R v Kishayinew, 2021 SKCA 32

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3074 Citation: R v Kishayinew , 2021 SKCA 32 Date: 2021-03-02 Between: Monty Shane Kishayinew Appellant And Her Majesty the Queen Respondent Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Barrington-Foote On appeal from: 2017 SKQB 177 and 2017 SKQB 340 , Saskatoon Appeal heard: March 5, 2019 Counsel: Nolan Courteau for the Appellant Beverly Klatt for the Respondent Tholl J.A. I. Introduction [ 1 ] Monty Kishayinew was convicted of sexually assaulting L.S. and was sentenced to four-and-a-half years in prison, minus credit for pre-sentence custody. He appealed both conviction and sentence. His appeal against conviction was allowed by a majority of this Court and a new trial was ordered. As a result, his sentence appeal was not addressed.

The conviction was restored by a subsequent appeal to the Supreme Court of Canada, which remanded the matter to this Court to determine the sentence appeal. For the reasons that follow, I would allow the appeal against sentence, substituting a sentence of four years, minus credit for pre-sentence custody, and removing the victim surcharge. II. Background [ 2 ] The factual background to this matter is fully set out in R v Kishayinew , 2017 SKQB 177 , and R v Kishayinew , 2019 SKCA 127 , 451 DLR (4th) 430, so only a brief

summary of the facts of the offence is required in order to provide context. [ 3 ] Mr. Kishayinew encountered L.S. in an alley in Saskatoon where she was scared, upset, crying, intoxicated and disoriented. They had never met before. Mr. Kishayinew guided her back to his home under the guise of offering her a safe place to stay; but, instead, he sexually assaulted her by kissing her, touching her chest and engaging in sexual intercourse. He prevented her from leaving his home when she attempted to do so.

At one point, L.S. was able to leave under the pretence of going to the bathroom and she ran until she encountered two strangers on the street who called the police. [ 4 ] After conviction, the trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr. Kishayinew was sentenced to 54 months of incarceration, minus a pre-sentence credit of 17 months and 2 days, leaving a sentence of 36 months and 28 days. The trial judge made an order for a DNA sample to be taken pursuant to s. 487.051 of the Criminal Code , an order requiring Mr.

Kishayinew to comply with the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ], for 20 years pursuant to s. 490.013(2) (

b) of the Criminal Code , and a weapons prohibition order pursuant to s. 109 of the Criminal Code . Lastly, the trial judge directed Mr. Kishayinew to pay a victim surcharge in the amount of $200 within 30 days, with 2 consecutive days in default of payment: see R v Kishayinew , 2017 SKQB 340 [ Sentencing Decision ]. [ 5 ] Mr. Kishayinew appealed his conviction and sentence. The majority of this Court overturned the conviction and ordered a new trial. Because a new trial was ordered, the sentence appeal was not addressed.

The Crown appealed the conviction decision of this Court to the Supreme Court which restored the conviction for sexual assault and remanded the sentence appeal to this Court: R v Kishayinew , 2020 SCC 34 , 451 DLR (4th) 426. Given the passage of time, and Mr. Kishayinew’s retention of new counsel, the Court inquired as to whether the parties wished to make supplementary submissions on the sentence appeal. The Crown declined, but Mr. Kishayinew indicated he may wish to make further submissions. However, on February 16, 2021, Mr.

Kishayinew informed the Court that he had decided not to make further submissions and the sentence appeal was referred to the panel for determination.

III. Jurisdiction and Issues [6] Mr. Kishayinew appeals his sentence pursuant to s. 675(1)(

b) of the Criminal Code. He submits a sentence of 3.5 yearsshould be substituted if his conviction appeal is unsuccessful. The Crown submits the sentence appeal should be dismissed. [7] The issues in this appeal are the following: (

a) Did the trial judge err in relying on the risk assessment in the pre-sentence report? (

b) Did the trial judge put too much emphasis on the assessment that Mr. Kishayinew was at a high risk to reoffend sexually? (

c) Did the trial judge improperly rely on the lack of remorse as an aggravating factor? (

d) What is the effect of the trial judge believing, erroneously, that Mr. Kishayinew had suggested four years of incarcerationwas an appropriate sentence? (

e) Is the sentence demonstrably unfit? IV. Analysis A. Standard of review [8] A sentencing decision is entitled to considerable deference upon appeal. In R v L.V., 2016 SKCA 74, [2017] 1 WWR 439[L.V.], this Court provided the following

summary of the approach to be taken when reviewing a sentence: [72] Lacasse [2015 SCC 64, [2015] 3 SCR 1089] emphasizes the long-standing notion that, within the limits of the law, sentencingjudges have a broad discretion to impose the sentences they consider appropriate. An appellate court may not intervene merely because itwould have chosen a different sentence than did the sentencing judge. [73] The standard of review for sentence appeals is deferential. In Lacasse, the Supreme Court indicated that: (

a) an error in principle, a failure to consider a relevant sentencing factor or an erroneous consideration of an aggravating or mitigatingfactor will justify appellate intervention only when the trial judge’s decision in that regard had an impact on the sentence (at para 44); (

b) a court of appeal may not intervene simply because it would have weighed sentencing factors differently than the trial judge (atpara 49); (

c) a court of appeal may not intervene on the ground that it would have put the sentence in a different range or category. The choice ofsentencing range or of a category within a range does not itself constitute a reviewable error (at para 51); and (

d) a sentence may be demonstrably unfit even if the judge has made no error in imposing it (at para 52). [74] In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the oneimposed by a trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrablyunfit.

The second is when the trial level court made an error in principle, failed to consider a relevant factor, or gave erroneousconsideration to an aggravating or mitigating factor and that error had an impact on the sentence. [9] In R v Friesen, 2020 SCC 9, 444 DLR (4th) 1 [Friesen], the following additional guidance was provided with regard to thestandard of review applicable to sentences where errors of principle or a demonstrably unfit sentence are alleged: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit(para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principle includean error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing orbalancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, thetrial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can only intervene if it isapparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error in principle had noimpact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence isdemonstrably unfit. [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, anappellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles ofsentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range.

Thus,where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene anddetermine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or fallsoutside the range of sentences imposed in the past. [28] However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification ofaggravating and mitigating factors, to the extent that they are not affected by an error in principle.

This deference limits the number,length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’sexpertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15–18).

[29] Often the sentence that the appellate court determines to be fit will be different from that imposed by the sentencing judge, and the appellate court will vary the sentence. If the sentence chosen by the appellate court is the same as that imposed by the sentencing judge, the appellate court may also affirm the sentence despite the error. [ 10 ] In the matter at hand, I conclude the trial judge committed errors in principle by erroneously relying on the absence of remorse as an aggravating factor and by misstating Mr. Kishayinew’s position on sentencing in a material manner.

The combination of these two errors leads me to conclude there was an impact on sentence and appellate intervention is required. I reject the other grounds of appeal in relation to the sentence. B. Reliance on the risk assessment in the pre-sentence report [ 11 ] The trial judge ordered and received a pre-sentence report. Mr. Kishayinew submits little to no weight should be placed on the report’s conclusions regarding his high risk to reoffend sexually. Mr. Kishayinew asserts the overall reliability of the report is suspect because of errors that were found in it and the inexperience of the report writer.

He additionally submits the trial judge should not have relied on the risk assessments set out in the pre-sentence report because they do not accurately predict the likelihood of an Indigenous offender’s sexual offence recidivism. [ 12 ] Turning first to the errors in the pre-sentence report, the parties discovered there were two notable errors in the report. The first was the inclusion of the name “Michael” as the subject of the report and the second was a statement that Mr. Kishayinew had pleaded guilty when he had been convicted after trial. In examining the pre-sentence report, I note Mr.

Kishayinew’s birth date is also incorrectly stated on the cover of the report and on the first page, although his age is correctly stated on the first page of the report and in the body of the report. [ 13 ] After discussing the two identified errors in open court, the trial judge granted an adjournment to allow Crown counsel and defence counsel to contact the writer to discuss these errors. Crown counsel told the trial judge she would ask the writer to reread the entire report to see if there were any other errors. Crown counsel also offered to make the writer available to address the court if necessary.

During the adjournment, Crown counsel phoned the writer and spoke to him in the presence of defence counsel. The writer informed counsel he was confident in the accuracy of the rest of the report. [ 14 ] When court resumed, Crown counsel informed the trial judge that she had spoken extensively to the writer in the presence of defence counsel and described that conversation for the trial judge. The two errors were addressed and the remaining accuracy of the report was extensively canvassed.

After this explanation by Crown counsel, the trial judge asked defence counsel if she had any lingering concerns about whether the report and its analysis related fully to Mr. Kishayinew – to which defence counsel replied, “No. Defence has no ongoing concerns in that regard …”. From the transcript, it is evident the Crown extensively addressed the concerns about the pre-sentence report to the satisfaction of the defence during the sentencing hearing. [ 15 ] In his submissions to this Court, Mr.

Kishayinew also points to the inexperience of the report writer as a reason to place little weight, if any, on the risk assessment in the pre-sentence report. Crown counsel informed the trial judge the writer had extensive experience with probation and writing pre-sentence reports but also informed the trial judge that this report was the first pre-sentence report that the author had written for a sexual offender. The writer had the assistance of his supervisor in creating the report. Defence counsel did not raise any concerns about this issue during sentencing submissions.

Crown counsel offered to have the writer attend court if necessary during the sentencing hearing and the trial judge provided court time to ensure the issues regarding the pre-sentence report were addressed. Neither the trial judge nor defence counsel asked for the writer to attend court. [ 16 ] It is a high hurdle for an appellant to challenge the accuracy of a pre-sentence report at the appellate level due to alleged problems that were not raised at the court of first instance: R v Revet , 2010 SKCA 71 at para 7 , [2010] 8 WWR 580 [ Revet ]. I recognize that Mr.

Kishayinew’s counsel in this Court was not defence counsel at trial; but, nonetheless, that defence counsel accepted the accuracy of the report and raised no further objections at the sentencing hearing. These alleged problems with the accuracy of the report are not of a nature that would permit this Court to consider them in the absence of them being raised at the sentencing hearing. [ 17 ] I will now turn to the challenge to the applicability of the risk assessment in the pre-sentence report to Indigenous persons. Mr. Kishayinew is a member of the Yellow Quill First Nation.

He submits the trial judge relied inappropriately on the risk assessments set out in the pre-sentence report because there are concerns about the applicability of the tools used to predict the probability of an Indigenous offender’s sexual offence recidivism. This is also an entirely new issue that was not raised by defence counsel at the time of sentencing.

No evidence or submissions were provided to the trial judge about the inappropriateness of the risk assessment tools used by the author of the pre-sentence report. [ 18 ] In creating the pre-sentence report, the writer administered the Saskatchewan Primary Risk Assessment [SPRA], the Static- 99R and the Stable-2007 risk assessment tools. The SPRA measures the probability of general criminal recidivism. Mr. Kishayinew’s overall risk for general reoffending was assessed as being high. The Static-99R and Stable-2007 are actuarial measures of risk for sexual offence recidivism. Mr.

Kishayinew placed in the high range for sexual offence recidivism. The trial judge relied on the results from the SPRA, the Static-99R and the Stable-2007 as factors in sentencing. Under the heading “Circumstances of the Offender”, the trial judge stated, “Mr. Kishayinew is assessed as a high risk to reoffend generally and high risk to reoffend sexually” ( Sentencing Decision at para 34). He repeated this finding under the heading “Aggravating Factors” (at para 47). Mr.

Kishayinew does not take issue with the applicability of the SPRA, but does take issue with the applicability of the results from the Static-99R and the Stable-2007. Mr. Kishayinew submits the Static-99R and Stable-2007 are flawed and cannot be used as tools to measure the risk to sexually reoffend for an Indigenous person. [ 19 ] This Court has previously refused to permit an appellant to raise new issues on appeal with regard to a pre-sentence report, but that prohibition is not absolute: Revet at para 7 . An appellate court is generally hesitant to consider an issue that is raised for the first time on appeal.

There are three reasons for this. Firstly, raising an issue for the first time on appeal deprives the other party of the opportunity to respond and adduce evidence with respect to that issue at the court of first instance. Secondly, there is often a lack of a sufficient record for the appellate court to properly rule on the new issue. Thirdly, there is a societal interest in the finality of litigation ( R

v Albus, 2015 SKCA 121 at para 13, 467 Sask R 232 [Albus]). An appellate court has the discretion to permit new arguments if it is ableto do so without procedural prejudice, if the refusal to do so would amount to an injustice and if the issue can be fully, effectively andfairly addressed on appeal: Guindon v Canada, 2015 SCC 41 at para 22, [2015] 3 SCR 3 [Guindon], and R v Roach, 2009 ONCA 156 atparas 6–8, 185 CRR (2d) 333.

The Supreme Court has framed the ability to raise new issues in terms of a stringent test that should notresult in an appellate court’s discretion being exercised routinely or lightly (Guindon at para 22). [20] Raising a new issue for the first time on appeal may also be permitted when there has been an unanticipated and fundamentalshift in the case law (Albus at paras 14–27); but this does not apply to the current matter, with the exception of the victim surcharge. [21] Upon appeal, Mr.

Kishayinew asks this Court to consider two documents as new evidence in order to evaluate whether theStatic-99R and the Stable-2007 are flawed: (

a) Leticia Gutierrez et al, “The Prediction of Recidivism with Aboriginal Offenders: A Theoretically Informed Meta-Analysis”(2013) 55 Can J Corr 55 (commissioned by Public Safety Canada); and (

b) Yolanda Fernandez et al, Stable-2007 Coding Manual Revised 2014 [unpublished, Public Safety Canada]. These two documents were appended to his factum as attachments. In addition, Mr. Kishayinew relies upon Ewert v Canada, 2018 SCC30, [2018] 2 SCR 165 [Ewert]. [22] Turning first to the two publications from Public Safety Canada. I find this Court cannot consider these two documents in thisappeal.

They were not put into evidence at the sentencing hearing, there was no application to admit fresh evidence on the appeal, theyare not the type of documents this Court can take judicial notice of and there is no other basis upon which the Court can accept thisadditional evidence: see R v Perka, (SCC), [1984] 2 SCR 232 at 240; Nelson v Little Estate, 2005 SKCA 120 at para 6,[2006] 8 WWR 236; Cyr v Saskatchewan (Attorney General), 2014 SKQB 61 at paras 46–50, [2014] 6 WWR 566; and R v Barrett, 2019SKCA 6 at para 49, 52 CR (7th) 244.

The lack of a proper evidentiary record and the associated need for additional fact finding are themain reasons an appeal court is cautious about considering new issues. [23] Mr. Kishayinew also relies upon the findings in Ewert. In my view, this case is of no assistance to him. In Ewert, a prisonerserving two life sentences challenged the use of five psychological and actuarial risk-assessment tools used by the Correctional Serviceof Canada [CSC] in relation to Indigenous offenders. The Static-99 was one of those risk assessment tools.

Section 24(1) of theCorrections and Conditional Release Act, SC 1992, c 20 [CCRA], imposes a positive obligation on the CSC to ensure any informationabout an offender that is used is “accurate, up to date and complete as possible”. Mr. Ewert contended that the risk assessment tools didnot meet the requirements of this enactment. A trial was held. Mr. Ewert was successful and received a declaration that CSC was inbreach of its obligations under s. 24(1) of the CCRA.

However, the simple fact that the Static-99 was one of the tools successfullychallenged in a markedly different context is insufficient for this Court to make any factual determinations about the Static-99R, let alonethe Stable-2007, in the current matter. [24] The case at hand aptly illustrates the necessity of having a proper evidentiary basis for an assertion such as the one now beingmade by Mr. Kishayinew. The reliability of the Static-99R and Stable-2007 was not challenged at trial and there is no evidence regardingthe issue.

In contrast, in Ewert, each party called an expert witness to opine on the various aspects affecting the accuracy of theassessment tools. CSC also called an additional witness to provide background facts related to the use of the assessment tools. Thisprovided a proper evidentiary basis for the court to make a ruling in that matter. There is no such evidentiary basis here. [25] The failure of Mr. Kishayinew to raise this issue at the sentencing hearing resulted in an evidentiary vacuum. That vacuumhas not been filled by evidence upon appeal. The issue cannot be fully, effectively and fairly addressed on appeal.

This is aninsurmountable barrier to Mr. Kishayinew’s ability to raise the issue of the weight to be given to the risk assessment. C. Emphasis on the assessment that Mr. Kishayinew was at a high risk toreoffend sexually [26] The trial judge relied on Mr. Kishayinew’s high risk for recidivism in general, and specifically for sexual offences, as a factorthat he should take into account in sentencing.

An assessment that an offender is at a high risk to reoffend is a relevant factor atsentencing: R v Campeau, 2009 SKCA 4 at para 35, [2009] 4 WWR 29; R v Yuzicapi, 2011 SKCA 134 at para 44, [2012] 5 WWR 419;R v Leitner, 2013 SKQB 1 at para 28, 411 Sask R 79; and R v Dyck, 2014 SKCA 93 at para 40, [2014] 11 WWR 286. The trial judgelisted the high risk to reoffend generally and for sexual offences, specifically, as part of Mr. Kishayinew’s circumstances, but did notcomment further on the issue. He was entitled to do so.

While it clearly played a role in the sentencing decision, there is no basis toconclude the trial judge placed undue emphasis on the risk assessments. D. A lack of remorse as an aggravating factor [27] In the Sentencing Decision, under the heading “Aggravating Factors”, the trial judge wrote the following: [45] Mr. Kishayinew has not expressed remorse for his actions. As defence counsel argues, this is not an aggravating factor but a lack ofa mitigating factor. However, Mr. Kishayinew continues to blame L.S. and to suggest that she was the one who initiated sexual activitywith him.

Further, although he expresses regret for not making the right decision that night, which he acknowledges would have been toget help for L.S., he has not recognized the extent to which his actions added to L.S.’s vulnerability by leading her away from a publiclocation to his sister’s home where he immediately directed her to his basement bedroom and kept her there against her will whilesexually assaulting her.

I find this to be a significant aggravating factor in this case. [28] The trial judge correctly prefaced his comments with an acknowledgement that a lack of remorse is not an aggravating factor.Despite this observation, he then treated the absence of remorse as a significant aggravating factor. While Mr. Kishayinew’s actions in

leading L.S. away from a public location and contributing to her vulnerability added to the gravity of the offence and his moralculpability, his lack of remorse for his actions is not an aggravating factor. He was entitled to continue to maintain his innocence, withoutbeing punished for doing so. This should have been treated as a neutral factor: R v Hawkins, 2011 NSCA 7 at para 34, 265 CCC (3d)513; R v Charles, 2011 BCCA 68 at para 12, 10 MVR (6th) 177; R v Leroux, 2015 SKCA 48 at para 62, [2015] 9 WWR 709; and L.V. atpara 161. [29] Not only did the trial judge treat Mr.

Kishayinew’s lack of remorse as an aggravating factor, he treated it as an importantaggravating factor. The judge’s earlier comments in the Sentencing Decision reinforce this conclusion: “Although during the trialMr. Kishayinew testified and acknowledged he had sexual intercourse with L.S., he blamed her for initiating the sexual activity betweenthem” (at para 19) or that, following his conviction, Mr. Kishayinew maintained L.S. “was to blame. Moreover, Mr. Kishayinew does notseem to appreciate the impact on L.S. of the sexual assault” (at para 20).

The language used by the trial judge leaves no doubt this errorin principle had an impact on sentence. E. Mr. Kishayinew’s position on the length of the incarceration [30] In the Sentencing Decision, the trial judge noted Mr. Kishayinew’s counsel “suggested a term of imprisonment of four years”was appropriate (at para 39). However, other than arguing against the six years submitted by the Crown, defence counsel explicitly tookno position on the length of incarceration. During submissions, defence counsel said the following: My Lord, while I was meeting with Mr.

Kishayinew to prepare him and to acquaint myself with the file, he and I had several discussionsabout sentencing and about what the Court could and could not do. He has instructed me not to submit a particular sentence to the Court.He would like that to be left to the Court. However, I would note that we vehemently disagree with the Crown’s position of six years. Iwould submit that on the case law that is available to the Court and in looking at precedents, six years, in my respectful submission, isexcessive for this situation. Mr.

Kishayinew, as I indicated, has not provided instructions to request a particular sentence, but we are verymuch opposed to what the Crown is seeking. [31] I am concerned that the trial judge’s erroneous belief regarding Mr. Kishayinew’s position on the length of the incarcerationmay have set a floor from which he then determined the sentence. The fact that he imposed a sentence greater than the sentence heerroneously thought Mr.

Kishayinew was seeking makes the extent to which this error had an impact on the sentence less clear, but itremains an error in principle, nonetheless. [32] I find this error in principle, combined with the trial judge’s erroneous reliance on the lack of remorse as a significantaggravating factor, requires this Court to set aside the sentence imposed and to impose a sentence this Court determines to be appropriate. F.

Is the sentence demonstrably unfit? [33] Having determined the trial judge erred under the second branch described in paragraph 74 of L.V., no useful purpose isserved by the Court analyzing whether the sentence is also demonstrably unfit. Such an analysis is not required: Friesen at para 27.Mr. Kishayinew has already established sufficient grounds to require the Court to set aside the sentence. As a result, I must now considerthe sentence afresh and impose the sentence I determine to be appropriate: R v McKay, 2019 SKCA 129 at para 41. G.

Appropriate sentence [34] The Court must craft a sentence that is appropriate for this offence, committed by this offender, harming this victim in thiscommunity: R v Chanalquay, 2015 SKCA 141 at para 55, [2016] 4 WWR 242 [Chanalquay] (quoting R v Gladue, (SCC), [1999] 1 SCR 688 at para 80 [Gladue]). The sentence must take into account the purpose, objectives and principles set out ins. 718 and s. 718.2 of the Criminal Code and, pursuant to s. 718.1, must be “proportionate to the gravity of the offence and the degree ofresponsibility of the offender”.

The trial judge held that s. 718.01 of the Criminal Code, which requires a sentencing court to emphasizedenunciation and deterrence when a person under the age of 18 years is abused, applied in this case. However, s. 718.01 does not applyto the sentencing of Mr. Kishayinew because L.S. was 29 years old at the time of the offence.

Nothing seems to have turned on thispoint, so it will not be considered further. [35] This Court has consistently stated the starting point for a major sexual assault for an offender with no criminal record is aperiod of incarceration of three years to be adjusted based on the specific circumstances of the offence and the offender: R v J.L.S., 2006SKCA 95, [2006] 10 WWR 642; R v Arcand, 2013 SKCA 75, 417 Sask R 140 [Arcand]; Revet; L.V.; and R v Lemaigre, 2018 SKCA 47[Lemaigre].

While sentencing is a highly individualized process, an examination of recent sentencing decisions rendered by this Courtprovides guidance and context. [36] In R v L.D.H., 2009 SKCA 135, 343 Sask R 235 [L.D.H.], the victim was a distant relative of the offender, but they had metfor the first time on the day the offence occurred. The victim and the offender were drinking and she fell asleep in his truck. She awoketo find him sexually assaulting her. The offender was convicted after trial and sentenced to five years.

The offender had over 80convictions on his criminal record, including prior convictions for sexual assault and other violent offences. Upon appeal, the sentencewas found to be demonstrably unfit and was reduced to four years. [37] The offender in Arcand took the unconscious victim from her house, placed her in his vehicle and drove her to a secludedlocation. The victim awoke to find Mr. Arcand sexually assaulting her by attempting to penetrate her vagina. Mr. Arcand initiallyprevented her escape, but she ran into the bushes and eventually found someone to give her a ride home.

After trial, the offender wasconvicted of sexual assault and unlawful confinement. This was Mr. Arcand’s first conviction for a sexual offence, but he had a lengthycriminal record, including multiple convictions for other violent offences. He was on probation at the time of the offences. There werenumerous Gladue factors. A global sentence of five years for both offences was upheld on appeal.

[ 38 ] In R v Sawchuk , 2014 SKCA 88 , 315 CCC (3d) 153, Mr. Sawchuk came to the victim’s home after she had told him not to do so. She was asleep when he arrived. While she slept, he video recorded her with his phone while he touched her breasts over her clothes, undid her pants and moved her pants and panties. He then video recorded inside her panties while touching her thigh over her clothing. Mr. Sawchuk plead guilty to sexual assault. He had a lengthy criminal record, including a dated conviction for sexual assault that had occurred 30 years before. There were no Gladue factors.

Justice Herauf reviewed a series of relevant cases from this Court where the sentences ranged from 2.5 to 4 years. In all of the cases reviewed by Herauf J.A., the victim was passed out or sleeping due to intoxication. Mr. Sawchuk had been sentenced to 30 months. His appeal from sentence was dismissed. [ 39 ] The offender in Chanalquay was convicted of sexually assaulting the victim after she fell asleep at a party. He had a dated and very minor criminal record with no previous convictions for violent offences. Mr.

Chanalquay had a significant support network and was assessed under the SPRA and Static-99R as being at at a low risk to reoffend. Chief Justice Richards extensively reviewed the application of the Gladue factors and found the sentence of two years less a day imposed by the trial judge could be sustained if it were supplemented with a period of 18 months of probation. [ 40 ] In R v A.P.L. , 2015 SKCA (SentDig) 24, the 39-year-old offender sexually assaulted a 16-year-old niece of his common law spouse. The sexual assault occurred in the basement of the home where they both lived.

He touched the victim, kissed her and then vaginally penetrated her with his penis while she resisted. The offender threatened the victim to not tell anyone about the sexual assault. He was convicted after trial. The offender had a criminal record that included a prior conviction for sexual interference. Upon appeal, a sentence of four years was found not to be demonstrably unfit. [ 41 ] This Court reviewed a sentence for sexual assault in Lemaigre and increased an incarceral sentence from 2 years less a day to a sentence of 3.5 years.

In that case, the offender phoned the pregnant victim and told her that he wished to come over to her house, but she rebuffed him. He ignored this and went to her remotely located home where she lived with her small children. He sexually assaulted her and penetrated her vagina with his penis while she tried to fight him off. Mr. Lemaigre was charged with sexual assault but remained at large for a significant period of time after failing to appear in court. During this time, the offender and his family exerted significant pressure on the victim to recant.

The offender had a short criminal record with no previous violence. There were relevant Gladue factors. [ 42 ] I am mindful of the comments by Caldwell J.A. in R v Whitehead , 2016 SKCA 165 at paras 27–28 , 344 CCC (3d) 1, [2017] 5 WWR 222, where he reiterated that the principle of parity is not absolute and the application of s. 718.2 (

e) relegates sentence parity to a lesser relevance. [ 43 ] With these decisions as guidance, I will now examine the appropriate sentence for this specific matter. Turning first to the gravity of the offence and the aggravating factors directly related to the offence, Mr. Kishayinew encountered a vulnerable, intoxicated, unknown person late at night who was alone and distraught. He led her to his home, under the guise of keeping her safe, where he sexually assaulted her. He prevented her from leaving the basement until she managed to sneak out after feigning the need to use the washroom.

The circumstances of this offence are extremely grave. [ 44 ] Mr. Kishayinew’s lengthy criminal record is an aggravating factor. As set out in the pre-sentence report, Mr. Kishayinew has been convicted of at least sixty-three prior offences dating back to 1996. His convictions include six convictions for assault, one conviction for assault causing bodily harm, three convictions for assault with intent to resist arrest, one conviction for aggravated assault and one conviction for forcible confinement.

His most recent conviction for a violent offence, prior to his current conviction, was for aggravated assault with a conviction date of May 15, 2012. He was sentenced to twenty-two months for that offence. At the time he committed the current offence, Mr. Kishayinew was on bail with an undertaking to keep the peace and be of good behaviour. He was sentenced to three months concurrent to his sentence for breaching that undertaking. [ 45 ] Mr.

Kishayinew’s high risk to reoffend, generally and sexually, is also a relevant factor. [ 46 ] As the trial judge noted in the Sentencing Decision , the effect on the victim was substantial: [18] In her victim impact statement, L.S. outlined the effect of Mr. Kishayinew’s criminal conduct towards her as follows: [I]t hasn’t been easy for me. I don’t get out much anymore. I fear things may happen to me if I go out so I stay home a lot.

I even eat more for comfort and I don’t talk with many friends no more and it’s been hard to keep work as well because my trust isn’t the same I be depressed a lot having to keep on thinking about what happened that day I just wanna have closure and move on with my life. … [46] L.S. has been traumatized by the sexual assault, which has had an impact on her life as outlined in her victim impact statement. The assault on the complainant was a substantial and gross violation of her sexual and personal integrity and was a serious sexual assault involving penile penetration of her vagina.

The DNA evidence led at trial confirmed Mr. Kishayinew’s semen was in her vagina. [ 47 ] While the trial judge referred to some of Mr. Kishayinew’s personal circumstances under the heading “Mitigating Factors”, these factors are more properly considered when determining Mr. Kishayinew’s moral culpability. There are no other mitigating factors. [ 48 ] Turning to Mr. Kishayinew’s degree of responsibility, also referred to as moral culpability or moral blameworthiness, his actions on August 24, 2014, were reprehensible.

He knew L.S. was distraught, intoxicated and vulnerable and he took advantage of this situation to convince her that she was not safe but would be safe with him. Using this deception, he took her to his house where he sexually assaulted her. These actions speak to a high level of moral culpability. [ 49 ] The assessment of moral culpability, however, does not look only at the actions taken by an offender. The personal circumstances of the offender are highly relevant. The major personal circumstance affecting moral culpability in this matter is based on s. 718.2 (

e) of the Criminal Code and the factors set out in Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ]. [ 50 ] The Gladue principles must be applied even in serious cases involving sexual violence: Friesen at para 92 . Further, even

when the circumstances of a case unquestionably call for a penitentiary sentence, these factors remain relevant: R v Ratt , 2021 SKCA 7 at para 87 . [ 51 ] In Chanalquay , Richards C.J.S. discussed the methodology to be applied in conducting a Gladue analysis: [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 .) (Emphasis in original) [ 52 ] Chief Justice Richards then turned to the application of these principles to the specific circumstances of Mr. Chanalquay’s sentencing.

After acknowledging the difficulty in applying Gladue and Ipeelee in practice, Richards C.J.S. provided guidance on how to do so: [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. … … [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 [in Chanalquay ]) [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 the Gladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. [ 53 ] In Lemaigre , Jackson J.A. observed that it is difficult to actualize s. 718.2 (

e) when the offender does not accept responsibility for his offence: “When an offender does not accept responsibility for the crime that has been committed, and takes no steps to reduce the possibility of engaging in future criminal activity, determining a fit sentence that gives effect to s. 718.2 (

e) is made more difficult” (at

para 29). As stated above, an absence of remorse is a neutral factor in sentencing; but, as noted by Jackson J.A. in Lemaigre , “by continuing to contest his guilt, the Court cannot look at his remorse – a key factor in restorative justice – to assist it” (at para 28). [ 54 ] Mr. Kishayinew is a member of the Yellow Quill First Nation. He was 35 years old at the time of his sentencing in 2017. His father attended a residential school, where he was physically abused. Mr.

Kishayinew believes the abuse his father suffered at the residential school had a negative effect on their relationship because his father was always angry. Growing up, Mr. Kishayinew’s relationship with both his parents was difficult. Substance abuse caused problems in his parents’ relationship. In addition to witnessing his mother’s heavy drinking and his father’s alcohol and drug abuse, Mr. Kishayinew experienced domestic violence between his parents and recalls the police attending his home to take his father away.

His parents separated by the time he was five years old and he and a sister were primarily raised by his mother, acting as a single parent. He was also separated from his four other siblings, who left to go live with his grandparents when his parents separated. [ 55 ] Mr. Kishayinew moved approximately a dozen times with his mother. She was on social assistance and they struggled financially. Mr. Kishayinew’s mother physically abused him, beating him as a form of discipline. His mother was involved in several short relationships after she separated from Mr.

Kishayinew’s father, but none of the relationships provided any fatherly role-modelling to him. All of his mother’s short-term boyfriends abused alcohol. Child protection services were involved from time to time. Mr. Kishayinew was placed in a crisis nursery for three days at the age of 9, and with an aunt for one week at the age of 11. Mr. Kishayinew would stay with his grandparents from time to time when his mother was unstable. He was also homeless for short periods of time. [ 56 ] At age 15, Mr. Kishayinew moved to the Yellow Quill First Nation reserve, where he was raised by an aunt.

His mother passed away when he was 16 years old from issues related to her alcohol abuse. Mr. Kishayinew’s family followed traditional practices and he participated in feasts, sweats and ceremonies while growing up. Mr. Kishayinew told the pre-sentence report writer that he had not experienced any direct racism but, upon reflection, did recall being called an “Indian bum” in school. [ 57 ] Two of Mr. Kishayinew’s five siblings are deceased. His brother died from suicide at the age of 12. Mr. Kishayinew’s family believes this resulted from his brother having been sexually abused by a relative.

An adult sister froze to death while intoxicated in January of 2017. His two surviving brothers have struggled with criminal involvement and substance abuse, although one brother has been sober for several years. One sister has not been involved in the criminal justice system and does not have any substance abuse issues. [ 58 ] Mr. Kishayinew left the Yellow Quill First Nation reserve at age 18 and moved in with his then girlfriend. They abused substances together. They had one child who currently resides with a grandmother. Mr. Kishayinew sees this child occasionally. One of Mr.

Kishayinew’s assault convictions relates to domestic violence in this relationship. This relationship ended after three years. Mr. Kishayinew was in another common law relationship for approximately five years, ending when he was 28 years old. There was substance abuse and domestic violence in this relationship as well. He has two additional children from this relationship; those children also reside with grandparents. Mr. Kishayinew has one other child from a short-term relationship who is in foster care. Mr.

Kishayinew has returned to the Yellow Quill First Nation reserve for only a few months since leaving at 18. He has primarily resided in Saskatoon as an adult. [ 59 ] Alcohol consumption began when Mr. Kishayinew was 12 years old, with alcohol abuse becoming a problem by age 20. Mr. Kishayinew also began using marijuana when he was 12 years old, starting hard drugs when he was approximately 18 years old. Substance abuse has interfered with many aspects of Mr. Kishayinew’s life. Mr. Kishayinew completed grade 11 while incarcerated, and continues towards his GED.

His employment has been sporadic and infrequent and he has relied on social assistance for most of his life when he was not incarcerated. Both his alcohol and drug abuse were increasing during the time leading up to the current offence. Mr. Kishayinew was abusing alcohol on the day he committed this offence. [ 60 ] The peer group Mr. Kishayinew associates with all have issues with substance abuse and all have criminal records. He was previously in a gang, but currently has no gang affiliation. He is not currently in a relationship. [ 61 ] Mr. Kishayinew has two positive sources of support.

His sister is a stable influence. His brother, who has been sober for a significant period of time, is now a counsellor for a First Nation and is also a source of support. They both remain close to Mr. Kishayinew and talk to him often. They have taken him into their homes in the past and are willing to do so again in the future. The brother told the pre-sentence report writer that Mr. Kishayinew has never properly dealt with the death of their mother and could benefit from some personal counselling in that regard. Mr.

Kishayinew told the pre-sentence report writer that he feels guilty about his mother’s death because he was not there for her at the time. Mr. Kishayinew has attended pow-wows and sweats with his brother and was seeing an elder when he was last in the community. While incarcerated, Mr. Kishayinew participated in sweats, attended cultural ceremonies and met with elders one-on-one. [ 62 ] I conclude that Mr.

Kishayinew’s extremely difficult upbringing, legacy effects from his father’s attendance at a residential school, exposure to domestic violence and substance abuse, loss of siblings under tragic circumstances, absence of stability and his own repetition of the problems he witnessed and experienced as a youth affect his moral culpability. His alcohol use and social dysfunction had been escalating in the period leading up to the offence. I cannot draw a direct line between these factors and his moral culpability, but there is no requirement that I do so.

There is no onus on an offender to establish a direct, causal link between the Gladue factors and the offence for the Gladue factors to be relevant to a sentencing decision. It is self-evident that the factors in his background have had a significant effect on Mr. Kishayinew and contributed to bringing him to the figurative and literal place he was at when he committed this offence. I find the Gladue factors lower Mr. Kishayinew’s moral culpability for this offence and must be taken into account when determining the appropriate sentence. However, having said this, I must weigh all of the factors that affect Mr.

Kishayinew’s moral blameworthiness. When all of the factors are considered, I find his level of moral culpability remains high. [ 63 ] As a final observation regarding Gladue factors, I note the factors taken into account in the risk assessment in the pre- sentence report, which were used to find that Mr. Kishayinew is at a higher risk to reoffend, are some of the same factors that potentially lower his moral culpability in a Gladue analysis. For example, the risk factors for general recidivism for Mr. Kishayinew were found to

be substance abuse, negative peers and companions, family–marital relationships, being unemployed at time of offence, employment stability, residence stability, anti-social behaviour, attitude and lack of self-management. It is obvious some of the background facts and current circumstances of Mr. Kishayinew that lead to a conclusion he is at a high risk to reoffend are the same factors that diminish his moral blameworthiness in a Gladue analysis.

While sentencing is always a highly individualized process, caution must be observed in taking a high risk to reoffend into account in sentencing if doing so could overshadow the Gladue factors and effectively nullify the applicability of s. 718.2 (e). [ 64 ] Having said that, I must observe that there are few bases to implement restorative justice concepts in Mr. Kishayinew’s case at the present time. He has attempted to connect with his culture at certain points by attending sweats and ceremonies and meeting with elders. This is a positive factor for Mr.

Kishayinew, but there are no other factors that would assist the Court to give effective meaning to s. 718 (e). The other principles and objectives of sentencing in this matter demand a significant penitentiary sentence. [ 65 ] After considering all relevant factors, I find a proportionate sentence to be four years of incarceration. The gravity of the offence is severe and Mr. Kishayinew’s moral blameworthiness is high, although his moral culpability is somewhat tempered by Gladue factors. Mr. Kishayinew’s previous criminal record for violent offences is a significant aggravating factor.

It is also an aggravating factor that he was on bail for another offence when he committed this offence. He has been assessed as at a high risk to reoffend. The effect on the victim was substantial. The objectives of denunciation and deterrence must receive significant weight. A sentence exceeding the starting point of three years must be imposed. I find the appropriate sentence for this offence, for this offender, for the harm caused to this victim, in this community, is four years.

A credit of 17 months and 2 days for pre-sentence custody will be applied, leaving a period of incarceration of 30 months and 28 days for this conviction. [ 66 ] The victim surcharge of $200, and the two days in default of payment for the victim surcharge, is set aside for the reasons set out in R v Boudreault , 2018 SCC 58 , 369 CCC (3d) 358. V. Conclusion [ 67 ] Leave to appeal Mr. Kishayinew’s sentence is granted and the sentence appeal is allowed. A sentence of four years is the appropriate sentence.

After subtracting 17 months and 2 days of credit for pre-sentence custody, a sentence of 30 months and 28 days of incarceration is substituted for the sentence that was imposed by the trial judge. [ 68 ] The requirement to pay a victim surcharge and the time in default of payment for the victim surcharge are set aside. [ 69 ] The DNA, SOIRA and weapons prohibition orders all remain in place, as ordered by the trial judge. The three months’ concurrent sentence for the breach of probation conviction was not appealed and is not affected by this judgment. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A.

I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.