R v Merasty, 2023 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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3498 Citation: R v Merasty , 2023 SKCA 33 Date: 2023-03-14 Between: His Majesty the King Appellant And Wade E. Merasty Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Application for leave to appeal granted; Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: Provincial Court, Prince Albert Appeal heard: September 14, 2022 Counsel: Erin Bartsch for His Majesty the King Peter A. Abrametz for Wade E. Merasty Leurer J.A. I. INTRODUCTION [ 1 ] After a trial before a Provincial Court judge, Wade Merasty was convicted of sexual assault, contrary to s. 271 of the Criminal Code : R v Merasty , 2021 SKPC 5 . He was subsequently sentenced to 6 months’ imprisonment followed by 12 months’ probation: R v Merasty (29 October 2021) Prince Albert (Sask PC) [ Sentencing Decision ]. [ 2 ] Mr. Merasty appealed from his conviction.

His appeal was dismissed by this Court in a judgment reported as R v Merasty , 2023 SKCA 32 . [ 3 ] The Crown separately seeks leave to appeal from the sentence Mr. Merasty received. In these reasons, I explain why I would grant the Crown leave to appeal from sentence and allow its appeal. In place of the sentence that the judge imposed, I would order that Mr. Merasty be imprisoned for 20 months, followed by a 12-month probation order under the same terms as those imposed by the judge. II.

BACKGROUND [ 4 ] Wade Merasty was convicted of sexually assaulting an acquaintance at a home in Prince Albert on June 30, 2019. The offence happened after a house gathering where alcohol and drugs were consumed. In the early hours of that day, the complainant texted a friend for a ride home, but she learned that it would be some time before she would be picked up. Mr. Merasty suggested to her that she should get some sleep. In his oral sentencing decision, the judge, speaking to Mr. Merasty, summarized what next took place: … The two of you went downstairs to a bedroom. There was [ sic ] two beds in there.

You each had a bed. … I accepted [the complainant’s] testimony, that she went to sleep in one bed and you went to sleep in another. She had her clothes on and she was wrapped in a blanket. And I accepted that testimony, as I did to the testimony that she woke up to you on top of her, and you were kissing her. She woke up, she realized her pants and underwear were pulled down to her ankles, and your pants had been pulled down, and that you were trying to insert your penis into her vagina.

When she woke up, she immediately shoved you, moved her body away and told you, No, no, no, this is not happening, or words to that effect. She got up, pulled away. There's -- there is no dispute to the facts that the encounter immediately ended at that point. There was no persistence and the sexual encounter -- the encounter might have continued, but the sexual component of -- of the encounter ended immediately upon her saying, No, no, no, this is not happening. [ 5 ] Following the events narrated in this passage, the complainant went straight upstairs, woke up a friend and told her “Wade just tried to rape me”.

Mr. Merasty joined this conversation and said that the complainant was “overreacting” and “making it up”. [ 6 ] Before the judge, the Crown submitted that this was a major sexual assault because Mr. Merasty had attempted non-consensual intercourse with a sleeping woman who trusted him enough to sleep in the same room as him. It argued that, considering these facts, as well as taking into account the harm caused to the complainant and Mr. Merasty’s personal circumstances, an appropriate sentence would be a custodial term in the range of 30 to 36 months. For his part, Mr.

Merasty submitted that this was not a major sexual assault, largely because no penetration had occurred. He noted that he had no prior criminal record and various Gladue factors were

present that reduced his moral culpability (see: R v Gladue, (SCC), [1999] 1 SCR 688). In the result, he invited the judgeto conclude that an appropriate sentence would be 90 days’ intermittent incarceration followed by 3 years of probation. [7] After receiving these submissions, the judge briefly recessed and then delivered his oral Sentencing Decision. He began byoutlining the facts as he found them.

After doing this, he stated that he intended to “review the aggravating and mitigating factors so thateveryone is aware of the framework [he is] working in”. [8] In regard to the aggravating factors, the judge first identified that the assault had occurred while the complainant wassleeping. He found that, while Mr. Merasty was not in a formal position of trust, the complainant had trusted him enough to sleep in thesame room with him. The judge observed that “while penetration did not occur, the complainant was concerned and believed that it waspossible” that it had.

The judge found, as fact, that the complainant is Indigenous, that she had “experienced trauma as a result of thisincident”, and that she has “expressed concerns that she doesn’t trust men anymore, and she’s experienced feelings of anxiety and anger”. [9] Having reviewed the aggravating factors, the judge turned to examine what he considered to be mitigating factors. In thisregard, he stated first that “this is not a major sexual assault”.

In his explanation of this conclusion, the judge agreed that the fact thatpenetration did not occur was not the only test for determining this, although he said “it is a significant factor”. He identified anotherreason for concluding that this was not a major sexual assault to be that “there was no violence, no force, no threat of any kind” present.He also found that several cases relied upon by the Crown were distinguishable on the basis that “Mr. Merasty was not persistent”. Heexplained this by noting that as “soon as [the complainant] woke, as soon as she said, No, he stopped”.

Finally, he distinguished another ofthe Crown’s cases by stating that it had involved the “use of physical force”. [10] The judge observed that Mr. Merasty had no criminal record, which served as the “absence of an aggravating factor”. Thejudge found that Mr. Merasty has been a “contributing member of society, working and going to school with plans to continue improvinghimself”.

He noted that there “are also Gladue factors present that are mitigating”. [11] Wrapping all of this up, the judge stated that he was “required to determine what the appropriate sentence is in light of both theaggravating and mitigating circumstances”, and his finding that “there was non-consensual sexual contact with [the complainant] and shetrusted [Mr. Merasty] and she found that [Mr. Merasty] breached her trust and she felt violated by that”. [12] As a bottom line, the judge imposed a 6-month custodial sentence, followed by a 12-month probationary period, accompaniedby a 10-year firearms prohibition.

He also made several ancillary orders, one of which was that Mr. Merasty comply with the Sex OffenderInformation Registration Act, SC 2004, c 10 [SOIRA], for 10 years. III. ISSUES [13] An appellate court can intervene with a sentence only if the sentencing judge has committed an error in principle that has had animpact on the sentence or if the sentence is demonstrably unfit: R v Friesen, 2020 SCC 9 at para 26, [2020] 1 SCR 424; and R v Lacasse,2015 SCC 64 at para 11, [2015] 3 SCR 1089.

An error in principle includes an error of law, a failure to consider a relevant factor, or anerroneous consideration of aggravating or mitigating factors: Friesen at para 26. [14] Having regard to the applicable standard of review, the outcome of the Crown’s appeal is dictated by the answers to thefollowing three questions: (

a) Did the judge err in principle? (

b) If errors occurred, did they impact the sentence the judge imposed? (

c) If the judge erred in principle in ways that impacted the sentence, what is a fit sentence in this case? IV. ANALYSIS A. Did the judge err in principle? [15] As I have explained, after narrating the circumstances of the offence, the judge considered what he identified to be theaggravating and mitigating factors. As part of this analysis, he made the following comments regarding the nature of the assaultcommitted by Mr.

Merasty: But there are a number of mitigating factors, and the first that I will note, and to use the nomenclature that’s commonly used for sexualassaults -- or sexual -- sexual assault, this is not a major sexual assault. It’s not on that end of the spectrum. I say this for a number ofreasons. Penetration did not occur. And [the Crown] is right, that’s not the only test for determining whether this -- it was -- the sexualassault was major or not, but it is a significant factor.

Another factor is that there was no violence, no force, no threat of any kind waspresent. … [16] In my respectful view, this passage, and the analysis that followed it, reveals three related errors in principle. First, it is notmitigating if an offence is not so serious as to amount to a major sexual assault. Second, the facts, as the judge found them, involvedviolence, contrary to the judge’s statement that they did not. Third, the judge failed to give primary consideration to the objectives ofdenunciation and deterrence in the circumstances of this case, as the Criminal Code demands be done.

As I will explain, the judge alsomisapprehended the requirements of the Criminal Code relating to Mr. Merasty’s compliance with SOIRA. 1. The fact an assault is not a major sexual assault is not mitigating

[17] My explanation of the judge’s first error begins by contextualizing the idea that offences may be categorized for sentencingpurposes. This is appropriately done when offences “share enough common features that it is useful to judge them by the same rubric”(Friesen at para 39). The purpose for creating categories of offences for sentencing is to assist a court in fixing a sentence for individualcases that is proportionate and consistent with the secondary principle of parity. [18] The categorization of some sexual assaults as “major” derives primarily from R v Sandercock, 1985 ABCA 218, [1986] 1WWR 291.

As explained by Sopinka J. in R v McDonnel, (SCC), [1997] 1 SCR 948 at 966, Sandercock “established inAlberta the notion of a ‘major sexual assault’, which carried with it a presumptive sentence (‘starting point’) of three years”. Thecategorization of a sexual assault as being “major” has been used by this Court on many occasions.

Recently, in R v Bear, 2022 SKCA 69at para 80, Kalmakoff J.A. stated, with reference to many authorities, that this Court “has repeatedly endorsed a starting point sentence ofthree years imprisonment for major sexual assaults”. [19] It is evident from this discussion that a conclusion that a particular offence is not so serious as to be categorized as a “major”sexual assault cannot be seen as a mitigating factor. The categorization in itself does not reduce the moral blameworthiness of theoffender’s conduct.

Rather, it simply signals that, when considering the application of the principle of parity, the judge should not treat thecase as being subject to the same starting point as those that are so serious that they can be described as a major sexual assault.Accordingly, the fact that this case did not – according to the judge’s reckoning at least – involve a major sexual assault is not a mitigatingfactor. [20] I end my analysis of this error by considering the facts that the judge accounted for in his assessment that this was not a majorsexual assault.

These also cannot be viewed as being mitigating factors. [21] The judge concluded that the assault of the complainant was not a major sexual assault because of the absence of penalpenetration and because, as he saw it, the case did not involve violence. However, neither the fact that penetration did not occur, nor theabsence of violence beyond that involved in the sexual assault itself were mitigating factors.

At most, and apart from whether thecircumstances as a whole justified categorizing the offence as involving a major sexual assault, if it was not, the non-presence of thesefactors was simply the equivalent of the absence of an aggravating factor. As explained in Friesen, “the absence of an aggravating factoris not a mitigating factor” (at para 150. See also: R v Nikidima, 2021 SKCA 60 at para 67, 71 CR (6th) 216). [22] Wrapping all of this up, in my respectful view, the judge erred when he turned his determination that this assault was not amajor sexual assault into a mitigating factor. 2.

This offence involved violence [23] The judge’s second error in principle was his conclusion that the offence did not involve violence. This idea is inconsistent withthe facts as he found them and is based on a misunderstanding that the very nature of a sexual assault as an assault. As Kalmakoff J.A.stated in Bear, “[b]y definition, it is an inherently violent offence; it involves an assault that violates the victim’s sexual integrity” (at para121). No matter what form it takes, a sexual assault is a forceful subjection of the victim to their assailant’s sexual desires.

In Friesen,Wagner C.J.C. and Rowe J. described that the offence necessarily “involve[s] the wrongful exploitation of the victim by the offender – theoffender is treating the victim as an object and disregarding the victim’s human dignity” (at para 89. See also: R v Mabior, 2012 SCC 47at paras 45 and 48, [2012] 2 SCR 584). [24] My conclusion that Mr. Merasty’s assault was a violent one is not just grounded in an abstract concept.

It is reinforced by threeconsiderations at play in this case. [25] First, any conception of sexual assault in general, and of this assault in particular, as being a non-violent offence for sentencingpurposes is based on an outdated understanding of the law. The Supreme Court rejected such an understanding with respect to sexualoffences committed against children in Friesen.

In the context of this appeal, I would adopt that same reasoning with respect to sexualoffences committed against adults (on this point, see also: R v Kolola, 2021 NUCA 11 at para 36; R v A.J.K., 2022 ONCA 487 at paras71–72, 415 CCC (3d) 230; and R v Bunn, 2022 MBCA 34 at para 72, [2022] 7 WWR 44). [26] Second, the judge’s statement that “there was no violence”, made both during Crown counsel’s submissions and in theSentencing Decision, ignores his other findings. Specifically, while Mr.

Merasty’s assault may not have left the complainant physicallybruised and broken, he found as fact that she experienced significant emotional and psychological trauma as a result. This is notmeaningless. As Richards J.A. (as he then was) stated in R v M.J.H., 2004 SKCA 171 at para 16, 257 Sask R 1, “the fact that there was noviolence beyond the assault itself, seen from the perspective of the victim, is of little comfort”. Indeed, Wagner C.J.C. and Rowe J. inFriesen described such psychological and emotional harm as “life-altering” (at para 74, quoting R v Woodward, 2011 ONCA 610 at para76, 107 OR (3d) 81).

Victims of sexual assault, regardless of the type or level of physical violence that accompanies the offence, oftenexperience “a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eatingdisorders; substance dependence; self-harm and suicidal behaviour” (R v Goldfinch, 2019 SCC 38 at para 37, [2019] 3 SCR 3). In thiscase, the judge noted that the complainant “experienced trauma as a result of this incident. She expressed concerns that she doesn’t trustmen anymore, and she’s experienced feelings of anxiety and anger”. Again, I cannot accept that Mr.

Merasty should benefit from adescription of this offence as non-violent simply because the scars he inflicted are not visible. [27] Third, the fact that the complainant was sleeping does not lessen the violence she experienced. The conception that it might beotherwise “overlooks entirely what this incident must have been like from the victim’s perspective.

To be awoken by a stranger attemptingto have sexual intercourse with you can only be described as a horrible experience, and the violence to the victim is assumed” (R v Cappo(1993), 116 Sask R 15 (CA) at para 13). [28] Although other forms of violence may take place during a sexual assault that render the circumstances more aggravating (see,for example, Friesen at paras 138–139), it is a mistake to think that a sexual assault without the infliction of physical harm is a non-violentcrime. This leads to the judge’s third error in principle. 3.

The need to give primary consideration to the objectives of denunciation and deterrence

[ 29 ] The judge properly identified that the complainant trusted Mr. Merasty sufficiently to sleep in the same room with him. She did so, and Mr. Merasty took advantage of the vulnerability that these circumstances created.

Section 718.04 of the Criminal Code requires that a court, when sentencing an offender in a situation like this one, give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence, stating as follows: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 30 ] The judge did not expressly refer to s. 718.04 – indeed, he did not mention any of the specific provisions found in

Part XXIII of the Criminal Code . I accept that he was not required to do so, as judges are presumed to know the law. However, he was required to give effect to the principles that direct the imposition of a proper sentence, in the circumstances of the case before him.

I can find nothing in the Sentencing Decision that would allow for the conclusion that the judge accounted for the need to give consideration – let alone primary consideration – to the objectives of denunciation and deterrence of sexual assaults on sleeping victims. [ 31 ] In Bear , Kalmakoff J.A. emphasized that “this Court has repeatedly held that sexual assaults committed against sleeping or unconscious victims are particularly serious, and ‘should not be approached in such a way as to effectively reward an offender for taking advantage of a helpless victim rather than one who is in a position to resist the assault’” ( Bear at para 78 , quoting R v Chanalquay , 2015 SKCA 141 at para 45 , 472 Sask R 110).

Justice Kalmakoff also noted, with reference to several other authorities, that as Mr. Bear had perpetrated a serious sexual assault against a victim who was asleep at the time and in no position to resist, it was “appropriate to focus on the sentencing objectives of denunciation and deterrence” (at para 117). [ 32 ] Admittedly, Bear was decided after the judge imposed the sentence in this case. Therefore, he would not have had the benefit of the reasoning in that decision. As well, Chanalquay does not appear to have been cited to him by counsel for either party.

However, one of the cases that Richards C.J.S. relied on in Chanalquay was Cappo , which was given to the judge. He distinguished Cappo. The way he did so illustrates how he lost sight of the need to emphasize denunciation and deterrence when imposing sentence in the circumstances of this case. [ 33 ] In Cappo , like here, the offender had assaulted a woman who had fallen asleep in a bedroom at a house party. The complainant awoke to find her pants and underwear had been removed, with Mr. Cappo on top of her attempting to penetrate her and removing the rest of her clothes. Like the victim of Mr.

Merasty’s assault, the woman asked Mr. Cappo to stop, except in that case, the offender persisted and only ceased the assault after the victim vomited. Mr. Cappo was sentenced to 22 months’ incarceration. On appeal to this Court, the sentence was increased to 36 months. [ 34 ] The judge found it to be significant that, unlike the offender in Cappo , Mr. Merasty stopped his assault when the complainant demanded that he do so. I would agree that the conduct of Mr. Merasty was less serious than that of Mr. Cappo. Therefore, all other things being equal, it can be expected that Mr.

Merasty would receive a lower sentence than Mr. Cappo. However, the judge’s emphasis on the fact that Mr. Merasty stopped his assault when the complainant awoke led him to overlook the significance of the fact that the assault was on a sleeping victim who was in no position to say no at the outset and of the emphatic need to denounce and deter such conduct by more than what can only be characterized as a minimal custodial sentence. [ 35 ] In short, the offence in this case involved the abuse of a victim who was vulnerable because of her personal circumstances.

Section 718.04 required the judge to “give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence”. It was an error for the judge not to do so. 4. The required registration under SOIRA [ 36 ] As I have noted, the judge ordered that Mr. Merasty comply with SOIRA for a period of ten years. I agree with the Crown that the judge misunderstood the requirements of the Criminal Code when he made this order. [ 37 ] Sexual assault is a “designated offence”, within the meaning of s. 490.011(1) (

a) of the Criminal Code . Under s. 490.012(1), the judge was required to make an order that Mr. Merasty “comply with [ SOIRA ] for the applicable period specified in

section 490.013”. Here, because the Crown proceeded by way of indictment, the maximum term of imprisonment for the offence was 10 years. Accordingly, pursuant to s. 490.013(2)(b), an order under s. 490.012(1) “ends 20 years after it was made”. Given this, the judge erred by only requiring Mr. Merasty to comply with SOIRA for 10 years rather than for 20 years. [1] 5. Other alleged errors [ 38 ] The Crown submits that the judge relied on the absence of persistence by Mr. Merasty as a mitigating factor. I agree with the Crown that the fact that Mr.

Merasty stopped his assault when the complainant awoke and demanded that he do so is not a mitigating factor. However, I do not understand the judge to have treated it as one. Rather, he simply narrated this fact in his overview and then pointed out that it distinguished this case from Cappo and R v Tuffs , 2012 SKCA 6 , 385 Sask R 178. He was not wrong to do so. [ 39 ] The Crown also takes issue with the judge’s reference to the fact that Mr. Merasty had no prior criminal record when imposing sentence in this case. It says that this fact “could not have translated into any real effect on the sentence”.

However, I see no error in the judge’s reference to Mr. Merasty’s clean record in the circumstances of this case. The judge correctly noted that the fact that Mr. Merasty had no prior record “is not a mitigating factor”. He accurately referred to it as one of the factors that distinguished this case from R v Bird , 2008 SKCA 65 , 310 Sask R 222. I find no error in the judge pointing that fact out. I will return to discuss Bird later in these reasons. [ 40 ] Finally, the Crown submits that the judge failed to explain how the presence of Mr. Merasty’s Gladue factors impacted his moral culpability.

In this Court, the Crown contended that they had no such effect. [ 41 ] I agree with the Crown that s. 718.2(

e) does not state that the mere presence of Gladue factors mandates that an Indigenous offender receive a lower sentence than a non-Indigenous offender: Gladue at para 88 ; R v Ipeelee , 2012 SCC 13 at para 75 , [2012] 1 SCR

433; Chanalquay at paras 34 and 54 ; R v Whitehead , 2016 SKCA 165 at paras 56 and 61 , [2017] 5 WWR 222; and R v Dillon , 2022 SKCA 17 at para 33 , 92 MVR (7th) 214. Rather, s. 718.2(

e) requires that judges “carefully consider (

i) the extent to which an Indigenous offender’s unique circumstances may have had a bearing on their moral culpability; and (ii) whether and how the relevant sentencing objectives can be actualized through sanctions other than imprisonment or through the term of imprisonment imposed” ( Bear at para 108 ) . In this case, the Crown’s principal argument is that there was no connection between Mr.

Merasty’s moral culpability for the offence and his parents’ attendance at residential schools, the adverse impacts he has faced because of family members’ addictions and various personal traumas he has experienced flowing from these facts. [ 42 ] While it is accurate to say that the judge did not spend much time in his reasons explaining this connection, I am satisfied that he was not required to provide any more explanation than he did in the circumstances at hand. The reason for this is that the Crown had conceded that this connection existed.

In this regard, it agreed that this should be taken into account by the judge, but not so as to “substantially” reduce the sentence. In the context of the submissions he received, I cannot fault the judge for failing to explain the connection that both parties before him agreed existed. [ 43 ] The judge appears to have principally accounted for s. 718.2(

e) in fixing a sentence that reduced somewhat the period of incarceration that he would have otherwise ordered and substituted a term of probation as an aspect of restorative justice. 6. Conclusion under Issue A [ 44 ] The judge’s reasons disclose that he committed three errors in principle. First, he found it to be mitigating that Mr. Merasty’s crime was not so serious as to amount to a major sexual assault. This conclusion, even if correct, did not render this fact to be mitigating. Second, he proceeded on the basis that the crime did not involve violence, when it clearly did.

Third, he failed to give primary consideration to the objectives of denunciation and deterrence in the circumstances of this case, as the Criminal Code demands be done. [ 45 ] The judge also erred in ordering that Mr. Merasty comply with SOIRA for a period of 10 years rather than 20 years as required by the Criminal Code . B. If errors occurred, did they impact the sentence the judge imposed? [ 46 ] The judge’s failure to recognize that the Criminal Code required Mr. Merasty to comply with SOIRA for a period of 20 years must be corrected.

I am also satisfied that, when taken together, the other three errors in principle that I have identified directly impacted the period of incarceration that the judge imposed in this case. [ 47 ] As I will explain in the next

section of these reasons, I agree with the judge that the facts before him were not so serious to attract a three-year starting point sentence. However, the judge lost sight of the fact that this was still a very serious offence, for which penitentiary time would normally be called for.

This is because of its inherent violence and because, in circumstances where a sleeping or unconscious victim is sexually assaulted, primary consideration must be given to the objectives of denunciation and deterrence. [ 48 ] Considering my conclusion that the judge erred in principle and that his errors impacted the sentence he imposed, it is unnecessary to consider the Crown’s argument that the sentence is demonstrably unfit. This is because the judge’s errors require this Court to sentence Mr. Merasty afresh: Lacasse at para 43 ; and Friesen at para 27 . C.

If the judge erred in principle in ways that impacted the sentence, what is a fit sentence in this case? [ 49 ] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code . Pursuant to that provision, a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. I would therefore begin the sentencing exercise by considering the gravity of the offence. [ 50 ] As explained by Kalmakoff J.A. in Bear , there are “ three key considerations that define the gravity of an offence: (

i) the nature and comparative seriousness of the offence; (ii) the circumstances of its commission; and (iii) the harm caused by it” (at para 119, citing R v Yuzicapi , 2011 SKCA 134 at para 28 , 377 Sask R 133 ). I would reiterate that Mr. Merasty perpetrated a sexual assault against a helpless victim who trusted him enough to sleep in the same bedroom. The gravity of this offence is obvious.

It was an offence against a sleeping, helpless victim with personal circumstances that Parliament has described as making her vulnerable, thus mandating a primary emphasis on deterrence and denunciation when constructing a fit sentence. It was also a violent crime which caused serious emotional and psychological harm to the complainant. The gravity of this was compounded by Mr. Merasty’s insistence that he had done nothing wrong and that she was either lying or exaggerating.

While he did not engage in any additional violence, and while he did not persist after she resisted, these factors only serve to prevent the circumstances from being even worse than they were. [ 51 ] To this point, I have eschewed expressing a conclusion whether the facts here disclose a major sexual assault and hence “a starting point sentence of three years imprisonment” ( Bear at para 80 ). In Bear , Kalmakoff J.A. summarized many cases when he stated that the “ determination of whether the major sexual assault label applies to an offence requires consideration of all of the relevant circumstances”.

He identified the fact that offences “involving penile penetration, forced intercourse, or other forms of sexual activity such as fellatio or cunnilingus are generally understood as constituting major sexual assaults, but none of those things are prerequisites to such a finding”.

He also referred to other factors, including “the intrusive, violative, or degrading nature of the sexual contact, the age or vulnerability of the victim, the nature of the relationship between the offender and the victim, or the duration or number of instances of the offending conduct may each individually, or in combination, serve to place an offence in the major sexual assault category”.

In the latter context, he observed it to be of “particular relevance” how this Court had “repeatedly held that sexual assaults committed against sleeping or unconscious victims are particularly serious” (at para 78). [ 52 ] However, I do not interpret Bear as requiring that every sexual assault against a sleeping or unconscious victim attract a starting point sentence of three years’ imprisonment. To reach this conclusion it would be necessary to ignore the facts of that case, as well many

other cases, involving much more serious conduct, where this Court has applied the three-year starting point. For example only, Bearinvolved a highly vulnerable victim who was not only sleeping but was “very intoxicated” and suffered digital penetration of her vagina(at para 79). Each of the three cases Kalmakoff J.A. relied on in support of the three-year starting point for major sexual assaults alsoinvolved circumstances that can only be described as more grave than those here, as do several others that I have already reviewed in thisjudgment.

As explained in Friesen, a “range or starting point should only be created for a category of offences that share enough commonfeatures that it is useful to judge them by the same rubric” (at para 39). [53] In my respectful view, the circumstances of this case do not share enough of the common features of the cases that have beencategorized as major sexual assaults that it would be useful for sentencing purposes to begin with reference to a starting point of threeyears’ imprisonment.

However, I am satisfied from a review of this Court’s previous decisions that the circumstances of this case comeperilously close to requiring this. [54] In R v Iron, 2005 SKCA 84, 269 Sask R 51, the Indigenous accused sexually assaulted a bridesmaid of his common law spousefollowing a bridal shower. The victim was intoxicated and went to bed in one of the accused’s spare bedrooms, taking care to close thedoor and block it with a nightstand. Notwithstanding these precautions, Mr. Iron entered the room while she was asleep and began kissingher and pressing his body against hers.

When she awoke, he refused to stop, and instead began to touch her breasts and digitally penetrateher vagina. The victim managed to escape the assault by pretending to cooperate, asking the accused to get her a drink, and leaving thehouse when he did so. Mr. Iron received a conditional sentence of two years less a day and one year of probation. On appeal to this Court,Sherstobitoff J.A. held that “[t]he respondent’s actions in this case were a substantial and gross violation of the victim’s personal andsexual integrity, involving a small degree of violence.

Taking advantage of a friend who was asleep and had been drinking is anaggravating factor and must be weighed in assessing the degree of responsibility of the offender” (at para 11). Despite Sherstobitoff J.A.’sunfortunate statement regarding the “small degree of violence” involved – a sentiment which is inconsistent with the case law as it hasevolved since Iron was decided – he nevertheless found the sentence to be unfit and varied it to 20 months’ incarceration. [55] In R v Kasokeo, 2009 SKCA 48, 324 Sask R 156, the accused was part of a group of young people who had gathered for ahouse party.

An 18-year-old woman who was part of the group felt she needed to lie down, so she went to a bedroom and fell asleep. Sheawoke with her pants and underwear around her ankles, and Mr. Kasokeo behind her, thrusting up against her. It was not clear whether hewas penetrating her. She sat up, covered herself with a pillow and blanket, and left the house. Mr.

Kasokeo was sentenced to 15 months’imprisonment after trial, but his sentence was varied to 30 months on appeal to this Court, where Cameron J.A. held that such an assaultagainst a sleeping woman “constitutes a substantial and gross violation of her sexual and personal integrity and most often results inlasting, serious harm to the victim. [56] In Chanalquay, the victim fell asleep at a house party. She “awoke to find her pants pulled down and Mr. Chanalquay on top ofher having sexual intercourse. She got up from the couch, pulled up her pants and ran home” (at para 7). Mr.

Chanalquay initially deniedhaving sex with the victim, but at trial gave a story that she had overtly consented. The trial judge convicted Mr. Chanalquay on thestrength of the victim’s contrary evidence. This Court found that, “on the particular facts of this case, a jail sentence of two years,combined with the probation order prescribed above, will both protect the public, respect the victim of Mr. Chanalquay’s crime, provideadequately for denunciation and deterrence, and serve to help ensure Mr.

Chanalquay’s ongoing success as a member of his family and hiscommunity” (at para 60). [57] In M.J.H., the accused came upon his half-sister asleep on the couch in their aunt’s home late at night, removed her clothingand his own pants, lay down on top of her, and began humping her from behind while she remained unconscious. The assault came to anend when a cousin entered the home, saw what was happening, and stopped the accused.

Justice Richards (as he then was) held that, eventhough no penetration had occurred, this was “a substantial and gross violation of the victim’s sexual and personal integrity” (at para 16).Despite the accused’s Gladue factors, the lack of penetration and the lack of additional violence, the Court found the 20-monthconditional sentence followed by 12 months’ probation to be demonstrably unfit and varied it to 30 months’ incarceration. [58] Other cases also reveal that typical sentences in circumstances such as these range between two and three years.

Therefore, in Rv Roberts (1995), (SK CA), 128 Sask R 158 (CA), a sentence was varied to 30 months for an assault against a sleepingvictim where penetration was unproven. Similarly, in R v A.D.C., 2008 SKCA 108, 236 CCC (3d) 92, a sentence was varied to 30 monthsfor an assault against a sleeping victim involving the touching of genitals and humping without penetration.

Finally, in R v Sawchuk, 2014SKCA 88, [2015] 1 WWR 336, a sentence of 30 months was upheld for an assault involving a sleeping victim where the accused filmedhimself touching her clothed breasts and attempting to remove her pants and underwear. [59] I would end my review of the case law by mentioning Cappo, Bird and Tuffs. These were the only three cases referred to in theSentencing Decision. [60] I have discussed Cappo previously in these reasons. To recap, it involved an assault on a sleeping victim that persisted until thevictim vomited. Mr. Cappo was sentenced to 22 months’ incarceration.

On appeal to this Court, the sentence was increased to 36 months.As explained earlier, I accept that the conduct of Mr. Merasty was less serious than that of Mr. Cappo. Therefore, all other things beingequal, it can be expected that Mr. Merasty would receive a lower sentence than the offender in that case. However, this does not mean thata substantial term of imprisonment is not presumptively required when a sexual assault occurs on a sleeping victim. [61] In Bird, the 14-year-old complainant awoke to find that all of her clothes had been removed.

Despite her repeated requests forthe offender to leave over the course of a sexual assault that lasted 30 minutes, Mr. Bird fondled her breasts, stomach and neck, andthreatened to kill her if she told anyone of the incident. Mr. Bird had 16 prior convictions, including for sexual assault and an indecentassault. The sentencing judge imposed a sentence of 12 months, followed by 2 years’ probation.

This Court intervened to substitute a termof imprisonment of 30 months. [62] In Tuffs, after an evening of socializing and drinking at a shared friend’s house, the victim went to sleep in the basement, onlyto awake to find Mr. Tuffs behind her, putting his hands down her pants and touching her vagina. Mr. Tuffs then grabbed her hair andattempted to pull the victim’s face towards him to kiss her, but she resisted and was able to terminate the assault. Mr. Tuffs was given asuspended sentence and 18 months of probation.

On appeal to this Court, the Crown “contended the offence was very serious even if itwas not a major sexual assault and maintained its position there ought to be a period of incarceration of two years or two years less a day”

(at para 7). This Court found that the sentencing judge in that case had overemphasized several mitigating factors, and the sentence was varied to one year of incarceration. In doing so, Lane J.A. agreed that “this was a case of sexual assault on the lower end of the scale” since no penetration had occurred, limited force had been used, the assault was of short duration and Mr.

Tuffs immediately ceased the assault when the victim resisted and had then apologized (at paras 12–13). [ 63 ] On the surface, Tuffs would seem to support the imposition of a minimal custodial sentence on the facts here, because the circumstances of that offence were more serious than those in this case. In this regard, the judge distinguished Tuffs because the offender in that case persisted with the assault after the complainant insisted he stop and because the offender used physical force.

However, the judge overlooked one other distinguishing fact: Tuffs was decided in 2012, prior to the enactment of s. 718.04 of the Criminal Code . [ 64 ]

Section 718.04 was introduced as part of Bill C-75,

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , SC 2019, c 25, which was assented to on June 21, 2019. It has been said that s. 718.04 has “codified the long standing and well-established common law principle where Courts have considered denunciation and deterrence the primary sentencing considerations in cases involving the abuse of a victim who is vulnerable because of their personal circumstances” ( Kolola at para 34 . See also: R c L.P. , 2020 QCCA 1239 at para 80 , 393 CCC (3d) 1).

However, the fact that Parliament considered it necessary to mandate that, when a sentence is imposed for an offence that involves the abuse of a person who is vulnerable because of personal circumstances, “the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence” (s. 718.04, emphasis added), must at the very least mean that some courts had failed to properly situate this consideration. [ 65 ] Of course, the Court in Tuffs could not have considered s. 718.04 , because it did not exist when that case was decided.

I also see no mention in Tuffs of “the long standing and well-established common law principle” it embodies ( Kolola at para 34 ). Considering this, I am left to conclude that Tuffs has been overtaken by the introduction of s. 718.04 , and the many cases that have been decided since that date. [ 66 ] Having regard to this case law, and in particular the need to denounce and deter sexual assaults on sleeping victims, before consideration of Gladue , the facts here would have normally called for a term of imprisonment in the range of two to three years. Therefore, although Mr.

Merasty’s assault does not share enough of the common features with the cases that have been categorized as a “major” sexual assault to attract a starting point sentence of three years’ imprisonment, as I have said, it comes perilously close to doing so. [ 67 ] In this case, the judge identified that an order of probation would, in addition to serving as a form of sanction, also assist in Mr. Merasty’s rehabilitation and was consistent with the restorative justice principles that underlie s. 718.2(e).

Of course, it also has a penal aspect to it, as he remains subject “to the state’s supervision, under conditions that significantly restrict [his] activities when he is not in custody” ( R v Hotomanie , 2022 SKCA 119 at para 62 . See also: R v Jimmy , 2023 SKCA 28 at para 91 , per Jackson J.A. in dissent, but not on this point). This aspect of the sentence parallels what was ordered by this Court in Chanalquay . Such an order cannot accompany a term of imprisonment exceeding two years (s. 731(1)(b)).

The order of probation justifies a term of imprisonment below the range I have identified because it, together with the term of imprisonment that is ordered, strikes a proper balance of the operative Gladue considerations and the need to denounce and deter conduct such as that committed by Mr. Merasty. [ 68 ] Having regard to all of the foregoing, I would sentence Mr. Merasty to serve a term of imprisonment of 20 months, to be followed by a probation order on the terms previously ordered by the judge. Mr. Merasty must also comply with SOIRA for a period of 20 years. V.

CONCLUSION [ 69 ] For the reasons I have given, I would grant leave to the Crown to appeal from the sentence imposed on Mr. Merasty and allow the Crown’s appeal. [ 70 ] The sentence imposed by the judge must be set aside. I would order that Mr. Merasty be imprisoned for 20 months to be followed by a probation order on the terms and for the duration previously ordered by the judge, and that he also comply with SOIRA for a period of 20 years. All other ancillary orders made by the judge remain as he directed. [ 71 ] Mr. Merasty has been on judicial interim release pending the hearing of his appeal.

I would direct Mr. Merasty to present himself to the correctional facility from which he had been released no later than 4:00 p.m. on the third day after the release of this judgment to his counsel. “Leurer J.A.” Leurer J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.