Court of Appeal for Ontario

Date: 2018-08-30 Docket: C62825

Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Travis Macintyre-Syrette Appellant

Counsel

Kristin Bailey and John Fennell, for the appellant

Kevin Rawluk, for the respondent

Heard

January 31, 2018

Appeal Information

On appeal from 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] On March 19, 2018, we released our reasons for decision in which we dismissed the appellant's appeal from conviction for sexual assault and stayed the conviction for unlawful forcible confinement. With respect to the sentence appeal, we concluded that the sentencing judge erred in principle in sentencing the appellant on the basis of an inadequate Gladue report without ordering a supplementary report or otherwise seeking additional information. That determination necessitated that this court reserve the sentence appeal pending receipt of a supplementary Gladue report.

[2] In our reasons, we directed the Crown to obtain a supplementary report. Specifically, we sought additional information that would help us determine whether a non-custodial sentence could be crafted that would be proportionate to the offence and could also promote the reconciliation of the appellant to his community – a community which includes the complainant. We have now received the supplementary report, and the parties' submissions. We are grateful to Aboriginal Legal Services for their diligence in obtaining the relevant information. We are satisfied that the information provided puts us in a position where we are able to assess the resources available in the appellant's community to support a non-custodial sentence.

[3] No non-custodial sentencing alternative has been identified – in the Gladue reports or by counsel – that would be proportionate to the offence. Accordingly, based on the Gladue reports provided and the record before the sentencing judge, we have determined that a fit and just sentence is the sentence that was originally imposed by the sentencing judge. For the reasons set out below – as well as those outlined in our earlier decision – we would grant leave to appeal sentence but would dismiss the appeal.

Background

[4] The appellant is a member of the Batchewana First Nation. He was convicted of a sexual assault that took place on June 1, 1999. The appellant, the complainant, and another person were swimming at a lake together. Afterwards, the appellant followed the complainant into the women's change room, came up from behind her, and attempted to force intercourse. The trial judge found that the appellant had attempted to rape the complainant, but was thwarted by the complainant's resistance and the appellant's inability to displace the complainant's clothing. The appellant was convicted of sexual assault, and was sentenced to six months' imprisonment, followed by three years of probation.

[5] The sentencing judge considered the appellant's request for a conditional sentence in the context of R. v. Gladue, [1999] 1 S.C.R. 688, and s. 718.2(e) of the Criminal Code. As we noted in our previous reasons, he ultimately concluded that the circumstances of this particular appellant did not diminish the moral culpability of his actions. The sentencing judge accepted that given the appellant's background of non-criminality, he would not pose a threat to the community if he received a conditional sentence. However, the sentencing judge nonetheless held that a conditional sentence was not appropriate because of the primacy of the need for deterrence and denunciation of this offence in these circumstances.

[6] On appeal, the appellant argues that the sentence should be varied and that the appropriate sentence is a 12 month conditional sentence, to be served in the community.

Analysis

[7] In our previous reasons, we held that it was an error for the sentencing judge to proceed with sentencing with the limited materials before him, particularly with respect to the second aspect of the Gladue analysis: determining the types of sentencing procedures and sanctions that would be appropriate given the offender's connection to his specific Aboriginal community: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 74.

[8] As we noted in our reasons, at para. 19:

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.

[9] Our concern with the initial Gladue report was that it did not put the sentencing judge in a position where he could meaningfully consider alternatives to incarceration. This was, in part, because the Gladue report contained no information from the Batchewana First Nation or any other source as to what institutions or alternative sentencing procedures, such as sentencing circles, exist within the appellant's community, or are otherwise available. Such institutions, where they exist, can be used to craft a fit and effective sentence that is proportionate to the appellant's offence and the degree of his responsibility. Where community based institutions exist, they can further the remedial purpose of s. 718.2(e) as well as restorative sentencing objectives, such as reconciling the offender to the community: Ipeelee, at paras. 72, 74, R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 39.

[10] The initial Gladue report recommended that the appellant participate in sweat lodges, Pow Wows, and community ceremonies as a means to the appellant's personal healing. However, it was unclear from the report what specific ceremonies or other cultural practices were in fact open to the appellant in his community. It was also unclear to what extent such practices would further restorative justice or other sentencing objectives in the case of this particular offender – a high-achieving person who already possessed an advanced knowledge of his culture, and whose offence was committed nearly 20 years ago. As we said in our reasons, at para. 23:

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.

[11] In light of this error, it is necessary for this court to consider and fashion an appropriate sentence after consideration of the supplementary Gladue report filed and the parties' further submissions.

(1) The Supplementary Gladue Report

[12] The supplementary report appropriately sought input from the leadership of the Batchewana First Nation. The most salient information received – after the Chief and council delegated the questions posed by the authors of the report to the Director of the Batchewana Health Centre, and after several months of follow-up – is that the Batchewana First Nation has no formal restorative justice practice or programs. The appellant's father – a former Chief of the community – was interviewed for the supplementary report and stated that he believed this to be a deliberate and longstanding decision by the Batchewana First Nation, in order to avoid exposure to complaints about the process or any substantive decisions made. The report noted that the restorative justice options this court was "particularly interested in" in our earlier reasons "do not appear to be available for [the appellant]". Whatever the reason, it appears that the Batchewana First Nation has chosen not to establish an institutional structure for the pursuit of restorative justice. It is under no obligation to do so.

[13] The Batchewana First Nation provided an inventory of its social and cultural activities, and stated that there is no barrier to the appellant's participation in them. However, the appellant argues that the situation is more complicated than that, due in part to the conditions of his bail, as well as orders which may be in force from other proceedings, and the participation in these activities by the complainant and other persons who have made sexual assault allegations against him. On the appellant's assessment of these circumstances, he is not in fact able to participate.

[14] The supplementary report did identify two avenues for counselling and mentoring of the appellant by a community Elder, in the one instance, and a traditional health practitioner in the other. The report recommends such counselling in the interests of healing in the community. The appellant is willing to participate in these. However, it remains unclear to us how the recommended counselling would relate to the offence or to restorative justice in the sense of reconciling the appellant with the community. It may be of great personal benefit to the appellant, but it does not appear to address the goals of sentencing in the context of this offender and this offence.

(2) The Proportionate Sentence in Light of the Supplementary Gladue Report

[15] Section 718.2(e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered by a sentencing judge, with particular attention to the circumstances of Aboriginal offenders. This provision encourages the consideration and application of restorative justice principles in sentencing, and has at its core a remedial purpose: Gladue, at para. 48; Wells, at para. 36.

[16] We are conscious of the Supreme Court of Canada's admonition in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22 and 90, that we are to give "serious consideration" to a conditional sentence in these circumstances, and that a conditional sentence is generally more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of a responsibility in the offender. Further, a conditional sentence is itself a punitive sanction "capable of achieving the objectives of denunciation and deterrence": Proulx, at para. 22. A focus on denunciation and deterrence in sentencing does not necessarily foreclose a conditional sentencing order in the circumstances: R. v. Cooper, 2010 ONCA 452, 101 O.R. (3d), at para. 80.

[17] As the Supreme Court noted in Wells, the sentencing principles developed in Gladue are relevant to the determination of whether a conditional sentence is appropriate in the circumstances. A court must consider the offender's Aboriginal status in determining whether to impose a conditional sentence: Cooper, at para. 73.

[18] However, as LaForme J.A. noted in R. v. Kakekagamick (2006), 81 O.R. (3d) 664, leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no general rule that in sentencing an Aboriginal offender the court must give the most weight to the principle of restorative justice, as compared to other legitimate principles of sentencing. The relative weight to be assigned to the goals of restorative justice as against the principles of denunciation or deterrence will be connected to the severity of the offence: Wells, at para. 39. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious: Kakekagamick, at para. 42.

[19] The scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to those sanctions that are "reasonable in the circumstances": see Wells, at para. 39. In keeping with this principle, there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct: Proulx, at paras. 106-107. As Doherty J.A. noted in R. v. Killam (1999), 126 O.A.C. 281, at para. 13, "a conditional sentence…does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal."

[20] Ultimately, after considering the requirements of s. 718.2(e) and the information provided in the two Gladue reports, we conclude, as did the sentencing judge at first instance, that denunciation must be a primary sentencing objective in the context of this offender and this offence. As the sentencing judge found, the sexual assault committed by the appellant was forceful, involved confinement, and has had a significant impact upon the complainant.

[21] We directed inquiries into whether resources exist to fashion some non-custodial disposition that would nevertheless satisfy this objective, and have the added benefit of promoting reconciliation between the appellant and his community. From the information we received, we conclude that such an option is not available in the appellant's community. A conditional sentence served in the community with individual counselling, as proposed by the appellant and supported by the Gladue reports, would not be a reasonable or proportionate sentence for this offence. This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available.

[22] Accordingly, and notwithstanding the sentencing judge's error in his analysis of the sufficiency of the first Gladue report, we are of the view that the sentence imposed was in all the circumstances fit and proportionate: see, for example, R. v. Twati (2005), 204 O.A.C. 232; R. v. Syed (2005), 195 O.A.C. 229; Kakekagamick, at para. 74. We would not interfere with it on appeal.

Disposition

[23] Leave to appeal against sentence is granted, and the appeal from sentence is dismissed.

"R.G. Juriansz J.A."

"David Watt J.A."

"B.W. Miller J.A."

[1] Reported at 2018 ONCA 259.