Dre Winddancer Okemaysim Appellant v. Her Majesty the Queen, 2021 SKCA 33

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3333 Citation: R v Okemaysim , 2021 SKCA 33 Date: 2021-03-03 Between: Dre Winddancer Okemaysim Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Schwann and Tholl JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: CRM 309 of 2018, Saskatoon Appeal heard: September 9, 2020 Counsel: Carson Demmans for the Appellant Pouria Tabrizi-Reardigan for the Respondent Richards C.J.S. I. Introduction [ 1 ] Dre Okemaysim was convicted of sexual assault and sentenced to a prison term of 40 months less 113 days for time served. He was 19 years old when the offence was committed. The complainant was 13 years old. [ 2 ] Mr. Okemaysim appeals his conviction and argues that the trial judge erred in finding certain evidence to have corroborated the complainant’s testimony.

He also submits that the trial judge erred in his treatment of various other aspects of the evidence. [ 3 ] Mr. Okemaysim appeals his sentence as well. In this regard, he argues that the trial judge erred in treating the lack of a victim impact statement as evidence that the sexual assault had affected the complainant in a significant way and by failing to take into account time that he had spent on electronic monitoring. He also contends that the sentence imposed was unfit. [ 4 ] As explained below, I am not persuaded by Mr. Okemaysim’s arguments.

Both his conviction appeal and his sentence appeal must be dismissed. II. THE EVIDENCE AT TRIAL [ 5 ] Mr. Okemaysim faced two charges: sexual assault contrary to s. 271 of the Criminal Code and sexual interference contrary to s. 151 of the Code . A. The complainant’s testimony [ 6 ] The complainant was 13 years old when the assault occurred. She gave a videorecorded statement to the police when she first contacted them. The Crown tendered it at trial pursuant to s. 715.1 of the Criminal Code .

The complainant also testified at the trial, but the police statement formed the bulk of her evidence. [ 7 ] The complainant said that she went to Mr. Okemaysim’s house with her 16-year-old friend Amber and Amber’s 13-year-old sister Krystal. They had a large bottle of gin with them but the complainant did not have any of it before arriving at Mr. Okemaysim’s house. The complainant did not know Mr. Okemaysim. [ 8 ] Half an hour after arriving, the complainant smoked some marijuana. She smoked “just a few hoots” and, given her prior experience with marijuana, was not greatly affected by this. Mr.

Okemaysim gave the girls $5 to get mix for the alcohol and they left his home to buy some 7UP. When the girls returned, they started drinking immediately and “got high again”. They were drinking straight from the bottle and were in Mr. Okemaysim’s bedroom in the basement. Mr. Okemaysim was also drinking but the complainant could not say how much. [ 9 ] This was the complainant’s first experience with gin and she drank “lots” over the course of probably a few hours. She

“blacked out” and started vomiting. She had no direct memory of vomiting but knew she had vomited because, as she explained, “there’s videos of me throwing up on their phones…like they showed me in the morning”. The complainant described the video as being short and said that she had seen it when she went to Amber’s house the next day. On the morning after the party, Mr. Okemaysim also told her “you were pretty hammered and you started throwing up and Amber has videos to show you”. [ 10 ] The complainant remembered being put into Mr. Okemaysim’s bed but did not know who put her there.

Her next memory was of waking up to Mr. Okemaysim being on top of her and between her legs, which were spread apart. She had been wearing pants and underwear but they were down. According to the complainant, Mr. Okemaysim was “humping” and his penis was in her vagina. She said that she was awake for less than two minutes. She did not remember anything else and thought she had passed out again. The complainant believed that she had passed out because of how much alcohol she had consumed.

She explained at trial that she was “very under the influence of alcohol” and was not in the “right state of mind to yell out or scream”. [ 11 ] The complainant woke up in the morning with Mr. Okemaysim lying beside her in bed. Her underwear and pants were back on and she was wearing Mr. Okemaysim’s jacket but she did not know how she had come to be wearing it. She asked Mr. Okemaysim about the previous night. He did not mention sexual intercourse. Mr. Okemaysim had an erection, was touching the complainant on her hip and thigh region, and tried to pull her closer.

The complainant said that she understood that Mr. Okemaysim wanted to have sex. She told him that she had a boyfriend. He asked her to say “yay or nay”. The complainant answered “no”, and Mr. Okemaysim stopped and said, “okay I’m sorry”. [ 12 ] The complainant indicated that she had also asked Mr. Okemaysim if he remembered how old she was. He did not. When the complainant told him that she was 13, Mr. Okemaysim asked her “why didn’t you tell me”. The complainant answered, “we did last night”, referring to when Amber had mentioned the complainant’s age in front of everyone and Mr.

Okemaysim had responded by saying “okay that’s cool”. At trial, the complainant said that Mr. Okemaysim was shocked to hear her age when she shared it with him in the morning. She also confirmed that, other than hearing the complainant’ s age from Amber, Mr. Okemaysim had not talked to her any further about her age that night. [ 13 ] The complainant was having her period at the time of the incident and was surprised to wake up without her tampon and without any blood on her underwear. She inserted another tampon. This second tampon was later seized.

According to an agreed statement of facts, an analysis of it revealed the presence of “a mixed DNA sample including human semen, with the DNA originating from two persons: [the complainant] and the accused”. [ 14 ] The complainant was not in pain in the morning and had not sustained any injuries. [ 15 ] The complainant stayed in Mr. Okemaysim’s bed when he went to get water. There was still music playing. The complainant asked Mr. Okemaysim to contact Amber to pick her up. Amber could not do so. The complainant sat on Mr. Okemaysim’s couch, put on some makeup and then left. B.

Krystal’s evidence [ 16 ] Krystal testified at the preliminary hearing but did not appear at the trial. The transcript of her testimony at the preliminary hearing was admitted by consent as part of the Crown’s case. [ 17 ] Krystal testified that she walked over to Mr. Okemaysim’s house with her sister and the complainant sometime at night. Everyone, including her, drank at Mr. Okemaysim’s house. Krystal drank hard alcohol from the bottle. [ 18 ] Krystal also testified that, as a result of drinking, the complainant vomited on herself and on the furniture in Mr. Okemaysim’s bedroom.

They put her on a couch in the same room and the complainant then slept. Krystal did not see the complainant talk or get up after this. There was vomit on the chest portion of the complainant’s shirt and Krystal did not remember anyone helping the complainant clean herself up. Krystal said that she stayed for a while but left because she was chasing after her sister Amber, who was intoxicated. They eventually went home. Krystal indicated that she had told Mr. Okemaysim to “watch [the complainant] or bring [the complainant] with us”.

When asked if she thought the complainant could look after herself, Krystal responded “No, that’s why I asked him”. [ 19 ] Krystal said that in the morning Mr. Okemaysim “messaged us saying that [the complainant] was going to sleep in the room with his mom and that he was going to sleep in the room -- in his mom’s room”. Krystal was with Amber when Mr. Okemaysim messaged. According to Krystal, Mr.

Okemaysim had said that the complainant was “too black out [ sic ] to go anywhere and she -- he let her sleep on the -- the bed with his mom”. [ 20 ] Krystal also testified at the preliminary hearing that no one had videorecorded the complainant vomiting and that she and Amber were helping as the complainant threw up. Krystal took pictures of the complainant, but this was when the complainant was only “kind of drunk” and knew she was being photographed. The pictures were on “Snapchat” and had been erased. C. Mr. Okemaysim’s evidence [ 21 ] Before charges were laid, Mr.

Okemaysim went to the police station and voluntarily gave a statement that was admitted at trial after a voir dire. He also testified at trial. Mr. Okemaysim’s version of events changed dramatically over time. As the Crown suggests in its factum, it roughly divides into two parts: (

a) the first half of his statement to the police; and (

b) the second half of the statement to the police and his testimony at trial. In the first half of the statement to the police, Mr. Okemaysim claimed that he was not completely intoxicated and that there had been no sexual contact with the complainant. After he learned about the prospects of a DNA analysis, he maintained that he was passed-out drunk and had woken up to find the complainant having sex with him. 1. First half of the police statement [ 22 ] Mr. Okemaysim told the police that the complainant, Amber and Krystal had come to his house around 10:00 or 11:00 in the

evening with three-quarters of a bottle of Bombay gin and juice, which they drank both with coke and from the bottle. They also smoked marijuana that the girls had brought with them. They gathered in Mr. Okemaysim’s bedroom. The girls were intoxicated but Mr. Okemaysim said he “wasn’t drunk at all” and was “probably just buzzing” – although at trial he defined “buzzing” as meaning intoxicated. He ranked his level of intoxication at six out of ten in the police statement but not at trial. [ 23 ] Mr.

Okemaysim told the police that the complainant had been “acting silly” and “banging on windows” so she had been “kicked out” but later returned. He said that, at around 2:00 or 3:00 a.m., the complainant was sitting on the couch when she vomited on herself and on the couch. Mr. Okemaysim also said that the complainant “passed out”. Amber and Krystal left but told Mr. Okemaysim that “they were going to come back and they didn’t come for her”. Because the room “smelt like puke”, Mr. Okemaysim played video games in his brother’s room while the complainant remained on the couch in his bedroom. Mr.

Okemaysim said that he did not go back into his room. Amber came at 8 or 9 the next morning and got into an argument with the complainant. In response to questions by the police officer, Mr. Okemaysim said that the complainant was likely claiming she was sexually assaulted by him because of the row with Amber and because “I think Amber had a snapshot [ sic ] video of her uh, puking on herself like, like, like embarrassing things”. [ 24 ] Mr. Okemaysim said he had thought Amber was likely “17, 16” and that the complainant was “[p]robably the same age as Amber” or probably around 17.

He thought Krystal was younger, probably 15. [ 25 ] Mr. Okemaysim denied having sexual intercourse with the complainant or touching her sexually on the vagina or the buttocks. He said it was not possible that he could have been drunk and not remembering because, as he explained, “I got drunk but I, I know I remember everything”. [ 26 ] During this portion of the interview, Mr.

Okemaysim first maintained that he “never got that drunk” but “was high”, and that he was not “aware” of having sexual intercourse and did not remember any sexual intercourse. [ 27 ] The interviewing officer then discussed the prospects of a DNA analysis and the results it could produce. Mr. Okemaysim then told a different story. 2. Second half of the police statement and trial testimony [ 28 ] In the second half of the interview and at trial, Mr.

Okemaysim said that he had consumed a lot of alcohol and was “getting drunk…pretty drunk”, and was “fairly hammered” and had been “laying like passed out” and had “blacked out”. He said that, when he had come to, the complainant “was riding [his] dick”. He did not think he had been aroused, was unsure if he had used a condom, if his penis had penetrated the complainant’s vagina, or if he had ejaculated. [ 29 ] In the police statement, Mr. Okemaysim said he was not sure who initiated the act. He guessed that the complainant must have taken his and her own pants off.

At the end of the interview, he was asked about this again and said, “I think she initiate [ sic ] it”. [ 30 ] Mr. Okemaysim said that he had pushed the complainant off, gone to the washroom and then played video games with his brother in another room. He again explained that he had “slapped [ sic ] out of my blackout type of thing…when I came to I was like oh this is wrong”. He said it was wrong because he was going through a break-up at the time. [ 31 ] In his statement, Mr. Okemaysim said that he had asked Amber to pick her friend up and when Amber had arrived, the girls got into an argument.

At trial, he denied that Amber had come over to pick up the complainant. [ 32 ] Mr. Okemaysim told the police that he thought the complainant was older than 17 or was 18. When the police told him the “big issue is that she is only 13”, he responded by saying “Holy really…[t]hat is a big issue yeah”. On direct examination at trial, Mr. Okemaysim said that he did not remember the complainant’s age being discussed that night. He said that he had learned the complainant’s age from the complainant herself: “In the morning, she told me. And I was really surprised”.

This statement was canvassed at length on cross-examination during which Mr. Okemaysim also suggested that the complainant had told him she was of an older age. [ 33 ] Mr. Okemaysim denied lying in bed with the complainant in the morning. At trial, he explained that he went to the bedroom in the morning to wake the complainant up and tell her to leave. She was wearing his jacket, doing her makeup and hair, and had asked Mr. Okemaysim for a “bud to smoke”. He said that she had also asked him to contact Amber or Krystal to see if she could go to their house. D.

Denee Okemaysim’s evidence [ 34 ] The defence called Mr. Okemaysim’s sister Denee as a witness. She testified that she had been in her room, which was next to Mr. Okemaysim’s room, and had noticed that people were drinking. She said that Amber and Krystal had a fight at some point. They left but the complainant stayed behind. Denee noticed the complainant going to the bathroom a couple of times. The first time the complainant was wearing her own shirt and the second time she was wearing Mr. Okemaysim’s sweater. The complainant “seemed coherent”, was “pretty normal” and “seemed fine”.

This was after the other two girls had left. Denee did not know about the complainant vomiting but said that she would have noticed if it had happened. She also said that, at around 2:00 a.m., Mr. Okemaysim had gone to her brother’s room. III. THE ARGUMENTS AT TRIAL [ 35 ] In his submissions at the conclusion of the trial, Mr. Okemaysim’s counsel framed the case as being one that came down to “analysis of credibility”. [ 36 ] He began by addressing the evidence of the complainant and referring to her testimony that her tampon had been missing in the morning.

Because the complainant had felt no pain and suffered no injury from the sexual intercourse, counsel suggested it was logical to conclude that the tampon had been removed before intercourse and that the complainant herself had taken it out. Given what he saw as

being the likelihood that the complainant had removed her tampon in preparation for sexual intercourse, and because there is no evidence that Mr. Okemaysim had taken the initiative to engage in sexual intercourse, counsel contended that there must be a reasonable doubt about whether the complainant had initiated sexual activity by mounting Mr. Okemaysim. [ 37 ] Counsel also pointed to what he saw as problems with the complainant’s testimony on collateral points. On this front, he referred to (

a) the complainant’s testimony that Mr. Okemaysim knew her age but that, at the same time, he had reacted in a shocked way when she said she was 13 years old, (

b) the incongruity between the complainant’s account of having been sexually assaulted and the fact that, in the morning, she had gone to the bathroom, gotten dressed, asked Mr. Okemaysim to arrange a ride for her, and put on her makeup, (

c) Denee’s evidence that, after the complainant’s friends had left, she was ambulatory, and (

d) the complainant’s evidence that a friend of Mr. Okemaysim’s had been at the house, which stood in contrast to Mr. Okemaysim’s evidence that no other male had entered his bedroom, Krystal’s testimony that she did not recall any such person and Denee’s evidence to the same effect. [ 38 ] Counsel went on to concede that, in giving his evidence, Mr. Okemaysim had “struggled” but suggested that he was an individual with some unspecified “limitations” who had done the best that he could. [ 39 ] The prosecutor began his closing submissions by noting that Mr.

Okemaysim’s knowledge of the complainant’s age was not a live issue because, even on Mr. Okemaysim’s version of events, there had been no argument that he had had a “reasonable but mistaken belief” that the complainant was 16 years old. The prosecutor went on to contest defence counsel’s assessment of the complainant’s credibility. In this regard, he emphasized that the complainant had not tried to paint Mr. Okemaysim in the worst possible light and noted her description of what had happened in the morning – a description in which she had indicated that Mr.

Okemaysim had not persisted when she declined to engage in sexual activity and in which she had said Mr. Okemaysim had been shocked on being told of her age. [ 40 ] The prosecutor saw the complainant as having answered every question as best as she could, as not shading her evidence, and as showing no bias. He noted that the complainant’s account of the sexual intercourse itself, the key to the case, had not been tested by counsel for Mr. Okemaysim.

He also observed that several aspects of the complainant’s evidence were corroborated by Krystal’s testimony and that the DNA test performed on the tampon confirmed that Mr. Okemaysim had engaged in sexual intercourse with the complainant. [ 41 ] The prosecutor then turned to the question of Mr. Okemaysim’s credibility. In this regard, he noted the serious discrepancies and reversals in Mr. Okemaysim’s accounts of what had happened and Mr. Okemaysim’s acknowledgment that he had lied to the police when first interviewed. The prosecutor underlined this part of his argument by noting that, on the witness stand, Mr.

Okemaysim had testified that he had been told months earlier that the complainant was 13 years old, then changed course to say that he had learned about her age only when Amber had texted him a week after the incident and then, in cross-examination, had adjusted the story yet again to say that he had become aware of the complainant’s age when she had advised him of it the morning after the incident. [ 42 ] The prosecutor also noted defence counsel’s reference to Mr. Okemaysim’s “limitations” and noted that there was no evidence of anything that would prevent Mr.

Okemaysim from answering questions in a straightforward and truthful manner. He asked the judge to consider the plausibility of the complainant essentially sexually assaulting Mr. Okemaysim only a few hours after she had been described as having vomited on herself, having trouble walking or carrying on a conversation. He suggested that it would be unlikely that the complainant would go to the hospital and subject herself to sexual assault testing and then go to the police if, in fact, she had been the aggressor in the sexual encounter. IV.

THE TRIAL DECISION [ 43 ] The trial judge began his decision by reviewing the evidence in considerable detail and summarizing the submissions of Mr. Okemaysim’s counsel and of the prosecutor. He then turned to the analysis of the matter before him. In so doing, the trial judge found several facts to be certain: that the complainant had attended Mr. Okemaysim’s house with Amber and Krystal; that the partying had taken place in Mr. Okemaysim’s bedroom; that the complainant had been incapacitated to the point that she could not walk home; that Mr.

Okemaysim’s DNA had been found on her tampon; and that the complainant had been left behind by Krystal and Amber in Mr. Okemaysim’s bedroom. [ 44 ] The trial judge then concluded that Mr. Okemaysim’s guilt on the sexual assault charge had been proven beyond a reasonable doubt. The key features of his reasoning are set out below: I find the complainant’s story is credible, at least as far as her spotty memory permits. And that it is, in part, supported by the evidence of Krystal from the preliminary inquiry.

This support buttresses the level of intoxication of the complainant when she was left behind and the fact that she had thrown up on herself. Krystal also stated in her evidence that they asked the accused to look after the complainant because they could not assist her in getting her to their house. I find the accused’s story not credible in that it changed throughout his video statement and even through the trial.

I appreciate that he might have been anxious or even afraid to be interviewed by the police, but it was clear from what Detective Sergeant Lam told the accused on more than one occasion during that interview that the accused was free to leave at any point and did not have to speak to the officer. In reviewing that statement, the accused initially stated he was sober, knew what had happened that evening, and that there had been no sexual contact.

When faced with the fact that his DNA might be found in the sexual assault sample, his story changed to the point where he alleged that the complainant was the aggressor, assaulting him. If that were the case, then the complainant’s age would not be as relevant. However, if the accused’s story is to be believed, then why would he be surprised on the evidence of the complainant to be told in the morning after the incident she was only 13.

Why would he care if it was the complainant who had assaulted him? … In reviewing all of the evidence I find the complainant’s evidence to be credible and supported in part and that the accused’s evidence to

have little or no credibility to it. Where the evidence of the complainant and the accused are in conflict, I accept the evidence of the complainant, and find that the evidence of the accused not to be believed. I therefore find that there was intercourse, and that the complainant did not, or could not because of her age and/or her level of intoxication, consent to that intercourse.

I therefore find the accused did sexually assault the complainant by initiating intercourse with the complainant when she was wholly or almost completely incapacitated. [ 45 ] The trial judge also found that the sexual interference charge had been proven beyond a reasonable doubt. A stay was entered on that count. [ 46 ] When it came time to impose a sentence for the sexual assault, the trial judge referenced cases from this Court to the effect that the starting point sentence for major sexual assaults, including those involving penile penetration as here, is three years.

Referencing ss. 718.2(a)(iii) and (iii.1) of the Criminal Code , he saw the most significant aggravating factors in the matter before him as being that (

a) Mr. Okemaysim had been a person in a position of trust because he had confirmed to the complainant’s friends that he would find a place for the complainant to sleep and would keep her safe, and (

b) the assault had impacted the complainant to the extent that she could not even bring herself to file a victim impact statement. [ 47 ] As for mitigating factors, the trial judge referred to (

a) Mr. Okemaysim’s young age of 19, (

b) the fact that Mr. Okemaysim had realized alcohol was the cause of his criminal activity and was seeking to address that issue, and (

c) Mr. Okemaysim’s family support. [ 48 ] After considering the case law that had been referred to him and considering Gladue factors, the trial judge found that a fit sentence would be 40 months. From that sentence he deducted 113 days, representing 75 days spent on remand being credited on the basis of 1.5 days for each day spent in custody. The trial judge also made ancillary orders concerning DNA samples, the Sex Offender Information Registration Act , SC 2004, c 10 , and firearms possession. V. ANALYSIS A. The conviction appeal [ 49 ] Mr.

Okemaysim submits that the trial judge erred in various ways in his treatment or handling of the evidence. These arguments were not developed especially clearly but I understand Mr. Okemaysim to make four points in this regard. The first is that the trial judge’s assessment of the complainant’s evidence was flawed because it relied in part on a finding that her testimony about vomiting on herself had been corroborated when in fact that was not the case.

The second point is that the trial judge erred by relying on evidence that the complainant had vomited on herself as being corroborative of her evidence about the sexual assault. The third point is that the trial judge failed to appreciate that the key issue before him was the reliability of the complainant’s testimony as it concerned the alleged sexual assault itself, not as it concerned events leading up to the assault. Finally, I take Mr.

Okemaysim to also contend that the trial judge erred by failing to reconcile his finding about the complainant’s incapacity due to intoxication with his view that her testimony was reliable. I will address each of these concerns in turn. [ 50 ] As for the first point, I understand Mr. Okemaysim to argue that, because the complainant had no direct memory of vomiting on herself, the fact that there were videos of her doing just that could not be corroborative of her testimony.

This submission is rooted in the following part of the trial judge’s decision: …The complainant’s story, as supported by the evidence of Krystal, was that she drank to excess, passed out, threw up on herself, and was not able to leave with the other two girls when they left. The complainant may not have had a complete recollection of events, but the portions of her story that can be corroborated from the evidence of Krystal, such as being very drunk and passing out and throwing up on herself, seemed to be corroborated in that way. [ 51 ] In my view, the trial judge did not make the error alleged by Mr. Okemaysim.

He did not say that the complainant’s direct recollections of being very drunk, throwing up, and passing out were corroborated by Krystal’s evidence. He said that her story of being very drunk, throwing up, and passing out was corroborated by Krystal’s evidence. That “story” involved the complainant’s direct recollections of drinking and losing consciousness. However, in giving her evidence, the complainant did not purport to remember vomiting and never did more than indicate that her account of the vomiting was based on a video she had seen after the fact.

She readily acknowledged, both in her statement to the police and in cross-examination, that she did not in fact recall throwing up. Thus, the complainant’s story of vomiting was indeed corroborated by Krystal’s testimony at the preliminary hearing to the effect that she had seen the complainant “puking” and, for that matter, it was corroborated by Mr. Okemaysim himself who recalled the same thing in his statement to the police. [ 52 ] Mr.

Okemaysim’s next point, as expressed in oral argument, was that the trial judge erred by relying on evidence that the complainant had vomited on herself as being corroborative of the sexual assault. I see no merit in that submission and do not understand the trial judge to have reasoned in this way. Rather, the trial judge found that the complainant’s version of events was “credible” and “supported in part” by other evidence. That other evidence was self-evidently Krystal’s account of the complainant’s level of intoxication as of when she and her sister had left the complainant in Mr. Okemaysim’s care.

That evidence concerned the amount of drinking that had taken place, the complainant vomiting on herself, and the complainant being in a condition that led Krystal to conclude that she and her sister could not get the complainant back to their house. [ 53 ] The trial judge knew from the DNA evidence that Mr. Okemaysim and the complainant had engaged in sexual activity. That was not an issue. It was readily apparent that the trial judge understood that the case in many ways reduced to a “he said–she said” question about the nature of that activity.

On the basis of the whole of the evidence, he accepted the complainant’s version of events and found Mr. Okemaysim’s story to be not credible. I do not see how his reasoning can be taken to mean that he saw the evidence of the complainant’s vomiting to be corroborative of the sexual assault itself. It should be noted, as well, that as per s. 274 of the Criminal Code , corroboration is not a prerequisite of a finding of guilt for the offence of sexual assault.

[ 54 ] Mr. Okemaysim’s third concern is that the trial judge failed to understand that the key issue before him was the reliability of the complainant’s testimony as it concerned the sexual assault itself. Again, I am not persuaded that the trial judge erred in the way Mr. Okemaysim suggests. [ 55 ] As I read his decision, the trial judge was very much aware of the significance of the reliability of the complainant’s testimony. Although he framed his findings in terms of whether her evidence was “credible”, he was obviously also alert to its reliability.

This is no doubt why the trial judge examined the extent to which the complainant’s story had been corroborated and why, by way of his bottom-line assessment of her evidence, he found that “the complainant’s story is credible, at least as far as her spotty memory permits”. In the end, I am not persuaded that the trial judge failed to appreciate the reliability issue when it came to deciding whether to accept the complainant’s version of events. [ 56 ] I turn, therefore, to Mr. Okemaysim’s final line of argument.

Relying on R v Kishayinew , 2019 SKCA 127 , 382 CCC (3d) 560, rev’d 2020 SCC 34 , 451 DLR (4th) 426, I understand him to contend that the trial judge erred by failing to reconcile his finding that the complainant was highly intoxicated with his finding that her testimony was reliable. That argument cannot succeed. [ 57 ] This case is readily distinguishable from R v Kishayinew . There, the majority found that, while the trial judge had “fully accepted [the complainant’s] detailed evidence as to her interactions with Mr.

Kishayinew without reservation”, he had also found that the complainant had been intoxicated to the point of incapacity. Here, the trial judge approached the complainant’s evidence with considerable caution. He referred to her having “only partial recollection or understanding of what events occurred that evening”, analyzed the potentially corroborating evidence, and concluded that the complainant’s story was credible “at least as far as her spotty memory permits”.

In the end, the trial judge did, of course, accept the complainant’s account of the sexual assault but he did so in a way that can be reconciled with his assessment of her level of intoxication. [ 58 ] In the end therefore, I conclude that Mr. Okemaysim’s conviction appeal must be dismissed. B. The sentence appeal [ 59 ] Mr. Okemaysim contends that his sentence is too high and suggests that, if his conviction is upheld, the sentence should be reduced to 27 months less credit for time spent on remand. He argues that the sentence imposed by the trial judge should be overturned because (

a) the trial judge wrongly relied on the lack of a victim impact statement to find that the assault had severely affected the complainant, (

b) the trial judge improperly failed to give him credit for time spent on electronic monitoring, and (

c) the sentence, in any event, was excessive when compared to the sentences imposed in comparable cases. I will examine each of these arguments. 1. The victim impact statement [ 60 ] Mr. Okemaysim reads the trial judge’s decision as meaning that he found the simple absence of a victim impact statement to be, in and of itself, evidence that the assault had impacted the complainant in a severe way. I agree that, if the trial judge had taken this approach, it would have been an error.

However, this is not what he did. [ 61 ] In his submissions on sentencing, the prosecutor explained that difficulties had been encountered in trying to obtain a victim impact statement. He said this: In terms of impact on the victim, we do not have a traditional victim impact statement. The -- the presentence report writer describes, at page 6, I believe, it is, the difficulty in trying to obtain a -- a victim impact statement.

Since that date, the Crown and Victim Witness Services have -- have reached out to the victim and her family and she hasn’t been willing to provide a victim impact statement. … [ 62 ] In light of that, the prosecutor went on, without any objection, to read passages from the pre-sentence report into the record. In those passages, the grandmother – with whom the complainant had lived for two years after the assault – was reported as having provided information as follows: This writer spoke with the victim’s grandmother who she had been living with for two years after the offence.

Her grandmother indicated the victim was fearful and full of anxiety leading up to having to give testimony regarding what happened. She states the victim was so stressed out she would become physically ill and missed a lot of school and other activities. The first year after the offence was especially hard[.] [H]er grandmother states that she was very emotional and was worried the accused or friends of the accused would come after her for reporting what happened. She changed schools and her grandmother states this helped a little bit.

Her grandmother indicates that she has been provided counselling and the victim was attending for a long time. This did not cost them money, but the victim had to miss school to attend. Her grandmother feels she is trying her best to move forward and it will be a relief to have the accused sentenced and the court process finally over as it continues to bring back the memories for her granddaughter the longer it drags on. The grandmother is aware the victim has been asked to complete a written victim impact statement[.] [S]he reported that the victim is trying to complete one but is finding it very stressful.

Her grandmother is not sure she will be able to complete it at all. [ 63 ] The trial judge referenced all of this in his sentencing decision by stating as follows: “While there is no victim impact statement, Crown pointed to sections of the pre-sentence report which comment on the impact on this victim, and her inability to prepare a statement”. [ 64 ] Then, in the context of outlining the factors that aggravated the seriousness of the offence, the trial judge said this: Pursuant to

Section 718.2(a)(iii.1) I also find, as an aggravating factor, that there has been an impact on the victim such that she could not

even bring herself to file a victim impact statement. [65] Mr. Okemaysim seizes on these words to suggest that the trial judge saw the absence of the victim impact statement, in and ofitself, as being evidence of the serious impact that the assault had had on the complainant. [66] In my respectful view, there is no merit in this argument. The trial judge’s comment that is in issue here must be read in thecontext of the sentencing submissions of counsel and the whole of the sentencing decision. Seen in that light, it is clear that the sentencingjudge did not make the error alleged.

In other words, he did not consider the absence of a victim impact statement, in and of itself, to beevidence that the assault had affected the complainant in a serious way. In commenting as he did, the trial judge was clearly referring tothe impact of the offence on the complainant as it had been described by her grandmother. 2. Time on electronic monitoring [67] Mr. Okemaysim emphasizes that he spent 141 days on electronic monitoring prior to the trial. He submits the trial judge erredby not considering this as a “mitigating factor” when determining his sentence. [68] This argument suffers from two key flaws.

First, it appears to presume that pre-sentence time on electronic monitoring must, asa matter of principle, be credited in some way when a fit sentence is determined. However, this is not the law. In R v Lever, 2014 SKCA58, [2014] 12 WWR 666, the applicable principles were summarized as follows: [10] First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does notautomatically reduce what would otherwise be a fit sentence. See, for example: R. v. Walsh, 2011 ONCA 325 at para. 10; R. v.

Voeller,2008 NBCA 37, 335 N.B.R. (2d) 143 at para. 21. [11] Second, pre-sentence release does not generate sentencing “credits” in the same way as pre-sentence custody. Rather, it is one ofmany potentially mitigating factors to consider when formulating an appropriate sentence. See: R. v. Irvine, 2008 MBCA 34, [2008] 6W.W.R. 438 at para. 27; R. v. Knockwood, 2009 NSCA 98, 283 N.S.R. (2d) 156 at para. 33; R. v. Nghiem, supra at para. 16. [12] Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigatingeffect.

The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, the stringencyof the release conditions, and the impact of those conditions on the offender’s ability to carry on normal personal relationships,employment and the like. See, for example: R. v. Irvine, supra at para. 29. [13] Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involvesmeaningful hardship or important limitations on the offender’s liberty. … (Emphasis added) [69] The second flaw in Mr.

Okemaysim’s position is rooted in the nature and quality of information that was before the trial judge.The judge was advised only that Mr. Okemaysim had been on “a 24-hour curfew because he’s on the monitor”. He had no particularsabout how burdensome that restriction had been for Mr. Okemaysim. Further, the record suggests that Mr. Okemaysim had been placedon electronic monitoring as a result of a bail hearing arising out of charges related to a home invasion. That hearing was held very shortlyafter he was convicted of the offence in issue here.

In all of these circumstances, it cannot be said that the trial judge erred by choosing notto treat the time spent on electronic monitoring as a mitigating factor. 3. Fitness of the sentence [70] As noted, Mr. Okemaysim also submits that his sentence is “excessive”.

I take this to be an argument that his sentence isdemonstrably unfit within the meaning of the controlling authorities and should be set aside for that reason. [71] In R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse], Wagner J. (as he then was), for the majority of the SupremeCourt, explained the notion of a demonstrably unfit sentence by writing as follows: [52] It is possible for a sentence to be demonstra​bly unfit even if the judge has made no error in im​posing it.

As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a vari​ety of expressions to describe a sentence that is “de​monstrably unfit”:“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inad​equate”, or representing a “substantial and markeddeparture” (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All these expressions reflect the veryhigh threshold that applies to appellate courts when determining whether they should intervene af​ter reviewing the fitness of a sentence. [53] This inquiry must be focused on the funda​mental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sen​tence must be “proportionate to the gravity of the offence and the degree of responsibility of the of​fender”. 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 comparison withsentences imposed for similar offences committed in similar circum​stances. Individualization and parity of sentences must be reconciledfor a sentence to be proportion​ate: s. 718.2(

a) and (

b) of the Criminal Code. [72] Mr. Okemaysim argues that his sentence is unfit by referring to three cases that, in his view, demonstrate his point. [73] Before turning to those cases, it is important to underline that the fundamental principle of proportionality lies at the centre ofan examination of whether a sentence is demonstrably unfit. In other words, the root issue in any such inquiry is whether a sentencedeparts unreasonably from the notion that it must be “proportionate to the gravity of the offence and the degree of responsibility of theoffender”.

Parity – the idea that a sentence imposed should be similar to the sentences imposed on similar offenders for similar offencescommitted in similar circumstances – gives meaning to proportionality. As stated in R v Friesen, 2020 SCC 9 at para 33, 391 CCC (3d)309, “[p]recedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and

proportionality”. [74] In advancing the argument about the fitness of his sentence, Mr. Okemaysim refers first to R v Clarke, 2016 SKCA 80, 338CCC (3d) 83. Mr. Clarke had sexual intercourse with a 15-year-old girl who had told him she was 17. The trial judge found that the girlhad factually consented to intercourse even though she was legally unable to consent. Mr. Clarke received a 35-month sentence for sexualassault consecutive to a 6-month sentence for invitation to sexual touching. This Court reduced the effective sentence to 27 months.

As isreadily apparent, R v Clarke is factually a very different case than the one at hand and not especially helpful in determining whether Mr.Okemaysim’s sentence is unfit. [75] Next, Mr. Okemaysim cites R v Godlien, 2010 SKCA (SentDig) 4, saying in his factum that “Godlien was 49 years old andcommitted a violent sexual offence on a young person. The sentence was 3 years”. However, there is nothing in the sentencing digest tosuggest that Mr. Godlien’s victim was a young person and certainly nothing to suggest that she was as young as 13. We know only thatMr. Godlien was the victim’s supervisor.

As a result, this case is not instructive for present purposes. [76] The third decision that Mr. Okemaysim relies on is R v J.L.S., 2006 SKCA 95, [2006] 10 WWR 642. It concerned a father whowas convicted of sexually assaulting his daughter “too many times to count” during a three-and-a-half year period when the daughter wasbetween the ages of 8 and 12. The assaults involved acts short of sexual intercourse. Mr. S. was given a sentence of two years less a dayand a three-year probation term. This Court allowed the Crown’s appeal and imposed a three-year prison term. It noted that Mr.

S. hadstopped his offending behaviour on his own initiative and that he was remorseful, assessed to be of low risk to reoffend, and had offered asincere apology to the victim. These considerations were said to have reduced what might have otherwise been a more severe sentence. Asis apparent, therefore, R v J.L.S. does not shed any particular light on the fitness of Mr. Okemaysim’s sentence either. [77] These are the cases relied on by Mr. Okemaysim. For my part, I would note that this Court has rendered a number of decisionsinvolving sexual assaults against sleeping or unconscious adult victims.

They warrant some emphasis. For example, in R v Bird (1992), (SK CA), 105 Sask R 161 (CA), a man had sexual intercourse with his cousin, an adult female, while she was sleepingon a couch. The assault came to an end when the victim woke up and started screaming and striking Mr. Bird. At trial, Mr. Bird received asentence of two years less a day. This Court increased the sentence to three years, four months less than the sentence received byMr. Okemaysim. [78] R v Cappo (1993), 116 Sask R 15 (CA), is also useful.

It involved a 22-year-old man with no previous criminal record whoattempted to have sexual intercourse with a woman who had passed out from over consumption of alcohol. When she awoke, shediscovered that her pants had been pulled down and the accused was on top of her trying to penetrate her. He ignored her demand to stopand the incident ended when she vomited. This Court increased a sentence of 22 months to 3 years, again only four months less than thesentence imposed on Mr.

Okemaysim. [79] All of this reflects the jurisprudence from this Court to the effect that the starting point sentence for a major sexual assault isthree years. It also reflects the principle that sexual assaults on sleeping or incapacitated women should not be approached in a way thatrewards offenders for taking advantage of a helpless victim rather than one who is in a position to resist the assault.

See: R v Chanalquay,2015 SKCA 141 at para 45, [2016] 4 WWR 242. [80] In R v L.V., 2016 SKCA 74, [2017] 1 WWR 439, this Court declined to establish a special, and higher, starting point sentencefor sexual assaults against children on the basis that the factors informing the nature of an appropriate sentence in that context are sovaried as to make a starting point approach inappropriate. However, the Court also indicated that “assaults against a child should normallywarrant a stronger sanction [than assaults against an adult]” (at para 101).

This approach was recently endorsed by the Supreme Court in Rv Friesen at paragraph 117. [81] Mr. Okemaysim undertook to look after the complainant and was thereby in a position of trust. The complainant was only 13years of age. Mr. Okemaysim had sexual intercourse with her when she was incapacitated by alcohol. The assault had a significant impacton the complainant. In light of all of this and the case law in this area, I am unable to conclude that a sentence of 40 months wasdemonstrably unfit.

It was not, as per Lacasse, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”or a “substantial and marked departure” from the norm. VI. CONCLUSION [82] As explained above, both Mr. Okemaysim’s conviction appeal and sentence appeal must be dismissed. Mr. Okemaysim isordered to surrender himself into custody at the Saskatoon Correctional Centre within 48 hours of the release of this decision. “Richards C.J.S.” Richards C.J.S.I concur. “Schwann J.A.” Schwann J.A.I concur. “Tholl J.A.” Tholl J.A.