies into account in his assessment of the complainant’scredibility. [16] Moreover, the inconsistencies do not undermine his finding in that regard.

In R v R.P., 2012 SCC 22, [2012] 1 SCR 746,Deschamps J. wrote that a finding of credibility is a question of fact and a court of appeal that reviews assessments of credibility “todetermine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they‘cannot be supported on any reasonable view of the evidence’”, citing R v Burke, (SCC), [1996] 1 SCR 474 at para 7. [17] As to the question of the reliability of the complainant’s evidence, it will be helpful to understand how witness credibility andthe accuracy of a witness’s evidence interrelate.

The authors David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed(Toronto: Irwin Law, 2015) at 35–36, use an example to explain: Assume a witness testifies that the robber with the gun was the person with a face tattoo of a stream of tears. If the trier of fact isconcerned that the witness may be lying, or may be mistaken about this, the evidence may be given little if any weight. Believabilityaffects weight. When deciding whether evidence is believable, legal theory draws a helpful distinction between “credibility” and “reliability.”

“Credibility” is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has adiscreditable character will be relevant to credibility. For example, evidence that the witness identifying the robber was an accomplice tothe robbery who has made a deal with the police could cause a trier of fact to give the testimony little weight. “Reliability” is the term used to describe the accuracy of evidence.

It can relate to the accuracy of a scientific or forensic process, butwhen applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurateinformation. The reliability of witness testimony can be affected, for example, by (1) inaccurate observations, (2) memory problems, or(3) a failure by the witness to communicate observations accurately.

Our witness may, for example, have been too far from the scene toconclude dependably that it was the tattooed man who held the gun, or he may not recall sufficient details of the event to instillconfidence that he is right about this.

Although credible, his evidence will be given little weight because it is unreliable. [18] Although the trial judge did not address each inconsistency in his credibility and reliability assessments, the trial judge foundthe complainant had “candidly acknowledged that many of her sexual encounters with several different males who were basicallyunknown to her on the night of November 27th were consensual.” The trial judge also observed that her consent in those circumstances“appears to have been granted through some rather perverse sense of duty arising from her occupation as an escort.” He then referred tothe fact the complainant had withheld or withdrawn consent “primarily in situations involving threatened or actual physical violence, orin situations which were, in and of themselves, utterly disgusting.” [19] I will make a general observation about the trial judge’s credibility finding that also pertains to his assessment of thereliability of her evidence.

While the complainant gave inconsistent testimony as to the manner in which she had expressed herwithholding or withdrawal of consent (or as to the actual words she used to convey that message), at each stage of the criminalproceedings the complainant consistently said she had not consented to the sexual acts in question—the lack or withdrawal of consent isan element of the offence of sexual assault; whereas, the specific words used by a complainant to withhold or withdraw consent is not.For this reason, when balanced against the factors the trial judge articulated in his oral reasons for finding the complainant credible, theinconsistencies do not move the scale on credibility.

In my assessment, the trial judge saw the candid nature of complainant’s testimonyas the strongest support for his conclusion that she was a credible witness.

But, the way in which the trial judge expressed his credibilityfinding also supports a conclusion that he took the inconsistencies into account in his assessment of the reliability of the complainant’sevidence as to the elements of the offences in question. [20] While I recognise that the trial judge did not expressly assess each inconsistency in terms of its (or the overall effect of theinconsistencies) on the reliability of the complainant’s evidence, this is understandable for two reasons.

The first is that theinconsistencies do not reach the level of a contradiction in the complainant’s evidence that the trial judge had to resolve or reconcile toreach his verdicts. The second is the way in which the inconsistencies had been framed by trial counsel—i.e., that the complainant’scredibility was the principal issue in the trial in relation to the inconsistencies. [21] This all comes together under the last argument raised by Mr. Campbell-Ball in his conviction appeal.

Here, he says the trialjudge’s reasons are inadequate because he failed to indicate how he overcame his own concerns about the reliability of the complainant’sevidence. As I will explain, I do not accept that characterisation of his reasons. However, even if he had so failed, the trial judge had noobligation to record how he addressed the inconsistencies in terms of the reliability of the complainant’s evidence (R v Morin, (SCC), [1992] 3 SCR 286 at 296): ... There is, however, no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts.

Toapply Morin, [ (SCC), [1988] 2 SCR 345], as a basis of review of a trial judge’s findings of fact whenever the reasons forjudgment fail to deal with a particular piece of evidence, or the inference from such evidence would require a trial judge to record eachpiece of evidence and his or her assessment of it. This would be a misapplication of Morin to the trial process when the trial is by judgealone.

A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was notdone, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect. See also: R v J.M.H., 2011 SCC 45 at para 32, [2011] 3 SCR 197; R v Walker, 2008 SCC 34 at para 20, [2008] 2 SCR 245; R v Braich,2002 SCC 27 at para 38, [2002] 1 SCR 903. In

summary terms, the trial judge’s reasons are sufficient because, as noted, they areresponsive to the live issues at trial and the key arguments made by the defendants based on the inconsistencies. [22] Moreover, the reasons are sufficient because I have no difficulty understanding why the trial judge accepted and relied on thecomplainant’s evidence to convict on the offences that occurred at the Coachman Inn but still held a reasonable doubt about the later-in-time charges. To summarise, the trial judge identified the complainant’s drug use as a reliability concern.

He found she had not useddrugs from her arrival in Regina until the group shared the three lines of MDMA at the Coachman Inn. As I read his reasons, the trialjudge accepted the complainant’s evidence as to what had occurred prior to this drug use was reliable. However, because of the drug use,he found the complainant’s evidence of what had occurred after she had consumed MDMA was less reliable, but still reliable enough topersuade him beyond a reasonable doubt as to the offences of assault and sexual assault with a weapon.

Indeed, the trial judge notedthere was some evidence to corroborate the complainant’s testimony in that regard, namely, her DNA on the weapon. [23] The trial judge remarked that the complainant’s evidence was “least reliable” when it came to events that occurred after thegroup had left the Coachman Inn. I take this to mean that, while he still found her evidence reliable, it was not reliable enough topersuade him beyond a reasonable doubt that Mr. Campbell-Ball was guilty of human trafficking and procurement.

Furthermore, whenaddressing the later-in-time offences, the trial judge also spoke to gaps and inconsistencies in the complainant’s evidence, indicating thathe found her less credible when recounting what had happened after the Coachman Inn. Perhaps that is not spelled out in neat terms in hisreasons, but it is undoubtedly the path taken by the trial judge and I can see no error in it. [24] On the whole of it, having reviewed the transcript of trial and the oral reasons of the trial judge, I find the trial judge squarelyassessed the issues of credibility and of the reliability of the complainant’s evidence.

He had full appreciation of all of the evidencerelevant to the ultimate issue in the trial. I find the record and the trial judge’s reasons were sufficient to understand why he convictedMr. Campbell-Ball, even though his reasons might have been more detailed in respect of reliability. That is, Mr. Campbell-Ball’sallegations of error are not made out on the record and, as such, there is no basis upon which to interfere with the verdicts. I would

dismiss the convictions appeal in CACR3066. IV. sentence appeals [25] There is much in common in the three Crown appeals against sentence. While sentencing is an individualised process, I wouldaddress a number of matters that are raised in all three appeals before addressing the fitness of each defendant’s sentence separately. A. Grounds common to the sentence appeals [26] The commonalities in the three appeals against sentence relate to the circumstances of the offences and how that plays out inthe Crown’s arguments as to offence gravity and moral culpability. 1.

Section 21(2) of the Criminal Code [27] As is apparent, each defendant played his own role in the unlawful confinement and sexual assault of the complainant.However, the offences occurred in a hotel room when all three defendants were present and knew offences were occurring. As such,there is a basis to argue they acted in concert when committing the crimes.

For this reason, the Crown submitted in these appeals thateach defendant ought to have been sentenced as a principal to every offence he committed and as a party to every offence committed bythe other defendants (Criminal Code, s. 21(2)). [28] To be clear about the offences in question, Messrs. Campbell-Ball and Roble each physically assaulted the complainant, butMr. Kahin did not. Mr. Kahin sexually assaulted the complainant twice, and Messrs. Campbell-Ball and Roble each sexually assaultedher once. Furthermore, the nature of each assault and sexual assault differed.

Some of the occurrences at the Coachman Inn did not resultin charges or convictions, such as the forced toe-licking, forced oral sex with the other woman, and the oral sex with the unknown maledriver. Importantly, none of the defendants had been charged with “gang rape” under s. 272(1)(

d) of the Criminal Code. [29] Nonetheless, at the root of its argument, the Crown asserts that each defendant is legally responsible for all of the offencesthat occurred in the hotel room.

In appellate terms, the Crown says the trial judge erred in principle because he did not sentence eachdefendant on four sexual assaults, two assaults simpliciter and the unlawful confinement, as well, apparently, as the uncharged offences.Aside from the fact the issue of criminal liability under s. 21(2) was not put to the trial judge (i.e., the trial judge made no findings in thatregard and therefore could not have erred), there are other problems with the Crown’s argument. [30] To begin, it is well-understood that sentencing is an individualised process: R v Lacasse, 2015 SCC 64 at paras 54, 58 and140, [2015] 3 SCR 1089.

In fundamental terms, sentence fitness is determined on appeal by asking whether the sentence imposed at trialis proportionate to the gravity of the offence and the degree of responsibility of the offender (Criminal Code, ss. 687(1) and 718.2).Axiomatically, given the presumption of innocence (Criminal Code, s. 6; Charter, s. 11(d)), an individual may not be sentenced for anoffence of which he or she has not been convicted. Other than in s. 6, this axiom finds expression in ss. 724 and 725 of the CriminalCode.

All of which is to say, in very general terms, that the basic principles of law and of sentencing would seem to preclude the Crown’sargument. [31] Further, the Supreme Court rejected this kind of argument in R v Angelillo, 2006 SCC 55, [2006] 2 SCR 728, where CharronJ., for the majority, wrote: [22] The principles of sentencing are now codified in ss. 718 to 718.2 Cr. C. These provisions confirm that sentencing is anindividualized process in which the court must take into account not only the circumstances of the offence, but also the specificcircumstances of the offender (see Gladue; Proulx, at para. 82).

Thus, the objectives of sentencing cannot be fully achieved unless theinformation needed to assess the circumstances, character and reputation of the accused is before the court. The court must thereforeconsider facts extrinsic to the offence, and the proof of those facts often requires the admission of additional evidence. [23] Since the offender must be punished only for the offence in issue, the court will generally not admit evidence of other offencesthat have not been proved.

In the present case, the Court of Appeal rightly referred to the following comment by LeBel J.A. in R. v.Pelletier (1989), (QC CA), 52 C.C.C. (3d) 340, at p. 346: [TRANSLATION] While the accused’s character may be shown, and his previous criminal record established, the sentencing processmust not become the occasion for indirectly punishing the accused for offences which have not been established by the normal means ofproof and procedure, or that one did not wish to bring. … [32] If the extrinsic evidence is contested, the prosecution must prove it.

Since the facts in question will doubtless be aggravatingfacts, they must be proved beyond a reasonable doubt (s. 724(3)(e)). The court can sentence the offender only for the offence of which heor she has been convicted, and the sentence must be proportionate to the gravity of that offence. In addition, the judge can and mustexclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender’s right to a fair trial isjeopardized.

Finally, the court must draw a distinction between considering facts establishing the commission of an uncharged offencefor the purpose of punishing the accused for that other offence, and considering them to establish the offender’s character and reputationor risk of re-offending for the purpose of determining the appropriate sentence for the offence of which he or she has been convicted. Inmy example, the sentence imposed on a violent offender may well be more restrictive than the sentence imposed on an offender who hascommitted an isolated act, but this is in no way contrary to the presumption of innocence.

The sentence may also be more restrictive inthe case of a repeat offender if the Crown presents evidence of the offender’s criminal record, but this does not violate the offender’sright, guaranteed by s. 11(

h) of the Charter, not to be “punished ... again”. In both cases, again from the standpoint of proportionality, themore severe sentence is merely a reflection of the individualized sentencing process.

(Italics emphasis added; underlining in original) [32] Accordingly, I find no merit to the Crown’s argument that the trial judge erred by failing to appreciate that each defendantwas legally responsible for each and every of the offences committed at the Coachman Inn and ought to have been sentenced as thoughthey were principals or parties under s. 21(2) of the Criminal Code. 2.

Human trafficking and procurement [33] Taking a slightly different path down the same avenue of appeal, the Crown paints the circumstances of the offences with theshadowy colours of human trafficking and procurement and alleges the trial judge erred by failing to appreciate the full circumstances inwhich the offences were committed.

Fairly, aspects of the circumstances certainly suggest the defendants were involved in humantrafficking or procurement, but the trial judge acquitted them on those charges. [34] In blunt terms, the acquittals mean the Crown at trial did not satisfy its burden of proof or of persuasion beyond a reasonabledoubt. No appeal has been taken from the acquittals. Nonetheless, the Crown alleges the trial judge erred because he did not regard theevidence of human trafficking and procurement as an aggravating factor when sentencing the defendants. I find this argument untenablein principle.

The evidence did not rise to the level of rendering human trafficking and procurement an aggravating factor in thesentencing hearing because the elements of those offences had not been established beyond a reasonable doubt at trial or in thesentencing hearing (s. 724(3)(e); R v Gardiner, (SCC), [1982] 2 SCR 368; R v Angelillo). [35] As I see it, the trial judge properly sentenced each defendant for the offences he had committed taking into account the overallcontext, which included overtones of exploitation and undoubtedly included degradation, humiliation and cruelty.

However, by reason ofthe acquittals, the context cannot be described in terms of human trafficking or procurement, including by referring to the defendants aspimps or by referring to prostitution-related offences and sentences. [36] Nonetheless, it remains relevant to sentencing that the defendants voluntarily involved themselves in a particularly odiousseries of sexual assaults on a vulnerable complainant that they facilitated by unlawfully confining her in a hotel room. When jointlysentencing Messrs.

Campbell-Ball and Roble, the trial judge drew the same conclusion, saying: Both of these gentlemen appear to be reasonably intelligent young men or at least they’re each clearly capable of appreciating the callous-- or what I describe as the callous, disgusting and, indeed, utterly demeaning manner that they treated, that each of you treated [thecomplainant] over the course of the several hours during the evening in question.

I’m at a loss to understand what motivates or leads oneto believe that they are somehow entitled to conduct themselves in that manner towards any other person, but in this case towards [thecomplainant], who was a young woman at the time. I have no explanation for that and I haven’t heard either of you provide anyexplanation for that. In the case of Mr. Campbell-Ball, there was anal penetration of [the complainant] with a bottle while she was lying naked on a bed,crying, and saying that she didn’t want to do what was being demanded of her.

While the assault was short in duration, and resulted in noobvious physical injury, it certainly demonstrated what has been described as a contemptuous disregard for the feelings and personalintegrity of [the complainant]. Clearly, major psychological harm was foreseeable for conduct of that nature. In regard to Mr. Roble, it’s important to note that penile penetration is not an essential or even a necessary feature of a major sexualassault.

Forced fellatio amounts to a serious sexual assault, where the offender demonstrated contemptuous disregard for the feelings andintegrity of the victim and assaulted her in a manner, apparently, likely to result in lasting emotional or psychological harm, and that’sclearly the case here. Mr. Roble’s assault included approximately 20 minutes of forced fellatio followed by a brief forced anal licking, featured demeaninglaughter in the background, and violence. [The complainant] was struck in the head until she complied.

Under those circumstances, the starting point for both gentlemen, of their sentence is three years. This sentence is increased or decreasedaccording to the aggravating or mitigating factors present. Determining an appropriate sentence in this instance is particularly difficultbecause the facts are rather unique. In fact, I haven’t found anything that’s remotely similar. To be frank, when assessing the aggravatingversus mitigating factors on this occasion, there are few indicators for either of the accused that would suggest a sentence below therange. … In regard to Mr.

Roble, the sexual assault he was involved in did not physically injure [the complainant] and did not include penetration.Nevertheless, it featured cruelty, and degradation and violence. It also was perpetrated by a group or the same group and was against aparticularly vulnerable individual. The assault occurred during a prolonged unlawful confinement, and also between the forced oral sexand the anal licking, the assault lasted somewhere in the range of 30 minutes. [37] Although he sentenced Mr. Kahin separately from Messrs.

Campbell-Ball and Roble, the trial judge used very similarlanguage when doing so: By way of general comments, these offences were committed as part of a joint enterprise and I have previously sentenced the two co-accused for their participation in various of the same offences, of which Mr. Kahin has been convicted. You, sir, appear to be areasonably intelligent young man. Clearly capable of appreciating the, what I would describe as a callous and utterly demeaning mannerin which you treated [the complainant] over the course of several hours during the evening in question.

I don’t propose to lecture because I don’t think it makes any difference, but I’m at a loss to understand what motivated you to believe thatyou are or were somehow entitled to conduct yourself in the manner you did towards any person, but, in particular, on this occasion, [thecomplainant].

I’ve reviewed the factual foundation for the convictions in my oral decision delivered in August of 2017. So I don’t propose to detailthose findings here. However, in relation to yourself, in particular, who was -- you were referred throughout the trial as Adam, so if I -- Iuse that name as opposed to your appropriate name, please don’t take offence, that’s how you were referred. You were an activeparticipant in the Hennessey bottle incident. [The complainant] heard you telling Romeo “to do it” just before the bottle was inserted intoher rectum.

While this assault was short in duration and resulted in no obvious physical injury, it certainly demonstrated a contemptuousdisregard for the feelings and the personal integrity of [the complainant], and major psychological harm was clearly a(INDISCERNIBLE) consequence at that. In relation to count number 4, the unlawful confinement, as I indicated in the oral decision, [the complainant] was wrongfully confinedfrom shortly after her arrival at the Coachman Inn until the following morning when you and the rest of the group departed the hotel.

Theconfinement evolved through a combination of physical force, as represented by the various sexual and other assaults committed duringher time at the Coachman, and by psychological factors. Each of the accused, including yourself, were participants in the unlawful confinement. The confinement was to -- to facilitate theindividual acts of sexual assault committed by the accused during the course of the night at the Coachman. Respecting count number 5, the sexual assault, the events founding this conviction occurred shortly after the two women were instructedto perform oral sex on each other in the shower.

They had just shared several lines of MDMA and were about to go to bed. Mr. Kahin, orAdam, asked the woman to join him for oral sex. [The complainant] refused several times and finally you forced her head down until shecomplied. Those were the acts that constituted the sexual assault. I’ve previously sentenced two -- the two co-accused on the offences and the consideration. Although those sentences are presently underappeal by the Crown for reasons of uniformity, barring some significant differences in Mr.

Kahin’s present -- personal circumstance, Ipropose to apply the same considerations and authorities as referred therein. … The range, by my understanding, for sexual assault with a weapon in Saskatchewan appears to be between 34 months and 12 years andthose dates are founded on the lower end of the case in R. v. Kerrigan (phonetic) a 2013 SCA and the higher end, R. v. Clemens, 2015,our Court of Appeal. The assault here caused no obvious physical harm and it was relatively brief in duration. That said, it wasperpetrated by a group of individuals and involved a particularly vulnerable individual.

It occurred during a prolonged, unlawfulconfinement and was notably cruel and degrading. [38] In closing, having reviewed the transcript of the sentencing hearings, I am not persuaded the trial judge overlooked or failed togive weight to the circumstances in which the offences were committed. As I read his decision, the overall circumstances were front-and-center in the trial judge’s assessment of the gravity of the particular offences committed by each defendant and in his assessment of thedefendant’s degree of responsibility for the offences he committed. That is, I find no merit to this argument. 3.

Rejection of case law from outside Saskatchewan [39] The Crown alleges the trial judge erred by declining to consider cases from outside of Saskatchewan, but I do not read his oraldecision in that way. While the trial judge remarked about the “rather unique” set of facts and elsewhere stated that he was “primarilyconcerned about the Saskatchewan authorities unless there’s some reason why I should be going elsewhere”, I do not take him as therebyoutright rejecting the relevance of extra-provincial case law.

Regardless, given the apparent breadth of sentences in the case law cited tous in these appeals (see below) and the fact that the case cited to the trial judge in which the longest sentence was imposed (R v Klemenz,2015 SKCA 89, [2016] 1 WWR 234) is from Saskatchewan, I am not swayed by the Crown’s argument that the sentences would havebeen different even if the trial judge had made express reference to the jurisprudence from outside Saskatchewan. 4.

Sentencing range [40] Drawing on the cases cited and referenced in the Crown and respondent facta in these appeals, it is apparent the case lawacross Canada contains a broad range of sentences for sexual assault or sexual assault with a weapon.

The cases presented to us asrelevant to these sentence appeals included: R v L.V., 2016 SKCA 74, [2017] 1 WWR 439; R v Cook (N), 2014 MBCA 29, 309 CCC (3d)50, varying 2013 MBQB 100, 292 Man R (2d) 68; R v Alexander, 2013 ABCA 231; R v Ahmadzai, 2013 BCCA 410, 342 BCAC 241; Rv Carangan, 2013 SKCA 54, 414 Sask R 207; R v J.H.T., 2010 SKCA 150, 366 Sask R 22; R v Bellegarde, 2010 SKCA 15, 346 Sask R161; R v Sinclair, 2010 MBCA 105, 262 Man R (2d) 23; R v A.J.B., 2007 MBCA 95, [2007] 9 WWR 617; R v Dhillon, 2006 BCCA 531,214 CCC (3d) 480; R v Owusu, 2006 ABCA 239, 397 AR 382; R v Chinneck, 2005 BCCA 346, 213 BCAC 260; R v Gartner, 2004SKCA (SentDig) 28; R v Muhammad, 2004 BCCA 396, 187 CCC (3d) 14; R v Stewart, 2001 SKCA 40, 203 Sask R 319; R v Johnston(1998), (NB CA), 207 NBR (2d) 24 (CA); R v Combrink (1997), 98 BCAC 208; R v Murray (1995), 1995 ABCA293 , 169 AR 307 (CA); R v Morales, 1995 ABCA 203, 169 AR 311; R v Saccary (1995), (NS CA), 144NSR (2d) 363 (CA); R v Dow (1994), (NB CA), 146 NBR (2d) 352 (CA); R v Caouette (1994), 52 BCAC 133 (CA);R v Cappo (1993), 116 Sask R 15 (CA); R v Goudy (1992), 21 BCAC 175; R v Ginther (1991), 6 BCAC 204 at 209 (CA); R vSandercock, 1985 ABCA 218, [1986] 1 WWR 291; R v Craig (1975), (AB CA), 28 CCC (2d) 311 (Alta SC); R vWhite, 2016 ABQB 24; R v Milani, 2017 ONSC 2420; R v Richards, 2016 ONSC 2940; R v Basil Smith, 2015 ONSC 3330; R v Walters,2012 ABQB 83, 529 AR 126; R v Kane, 2011 BCSC 345; R v Assing, (ON SC), [2008] OJ No 4527 (QL) (Sup Ct);R v Munro, 2006 MBQB 89, 203 Man R (2d) 157; R v Sidhu, 2002 CarswellBC 3756 (WL) (SC); R v Beaton (1991), (NS SC), 118 NSR (2d) 341 (SC); R v Quvianaqtuliaq, 2017 NUCJ 1; R v A.Q., 2015 SKPC 51, 471 Sask R 226; R v Sanghar, 2012ABPC 333; R v Rayworth, [1999] OJ No 5289 (QL) (Sup Ct); and R v T.G., 2007 MBPC 33, 217 Man R (2d) 33.

Of course, not all ofthese cases were put to the trial judge by the defence or the Crown. In his reasons, the trial judge said the sentencing range for majorsexual assault starts at three years and that a sentence might move up or down from there depending on the aggravating and mitigatingfactors present in the case, referring to R v Iron, 2005 SKCA 84 at para 12, 269 Sask R 51. [41] Even though the list is lengthy, it is difficult to find a case of major sexual assault that is directly comparable to any other

case of major sexual assault. No two cases have the exact same set of aggravating factors or the same set of mitigating factors orpersonal circumstances of the offender. There are cases where weapons have been employed, but with different weapons used in differentways with different results. There are other cases with multiple co-accused, but their criminal liability as parties to the offences differs, orthe offenders’ roles in the offending differs, from the defendants in this case. There are sexual assaults that were committed byinveterate, violent offenders and others by first-time offenders.

There are cases involving the sexual assault and confinement of sex-tradeworkers, of minors, of spouses and of strangers. There are varying degrees and durations of violence and of confinement. There are casesof major sexual assault where the associated offences differ, including such offences as uttering threats, robbery, masking, etc., butexcluding unlawful confinement or assault simpliciter, as was the case here. Some sexual assaults are crimes of opportunity and others ofpremeditation.

Even though the circumstances of another case may be roughly comparable, the degree of physical and psychologicalaggression seems unique to each case, with differing physical and psychological harm done to the victim or victims.

In many cases, thesentencing courts have characterised the offender as acting with brutality, callousness, cruelty or sadism, or acting intentionally todegrade or to demoralise the victim; no two offenders’ conduct is the same across the cases. [42] In broad terms, all that can be said is that sentences for major sexual assaults (usually with a weapon or unlawful confinementor both) have fallen between three years and 12 years of imprisonment. In his sentencing decisions, the trial judge found similarly,stating (when sentencing both Mr. Campbell-Ball and Mr.

Kahin) that the range for sexual assault with a weapon in Saskatchewan“appears to be between 34 months and 12 years.” Ultimately, however, the case law serves primarily to reinforce the conclusion thateach sentencing for a major sexual assault must turn on its own facts and the personal circumstances of the individual offender (s. 718.2;R v Lacasse). B. Grounds particular to each defendant [43] I have found under the common grounds of appeal that the trial judge did not err in principle by failing to consider a relevantfactor or by failing to consider an aggravating factor.

Nonetheless, in R v Lacasse Wagner J. (as he then was), for the majority, said: [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A.mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is“demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a“substantial and marked departure” (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All theseexpressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene afterreviewing the fitness of a sentence. [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparisonwith sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must bereconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [44] With that, I will now review the sentences imposed on each offender for their fitness in the circumstances. 1. Jonathan David Campbell-Ball [45] As noted, the trial judge sentenced Mr. Campbell-Ball to five-years’ incarceration (60 months) on the sexual assault with aweapon conviction (s. 272(1)(a)), with 2.5 years concurrent (30 months) on the unlawful confinement conviction (s. 279(2)), and 60 daysconcurrent on the assault conviction (s. 266). The trial judge credited 28 months against the global sentence of five years for the timeMr.

Campbell-Ball had spent in remand (at a ratio of 1:1.5), leaving 32 months’ imprisonment remaining at the time of sentencing. [46] In its factum, the Crown states that the five-year global sentence “does not come close to reflecting the gravity of [Mr.Campbell-Ball’s] crimes or his moral culpability” for their commission. In one way or another, the Crown’s arguments drive to a singlebottom-line, namely, that the five-year sentence imposed on Mr. Campbell-Ball is demonstrably unfit in the circumstances of hisoffences. At trial, the Crown had sought a sentence of between seven and 11 years of imprisonment for Mr.

Campbell-Ball, while hiscounsel had argued for a sentence of three to five years. [47] Because it is an unreported decision, I will set out in full the trial judge’s reasoning as it pertained to aggravating factors andmitigating factors particular to Mr. Campbell-Ball: In the case of Mr. Campbell-Ball, there was anal penetration of [the complainant] with a bottle while she was lying naked on a bed,crying, and saying that she didn’t want to do what was being demanded of her.

While the assault was short in duration, and resulted in noobvious physical injury, it certainly demonstrated what has been described as a contemptuous disregard for the feelings and personalintegrity of [the complainant]. Clearly, major psychological harm was foreseeable for conduct of that nature. … [Recounting of Mr. Roble’s involvement omitted] Under those circumstances, the starting point for both gentlemen, of their sentence is three years. This sentence is increased or decreasedaccording to the aggravating or mitigating factors present.

Determining an appropriate sentence in this instance is particularly difficultbecause the facts are rather unique. In fact, I haven’t found anything that’s remotely similar. To be frank, when assessing the aggravatingversus mitigating factors on this occasion, there are few indicators for either of the accused that would suggest a sentence below therange. In the case of Mr. Campbell-Ball, the range for sexual assault in Saskatchewan, with a weapon, appears to be between 34 months and 12years, those boundaries set by the cases of R. v. Carrigan and R. v. Klemenz. Mr.

Campbell-Ball’s assault caused no physical harm and

was fairly brief in duration. That said, it was perpetrated by a group or a gang, so to speak, and involved a particularly vulnerable youngindividual. It occurred during a prolonged unlawful confinement and was notably cruel and degrading. For Mr. Ball’s information, although there was a prior semi-romantic relationship between he and [the complainant], I’m satisfied thatrelationship was not of the nature contemplated by

Section 718.2(iii) or a trust relationship as constituting an aggravating factor under theCriminal Code, although it is a factor that I took into account. Mr. Ball has a significant criminal record, including 51 previous convictions, although many of those were youth convictions, but therecord includes four previous offences for robbery, and five previous offences for assault. To the extent it’s a mitigating circumstance, Iguess there were no previous convictions for sexual assault. I also note that although it was rather a long time coming, Mr.

Ball did at least express some regret for letting events get out of hand atthe motel that evening, and to that extent, I think he expressed some element of remorse for the incident. [48] Put simply, having compared Mr. Campbell-Ball’s sentence with the sentences imposed for similar offences in similarcircumstances (above), I am persuaded that the sentence in this case is at the low end of the range. However, given the trial judge’sfindings, I am not persuaded a five-year penitentiary term of imprisonment in the circumstances of Mr.

Campbell-Ball’s offences is“clearly unreasonable”, “clearly inadequate” or represents a “substantial and marked departure” from sentences imposed for similaroffences committed in similar circumstances. That is, the sentence imposed does not constitute an unreasonable departure from theprinciple of proportionality. 2. Abdirahman Kahin [49] The trial judge sentenced Mr.

Kahin to five years of incarceration (60 months) on the sexual assault with a weapon conviction(s. 272(1)(a)), with 2.5 years concurrent (30 months) on the unlawful confinement conviction (s. 279(2)) and four years concurrent (48months) on the sexual assault conviction (s. 271). The trial judge credited 42 months against the global sentence of five years for thetime Mr.

Kahin had spent in remand (at a ratio of 1:1.5), leaving 18 months’ imprisonment remaining at time of sentencing. [50] In its appeal against this sentence, the Crown makes the same arguments as it did against the sentence imposed on Mr.Campbell-Ball, namely, that it “does not come close to reflecting the gravity of [Mr. Kahin’s] crimes or his moral culpability in them.”The Crown seeks a nine-year global sentence and a lifetime sex offender registry order under s. 490.012 of the Criminal Code. At trial,the prosecutor had sought a sentence “closer to eight than to five”, latterly referring to the sentence Mr.

Campbell-Ball had earlierreceived; but, he did not offer the trial judge much to distinguish Mr. Kahin from Mr. Campbell-Ball. He also sought a 20-year SOIRAorder, although s. 490.013(2.1) provides that such an order applies for life when the offender has committed more than one designateoffence, as has Mr. Kahin. For his part, Mr.

Kahin’s trial counsel had referred to R v Knife (1982), (SK KB), 16 SaskR 40 (CA), where Cameron J.A. said the courts ought to avoid disparate sentences for the same or similar offences, particularly in thecase of co-accused, and argued for a sentence of 4.5 years of imprisonment. [51] As to the sentencing decision, I find the transcript of the trial judge’s oral reasons for sentence contains a concise and preciserecounting of the gravity of Mr. Kahin’s offences and of his moral culpability.

While the Crown has characterised the trial judge’sreasons as touching on relevant aggravating factors “only in passing” and without reflecting their weight in the actual sentences imposed,the fact is the trial judge did recognise the aggravating and mitigating factors present in Mr. Kahin’s case. He also mentioned that, sincethe details of the offences were set out in his reasons for conviction, he would simply summarise them in his sentencing reasons.Regardless, at the end of the day, the weight the trial judge gave to the aggravating factors present in Mr.

Kahin’s case is not subject toappellate review (R v Nasogaluak, 2010 SCC 6 at para 46, [2010] 1 SCR 206). [52] In Mr. Kahin’s case, a five-year global sentence is not an inconsiderable term of imprisonment for a first conviction for sexualassault and a limited criminal record. Further, while it is not mitigating, factually, Mr. Kahin did not physically assault the complainant(aside from the two sexual assaults he committed), whereas the other two defendants did. Nonetheless, the trial judge found what hadoccurred at the Coachman Inn was a “joint enterprise” in which Mr.

Kahin “did have a hand in creating the atmosphere that this all tookplace in, that prevented her from leaving.” In that respect, the trial judge described Mr. Kahin’s actions in the sexual assault with aweapon as demonstrating “contemptuous disregard for the feelings and personal integrity of [the complainant].” He also understood that“major psychological harm was foreseeable for conduct of that nature.” When addressing Mr.

Kahin’s other sexual assault conviction,the trial judge described it as “a serious sexual assault, where the offender demonstrated contemptuous disregard for the feelings andintegrity of the victim and assaulted her in a manner, apparently, likely to result in lasting emotional or psychological harm.” Given thesecharacterisations, I am hard-pressed to conclude the trial judge minimised or overlooked the gravity of Mr.

Kahin’s offending in thiscase or his moral culpability in the circumstances. [53] I find the trial judge was well-aware the complainant was a vulnerable person, given her participation in the sex trade. He waswell-aware of the degrading nature of the assaults and sexual assaults and that the defendants had unlawfully confined the complainant tofacilitate those assaults and sexual assaults. He understood the circumstances in which the sexual assaults had occurred and that theycalled for a sentence in excess of three years’ imprisonment.

Notably, the trial judge said: The range, by my understanding, for sexual assault with a weapon in Saskatchewan appears to be between 34 months and 12 years andthose dates are founded on the lower end of the case in R. v. Kerrigan (phonetic) a 2013 SCA and the higher end, R. v. Clemens, 2015,our Court of Appeal. The assault here caused no obvious physical harm and it was relatively brief in duration. That said, it wasperpetrated by a group of individuals and involved a particularly vulnerable individual.

It occurred during a prolonged, unlawfulconfinement and was notably cruel and degrading. [54] The trial judge noted there were “significant differences” in the personal circumstances of Mr. Kahin versus his co-accused.The trial judge understood that Mr. Kahin had a limited and unrelated criminal record, was a young man at the time and was remorseful.Nonetheless, I take him to also have understood that Mr. Kahin had acted more cruelly at times than the other defendants had acted.

[ 55 ] In the end, I am not persuaded the five-year term of imprisonment is “clearly unreasonable”, “clearly inadequate” or represents a “substantial and marked departure” from sentences imposed for similar offences committed in similar circumstances to Mr. Kahin’s offences. [ 56 ] As I am unable to find that the sentence imposed constitutes an unreasonable departure from the principle of proportionality, I am not entitled to intervene ( R v Lacasse ) other than to vary the 20-year SOIRA order such that it shall apply for life. 3. Jama Roble [ 57 ] Unlike the other defendants, Mr.

Roble was not convicted of sexual assault with a weapon. The trial judge sentenced Mr. Roble to four years’ incarceration (48 months) on his sexual assault conviction (s. 271), with 2.5 years concurrent (30 months) on the unlawful confinement conviction (s. 279(2)), and 60 days concurrent on the assault conviction (s. 266). The trial judge credited 37 months against the global sentence of four years (48 months) for the time Mr.

Roble had spent in remand (at a ratio of 1:1.5), leaving 11 months’ imprisonment remaining at the time of sentencing. [ 58 ] While there is some overlap between the sentencing reasons given in respect of Mr. Campbell-Ball and Mr. Roble due to the joint hearing, the trial judge’s oral reasons for the sentence he imposed on Mr.

Roble were as follows: Both of these gentlemen appear to be reasonably intelligent young men or at least they’re each clearly capable of appreciating the callous -- or what I describe as the callous, disgusting and, indeed, utterly demeaning manner that they treated, that each of you treated [the complainant] over the course of the several hours during the evening in question. I’m at a loss to understand what motivates or leads one to believe that they are somehow entitled to conduct themselves in that manner towards any other person, but in this case towards [the complainant], who was a young woman at the time.

I have no explanation for that and I haven’t heard either of you provide any explanation for that. … [Recounting of Mr. Campbell-Ball’s involvement omitted] In regard to Mr. Roble, it’s important to note that penile penetration is not an essential or even a necessary feature of a major sexual assault. Forced fellatio amounts to a serious sexual assault, where the offender demonstrated contemptuous disregard for the feelings and integrity of the victim and assaulted her in a manner, apparently, likely to result in lasting emotional or psychological harm, and that’s clearly the case here. Mr.

Roble’s assault included approximately 20 minutes of forced fellatio followed by a brief forced anal licking, featured demeaning laughter in the background, and violence. [The complainant] was struck in the head until she complied. Under those circumstances, the starting point for both gentlemen, of their sentence is three years. This sentence is increased or decreased according to the aggravating or mitigating factors present. Determining an appropriate sentence in this instance is particularly difficult because the facts are rather unique. In fact, I haven’t found anything that’s remotely similar.

To be frank, when assessing the aggravating versus mitigating factors on this occasion, there are few indicators for either of the accused that would suggest a sentence below the range. … [Mr. Campbell-Ball’s personal circumstances omitted] In regard to Mr. Roble, the sexual assault he was involved in did not physically injure [the complainant] and did not include penetration. Nevertheless, it featured cruelty, and degradation and violence. It also was perpetrated by a group or the same group and was against a particularly vulnerable individual.

The assault occurred during a prolonged unlawful confinement, and also between the forced oral sex and the anal licking, the assault lasted somewhere in the range of 30 minutes. Mr. Roble also has a criminal record, considerably less lengthy, but nevertheless, serious, containing four convictions for robbery and one conviction for robbery with violence. Again, to his credit, there are no previous convictions for sexual assault.

There were a multitude of authorities provided to me, many of which were from jurisdictions other than Saskatchewan, determination was based primarily on the Saskatchewan authorities, and without going through lengthy citations, et cetera, in particular, I refer to the decision of: R. v. Iron , from our Court of Appeal in 2005; R. v. Woods , 2008, our Court of Appeal; R. v. Sawchuk , 2014, our Court of Appeal -- all of these are our Court of Appeal, unless I indicate otherwise; R. v. Carrigan , 2013; R. v. Klemenz , 2015; R. v. U. (B.) , 2008; R. v. Wapass , 2013; R. v. Gardiner , 2004; and R. v.

Badger , 2013, being a decision of Justice Zarzeczny in the Court of Queen’s Bench. For my purposes now, in terms of imposing sentence, denunciation and deterrence are the principal motivating factors. [ 59 ] In blunt terms, although he was convicted of offences of lesser objective gravity than his co-accused, Mr. Roble was arguably at times the cruellest of the three and was the perpetrator or instigator of some of the most degrading aspects of what occurred at the Coachman Inn.

The Crown makes the same arguments as it did against the other sentence appeals, namely, that a four-year sentence “does not come close to reflecting the gravity of [Mr. Roble’s] crimes or his moral culpability in them.” The Crown seeks a nine-year global sentence. [ 60 ] On the findings of the trial judge, Mr. Roble was not culpable for the sexual assault with a weapon. While despicable in their own right, Mr. Roble’s offences were of lesser objective gravity. Nonetheless, Mr.

Roble’s criminal conduct undoubtedly called for a sentence in excess of three years’ imprisonment by reason of the aggravating factors present, such as the vulnerability of the victim, the degree of offender cruelty (i.e., degradation and humiliation of the victim), the violence employed by the offender to carry out the sexual assault, and the unlawful confinement of the victim to facilitate the sexual assault. As noted earlier in these reasons, the trial judge understood this and gave it effect through the sentence he imposed.

While the Crown would have us reweigh the aggravating factors and impose a lengthier sentence, the weight given to aggravating factors by a sentencing judge is not subject to appellate review ( R v Nasogaluak at para 46 ).

[ 61 ] In my assessment, the facts of R v Dhillon are the most comparable to the circumstances of Mr. Roble’s offences as found by the trial judge. In R v Dhillon , although not charged under s. 271(2)(d), the offender had participated in a gang rape of a vulnerable young woman. The victim had epilepsy, diabetes and a breathing disorder for which she took medication, which meant she could not have alcohol. The offender and two other men took her to the offender’s home, plied her with alcohol and made her watch a pornographic video.

Once she had become dizzy from the alcohol, the offenders pulled her into a bedroom, threatened her with death if she did not strip off her clothes, threw her on a bed, stripped her, and then took turns raping her vaginally and orally while the others restrained her. The offender in question in R v Dhillon also attempted to have anal sex with the victim but failed. The offenders physically assaulted and verbally abused the victim. She managed to escape and call the police.

She became pregnant as a result of the sexual assaults. [ 62 ] In R v Dhillon , the British Columbia Court of Appeal dismissed the offender’s appeal against his four-year sentence for sexual assault. As noted above, in response to the offender’s argument that his sentence was “out of proportion to [his] moral blameworthiness”, the Court said (at para 16): As to “moral blameworthiness”, it is hard to imagine a set of circumstances more morally repugnant than those in the case at bar.

Here a teenager with a medical problem that forced her to abstain from alcohol was put under the influence of alcohol, was verbally abused and degraded, and was made the victim of physical beatings, sadistic forced vaginal and oral penetration, and attempted buggery. [ 63 ] While dicta in R v Dhillon may be reduced to the simple proposition that four years of incarceration in such circumstances is neither “harsh nor excessive”, the case nonetheless demonstrates that a sentence of four years’ incarceration in circumstances similar to Mr.

Roble’s offending is not an unreasonable departure from the fundamental principle of proportionality. [ 64 ] In my assessment, the sentence imposed on Mr. Roble is undoubtedly at the low end of the broad range of sentences imposed in roughly similar circumstances, but it was not borne of an error in principle and I am not persuaded it is demonstrably unfit. I would not intervene in this matter. V. conclusion [ 65 ] I would dismiss Mr. Campbell-Ball’s conviction appeal.

The trial judge committed no error in his assessment of the reliability of the complainant’s evidence. [ 66 ] I would also dismiss the Crown’s appeals against the sentences imposed on Messrs. Campbell-Ball, Kahin and Roble, except to the extent that I would vary Mr. Kahin’s SOIRA order to a lifetime order. I find no error of principle on the part of the trial judge and the sentences are not an unreasonable departure from the fundamental principle of sentencing. “Caldwell J.A.” Caldwell J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.