R v Nikdima, 2021 SKCA 60

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3332 Citation: R v Nikdima , 2021 SKCA 60 Date: 2021-04-14 Between: Her Majesty the Queen Appellant And Gioulian Nikdima Respondent Before: Whitmore, Schwann and Barrington-Foote JJ.A. Disposition: Leave to appeal granted; appeal allowed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Barrington-Foote On appeal from: CRM 47 of 2017, Regina Appeal heard: July 9, 2020 and November 5, 2020 Counsel: Erin Bartsch on July 9, 2020, and Pouria Tabrizi-Reardigan on November 5, 2020, for the Appellant Gioulian Nikdima on July 9, 2020, on his own behalf and James Struthers, Q.C., on November 5, 2020, for the Respondent Whitmore J.A. I.

INTRODUCTION [ 1 ] The respondent, Gioulian Nikdima, was found guilty after trial on a charge of sexual assault causing bodily harm contrary to s. 272 of the Criminal Code of Canada [ Code ] and was sentenced to three years’ incarceration, along with ancillary orders: R v Nikdima (18 December 2019) Regina, CRM 47 of 2017 [ Sentencing Decision ]. The Crown applies for leave to appeal the sentence. I would grant leave to appeal and would allow the appeal for the reasons I have set out below. II. BACKGROUND [ 2 ] The complainant, A.M., met Mr. Nikdima through an online dating website.

They agreed to meet at a local coffee shop and, as they appeared to be getting along well, agreed to continue for lunch. After lunch, A.M. and Mr. Nikdima went for a drive outside the city in Mr. Nikdima’s car. Mr. Nikdima parked his vehicle, then left it and started walking. A.M. followed him. After a short walk, he kissed her. The parties gave conflicting evidence at trial as to what transpired after this point. III. THE TRIAL [ 3 ] The trial was held over ten days in 2018 and 2019, with the last day of trial being September 12, 2019.

The trial judge rendered an oral decision on September 19, 2019 [ Trial Decision ]. A. A.M.’s testimony [ 4 ] As stated above, the evidence of A.M. and Mr. Nikdima conflicted as to what transpired following the initial kiss. A.M. testified the kissing became more aggressive and that she had requested Mr. Nikdima to stop. She asked to go back to the vehicle and the two walked back, with his arm around her. She testified that once they arrived at the vehicle, she started to feel unsafe as Mr. Nikdima began to guide her to the driver side.

She allowed him to guide her into the back seat, hoping she could retrieve her purse and exit the car through the rear passenger-side door. Mr. Nikdima entered the car after A.M., and she said it sounded to her like he had locked the doors. She testified she froze at that point. [ 5 ] A.M. testified Mr. Nikdima then stood up in the vehicle and tried to put his hand down her shirt. She said that he then grabbed

her breasts, forced her to touch his erection, and began to remove her pants. A.M. testified that Mr. Nikdima used uncomfortable pressureto stroke her, guided her to lie down, and penetrated her digitally and with his penis. He then stopped, sat up, and forced her to sit up andperform oral sex on him. According to A.M., Mr. Nikdima then repositioned her with her face downwards with her buttocks in the air andthen penetrated her vaginally, and then anally. When she screamed, he withdrew. She sat up and Mr. Nikdima moved her back into asimilar position.

He then entered her vaginally and stated he was going to ejaculate inside her. Instead, A.M. says he entered her anally andshe screamed until he ejaculated and withdrew. [6] A.M. testified that she went to the Regina Sexual Assault Centre two days later and described what had happened. She furthertestified that, as a result, she went to the hospital for an examination. [7] A nurse testified A.M. had suffered an abrasion on her forehead and a tear to her anus. B. Mr. Nikdima’s testimony [8] Mr. Nikdima testified that the first kiss on the road was mutual and that the two continued kissing.

He testified that A.M.stated she wanted to go back to the vehicle to have sex, and that once in the vehicle, she removed her pants and again told him she wantedto have sex. She encouraged him to go faster. According to his testimony, A.M. told him she wanted to switch positions and then guidedhis penis into her anus. Mr. Nikdima denied A.M. suffered any injuries and testified she did not complain of any injuries. C. Trial

summary [9] The trial judge identified two issues. First, he considered whether the Crown had proven beyond a reasonable doubt that A.M.did not consent. Second, he considered whether Mr. Nikdima could rely on the defence of honest but mistaken belief in consent. Heweighed the testimony of A.M. and Mr. Nikdima, as well as the medical evidence from the expert nurse who testified, most relevantly,that A.M. had suffered a laceration to her anus. [10] Prior to evaluating A.M.’s testimony, the trial judge noted the unique nature of sexual assault cases.

He considered sexualassault myths and said that A.M.’s delay in reporting, her lack of physical resistance to the assault and her decision not to flee did notaffect his view of her credibility. [11] The trial judge addressed two concerns he had with A.M.’s credibility. His first concern was A.M.’s acknowledgment that shepieced the incident together through flashes of memory. Second, he compared her equivocal testimony with respect to consent at thepreliminary inquiry to her unequivocal testimony about that issue at trial. At the preliminary inquiry, when asked if she had providedMr.

Nikdima any consent, A.M. answered, “I don’t believe so, no”. At trial, in response to similar questioning, she was firm and absolutethat she did not consent. The trial judge indicated that he was concerned that outside influence and time had affected A.M.’s memory ofthe incident given the variance in testimony between the preliminary inquiry and trial. [12] The trial judge found that from the time A.M. returned to the vehicle, her movements had been “effectively guided orcontrolled by the accused”.

However, he also had “considerable difficulty accepting” that the sexual events alleged inside the vehicleoccurred “without a degree of active participation from the complainant”. [13] He found Mr. Nikdima to be generally credible and reminded himself of the importance of examining an accused’s testimonycritically and without assuming he might have a motivation to lie. [14] The trial judge labelled the incident “a classic ‘he said/she said’ situation”.

He divided his analysis into two distinct periods oftime and determined that none of the contact leading up to the anal intercourse constituted sexual assault causing bodily harm, as A.M.’sinjuries were not sufficiently substantial until that point. He did not believe Mr. Nikdima’s testimony that A.M. had consented to all, andindeed, had initiated some of the sexual activity, but was left in a reasonable doubt by it.

With respect to all contact up to the analintercourse, the trial judge ruled the Crown had not discharged its burden of proof. [15] The trial judge found the nature and extent of the injury to A.M.’s anal area, namely a three centimetre laceration, supported hertestimony that she had experienced great pain during anal intercourse and had screamed as a result. He found as a fact that A.M. screamedin pain upon insertion of Mr. Nikdima’s penis into her anus and that any consent which may have been given prior to that point in timewas deemed revoked immediately upon her screaming.

The trial judge stated that he did not believe Mr. Nikdima, who testified that A.M.had invited anal intercourse, and found Mr. Nikdima guilty of sexual assault causing bodily harm. D.

The Sentencing Decision [16] The trial judge orally summarized the trial findings and delivered the Sentencing Decision on December 18, 2019. [17] He commented on the difficulty in comparing cases to one another for the purposes of sentencing, citing R v Campbell-Ball,2019 SKCA 41 at paras 40–42 [Campbell-Ball], and identified the starting point for “major” sexual assaults as three years’ imprisonment,as established in R v Bird (S.D.) (1992), (SK CA), 105 Sask R 161 at para 7 (CA), and reiterated recently in R v L.V.,2016 SKCA 74 at para 63, 480 Sask R 181 [L.V.], and R v Lemaigre, 2018 SKCA 47 at paras 20–21. [18] Once he established the starting point for major sexual assaults, the trial judge noted the purposes and principles of sentencingare generally found in ss. 718–718.2 of the Code.

He then reviewed the aggravating and mitigating factors.

[ 19 ] As to aggravating circumstances, the trial judge observed: (

a) the significant impact the offence had on A.M.; (

b) the offence involved a painful injury; (

c) A.M. had suffered lingering psychological and emotional difficulties, including anxiety, depression and loss of sexuality; and (

d) the distress that the act caused to A.M. [ 20 ] He presented the following factors as mitigating: (

a) Mr. Nikdima did not have a criminal record; (

b) Mr. Nikdima was an employed, self-sufficient member of society; and (

c) he could not find “that underlying acts of physical violence, aggression or trickery were used to facilitate commission of the offence, prior to the non-consensual act of anal intercourse. Alcohol was not involved. The [complainant] was not slapped, choked, punched, threatened or confined against her will as is so often the case. Although, in fairness, the [complainant] did testify that she felt threatened and confined”. The trial judge noted that Mr.

Nikdima, as a result of the conviction, would be deported although he characterized this as “not, strictly speaking, a mitigating circumstance”. [ 21 ] The trial judge then identified several cases which assisted him in determining the sentence and sentenced Mr. Nikdima to three years’ incarceration with associated ancillary orders. [ 22 ] From this decision, the Crown seeks leave to appeal the sentence imposed on Mr. Nikdima. IV. JURISDICTION AND STANDARD OF REVIEW [ 23 ] The Crown applied for leave to appeal pursuant to s. 676(1) (

d) of the Code : Right of Attorney General to appeal 676

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal … (

d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law. [ 24 ] R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ], is the leading case on appellate review of sentencing decisions. The Lacasse decision provides that appellate courts may intervene where the sentence is demonstrably unfit or in the face of an error in principle that impacted the sentence that was imposed.

The Court explained the latter principle in these terms: [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. The Supreme Court of Canada recently affirmed the law on appellate review of sentencing decisions in R v Friesen , 2020 SCC 9 , 444 DLR 4th 1 [ Friesen ], and confirmed that “appellate courts must generally defer to sentencing judges’ decisions” (at para 25).

Two avenues allow appellate intervention: (1) an error in principle that impacts the sentence; and (2) a demonstrably unfit sentence (at para 26). [ 25 ] The Court in Friesen went on to note at paragraph 26 that errors in principle include (1) errors of law, (2) a failure to consider relevant sentencing factors, (3) an erroneous consideration of aggravating/mitigating circumstances, and (4) an unreasonable exercise of discretion when balancing the various sentencing factors. [ 26 ] Finding any of the above errors in principle alone is insufficient reason for an appellate court to interfere with the sentence.

Friesen confirms that an “appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence” (at para 36, citing Lacasse at para 44 ). This Court in L.V. summarized Lacasse as follows: [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 mitigating factor 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 (at para 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 of sentencing 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 one imposed by a trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider a relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. (Emphasis in original) [ 27 ] The Crown has not alleged that the sentence is demonstrably unfit.

Therefore, in order to justify appellate intervention in this case, the Crown must demonstrate an error in principle that impacted the sentence. V. ISSUES [ 28 ] The Crown raises the following issues: (

a) Did the trial judge err in principle by failing to properly assess the gravity of the offence and the moral culpability of the offender? (

b) Did the trial judge err in principle by allowing sexual assault myths and stereotypes to infect the proceedings? (

c) Did the trial judge err in principle by reversing the findings of fact made at trial? (

d) Did the trial judge err in principle by treating the absence of aggravating factors as factors that mitigated the sentence? (

e) Did the errors in principle have an impact on the sentence? VI. ANALYSIS A. Did the trial judge err in principle by failing to properly assess the gravity of the offence and the moral culpability of the offender? [ 29 ] I understand the Crown’s argument under this point of appeal to be two-pronged. First, the Crown submits the trial judge improperly emphasized the sentencing principle of parity within his proportionality analysis. This, the Crown states, is evidenced by his use of inappropriate comparator cases.

The Crown offers several cases that, it submits, were more appropriate for comparison purposes given the circumstances of this offence. Second, the Crown argues that the trial judge’s use of the three-year starting point further evidences his misunderstanding of the culpability of Mr. Nikdima and the gravity of the offence. The Crown suggests a 3-year starting point does not attach to a finding of guilt for sexual assault causing bodily harm contrary to s. 272 of the Code . [ 30 ] As I explain below, I agree with the Crown that the trial judge placed too heavy an emphasis on the principle of parity.

However, it is not necessary to comment on the Crown’s argument surrounding a sentencing starting point for offences under s. 272 in this case. [ 31 ]

Section 718.1 of the Code states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Justice Wagner, as he then was, considered this fundamental principle of sentencing, and the concept of parity, in Lacasse , writing: [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [ 32 ] I understand from this excerpt that, for a sentence to be proportionate, the sentencing judge must focus on the gravity of the offence and the degree of the offender’s responsibility. A judge is tasked with assessing the moral culpability of the particular offender and the gravity of the crime that offender committed, i.e., the nuance in the facts of the case. Such an understanding is critical to achieving an individualized sentence.

As stated in Lacasse : [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.

As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.

With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range. [ 33 ] Additionally, judges must place the offender and the crime on the ever-expanding number of sentencing decisions given by other judges for similar offences committed by like offenders in like circumstances. This is parity as mandated in s. 718.2 (

b) of the Code . As Lacasse makes clear, while parity is secondary to the proportionality principle, it must be reconciled for the sentence to be

proportionate. [34] The trial judge expressly noted the cases he reviewed for the purposes of sentencing: For purposes of the record, in the event this matter should proceed further, I have considered the following decisions, many of which werereferred to me by counsel. R. v. Bird [(1992), (SK CA), 105 Sask R 161 (CA)]; R. v. Iron, 2005 SKCA 84; R. v.A.W.C., 2007 SKCA 87; J.H.T. v R., 2010 SKCA 150; R. v. Whiting, 2013 SKCA 101; R. v. Carangan, 2013 SKCA 54; R. v. Gamble,2014 SKCA 101; R. v. L.V., 2016 SKCA 74; R. v. Lemaigre, 2018 SKCA 47; R. v. Campbell-Ball, 2019 SKCA 41; and non-Saskatchewancases, R. v.

B.Z., 2019 ONSC 2375; R. v. P.H., 2019 NLSC 154; R. v. Graham, 2016 ONSC 7239; and R. v. Munro, 2006 MBQB 89. [35] He went on to focus on R v Graham, 2016 ONSC 7239 [Graham], and R v Carangan, 2013 SKCA 54, 414 Sask R 207[Carangan], as being, in his view, the cases that most closely resembled the circumstances of the case before him. [36] Graham addressed a violent assault at a house party. The offender and the victim were both drinking.

The trial judge providedthe following facts within the sentencing decision: [3] I find the following facts to have been accepted by the jury as having been proved by the Crown beyond a reasonable doubt: … (

f) Justin Graham had been hitting on A.K. throughout the night. While she may have been somewhat flirtatious, A.K. rebuffed all hisadvances. … (

g) Justin Graham said to [G.W.], referring to A.K., “I’m going to fuck her”. [G.W.] responded: “Nobody’s going to do that tonight”.He responded that way because of A.K.’s obvious level of intoxication. … (

i) Justin Graham ended up alone with A.K. He soon proposed that she accompany him to the backyard, claiming to have a gift forher back there. (

j) Mr. Graham walked A.K. to the backyard. He basically had to hold her up in doing so. He told her the present was in the shed. Sheleaned toward the shed but saw that the door was locked. Mr. Graham forcibly pushed her to the ground. He pinned her down, grabbingthe back of her neck. She was on her shins and forearms. He took off her shorts. He pulled a tampon from her vagina and threw it in thegrass. (

k) A.K. tried to fight back. Mr. Graham kept hitting her and manhandled her as necessary to overcome her resistance. Mr. Grahamunzipped his pants and penetrated A.K. vaginally with his erect penis. He then proceeded to penetrate her anally with his erect penis.Thereafter, he would switch back and forth between her vagina and anus. (

l) The force being applied to A.K. was such that her head kept banging against the shed. As well, Mr. Graham was hitting her invarious places while continuing to force intercourse upon her. (

m) While holding her down, hitting her, and forcing both vaginal and anal intercourse upon her, Mr. Graham said things like “oh youlike that you fucking slut” and “you like it in the ass you fucking whore”. (

n) Somehow, A.K. ended up on her back in the grass next to the shed with Justin Graham on top of her continuing to penetrate herwith his penis. From what others could see from inside the house, she was basically limp and only semi-conscious. Accordingly, thoseinside went outside to put an end to what Justin Graham was doing. (o) [G.W.] and some others then helped A.K. up and into the house. To do so, they had to help her walk and negotiate the stairs. Theyput her to bed in [G.W.’] parents’ bedroom. Justin Graham was told to go sleep in the basement. (

p) Soon thereafter, it was noticed that Mr. Graham had come up from the basement and had in fact got into bed with A.K. (who wasasleep). He was ejected from her bedroom and told again to go sleep downstairs. About 45 minutes later, he again came up from thebasement and got into bed with her. Again, the other young men at the party ejected him from her room and insisted he sleep in thebasement. In fact, [G.W.] thereafter slept on the floor in the hallway outside her bedroom as a sort of guard. (

q) A.K. sustained injuries to her genitalia. Both her vaginal and anal area hurt a lot for days afterward. Indeed, medical examinationthe day after the event revealed a 6 mm linear abrasion in the area between her urethra and clitoris. Furthermore, a skin tear measuring 8mm x 8 mm was found on her posterior fourchette, the band of tissue at the bottom of the vaginal opening where the labia join. The skintear would have been caused by a shearing force. … [37] Mr. Graham was found guilty of sexual assault causing bodily harm.

The trial judge sentenced him to three years’ incarcerationalong with several ancillary orders. [38] Carangan addressed an assault that had occurred during a party. The trial judge described Carangan as “[t]he closest factualSaskatchewan authority” to Mr. Nikdima’s offence but noted “it is clearly distinguishable”. [39] In Carangan, the accused was a 35-year-old male with a grade 12 education, born and raised in the Philippines. He had no priorrecord. The events occurred following a reception to celebrate his recent wedding. The accused and the victim were searching for thevictim’s purse in the games room.

The victim had no recollection of what occurred within the room. The accused recalled they hadengaged in some brief consensual sexual activity shortly before entering the games room and that, in an effort to further pleasure her

sexually while they were there, he had inserted a shuffleboard rock into her vagina, but then he was able unable to remove it and it remained there as they left the games room. The victim did not realize the rock was in her vagina until the following morning when she discovered it but was unable to remove it and ended up in the hospital where, in consequence of its removal, she sustained vaginal injury. [ 40 ] The offender was found guilty of committing sexual assault with a weapon and was sentenced to 34 months in jail.

His appeal was dismissed by this Court. [ 41 ] The circumstances of the offenders in both Graham and Carangan bear resemblance to Mr. Nikdima in that neither offender had a criminal record and both were productive members of society. However, the similarities between the three cases largely end there. The trial judge did not spend significant time comparing and contrasting these cases to Mr. Nikdima’s offence.

The factual circumstances, when examined, suggest that Carangan and Graham are not particularly well matched as sentencing cases. [ 42 ] There are some obvious distinctions between these cases and the instant case. The assault in Graham was more severe and the assault in Carangan was arguably less severe than what is before me. I find the use of Carangan as a comparator to be particularly demonstrative of error. Although the severity of injury appeared similar between the victims, the attitude of the offender in Carangan bears no similarity to that of Mr. Nikdima.

The offender in Carangan accepted wrongdoing, pleaded guilty and expressed significant remorse for his actions. Mr. Nikdima’s actions are opposite to these. The use of Carangan suggests that the sentencing judge focused inappropriately on the physical injury suffered. This error is further demonstrated by the use of Graham . In Graham , the offence was significantly more violent and prolonged. The offender also attempted to assault the victim again, after party-goers had interrupted the first offence.

The offender, by the actions he was found guilty of at trial, had engaged in behaviour very different than that engaged in by Mr. Nikdima. Further, it is my view that the sentence imposed in Graham is an outlier and is very difficult to reconcile with Saskatchewan authorities. [ 43 ] The only connections I can find between these three cases – Carangan, Graham , and the case at hand – is that the injuries to the victims were all serious and that there was a superficial similarity among the offenders.

This all leaves me to conclude that the trial judge failed to fully understand and wrestle with the moral culpability of Mr. Nikdima and the gravity of the offence itself. That is to say, he based his sentence primarily on the length of the sentences in cases with somewhat comparable injuries rather than dealing with the particular circumstances of the offence and the particular offender before him, and sentences for similar offences by offenders in similar circumstances.

Therefore, in my view, the trial judge erred in principle by misapplying and inappropriately elevating the principle of parity and thereby failing to focus on and properly assess proportionality. [ 44 ] The second prong of the Crown’s argument under this issue suggests that the trial judge’s starting point for sentencing was incorrect. The Crown alleges the three-year starting point for major sexual assault utilized by the trial judge does not attach to the charge of sexual assault causing bodily harm contrary to s. 272 of the Code .

Rather, the Crown suggests the three-year starting point associated with major sexual assault applies only if the charge against the offender is sexual assault contrary to s. 271 of the Code . [ 45 ]

Section 271 of the Code criminalizes sexual assault: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; …. [ 46 ]

Section 272 of the Code criminalizes, inter alia , sexual assault causing bodily harm. The relevant portions of this

section are: Sexual assault with a weapon, threats to a third party or causing bodily harm 272

(1) Every person commits an offence who, in committing a sexual assault, … (

c) causes bodily harm to the complainant; … Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable … (

b) in any other case, to imprisonment for a term not exceeding fourteen years. [ 47 ] The maximum sentence for an offence under s. 272 is 14 years’ incarceration while the maximum sentence for a s. 271 offence is 10 years’ incarceration. The Crown submits that, generally, longer maximum sentences are indicative of Parliament’s view that longer sentences for sexual assault causing bodily harm should be the norm. Consequently, the Crown submits the trial judge erred by applying the three-year starting point for major sexual assaults to Mr.

Nikdima’s offence. [ 48 ] Aside from Graham and Carangan , all of the cases the trial judge cited as supportive of the three-year starting point for major sexual assault stem from an offender charged under s. 271 of the Code . My own review of Saskatchewan sentencing in s. 272(1)(

c) cases demonstrates that the charge arises infrequently and thus there is not an extensive body of jurisprudence to draw from. Although historically this Court may be taken to have implied the starting point under s. 272(1)(

c) may be three years, it has never conclusively held as such. Additionally, the judiciary must be cautious when using dated sexual assault law. Our understanding of this crime has evolved and continues to evolve.

[49] R v Drouin (1994), (SK CA), 125 Sask R 49 (CA), stands as a historical example of the use of a three-yearstarting point for sexual assault causing bodily harm. The court below convicted Mr. Drouin of three counts of sexual assault contrary tos. 271(1)(

a) and one count of sexual assault causing bodily harm contrary to s. 272(1)(c). Some of the charges related to an assault at aparty where Mr. Drouin forced a 16-year-old female to have sex with him. Justice Wakeling stated: “this court has on numerous occasionssaid that the threshold sentence in such a case is three years and there can be no doubt that this sentence was applicable to the chargesrelating to [the 272(1)(

c) victim and one of the 271(1)(

a) victims]” (at para 12). [50] More recently, and more relevantly, in Campbell-Ball, Caldwell J.A. said: [42] In broad terms, all that can be said is that sentences for major sexual assaults (usually with a weapon or unlawful confinement orboth) have fallen between three years and 12 years of imprisonment. In his sentencing decisions, the trial judge found similarly, stating(when sentencing both Mr. Campbell-Ball and Mr.

Kahin [a co-accused]) that the range for sexual assault with a weapon in Saskatchewan“appears to be between 34 months and 12 years.” Ultimately, however, the case law serves primarily to reinforce the conclusion that eachsentencing for a major sexual assault must turn on its own facts and the personal circumstances of the individual offender (s. 718.2; R vLacasse). [51] In my view, the Crown has overstated the case on the issue of the starting point in sentencing for sexual assault causing bodilyharm.

Further, as Richards C.J.S. said in L.V.: [68] The reality is that the starting point approach is the exception rather than the rule in the world of sentencing. In my opinion, thecommunity can be well served without a specific starting point for sexual assault against children, as suggested by the Crown. The keyhere is simply that sentencing judges have an eyes open appreciation of the gravity of this kind of sexual offending as they attempt to craftappropriate sentences.

If, in fact, there is a perceived difficulty with a sentence in any particular case, the Crown (or an offender) has theability to have that problem addressed by way of an appeal to this Court. [69] Accordingly, and in

summary, I am not persuaded that it is either wise or necessary at this point to establish a formal and specificstarting point sentence of the sort suggested by the Crown. However, and as explained below, I nonetheless conclude that the time hascome to look carefully at the case law in this area with a view to more clearly appreciating the difference between a sexual offencecommitted against an adult and such an offence committed against a child. [52] A review of the case law suggests that it is unclear whether the three-year starting point attaches to the offence of sexualassault causing bodily harm.

That said, I echo Caldwell J.A.’s and Richard C.J.S.’s thoughts above and find it neither necessary nor wiseto resolve this question in light of my other findings. [53] To conclude on this part of the Crown’s argument, I find that the trial judge erred in principle by way of his approach to theprinciple of parity. B. Did the trial judge err in principle by allowing sexual assault myths andstereotypes to infect the proceedings? [54] The Crown submits the trial judge allowed Mr. Nikdima to inappropriately cross-examine A.M. and make submissions basedon sexual assault myths.

The Crown refers to the trial judge’s statements regarding the positioning of A.M. in the vehicle and her possibleactive participation. It submits the trial judge was under the false impression that he could only convict with independent evidence andthat he was not open to find the complainant credible while not believing beyond a reasonable doubt that the sexual assault commencedwhen she said it did.

Although the trial judge’s findings appear in the Trial Decision, which is not under appeal, the Crown alleges thatthese errors infiltrated the Sentencing Decision. [55] It is without question that it is an error in principle to suggest that victims of sexual assault must actively resist. The Crownpoints to R v Ewanchuck, (SCC), [1999] 1 SCR 330 at para 26, which makes it clear that the absence of consent dependssolely on what was in the victim’s mind at the time. Consent is not synonymous with lack of physical resistance. [56] Certainly, trial judges must do more than simply warn themselves about the issue.

The Supreme Court has specificallycautioned against judges instructing themselves not to fall prey to sexual assault myths yet perpetuating them later in their judgments. See:R v A.R.J.D., 2018 SCC 6 at para 2, [2018] 1 SCR 218. [57] The Crown suggests that the introduction of prohibited sexual assault myth reasoning at trial infected the entire sentencingprocess and caused the trial judge to err in his assessment of the gravity of the offence and the moral culpability of the offender. Theseerrors, says the Crown, prevented the trial judge from imposing a proportionate sentence.

The Crown submits the following passages fromthe Sentencing Decision evidence the introduction of this prohibited line of reasoning: For sentencing purposes, it is important to appreciate the basis upon which Mr. Nikdima was convicted and identify the activity for whichhe is being sentenced. Throughout this entire proceeding, including sentencing submissions, the Crown has advanced, through theirdescription of events, a theory that the act of anal intercourse was simply the culmination of a scheme or plan to lure [A.M.] from the cityto a secluded location to facilitate commission of a sexual assault.

That theory was not proven at trial and should not form the basis uponwhich Mr. Nikdima is sentenced. The propriety of maintaining or advancing a disputed and unproven theory of liability aside, sexual activity between the parties up to thepoint of anal intercourse was not found to be “non-consensual.” Indeed, the defence description of the act of anal intercourse as being a[sic] “unauthorized escalation of the sexual activity” between the parties, in my opinion, more accurately describes the circumstancesunder consideration based on the trial findings. [A.M.] did not consent to the act of anal intercourse.

Even if she had consented, herconsent was clearly withdrawn upon infliction of the injury that she suffered. Her withdrawal was communicated by her screams. [58] I disagree with the Crown’s

interpretation of the above Sentencing Decision passage. As I read this passage, the trial judge was

simply responding to Crown counsel’s submissions on sentence that were premised upon the Crown’s unproven theory of liability. While the trial judge went on to comment on the defence theory about what happened as more accurately reflective of the trial findings, he did so only to note how the two parties had argued the matter at trial. In fact, the trial judge went on to make it abundantly clear that A.M. did not consent to anal intercourse and that, even if she had, her consent was withdrawn.

Importantly, the trial judge expressly said as follows: … Consent to sexual activity is totally the prerogative of the complainant/victim. There is absolutely no need for the victim to explain or justify the withholding or the withdrawal of consent. [ 59 ] Respectfully, the Crown’s argument under this issue is not borne out by the Sentencing Decision and must be rejected. C. Did the trial judge err in principle by reversing the findings of fact made at trial? [ 60 ] The Crown submits that, in sentencing Mr.

Nikdima, the trial judge made two improper statements that were inconsistent with his Trial Decision findings of fact. First, the Crown submits the trial judge suggested that it may be a mitigating factor that Mr. Nikdima’s crime was an “unauthorized escalation of the sexual activities between the parties”. [ 61 ] This is a mischaracterization of the Sentencing Decision . The trial judge did not find that Mr. Nikdima’s assault was an unauthorized escalation of sexual activities or that such a description was a mitigating factor.

As I have noted, a more accurate way to consider the trial judge’s statement (referred to above in paragraph 56), is to view it as a response to the Crown’s continued efforts to advance its theory of the case, even after the trial judge found the theory was unproven. [ 62 ] Second, the Crown suggests that the trial judge could not lawfully regard A.M.’s alleged consent to other sexual activity as a mitigating factor unless he was satisfied that mitigating fact was proven on a balance of probabilities.

The Crown also suggests in its factum that the “existence of prior consent was not and could not be seen as [a] factor which mitigated the gravity of the offence”. [ 63 ] As the Crown asserts, the existence of consent to prior sexual activity would not have been a mitigating factor. However, the trial judge did not find there had been such consent. Further, at no point did the trial judge state that A.M.’s alleged earlier consent was a mitigating factor. The trial judge clearly set out the mitigating circumstances in the Sentencing Decision .

The Crown’s allegation that the trial judge reversed his own findings of fact is without merit. D. Did the trial judge err in principle by treating the absence of aggravating factors as factors that mitigated the sentence? [ 64 ] The Crown submits the trial judge erred when he relied on the absence of aggravating factors to mitigate the seriousness of the crime and the extent of Mr. Nikdima’s moral blameworthiness. [ 65 ] Mr.

Nikdima submits the trial judge did not find the lack of violence a mitigating factor but merely pointed to circumstances that he did not find, including additional physical violence, trickery, et cetera. Mr. Nikdima says this was said in the context of assessing his personal circumstances. All the trial judge was doing, says Mr. Nikdima, was commenting on those factors, but not finding them to be mitigating factors. [ 66 ] The trial judge described the mitigating circumstances of the offence as follows: In terms of mitigating circumstances,

(1) Mr. Nikdima has no criminal record.

(2) He has been a productive, self-sufficient member of society.

(3) The Court did not find that underlying acts of physical violence, aggression or trickery were used to facilitate commission of the offence, prior to the non-consensual act of anal intercourse. Alcohol was not involved. The victim was not slapped, choked, punched, threatened or confined against her will as is so often the case. Although, in fairness, the victim did testify that she felt threatened and confined.

(4) Although not, strictly speaking, a mitigating circumstance, and not a factor to dissuade the Court from opposing an otherwise appropriate sentence, inevitable deportation from Canada, for both the accused, his son and potentially his spouse, carry real consequences and are factors that cannot be conveniently ignored. [ 67 ] I cannot accept Mr. Nikdima’s approach to this issue. In my view, the trial judge erred by referring to the absence of additional physical violence, aggression, trickery, the consumption of alcohol or confinement as being mitigating factors.

Respectfully, these things – had they been found to have occurred – would have constituted aggravating factors. However, the law is clear; the absence of an aggravating factor is not a mitigating factor: R v Leroux , 2015 SKCA 48 at para 57 , [2015] 9 WWR 709; and Friesen at para 150 . In any event, this statement ignores the finding that A.M. was severely injured as a result of the anal intercourse, the fact that she banged her head repeatedly during the commission of the offence and – as even the trial judge seems to have found – that she testified she felt threatened and confined. As to Mr.

Nikdima’s likely deportation from this country, the trial judge was correct in stating it is not a mitigating factor. Rather, it is a personal circumstance, but one that has limited significance in crafting a fit sentence in this case. E. Did the above errors in principle have an impact on the sentence? [ 68 ] The question then becomes whether the above errors had any impact on the sentence. As Lacasse has made clear, once an error in principle is shown and that error had an impact on the sentence, an appellate court may intervene and impose the sentence it considers appropriate.

See also, L.V. at paras 74 and 90 . As mentioned, the two errors in principle that I have found are: (1) the improper application of the principle of parity and lack of focus on individualization, resulting in an error in the proportionality analysis and; (2) the incorrect consideration of a lack of potential aggravating factors as mitigating factors. [ 69 ] In L.V. , this Court held that the trial judge’s mischaracterization of the gravity of the offence itself “would necessarily have affected his ultimate view of the nature of a fit sentence” (at para 83).

[ 70 ] This Court in R v MacLeod , 2018 SKCA 1 at para 34 , [2018] 5 WWR 743, held that “just how this difference in approach might have affected [the accused’s] sentence is unknowable”, but nevertheless went on to hold that the sentencing judge emphasized parity with the co-accused in different circumstances, which indicated an error, being a failure to consider individual circumstances, which impacted the sentence.

I take this to mean that, where the sentencing judge focuses on parity despite different circumstances, the error may well have an impact. [ 71 ] The British Columbia Court of Appeal in R v Agin , 2018 BCCA 133 at paras 49–53 , 361 CCC (3d) 258, expressed what is meant by an impact on sentence and concluded: [52] In our view, the question is whether the error was material in that it had an impact on the sentence imposed and the sentence would have been different had there been no error. In other words, did the error impact the judge’s analysis in imposing the sentence: R. v. Eakins , 2016 BCCA 194 , at para. 21 .

This accords with the rationale, outlined at para. 43 of Lacasse , that requiring an impact aims to prevent appellate courts from intervening where an error cannot be said to have impacted the sentence, as to do so would undermine the deference owed to sentencing judges as well as public policy goals animating appellate review, including finality. [ 72 ] As stated above, I am of the view the trial judge erred by treating the absence of aggravating factors, such as additional violence, as mitigating factors in considering the circumstances of the offence.

This error, coupled with an emphasis of parity over proportionality, impacted the sentence the trial judge imposed, by leading him to impose an unfit sentence. [ 73 ] As I have found that the two errors in principle impacted the sentence, it falls to this Court to impose a fit sentence. [ 74 ] In R v Gamble , 2014 SKCA 101 , 442 Sask R 300 [ Gamble ], this Court imposed sentences of four years and five years on two cases of sexual assault causing bodily harm in more egregious circumstances than exist here.

In both of those cases, the victims were picked up by the offender in his vehicle and forcibly assaulted before escaping and running to safety. [ 75 ] The circumstances of Mr. Nikdima’s offending are certainly more egregious than those in Carangan but less egregious than the offences in Gamble . A.M. suffered serious injuries. By fixing the maximum sentence for s. 272 offences at 14 years, Parliament has sent a message that this is a very serious offence. That said, Mr. Nikdima has no prior criminal record and faces deportation.

All things considered, weighing the principles and objectives of sentencing, I would impose a sentence of incarceration of three years and six months. I would leave the ancillary orders in place. VII. CONCLUSION [ 76 ] I would allow the Crown’s appeal as set out herein. “Whitmore J.A.” Whitmore J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.