Her Majesty the Queen v. Brown

[Indexed as: R. v. Brown]

Ontario Reports

Court of Appeal for Ontario

Brown, Trotter and Paciocco JJ.A.

October 20, 2020

152 O.R. (3d) 650 | 2020 ONCA 657

Case Summary

Criminal law — Sentencing — Aboriginal offenders — Aggravated sexual assault — Accused randomly attacking a stranger and pleading guilty to aggravated sexual assault — Crown raising doubt about accused's claimed Inuit heritage — Sentencing judge assuming that accused had aboriginal heritage but finding that the issue was moot due to seriousness of offence and imposing sentence of 12 years — Accused's appeal from sentence dismissed — Sentencing judge not entitled to disregard Gladue principles, but error did not result in an unfit sentence — Judge was correct to emphasize deterrence and denunciation over restraint, and properly balanced elements relating to proportionality.

The appellant attacked a woman who had been walking home from work at night. He struck her, choked her into unconsciousness and then raped her. The victim suffered extensive physical injuries having a profound psychological impact. The appellant pleaded guilty to aggravated sexual assault. A pre-sentence report indicated that the appellant had endured a very difficult upbringing, having been raised in an unstable home by an alcoholic mother before being placed into care, and with no relationship with his biological father. A psychological assessment revealed that the appellant had a moderate to moderate-high risk to [page651] re-offend. He had no memory of the incident and the trigger for the attack was unknown, but it was clear that alcohol played some role in the offence. There was some confusion over the appellant's aboriginal heritage. The appellant identified an Inuit man as his father, but an individual who was not aboriginal signed his birth certificate as the father. The appellant's testimony at the sentencing hearing created further confusion when he said that his mother had Métis heritage. The sentencing judge indicated that the issues regarding the appellant's aboriginal heritage were "somewhat moot" and "eclipsed" because of the seriousness of the offence. The judge characterized the appellant's conduct as a horrific crime and noted that there was no explanation for the attack. He sentenced the appellant to 12 years' imprisonment less 75 months' credit for pre-trial custody. The appellant appealed the sentence.

Held, the appeal should be dismissed.

The sentencing judge misapplied the Gladue principles, but his error did not result in an unfit sentence. Although the judge's reasons revealed an in-depth appreciation of the remedial purposes of Gladue, and the judge properly was prepared to assume that the appellant had Inuit heritage, it would have been preferable had the judge made an explicit finding about the appellant's parentage and, if satisfied that Gladue was in play, applied its principles. The gravity of the offence did not, and could not, render the circumstances relating to the appellant's Indigenous heritage moot. The impact of Gladue factors might vary in any given case but the method of analysis did not. However, the impact of the appellant's Inuit ancestry on his moral blameworthiness did not outweigh the egregious nature of his attack on a vulnerable, unsuspecting stranger. In the circumstances, 12 years' imprisonment was a fit sentence.

The sentencing judge did not fail to apply the principle of proportionality. Although he did not make specific reference to that principle, it was evident from his reasons that he properly balanced the elements driving proportionality. He was aware of the appellant's unfortunate background, as well as his difficult relationship with alcohol, which appeared to have been a factor in the attack. However, those circumstances were overtaken by the gravity of the offence and the far-reaching harm that it caused.

The sentencing judge was right to emphasize denunciation and deterrence over the principle of restraint. The judge noted the appellant's minimal criminal record and sentencing history, the fact that he accepted responsibility for the offence, and his engagement with prison rehabilitation programs. However, a random attack on an innocent stranger called for a sentence where denunciation and deterrence took precedence.

R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402, REJB 1999-11962, 1999 CCAN para. 10,017; R. v. Ipeelee (2012), 113 O.R. (3d) 320, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, J.E. 2012-661, 318 B.C.A.C. 1, 288 O.A.C. 224, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 91 C.R. (6th) 1, 99 W.C.B. (2d) 642, EYB 2012-204040, 2012 CCAN para. 10,014, 2012EXP-1208; R. v. Reesor, [2019] O.J. No. 5744, 2019 ONCA 901, apld

R. v. Anderson, [2012] O.J. No. 2473, 2012 ONCA 373, 102 W.C.B. (2d) 551, 292 O.A.C. 365; R. v. Kavanagh, [2009] O.J. No. 4504, 2009 ONCA 759, 255 O.A.C. 285; R. v. Last, [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, 2009 SCC 45, EYB 2009-164847, J.E. 2009-1893, 247 C.C.C. (3d) 449, 394 N.R. 78, 311 D.L.R. (4th) 193, 69 C.R. (6th) 1, 255 O.A.C. 334, revg (2008), 91 O.R. (3d) 561, [2008] O.J. No. 3208, 2008 ONCA 593, 268 O.A.C. 289, 79 W.C.B. (2d) 277, 236 C.C.C. (3d) 231, consd [page652]

Other cases referred to

R. v. Altiman, [2019] O.J. No. 3216, 2019 ONCA 511, 56 C.R. (7th) 83; R. v. C. (E.), [2019] O.J. No. 4460, 2019 ONCA 688; R. v. Collins (2011), 104 O.R. (3d) 241, [2011] O.J. No. 978, 2011 ONCA 182, 277 O.A.C. 88, [2011] 2 C.N.L.R. 256, 271 C.C.C. (3d) 403, 93 W.C.B. (2d) 305, 85 C.R. (6th) 275; R. v. Friesen, [2019] S.C.J. No 100, 2020 SCC 9, 444 D.L.R. (4th) 1, 62 C.R. (7th) 1, 2020EXP-902, EYB 2020-350618; R. v. Fraser, [2016] O.J. No. 5253, 2016 ONCA 745, 134 W.C.B. (2d) 16, 33 C.R. (7th) 205; R. v. Henderson, [2018] O.J. No. 3158, 2018 ONSC 3550; R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346, 214 O.A.C. 127, 211 C.C.C. (3d) 289, 40 C.R. (6th) 383, 70 W.C.B. (2d) 470 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 34]; R. v. Kreko (2016), 131 O.R. (3d) 685, [2016] O.J. No 2552, 2016 ONCA 367, 130 W.C.B. (2d) 477, 349 O.A.C. 227; R. v. L. (F.H.), [2018] O.J. No. 482, 2018 ONCA 83, 360 C.C.C. (3d) 189, 145 W.C.B. (2d) 423, 44 C.R. (7th) 21; R. v. Monckton, [2017] O.J. No. 2856, 2017 ONCA 450, 349 C.C.C. (3d) 90, 139 W.C.B. (2d) 530; R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, 385 D.L.R. (4th) 1, 469 N.R. 1, J.E. 2015-622, 332 O.A.C. 208, 322 C.C.C. (3d) 149, 18 C.R. (7th) 227, 332 C.R.R. (2d) 128, 121 W.C.B. (2d) 117, EYB 2015-250517, 2015 CCAN para. 10,025, 2015EXP-1133; R. v. Radcliffe, [2017] O.J. No. 1060, 2017 ONCA 176, 347 C.C.C. (3d) 3, 137 W.C.B. (2d) 390 [Leave to S.C.C. refused [2017] S.C.C.A. No. 274]; R. v. Swampy, [2017] A.J. No. 429, 2017 ABCA 134, 347 C.C.C. (3d) 105, 50 Alta. L.R. (6th) 240, [2017] 12 W.W.R. 765, 138 W.C.B. (2d) 472; R. v. T. (K.), [2002] O.J. No 4649, 2002 CarswellOnt 4074 (C.J.); R. v. Trumpa, [2017] O.J. No. 5230, 2017 ONSC 5966; R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, J.E. 2000-414, 250 A.R. 273, 141 C.C.C. (3d) 368, [2000] 2 C.N.L.R. 274, 30 C.R. (5th) 254, 45 W.C.B. (2d) 80

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 272(2) (b), 718.1 [as am.], 718.2(e) [as am.], Part XXIV [as am.]

APPEAL by the accused from the sentence imposed by Whitten J., 2016 ONSC 5854 for aggravated sexual assault.

Nathan Gorham and Breana Vandebeek, for appellant.

Samuel Greene, for respondent.

The judgment of the court was delivered by

[1] TROTTER J.A.: — The appellant, Daryle Brown, attacked and raped a woman at random in August 2012. He entered a plea of guilty to aggravated sexual assault, contrary to s. 272(2) (b) of the Criminal Code, R.S.C. 1985, c. C-46, and was sentenced to imprisonment for 12 years, less credit for pre-sentence custody ("PSC"). He appeals his sentence.

[2] The appellant submits that the sentencing judge failed to properly consider his Inuit heritage in accordance with R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, and did not give effect to the principles of proportionality and restraint, resulting in a sentence that was unduly harsh. The respondent argues that [page653] the sentencing judge did not err in his consideration of Gladue factors or in his application of sentencing principles.

[3] In the following reasons, I explain why I would grant leave to appeal but dismiss the appeal. While I agree that the sentencing judge erred in his application of Gladue principles, I am satisfied that the sentence he ultimately imposed is fit in the circumstances of this case.

A. The Facts of the Offence

[4] The appellant's attack on the victim took place in the early morning hours of August 9, 2012 in Brantford, Ontario. The appellant had been drinking excessively the previous evening. He got into a fight with a group of men he encountered and sustained considerable injuries. The appellant said that he went home and lost consciousness after walking into a wall. Paramedics took him to the hospital where his blood alcohol level was measured at 198 milligrams of alcohol in 100 millilitres of blood. The appellant's former foster mother drove him home from the hospital. He has no memory of what happened from this point forward.

[5] At some point after being driven home, the appellant ventured out into the night. While out, the appellant found and followed two women as they walked to their respective homes.

[6] He began following the first woman after she left a coffee shop in downtown Brantford. Nervous about being followed, this woman walked towards a couple who were going the same way. The appellant continued to follow. The woman walked past the couple and went to a convenience store, but it was closed. She knew that the people who ran the convenience store lived in an adjoining house. She walked towards the house. The couple she had passed on the street walked in the same direction. Suddenly, the appellant appeared out of nowhere and moved towards her. However, he backed off when he noticed other people around. The couple realized the seriousness of the situation and took the woman to their home to retrieve their dog and a baseball bat. From their porch, they saw the appellant from a distance in the bushes.

[7] Shortly after this disturbing encounter, the appellant turned his attention to the victim. She had just left her job at a restaurant to walk home. Suddenly, the appellant "jumped up" on her. He grabbed her by the neck and twisted her head from side to side. He bashed the victim's head against some rocks and then choked her until she was unconscious. When the victim regained consciousness, she noticed that the assailant had removed her pants and underwear. She had been raped. The victim described feeling intense pain; as she said in her Victim Impact Statement: [page654] "It felt as though my head had been struck by a wrecking ball." The appellant had also stolen the victim's identification and credit cards, which were never recovered. She was able to get herself to safety at a nearby gas station, leaving a trail of blood behind.

[8] The victim suffered horrible injuries. She required 100 stitches to her head. She had cuts and bruises on her face that caused her eyes to swell shut. She could not see for days, nor could she speak because her tongue was so swollen. The victim also suffered neck injuries, vertigo and a torn rotator cuff. She remained in the hospital for a week. Even a year later, she was required to return to the doctor to have a rock fragment removed from her head.

[9] The psychological impact on the victim was profound. She suffered from post-traumatic stress disorder and has trouble sleeping. She is always on hyper-alert and afraid of social situations. In her Victim Impact Statement, the victim detailed the many ways that this attack impacted her day-to-day life.

B. The Sentencing Proceedings

[10] This case took a long time to resolve. It would not be until November 30, 2015 that the appellant entered his guilty plea, more than three years after the offence. Another year passed while the Crown considered commencing dangerous offender proceedings under Part XXIV of the Criminal Code. Ultimately, the Crown decided not to pursue this course. Nonetheless, a great deal of information was gathered about the appellant. The sentencing judge received a Pre-Sentence Report ("PSR"), a Gladue Report and a psychological assessment. The appellant also testified during the sentencing hearing.

[11] From the information gathered, a picture emerged of a person who had endured a very difficult upbringing. The PSR summarized the appellant's history as follows:

The subject was raised in an unstable home and negative environment. His mother was an alcoholic, he had no relationship with his biological father and lacked a positive father figure. He was a victim and a witness to violence in the home. He was neglected by his mother and was placed into care as a youth. The subject has no support from his family members but does have positive support from his ex-partner and past foster mother.

[12] While in care, the appellant had his first encounter with the criminal justice system. He was convicted of sexual assault and mischief in relation to a foster sister. He testified at the sentencing hearing that the touching was accidental and that he entered a plea of guilty on the advice of his lawyer. [page655]

[13] The appellant was 25 years old when he was sentenced for the offence before the court. By that point, he had children of his own. He is currently 29.

[14] At the sentencing hearing, there was evidence that the appellant accepted responsibility for his actions, even though he had no memory of them. He also expressed remorse.

[15] It is clear that alcohol played some role in the offence. The degree to which the appellant struggles with alcohol in general is less clear, owing to his inconsistent reporting on his relationship with alcohol. However, the preponderance of information suggested that the appellant has an alcohol problem. He attended a number of treatment programs for alcohol dependency while in PSC, including Alcoholics Anonymous.

[16] There were serious concerns about recidivism in this case. There is still no explanation for the events of that night. The trigger of the appellant's behaviour remains unknown. Accordingly, it is unsurprising that the psychological assessment of the appellant revealed that he had a "moderate to moderate-high risk to re-offend in a sexual manner". Likewise, a psychiatrist concluded that he was a "high-moderate risk to re-offend".

[17] An issue that eluded clarity at the proceedings related to the appellant's lineage. After receiving the Gladue Report, the Crown disputed the appellant's assertion that he is indeed Inuit. He submitted that establishing one's Indigenous heritage is a pre-condition to the application of principles established in Gladue and subsequent cases.

[18] Understandably, a good deal of the appellant's knowledge about his heritage came from his mother and the person the appellant believes is his father: Lyle Thompson. Mr. Thompson is Inuit. The appellant's mother and other family members have insisted to the appellant that Mr. Thompson is his biological father. Confusion arose because the father of the appellant's stepsister, Darren Lamb, who apparently is not Indigenous, signed the appellant's birth certificate as his father. The appellant testified that, by the time he was born, Mr. Thompson was no longer in the picture and his mother was with Mr. Lamb. According to the appellant, Mr. Lamb signed his birth certificate without his mother's knowledge. The appellant said in his testimony: "My mom was with Darren Lamb when I was born and that's about it. That's all I know." Mr. Lamb has never told the appellant that he is his father.

[19] The appellant met Mr. Thompson when he was 18. He testified that they share the same facial characteristics, hair colour and skin tone. He learned that he has two half-sisters and one half-brother from his father. [page656]

[20] The appellant relayed to the author of the Gladue Report an argument he had with Mr. Thompson long ago, which ended with Mr. Thompson telling him: "You're not my son so fuck off." The Crown relied heavily upon this utterance in maintaining that Gladue principles did not apply. The appellant testified that this comment was said in the throes of anger.

[21] The author of the Gladue Report interviewed the appellant's aunt; an aunt whom he had never met, and who was Mr. Thompson's sister. She relayed that she and Mr. Thompson are Inuit from the Western Arctic. Their family has a deep history of trauma stemming from colonial state policies. The appellant's aunt reported that both of her parents spent the majority of their childhoods and adolescences in residential school. Likewise, Mr. Thompson and the appellant's aunt were forcibly separated from their family and community while they were children. She had attended residential school and Mr. Thompson was "scooped" in the 1970s; that is, he was adopted into a non-Indigenous family. According to the appellant's aunt, Mr. Thompson struggled with identity issues and had trouble connecting with his family when he eventually returned for visits.

[22] The appellant's testimony created further confusion when he said that his mother has Métis heritage. The appellant did not relay this information to the author of the Gladue Report. In his testimony, the appellant explained that, at the time that he was interviewed by the Gladue Report writer, he did not know about his mother's lineage.

[23] Unfortunately, neither the appellant's mother nor Mr. Thompson were able to testify at the sentencing hearing. Both were in British Columbia at the time and unable to get to Ontario.

[24] Another issue to be resolved was the question of credit for time spent in PSC. The appellant testified about the conditions he experienced while in PSC. He was triple-bunked on occasion, in cells with no toilets. This resulted in inmates having to call a guard to be escorted to the washroom. If an inmate could not wait, he would urinate into a used potato chip bag, a towel, or on the floor.

[25] The appellant also filed a letter from a retired chaplain who had more than 21 sessions with him while in PSC. The chaplain reported that the appellant had participated in Alcoholics Anonymous, another substance abuse program, as well as various Christian-based programs. He described the appellant as a "model inmate".

[26] At the sentencing hearing, the Crown sought a penitentiary sentence of 12-15 years, less credit for 50 months of PSC on [page657] a 1:1 basis. The appellant sought a sentence of six to eight years' imprisonment, less credit on a 1.5:1 basis.

C. The Reasons of the Sentencing Judge

[27] The sentencing judge provided detailed reasons for the sentence imposed. He reviewed the facts of the offence as well as the materials referred to above. He considered in some detail the conflicting materials bearing on the appellant's background; an issue I return to below.

[28] In terms of PSC, the sentencing judge acceded to the defence position and credited the appellant with 50 months on a 1.5:1 basis to produce a total credit of 75 months (or six years and three months).

[29] The sentencing judge considered a number of decisions from this court, namely, R. v. Last (2008), 91 O.R. (3d) 561, [2008] O.J. No. 3208, 2008 ONCA 593, revd on other grounds [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, 2009 SCC 45; R. v. Kavanagh, [2009] O.J. No. 4504, 2009 ONCA 759, 255 O.A.C. 285; and R. v. Anderson, [2012] O.J. No. 2473, 2012 ONCA 373, 292 O.A.C. 365. From these cases, he charted the following approach:

When crafting a sentence for a sexual assault, a jurist may consider this non-exhaustive list of factors that emerge from precedent:

(a) The degree of brutality or violence employed in the assault;

(b) Steps taken by the perpetrator to overcome the resistance of the victim;

(c) The resulting emotional and physical injuries to the victim, both in the short run and in the long run;

(d) The degree of degradation of the victim;

(e) The vulnerability of the victim;

(f) The risk of the victim contracting a sexually transmitted disease or becoming pregnant;

(g) The risk of reoffending or possibility of future dangerousness; and

(h) Any explanation for the accused's conduct.

[30] The trial judge characterized the appellant's conduct as a "horrific crime perpetrated on a vulnerable young woman, a complete stranger, while she was walking home after having completed her shift at a fast food outlet". He noted that the photos of the victim in her hospital bed are horrific. The sentencing judge observed that, "There was absolutely no explanation for the attack, aside from the fact that the accused appeared to be on the prowl." As he said, at paras. 102-103: [page658]

The random nature of this attack would inevitably cause one to think, in the absence of an explanation, why would this not happen again? There were no predictors of this behaviour. The accused was convicted of sexual assault as a youth: he minimized his culpability and he pled because he had acted in accordance with his lawyer's advice. But that latter conviction was so far removed from the magnitude of what transpired in this case.

What is the explanation, for this massive acceleration of dangerousness? No wonder Dr. Chaimovitz concludes that Mr. Brown is of moderate to high risk to reoffend.

[31] As described above, the sentencing judge imposed a sentence of 12 years' imprisonment less 75 months' credit for time served in PSC.

D. Issues on Appeal

(1) The principles in Gladue

(a) The positions of the parties

[32] The appellant submits that the sentencing judge misapplied the principles in Gladue by concluding that the seriousness of his offending precluded the consideration of his Inuit background. The appellant relies on the following passage from the sentencing judge's reasons, at paras. 72-73, which was the last thing he said about this issue:

Having observed that there is minimal connection between Mr. Brown and his alleged aboriginal roots and that there is some issue as to his being identified as an aboriginal, it must be said that these issues are somewhat moot because of the seriousness of the offence that he committed.

In R. v. Gladue, at paras. 78-80, the Court recognized that there are some offences of such seriousness and violence that, as a practical reality, the seriousness of the offence demands a sentence of imprisonment, irrespective of the person's aboriginal heritage. In other words, any effort to distinguish the circumstances of the aboriginal becomes eclipsed by the circumstances of the offence. This is such a case.

(Emphasis added)

[33] The appellant submits that the error lies in reading Gladue in isolation. The sentencing judge referred to a passage from that decision in which Cory and Iacobucci JJ. said the following, at para. 79:

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [page659]

(Emphasis added)

[34] Subsequently, in R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, the Supreme Court clarified whether Gladue applies to sentencing decisions for violent or serious offences. Writing for the majority, LeBel J. observed that courts have misunderstood the above quoted passage from Gladue. As he wrote, at paras. 84-85:

Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.)).

Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue, at para. 82).

(Emphasis added)

See, also, R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, at para. 50.

[35] The respondent submits that the sentencing judge made no error in his approach to this issue. According to the respondent, the appellant relies on a single phrase of the sentencing judge's reasons -- "these issues are somewhat moot because of the seriousness of the offence" -- out of context. The respondent presents a different interpretation of this statement: what the sentencing judge was really saying was, whether the appellant was in fact an Indigenous offender was "moot", because he was prepared to assume that he was Indigenous for the purposes of sentencing.

[36] The respondent also relies upon this court's decision in R. v. Altiman, [2019] O.J. No. 3216, 2019 ONCA 511, 56 C.R. (7th) 83, in which the sentencing judge was alleged to have made the same error in this case. The court rejected this submission. As Brown J.A. said, at para. 84:

While the sentencing judge's reasons would have benefitted from a reference to Ipeelee's clarification of Gladue on this point, his are not the only reasons to have lacked that completeness. For example, this court in R. v. Fraser, 2016 ONCA 745, referred to the passage in Gladue about the seriousness of the offence without also mentioning Ipeelee: at para. 26.

[37] Lastly, it is the respondent's position that, irrespective of any error, the sentence was otherwise fit.

(b) Analysis

[38] The sentencing judge's reasons reveal an in-depth appreciation of the remedial purposes of Gladue. He recognized that [page660] s. 718.2 (e) of the Criminal Code is "designed to address the overrepresentation of aboriginals in the prison system". He also commented on how colonial policies, such as residential schools and the phenomenon of "scooping", resulted in "the destruction of aboriginal culture and the social handicapping of aboriginal peoples".

[39] The sentencing judge also understood that these circumstances must be taken into consideration in the sentencing of an Indigenous offender, noting that "Jurists must recognize the negative aspects of this colonization on the lives of aboriginal offenders appearing before them." He specifically referred to Ipeelee for the proposition that courts must consider background factors that may have played a role in the offence coming before the court, without requiring "the offender to establish a direct causal link between his circumstances". It was from this vantage point that the sentencing judge evaluated the appellant's asserted Inuit heritage.

[40] However, the sentencing judge's application of this important framework became distorted by his reference to the mootness of the appellant's lineage as it related to the severity of the offence. The impugned passage suggests that it did not really matter whether the appellant was Inuit because it could have no effect on the sentence. As discussed below, although the appellant's Inuit heritage may not have had any tangible impact on the sentence imposed, it was still important to the mode of analysis required by the Gladue line of cases.

[41] It would have been preferable had the trial judge (1) made an explicit finding about the appellant's parentage; and (2) if satisfied that Gladue was in play, applied the principles in accordance with Gladue and Ipeelee.

[42] As for parentage, the respondent is correct that the sentencing judge seemed prepared to assume, for the purpose of the Gladue analysis, that Mr. Thompson was the appellant's father and that the appellant had Inuit heritage. The sentencing judge addressed the conflicting evidence around the appellant's identity as follows, at para. 69:

The jurist has to take a practical approach to ensure that the Gladue principles are honoured. The inconsistent evidence as to the parentage of Mr. Brown, and his lack of aboriginal documentation, may very well be a function of his obviously chaotic childhood flowing from having an alcoholic mother with several partners. It also may be due to inconsistent recording of lineage, since a big component of aboriginal history is oral. To compel Mr. Brown to provide direct documentary evidence, even to establish on a balance of probabilities his parentage, simply may not be realistic or doable. [page661]

[43] I see no error in this approach. The appellant has been told his whole life that Mr. Thompson was his father. There is no other reason that the appellant would have tracked down Mr. Thompson when he was 18. Moreover, to require the appellant to prove his heritage in these circumstances would create an undue evidentiary burden that is inconsistent with the overarching remedial purposes of s. 718.2(e). Again, it would have been preferable had the sentencing judge made an explicit factual finding on this issue. Nonetheless, I would likewise proceed on the same basis that the appellant is of Inuit heritage.

[44] In terms of the application of Gladue principles, I am satisfied that the sentencing judge made the Ipeelee error that the appellant identifies. With respect, I cannot accept the respondent's interpretation of the passage from the sentencing judge's reasons, reproduced in para. 32, above. The appellant's submission is not predicated on a single phrase, as the respondent submits. The "somewhat moot" passage was followed by a paragraph that cited the very part of Gladue that was clarified in Ipeelee. The sentencing judge concluded that paragraph by saying that the circumstances related to the appellant's Indigeneity were "eclipsed" by the circumstances of the offence in this case.

[45] The gravity of the offence did not, and could not, render the circumstances relating to the appellant's Indigenous heritage "moot". Rather, Gladue and its progeny prescribe a different method of analysis in determining a fit sentence for Indigenous offenders, which must be followed regardless of the severity of the offence at hand: Ipeelee, para. 59. Put another way, the impact of Gladue factors may vary in any given case but the method of analysis does not. The application of Gladue factors is always necessary to achieve a proportionate sentence for Indigenous offenders, and a failure to do so warrants appellate intervention: R. v. Swampy, [2017] A.J. No. 429, 2017 ABCA 134, 347 C.C.C. (3d) 105, at paras. 26 and 36; Ipeelee, at para. 44. Considering the sentencing judge's words at face value, and in the context of his reasons as a whole, I am left to conclude that he failed to adhere to this aspect of the Gladue principles.

[46] That said, this type of error is not necessarily fatal. Granted, the sentencing judge's reasons are not entitled to the customary appellate deference that they would normally attract; this court is required to consider the fitness of sentence afresh: see R. v. L. (F.H.), [2018] O.J. No. 482, 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 36; R. v. Collins (2011), 104 O.R. (3d) 241, [2011] O.J. No. 978, 2011 ONCA 182, at para. 38; R. v. Fraser, [2016] O.J. No. 5253, 2016 ONCA 745, 33 C.R. (7th) 205, at para. 20. However, a re-assessment on appeal need not lead to a different [page662] outcome: see L. (F.H.), at paras. 36-37; R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346, at para. 58, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 34; and Swampy, at paras. 37-38.

[47] Looking at this aspect of the case afresh, I am satisfied that 12 years' imprisonment is a fit sentence. The impact of the appellant's Inuit ancestry on his moral blameworthiness does not outweigh the egregious nature of the appellant's attack on a vulnerable, unsuspecting stranger.

[48] An accused person is not required to draw a straight line between Aboriginal status and the offences for which he or she is being sentenced: see Ipeelee, at paras. 82-83; R. v. Kreko (2016), 131 O.R. (3d) 685, [2016] O.J. No. 2552, 2016 ONCA 367, at paras. 21-22. Such a requirement "imposes an evidentiary burden on offenders that was not intended by Gladue": Ipeelee, at para. 82. However, more is required than the bare assertion of Aboriginal status: R. v. Monckton, [2017] O.J. No. 2856, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115; L. (F.H.), at para. 38; R. v. C. (E.), [2019] O.J. No. 4460, 2019 ONCA 688, at para. 16.

[49] This court's decision in R. v. Radcliffe, [2017] O.J. No. 1060, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 274 outlines what more is required. Drawing on the framework in Ipeelee, Watt J.A. said the following, at paras. 54-55:

Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.

(Emphasis added)

See, also, L. (F.H.), at paras. 40-41.

[50] In determining the extent to which Gladue factors bear on an offender's culpability, the court must consider whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": L. (F.H.), at para. 45. Put another way, the sentencing judge must determine the degree to which unique circumstances related to the offender's background played [page663] a part in bringing that offender before the court. This is necessarily a case-specific inquiry.

[51] The extent to which an Indigenous offender's unique circumstances mitigate moral culpability is a matter of degree. Here, the appellant's potential loss of a father figure comes to bear on his blameworthiness in that it may have affected his positive development in childhood and adolescence. In that sense, I agree with the sentencing judge's finding that the appellant can be seen as a "recipient of the trickle down effects of the colonization referred to [in] R. v Gladue".

[52] However, beyond that, the sentencing judge found that the appellant's connection to his Inuit heritage was remote at best. While his father's absence played a role in the appellant's traumatic upbringing, the tumultuous nature of his childhood is more likely attributed elsewhere. His mother struggled with alcoholism and had a series of abusive partners, one of whom apparently strangled him to the point of unconsciousness on multiple occasions. He had his first drink at age seven, at the behest of one of his mother's partners. He recalls lacking proper food and clothing. The Children's Aid Society apprehended the appellant at the vulnerable age of ten. He had limited contact with his biological mother for the remainder of his adolescence.

[53] The appellant's traumatic upbringing is more likely attributed to an unstable and abusive home that went well beyond any impact of the appellant's father. It did not rise from the general to the specific in a way that diminished his moral culpability to a degree that it ought to have any impact on the sentence imposed: see Altiman, at para. 114. This was a case that required a sentence driven by the principles of denunciation and deterrence: see L. (F.H.), at paras. 50-51.

[54] In assessing this aspect of the case afresh, I agree with the sentencing judge's ultimate conclusion that 12 years is a fit sentence, notwithstanding his error in principle. I would not interfere with the sentence on this basis.

(2) The principle of proportionality

[55] The appellant submits that the trial judge failed to apply the principle of proportionality. To a large extent, this ground of appeal overlaps with the appellant's previous ground of appeal. This ground of appeal also relies on the same factors that relate to the appellant's moral blameworthiness, such as a difficult upbringing and his struggle with alcohol.

[56] Proportionality is the fundamental principle of sentencing in Canada, reflected in s. 718.1 of the Criminal Code, which provides: [page664]

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[57] In R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, at para. 42, LeBel J. described proportionality as serving a limiting or restraining function. He also observed that proportionality aligns with a just deserts approach to sentencing, which requires that an offender be held accountable and that "the sentence properly reflects and condemns their role in the offence and the harm they caused": para. 42. Synthesizing these conceptual strands, LeBel J. explained, at para. 42:

Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

(Emphasis added)

See, also, Ipeelee, at para. 37.

[58] In R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, McLachlin C.J.C. said that "imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime": para. 43.

[59] Sexual offences raise particular considerations in the proportionality analysis. In R. v. Friesen, [2019] S.C.J. No. 100, 2020 SCC 9, 444 D.L.R. (4th) 1, the Supreme Court said, at para. 75: "In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence." There is no reason to think that it does not also apply to sexual offences at large. As the Supreme Court observed, "taking the harmfulness of these offences into account ensures that the sentence fully reflects the 'life-altering consequences' that can and often do flow from the sexual violence": Friesen, at para. 74.

[60] In this case, the sentencing judge did not make specific reference to the principle of proportionality. However, reading his reasons as a whole, it is evident that he properly balanced the elements that drive proportionality. He was aware of the appellant's unfortunate background, as well as his difficult relationship with alcohol, which appeared to have been a factor on the night that he attacked the victim.

[61] However, these circumstances were clearly overtaken by the gravity of the offence and the harm that it caused. The appellant stalked two randomly chosen women that night. One got [page665] away; the other did not. As the sentencing judge said, the attack was horrific, with devastating physical and psychological repercussions for the victim.

[62] Moreover, the harm caused by this type of offending -- when women are attacked at random -- is far-reaching. A random attack on an innocent stranger shakes the community. It breeds fear that anyone is a potential target. This is rightly considered an aggravating factor in sentencing: see R. v. Henderson, [2018] O.J. No. 3158, 2018 ONSC 3550, at p. 15; R. v. Trumpa, [2017] O.J. No. 5230, 2017 ONSC 5966, at para. 27; R. v. T. (K.), [2002] O.J. No. 4649, 2002 CarswellOnt 4074 (C.J.), at paras. 18, 24. This feature of the appellant's offending adds to his moral blameworthiness through the harm that it caused. It naturally calls for a sentence that emphasizes denunciation and deterrence.

[63] Relatedly, the sentencing judge observed that the appellant's behaviour that night was completely unexplained. This was a factor that contributed to his unfavourable risk assessments; it is relevant to the principle of proportionality.

[64] I am satisfied that the trial judge took all of these factors into account in arriving at the sentence that he did. It was not disproportionate.

(3) The principle of restraint

[65] The appellant submits that, given the appellant's minimal criminal record and sentencing history, the sentence imposed did not reflect the appropriate degree of restraint. The appellant points to the fact that he accepted responsibility for committing the offence, a prison chaplain described him as a "model inmate", and the appellant was committed to rehabilitating himself by engaging in prison programs, including Alcoholics Anonymous.

[66] The sentencing judge noted these factors in his reasons. However, he was dubious of the appellant's sincerity, especially in light of the psychological report that suggested the appellant's self-reporting may not be accurate because of a "trait like tendency towards positive impression management". In other words, the appellant has a reluctance "to acknowledge personal shortcomings that most would admit to".

[67] In the end, given the unexplained and random nature of the attack, the sentencing judge was right to place great emphasis on the principles of general deterrence and denunciation, over that of restraint. As this court said in R. v. Reesor, [2019] O.J. No. 5744, 2019 ONCA 901, at para. 8:

The principle of restraint, like all principles of sentencing, operates in conjunction with other principles that often pull in a different direction. For offences like this, particularly committed in the context of domestic violence, [page666] the restraint principle must, as the trial judge noted, yield, to a large degree, to concerns associated with deterrence, denunciation and protection of the victim. A significant penitentiary sentence was necessary in this case.

The same approach was warranted in the context of this case of random sexual violence against a stranger.

[68] Thus, I am satisfied that the principles of deterrence and denunciation must take precedence over the principle of restraint in this case.

(4) The appropriate sentence in this case

[69] Before the sentencing judge, the appellant's counsel submitted that a sentence of six to eight years was appropriate; on appeal, the appellant submits that his sentence should be reduced to eight years.

[70] There is no doubt that the appellant received a significant custodial sentence. However, the circumstances in this case undeniably called for it. The cases from this court that the sentencing judge cited (i.e., Last, Kavanaugh and Anderson) justify the approach of the sentencing judge.

[71] The appellant attempts to distinguish these cases in various ways. But as Lang J.A. said in Last, at para. 72, "it is difficult to compare sentences in the disparate circumstances of offences and offenders". There are some differences between this case and the cases cited by the sentencing judge. However, they share an important similarity with this case: they all call out for exemplary sentences that properly reflect the wrongfulness inherent in sexual violence, and the harm that it causes to the victims and to our society at large.

[72] Lastly, the appellant submits that the sentencing judge erred in not awarding greater credit for PSC due to overcrowding. The respondent received exactly what he asked for -- credit on a 1.5:1 basis. The appellant has identified no error in the sentencing judge's approach to this issue. There is no basis to intervene on appeal.

E. Disposition

[73] I would grant leave to appeal sentence, but I would dismiss the appeal.

Appeal dismissed.

End of Document