Court of Appeal for Ontario

Date: 2018-03-19 Docket: C62825 Judges: Juriansz, Watt and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Travis Macintyre-Syrette Appellant

Counsel

For the Appellant: Kristin Bailey and John Fennell

For the Respondent: Kevin Rawluk

Hearing and Appeal

Heard: January 31, 2018

On appeal from: The conviction entered on May 10, 2016, with reasons reported at 2016 ONSC 2969, and the sentence imposed on October 19, 2016, with reasons reported at 2016 ONSC 6496 by Justice Michael N. Varpio of the Superior Court of Justice.

Reasons for Decision

Overview

[1] This appeal from conviction and sentence was argued on January 31, 2018. We dismissed the appeal from conviction for sexual assault and stayed the conviction for unlawful confinement, with reasons to follow. We now provide those reasons.

[2] We reserved judgment on the sentence appeal. As set out below, we have concluded that the pre-sentence and Gladue reports were not sufficient and did not put the sentencing judge in a position where he could meaningfully assess the appropriateness of a non-custodial sentence. It was an error for the sentencing judge to proceed without taking further steps to address the shortcomings in the reports. It is necessary that a supplementary pre-sentence report be prepared prior to this court re-sentencing, and the sentence appeal remains under reserve.

Background

[3] The appellant was convicted of an historical sexual assault that took place on June 1, 1999. The facts were carefully set out by the trial judge and there is no need to repeat them in any detail. The central events are, on the complainant's evidence, as follows. The appellant, the complainant, and another person had been moving furniture, and stopped for a quick swim at a lake. Afterwards, when the complainant went to change in the women's change room, the appellant followed her in, came up behind her, spun her around, and attempted intercourse over her objections. The appellant's account was entirely different. He only followed her into the women's change room to put his shirt back on. While she was changing in front of him, he asked if she would like to have sex with him. She said that she would, just not at that time. He then asked if she would mind if he masturbated while watching her change. She had no objection, and he did so.

[4] The trial judge accepted the complainant's testimony, rejected the appellant's testimony, and found that on the whole of the evidence he accepted, he was not left with a reasonable doubt as to the appellant's guilt. He convicted the appellant of sexual assault and unlawful confinement and sentenced the appellant to six months' imprisonment.

Analysis

(1) Sexual Assault Conviction Appeal

[5] The appeal of the sexual assault conviction is framed in terms of the trial judge's misapprehension of the appellant's testimony, and uneven scrutiny of the complainant's and appellant's testimonies. We were not persuaded that the trial judge made either error.

[6] The trial judge's misapprehension of evidence is said to have flowed from the following brief question and answer from the appellant on cross-examination:

Q: "At this point, [prior to walking into the changing room,] there's nothing sexual between [the two of] you, correct?"

A: "No."

[7] The trial judge understood the appellant's evidence to be: (1) there was, to that point, nothing of a sexual nature between the appellant and the complainant (no sexual tension, no communication of sexual attraction), and (2) that the appellant had no sexual interest in the complainant up to that point. The trial judge found the latter assertion implausible: "[s]uch a lack of sexual interest (prior to entering the change room) does not square with common sense. It occurs to me that a man seeking to get changed would not follow a woman into the women's change room unless he was sexually interested."

[8] The appellant argued that the trial judge misapprehended his evidence: it was not his evidence that he had no sexual interest in the complainant. Attributing this implausible statement to him, the appellant argued, led the trial judge to reject the appellant's credibility and testimony.

[9] We rejected this submission. The trial judge understood the appellant's evidence, and drew permissible inferences. Furthermore, the trial judge gave other reasons for rejecting the appellant's evidence, which failed on its own terms. The appellant did not testify that he went into the women's change room to pursue the complainant. His evidence was that the reason he went into the women's change room was to change his clothes. The trial judge found this unbelievable: the only article of clothing the appellant brought with him was his shirt, which he had carried from the dock. He had no other clothes to change into. Why, the trial judge asked, would he go into a change room to put his shirt back on? And why, if he went into the change room to change rather than to pursue the complainant, did he choose to go into women's change room instead of the men's change room a few steps away?

[10] The appellant's second argument was that the trial judge erred by uncritically accepting the complainant's testimony, notwithstanding a serious inconsistency in it. The complainant testified that she had stood inside the change room facing towards the open doorway, that the appellant had come up from behind her, and that she did not see him enter the change room. At trial, the complainant speculated that there must have been another door that the appellant used. The evidence clearly established, however, that there was no other door.

[11] We rejected this argument as well. The trial judge did not err in failing to find that this inconsistency diminished the complainant's credibility. Her statement that there must have been a second door was a deduction, not an observation. The deduction was wrong, but her failure to observe the appellant approaching is easily reconciled with her other evidence. She testified she was "mid-pull" in pulling her wet shirt over her head when the appellant grabbed her from behind. At some point when the complainant was removing her shirt, her vision would have been obscured, either by the shirt itself or by closing her eyes. There was no failure to scrutinize the complainant's evidence.

(2) Unlawful Confinement Conviction Appeal

[12] The Crown conceded that the conviction for unlawful confinement ought to have been stayed pursuant to the Kienapple principle. We agreed. The conviction for unlawful confinement in the change room was an integral part of the sexual assault conviction.

(3) Sentence Appeal

[13] The appellant argues that the sentencing judge erred in imposing a custodial sentence of 6 months instead of a lengthier non-custodial sentence to be served in the community. The source of this error is said to be a failure to properly apply the principles for sentencing Aboriginal offenders set out in R. v. Gladue, [1999] 1 S.C.R. 688. When sentencing Aboriginal offenders, Gladue requires courts to consider:

(1) The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

(2) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66)

[14] The Gladue factors are highly particular to the individual offender, and so require that the sentencing judge be given adequate resources to understand the life of the particular offender. But that is not all. A second enquiry is required by Gladue, assessing available sentencing procedures and sanctions, requires an understanding of available alternatives to ordinary sentencing procedures and sanctions. In particular, if, as in this case, the offender lives as a member of a discrete Indigenous community, the sentencing judge needs to be told what institutions exist within that community and whether there are specific proposals from community leadership or organizations for alternative sentencing to promote the reconciliation of the offender to his or her community: Gladue, at para. 84; R. v. Laliberte, 2000 SKCA 27, at para. 59. The ordinary source of this information is the Gladue report.

[15] In Laliberte, the Saskatchewan Court of Appeal helpfully itemized the type of information a sentencing judge needs from a Gladue report:

1. Whether the offender is aboriginal, that is, someone who comes within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982;

2. What band or community or reserve the offender comes from and whether the offender lives on or off the reserve or in an urban or rural setting. This information should also include particulars of the treatment facilities, the existence of a justice committee, and any alternative measures or community-based programs.

3. Whether imprisonment would effectively deter or denounce crime in the subject community. Within this heading it would be useful for the Court to determine whether or not crime prevention can be better served by principles of restorative justice or by imprisonment.

4. What sentencing options exist in the community at large and in the offender's community. For example, does an alternative measures program exist in the offender's community if he lives on a reserve?

[16] The Gladue report in this case documents the appellant's family's history, including his parents' strategy of overcoming race-related adversity by immersing the appellant in Anishinabe culture. Under their guidance, he grew into a leadership role in his community and at a young age became a highly successful conduit of his culture, particularly through music and song. He has no prior history of offences and avoids alcohol and drug use. He was employed in a detox centre and later, after leaving university, at a child welfare agency. The report is overwhelmingly positive in its assessment of the appellant and in the tremendous contributions he has made to his community. The sentencing judge took notice of the appellant's "stable and relatively prosperous upbringing."

[17] The sentencing judge concluded, and defence counsel conceded at the sentencing hearing, that in light of the foregoing, the Gladue factors carried less "weight" than they would for a person in different circumstances. The sentencing judge did not suggest that the appellant has never directly or indirectly experienced conflict or disadvantage due to others' actions or attitudes towards Indigenous peoples. But he nonetheless concluded that the appellant's moral culpability for the offences is higher than it would have been if he had grown up in vastly different circumstances, such as in an unstable home without the benefit of wise parental guidance and example, with alcohol or drug-related struggles, or without having played a leadership role in the resurgence of his community's cultural practices.

[18] It would have been better had the sentencing judge not accepted defence counsel's concession that Gladue factors should have less weight in the circumstances of the appellant. The application of Gladue factors is not a matter of weight, and the duty to apply Gladue factors does not vary with the offender. This is, however, more of a semantic failing, and what we understand the sentencing judge to have held, rightly, is that the circumstances of this particular appellant do not diminish the moral culpability of his actions: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 73.

[19] It was an error, however, for the sentencing judge to have proceeded with sentencing on the strength of the materials before him. The Gladue report gave insufficient assistance to the sentencing judge with respect to the second aspect of the Gladue analysis: of determining the types of sentencing procedures and sanctions that would be appropriate given the offender's connection to his specific Aboriginal community: Ipeelee, at para. 74. Section 718.2(e) imposes an "affirmative obligation" on sentencing judges to inquire into the relevant circumstances of the offender, including the types of sentencing procedures and sanctions which may be appropriate because of his or her particular Aboriginal heritage or connection; either from the parties or on his or her own initiative, a sentencing judge "must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender": R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54; Ipeelee, at para. 72, Gladue, at para. 84. This information was not made available to the sentencing judge in this case in either the pre-sentence report or the Gladue report.

[20] The Gladue report recommended the following:

"1) That [the appellant] continue participating with sweat lodges. [The Appellant] can prepare the lodge, participate as a Fire Keeper, participate inside the lodge and/or run his own lodge;

2. That [the appellant] continue participating in Pow Wows and ceremony, singing and drumming, in that partaking in these ceremonies will assist [him] in his healing process;

3. That [the appellant] continue participating in workshops and conferences which primarily focus on the healing of Aboriginal People."

[21] A difficulty with these recommendations is that they were prepared without interviewing anyone outside the appellant's family. There is no indication of any broader engagement with the community. Perhaps there is good reason for this. If so, the author should have said so. By not informing the sentencing judge of circumstances within Batchewana Reserve other than through the appellant's parents – either in the Gladue report or the pre-sentence report – the sentencing judge was not put in a position to understand what could be done, specifically, to promote reconciliation within that community and other goals of restorative justice.

[22] The Gladue report and the pre-sentence report both relay statements from the appellant's family that their community is divided over the appellant, and that he has been ostracized and left out of ceremonies because peers have been unwilling to be seen with him. Although the Gladue report recommends steps for the healing of the appellant, it does not address the difficult question of reconciling him to this particular community. The appellant asserted on appeal that removing an offender from the community is not the traditional way of First Nations. The traditional way would be for him to serve his sentence in the community, engaging in the cultural activities that he has led in the past, encountering those who are hostile to him, and thereby creating the conditions that could promote healing between offender and community.

[23] The problem with this submission is that there was nothing before the sentencing judge that could help him assess its practicality. There was no alternative sentencing proposal put forward, beyond the bare submission that he serve a conditional sentence. There was no information about the institutions in the appellant's community, what opportunities exist for the appellant to participate in the various ceremonies recommended, whether the cooperation of other persons would be required, or whether that cooperation would be forthcoming. There was no proposal for any sort of mediation or other practice aimed at the specific reconciliation of this offender to his community. There was no explanation of how participation in the various ceremonies would benefit the appellant, given that he already possesses a highly advanced understanding of his culture. If this information was unavailable, or it would be impractical to obtain it, this should have been explained in the report. If sentencing judges are to fulfill the requirement of the second part of Gladue, they must be given information that puts them in the position to do so.

[24] It was an error, in our view, for the sentencing judge not to have identified these shortcomings in the Gladue and pre-sentence reports and either ordered a supplementary report or summoned the author or other witnesses from the community to address these questions viva voce: R. v. Kakekagamick, 81 O.R. (3d) 664, at para. 45. Without this information, the sentencing judge was not in a position where he could meaningfully assess the appropriateness of a non-custodial sentence.

[25] The sentencing judge, by virtue of his proximity to the communities he serves, is well placed to understand how sentencing goals can be achieved with respect to a particular offender in a particular community. It would be preferable to remit this matter to the sentencing judge to re-sentence after considering a supplementary Gladue or pre-sentence report. But that option is not available to us under s. 687 of the Criminal Code and, having found the sentencing judge committed an error in principle, this court must impose a new sentence: R. v. Kakekagamick, 81 O.R. (3d) 664, at para. 60; R. v. Pahl, 2016 BCCA 234, 336 C.C.C. (3d) 221, at para. 85. We are, however, unable to do so on the record before us. Accordingly, we order a further pre-sentence report be completed in relation to the appellant, addressing the issues identified in paragraph 23 above, and to be received within 90 days. We trust that arrangements can be made by Crown counsel. Upon completion, the report is to be filed with this court to the attention of this panel.

Disposition

[26] The appeal from the conviction of sexual assault is dismissed. The appeal from the conviction of unlawful confinement is stayed pursuant to the Kienapple principle. The appeal against sentence remains under reserve. A supplementary pre-sentence report is ordered. Parties can submit brief written submissions (5 pages or less) addressing the supplementary pre-sentence report within 15 days of receipt of the report.

"R.G. Juriansz J.A."

"David Watt J.A."

"B.W. Miller J.A."