WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO DATE: 20230920 DOCKET: C69348

Huscroft, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Appellant

and

R.S. Respondent

Counsel: Andrew Hotke, for the appellant Anthony Marchetti, for the respondent

Heard: July 14, 2023

On appeal from the sentence imposed on March 29, 2021 by Justice Shaun S. Nakatsuru of the Superior Court of Justice, with reasons reported at 2021 ONSC 2263.

Huscroft J.A.:

OVERVIEW

[1] R.S. committed a violent sexual assault on the victim at her apartment. The sentencing judge described it this way in his reasons for sentence:

At her basement apartment, [the victim]’s initial memory was hazy. Her first recollection was standing in front of her fridge in the darkened apartment. She recalled hitting the fridge and then going to the ground with R.S. on top of her. His hands were all over her, touching her, and undoing her pants and underwear. She felt intense biting or sucking on her abdomen. R.S. removed her tampon from her vagina. [The victim] told R.S. to stop. She said “No” repeatedly. R.S. continued and digitally penetrated her. She attempted to get away using her feet. R.S. grabbed her throat and squeezed hard. [The victim] panicked and saw stars. She grabbed his hand on her throat and he stopped. She then recalled being up on her feet by the kitchen counter. R.S. came up behind her, pushed her over the counter, and told her he wanted to fuck her hard.

The sexual assault stopped only because it was interrupted by the victim’s upstairs neighbour.

[2] R.S. was found guilty following a jury trial and convicted of sexual assault and choking with intent to overcome resistance. [1] He was sentenced to a conditional sentence of two years less a day followed by two years of probation (for the sexual assault) and 90 days of custody to be served intermittently (for the choking), concurrent to the conditional sentence.

[3] The Crown argues that the sentence is demonstrably unfit. I agree.

[4] As I will explain, although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases such as this. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5-year range for such offences, as this court explained recently in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721.

[5] The sentence for the sexual assault conviction in this case is not only below the penitentiary range, it does not involve any institutional imprisonment. A conditional sentence is not proportionate to the serious offences committed by the respondent and is not justified by the principles from R. v. Gladue, [1999] 1 S.C.R. 688, on which the sentencing judge relied. The sentence is demonstrably unfit.

[6] In normal circumstances, I would allow the appeal and substitute a global sentence of 3 years’ imprisonment for the sexual assault and choking offences, a sentence at the low end of the range that gives effect to the Gladue principles. However, R.S. has completed serving the conditional sentence and 90-day intermittent sentence imposed by the sentencing judge and is presently serving his probation. In these circumstances, reincarceration would not be in the interests of justice. A penitentiary sentence could be imposed, but stayed, but if this course of action were taken R.S.’s actual sentence would be reduced, as a probationary period cannot attach to a custodial sentence over two years in length. Accordingly, despite my conclusion that the sentence imposed was demonstrably unfit, I would dismiss the appeal, thus leaving the probation and related orders in place.

BACKGROUND

[7] R.S. and the victim met at their office building in 2015 and became friends. They would meet up to watch movies and attend hockey games. They were sexually intimate on two occasions prior to December 25, 2017.

[8] The sexual assault occurred on March 25, 2018 at the victim’s apartment, following an evening she had spent with R.S. They had gone to a hockey game, had drinks at a restaurant, and went to the victim’s apartment afterwards. R.S. was going to help the victim prepare for a job interview she had the next day.

[9] R.S. sexually assaulted the victim just following their arrival at the apartment. He tackled her from behind as she walked toward her refrigerator. While on top of the victim, he aggressively removed her pants and underwear, bit or sucked on her abdomen, removed a tampon from her vagina, and digitally penetrated her. All of this happened over the victim’s pleas to stop. She said “no” repeatedly. The victim attempted to get away, but R.S. responded by grabbing her throat and squeezing hard. He stopped choking her when she grabbed his hand. R.S. then pushed her over the kitchen counter, telling her he wanted to “fuck her hard”.

[10] A neighbour from the upstairs apartment interrupted the sexual assault. She heard noises that sounded like someone was in distress and opened the door to the victim’s apartment. She asked the victim if she was okay, and R.S. replied that they were fine. The neighbour hurriedly excused herself.

[11] R.S. did not resume the sexual assault. The victim went to her bed, cried, and lay in a fetal position. R.S. eventually left her apartment. The sexual assault left the victim with a red mark and bruising on her neck and stomach. The victim called the police later that night.

THE SENTENCING JUDGE’S DECISION

[12] R.S. sought a conditional sentence of 18 months to 2 years less a day. At the time, s. 742.1(f)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, precluded conditional sentences for sexual assault, so R.S. brought an application for a declaration that the legislation was of no force or effect on the basis that it infringed ss. 7 and 15 of the Charter and was not justified under s. 1.

[13] Applying the decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, rev’d 2022 SCC 39, the sentencing judge declared s. 742.1(f)(iii) to be of no force and effect. This made a conditional sentence available.

[14] The sentencing judge reviewed R.S.’s background, including his Indigenous ancestry tracing back to his great-grandfather, violence and alcohol abuse in his childhood home, the disappearance of his mother (likely at the hands of his father), his apprehension by CAS, his drinking patterns when he was in university and in his twenties, and the stress of his job at a head office of a large retail corporation. R.S. had little connection to an Indigenous community and had only recently become exposed to Indigenous healing practices. However, the sentencing judge stated that it would be wrong to conclude that R.S.’s ties to his Indigenous ancestry are too remote; the law does not require a causal connection between the offender’s Indigenous background and the offence. The sentencing judge noted that he was obliged to recognize the injustices suffered by past generations of Indigenous persons and it was immaterial that R.S. did not “look” Indigenous. Moreover, R.S.’s disconnection from his Indigenous heritage was not a result of anything he did, but the result of his maternal great-grandfather having attempted to sever the family’s Indigenous roots. The sentencing judge also took account of the violence suffered by Indigenous women, including R.S.’s mother.

[15] The sentencing judge reviewed the following aggravating and mitigating factors:

Aggravating

• the crime seriously violated the sexual and physical integrity of the victim;
• the crime was facilitated by choking;
• the victim’s non-consent was immediately clear to R.S.;
• R.S. had a prior intimate relationship with the victim and she trusted him in the context of their relationship; and
• the harm done to the victim, as expressed in her victim impact statement.

Mitigating

• R.S. was a first offender;
• despite his difficult upbringing, R.S. managed to attend university and hold down a good job;
• there were many pro-social aspects of R.S.’s life; and
• R.S. demonstrated remorse and insights into his thinking.

[16] The sentencing judge said that he recognized that the offences were serious and that denunciation and deterrence were primary sentencing objectives. However, he described the offence as “a single incident of relatively short duration” that was not premeditated. Moreover, he said, “it [was] sexual assault simpliciter and not sexual assault causing bodily harm or aggravated sexual assault” and did not include forced intercourse.

[17] The sentencing judge reviewed several authorities and concluded that a penitentiary term was not necessary. He rejected the Crown’s submission that the range began with a 3-year penitentiary sentence. The sentencing judge went on to find that a conditional sentence would not endanger the community and turned to consider whether a conditional sentence was appropriate in all the circumstances.

[18] The sentencing judge reiterated the primacy of denunciation and deterrence and the need to reflect the true harms of sexual offences, which he acknowledged lead increasingly to longer periods of imprisonment. He considered the Gladue report at length. The sentencing judge recognized that a restorative sentence will not always be appropriate for Indigenous offenders but added that the focus on denunciation and deterrence did not always rule out conditional sentences, noting that non-Indigenous offenders had in the past received conditional sentences for such offences, referring specifically to this court’s decision in R. v. Killam (1999), 29 C.R. (5th) 147 (Ont. C.A.). That case, he said, demonstrated that conditional sentences were not ruled out even for “serious sexual assaults”, and that the assessment of the appropriateness of a conditional sentence was a highly individualized task.

[19] The sentencing judge found that denunciation and deterrence imperatives were met by a conditional sentence and probation and sentenced R.S. to a conditional sentence of 2 years less a day. However, he said that he remained troubled by the choking and found that jail time was necessary to reflect the additional gravity of this act but imposed it “with restraint given the totality of the circumstances that exist”. He ordered a 90-day intermittent sentence concurrent to the 2-year less a day conditional sentence imposed for the sexual assault.

DISCUSSION

The availability of a conditional sentence

[20] The sentencing judge’s decision to impose a conditional sentence depended on his conclusion that s. 742.1(f)(iii) of the Criminal Code was unconstitutional, which relied on this court’s decision in Sharma. That decision was overturned by the Supreme Court, but Parliament amended the Criminal Code subsequently to extend the availability of conditional sentences: Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15.

[21] Although the availability of conditional sentences has been extended, the requirements for a conditional sentence have not changed. A conditional sentence was available in this case only if a sentence of less than two years was appropriate.

[22] The sentencing judge relied on several older authorities, including R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, in asserting that decisions from this court support a range for serious sexual assaults that includes an upper reformatory sentence. He did not have the advantage of this court’s decision in A.J.K., released subsequent to his decision, and the range he cited is erroneous. The evolution of the law is plainly in the direction of better appreciating the profound physical and psychological harm caused by sexual assault. It is now clear that the range for sexual assault involving forced penetration is 3-5 years in the penitentiary. Furthermore, as Fairburn A.C.J.O. stated in A.J.K., at para. 77, “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.” The cases cited by the sentencing judges that pre-date A.J.K. cannot be taken as sound authority for the proposition that a reformatory sentence would be appropriate for sexual assault with forced penetration.

[23] Ranges are, of course, guidelines rather than rules. As the Supreme Court explained in R. v. Lacasse, [2015] 3 S.C.R. 1089, at para. 51, “the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error.” However, a sentence must be proportionate and, as I will explain, this sentence was not.

[24] Parliament’s decision to expand the availability of conditional sentences by repealing s. 742.1(f)(iii) did no more than make conditional sentences available in a wider range of circumstances. It did not have the effect of rendering conditional sentences appropriate or inappropriate in any particular circumstances. Sentencing remains a discretionary decision that courts must make, governed by the parameters established by the Criminal Code.

[25] The Crown quotes from remarks made in the House of Commons by the Minister of Justice, the Parliamentary Secretary to the Minister of Public Safety, and various other members of Parliament in support of its argument that “it was not the intention of Parliament for Bill C-5 to lead to conditional sentences for serious and violent offences”. The remarks of those who spoke in support of the legislative reform are, of course, not determinative when it comes to sentencing. The principles that govern sentencing remain unchanged. It is for the court to craft the appropriate sentence in every case, and the primary consideration for the court is proportionality.

The requirement of proportionality

[26] Proportionality means that a sentence is “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code, s. 718.1. As Lacasse instructs, at para. 53, proportionality is determined both on an individual basis – considering the gravity of the offence committed and the degree of responsibility of the particular offender – and having regard to sentences imposed for similar offences committed in similar circumstances. Proportionality demands that individualization and parity be reconciled.

[27] The difficulty in sentencing for sexual assault stems from the broad scope of the offence. Sexual assault is defined in terms of sexual touching without consent, a wide spectrum of conduct that ranges from touching to forced intercourse. It may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range.

[28] Time and again, this court has emphasized the considerations that inform proportionality determinations in sexual offences, not only against children but also adults. As Trotter J.A. noted in R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, at para. 59:

Sexual offences raise particular considerations in the proportionality analysis. In R. v. Friesen, 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. [Citation omitted.]

[29] As Fairburn A.C.J.O. noted A.J.K., at para. 74, sexual assaults are “serious acts of violence”, the victims of which “suffer profound emotional and physical harm and their lives can be forever altered”.

[30] This was by any standard a violent sexual assault. R.S. attacked the victim, forcibly undoing her clothing and underwear, touching her with his hands and mouth, removing her tampon and penetrating her digitally – all over her repeated cries of “no” as she told him to stop. He then choked her, which resulted in an additional offence.

[31] The gravity of the offending in this case is reinforced by the victim impact statement, in which the victim details the impact of R.S.’s sexual assault, both immediate and long term. She details having to take the antiretroviral PEP drug and the many side effects that followed, including diarrhea, nausea, insomnia, and fatigue. She describes her continuing inability to sleep, fear and anxiety, her lingering sense of violation, unease in her own apartment, and difficulty working and completing daily tasks.

[32] The sentencing judge referred to the victim impact statement and stated that R.S. had harmed her seriously, but at other points in his decision his remarks seem to minimize the seriousness of the offence. The sentencing judge noted that R.S. committed “ sexual assault simpliciter and not sexual assault causing bodily harm or aggravated sexual assault”, describing the assault as a “single incident of relatively short duration” that was “not pre-meditated”.

[33] There should be no doubt as to the nature of this incident. This was a violent sexual assault that involved forced digital penetration after R.S. forcibly stripped the victim and removed her tampon. It was a serious violation of the victim’s bodily autonomy, sexual integrity, and dignity. The sentencing judge was correct in saying that it was not a sexual assault causing bodily harm or aggravated sexual assault, but that is of no moment when it comes to addressing just how bad the sexual assault R.S. committed was.

The relevance of Gladue

[34] Gladue prescribes a method that must be followed when determining a fit sentence for Indigenous offenders, regardless of the seriousness of a particular offence: R. v. Ipeelee, [2012] 1 S.C.R. 433, at paras. 59, 84-86. But as the sentencing judge noted, Gladue does not establish a “race-based discount”: see also Ipeelee, at para. 75. The overarching purpose remains achieving a proportionate sentence for Indigenous offenders.

[35] The sentencing judge focused on Gladue factors that in his view “significantly reduce [R.S.’s] moral blameworthiness for these offences.” He concluded that R.S. was “[b]asically ... a decent person with good prospects of rehabilitation whose crimes are partially a product of a combination of factors connected to the injustices committed against Indigenous people, some of which is beyond [his] control.” The sentencing judge acknowledged that R.S.’s circumstances looked “very different from some Indigenous offenders who find themselves in dire social and economic deprivation with limited options to escape their personal circumstances”, presumably referring to the fact that R.S. graduated from university and had a good job – factors the sentencing judge noted as mitigating. However, there is little discussion of R.S.’s moral agency.

[36] The Crown accepts that R.S.’s moral culpability could rightly be considered reduced by his background but argues that the Gladue factors do not have the effect of rendering a conditional sentence proportionate, because the sentence failed to reflect the predominant principles of denunciation and deterrence. The Crown points to the recent decision of the Saskatchewan Court of Appeal in R. v. Bear, 2022 SKCA 69, [2023] 6 W.W.R. 252, in which a 30-month custodial sentence was imposed on an Indigenous offender for sexual assault and urges that this court take a similar approach. The Crown submits that in this case, as in Bear, no sanction less than incarceration was appropriate in all of the circumstances.

[37] I agree.

[38] R.S. was imprisoned for a mere 90 days, served intermittently, and only because he was convicted on the additional choking charge. The sentencing judge’s decision to impose a 90-day intermittent sentence after concluding that a conditional sentence was appropriate for the sexual assault conviction reflects the unfitness of the conditional sentence. The sentencing judge stated: “real jail time is necessary to reflect the additional gravity of this act”. It is difficult to see why the conviction for choking was separated from the sexual assault it was used to facilitate, and why it required a period of imprisonment while conviction on the sexual assault charge did not.

[39] In any event, denunciation and deterrence are primary considerations on sentencing in cases of serious sexual assault: see e.g., A.J.K., at para. 83; Bear, at para. 117; R. v. Macintyre-Syrette, 2018 ONCA 706, at para. 20; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41. Even considered together, the conditional sentence and 90-day intermittent sentence are simply inadequate to give effect to the primacy of these considerations: see R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 98-99; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 42; R. v. Schertzer, 2015 ONCA 259, 325 C.C.C. (3d) 202, at para. 137, leave to appeal refused, [2015] S.C.C.A. No. 242.

The appropriate sentence

[40] As I have said, this was a serious sexual assault. The Crown accepts, and I agree, that this was a case in which R.S.’s moral culpability could rightly be considered to be reduced by his background, but not to the extent that the sentencing judge concluded. This was a case in which nothing less than a term of imprisonment was appropriate. Taking into account all of the aggravating factors, mitigating factors, and the Gladue factors, a proportionate global sentence for the sexual assault and choking offences was at the lower end of the 3 to 5-year range – a penitentiary term of 3 years.

[41] In the time taken for the appeal to reach this court, R.S. completed serving his conditional sentence and has commenced his two-year probation period. The Crown acknowledges that a pronouncement by this court that the appropriate sentence included penitentiary time would advance the objectives of denunciation and deterrence and that reincarceration is not necessary. Reincarceration of R.S. is not necessary for purposes of specific deterrence, and, as the sentencing judge found, R.S. has made significant strides in his rehabilitation.

[42] In these circumstances, I conclude that reincarceration would not be appropriate. The difficulty is this: an order imposing but staying a three-year custodial sentence would have the unintended effect of shortening R.S.’s sentence. That is so because a probation order cannot attach to a custodial sentence of more than two years: Criminal Code, s. 731(1)(b). In order to continue the probation order, the appeal must be dismissed.

CONCLUSION

[43] Accordingly, I would dismiss the appeal, thus leaving the probation and related orders made by the sentencing judge in place. Lest there be any uncertainty about the decision in this case, I reiterate that the sentence imposed by the sentencing judge was demonstrably unfit. In all of the circumstances, a penitentiary sentence of 3 years should have been imposed.

“Grant Huscroft J.A.”

“I agree. Coroza J.A.”

Paciocco J.A., concurring:

OVERVIEW

[44] I agree with my colleague that the appeal should be dismissed, but for a different reason than he has expressed. In the exceptional circumstances of this case, I would not find the sentence imposed by the trial judge to be unfit.

[45] The trial judge was presented with a case that sits at the cross-roads of two powerful and pressing sentencing imperatives: (1) the need to recognize the harm and wrongfulness of sexual offending by imposing denunciatory and deterrent sentences, and (2) the need to ensure just, productive, and proportionate sentencing for Indigenous offenders by respecting the Gladue principles, adopted by the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688. The circumstances of this case called powerfully for the application of both sentencing imperatives. Sensitive to this, and entirely mindful of the applicable legal principles and priorities, the trial judge crafted a sentence in an effort to balance and respect these competing objectives.

[46] My conclusion that the sentence is fit is influenced by the fact that intermediate appeal courts have been repeatedly implored by the Supreme Court of Canada to exercise a high degree of deference to the sentencing decisions of trial judges and to allow a broad range of discretion, including in identifying fit sentences, even where a sentence falls outside of the usual range or where a trial judge gives different weight to the principles of sentencing than an appellate court would: R. v. Lacasse, [2015] 3 S.C.R. 1089, at paras. 11-12, 39‑40; R. v. Friesen, [2020] 1 S.C.R. 424, at paras. 25-26. Regardless of whether I would have imposed the sexual assault sentence that the trial judge did, I am not persuaded it is manifestly unfit, given the high standard that applies in declaring sentences to be unfit: Lacasse, at para. 52.

[47] In evaluating the fitness of this sentence, it is important to give full recognition to the fact that proportionality – the fundamental principle that the Crown calls into aid in support of its appeal by arguing that the sexual assault sentence is demonstrably unfit – is not measured solely by the gravity of the offence. That is half of the equation. Proportionality is also to be measured, and equally to be measured, by the degree of responsibility of the offender: Lacasse, at para. 12. As LeBel J. cautioned in R. v. Ipeelee, [2012] 1 S.C.R. 433, at para. 73: “Failing to take these circumstances [that affect the offender’s degree of responsibility] into account would violate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ” (emphasis in the original).

[48] Based on the findings of fact made by the trial judge, this case is a striking illustration of an offender whose criminal behaviour has been profoundly shaped by the damage done to him as a result of his indigeneity. As the trial judge found, the impact that the harm that R.S. experienced as the result of his indigeneity contributed meaningfully to the offence, materially reducing his degree of responsibility. When this is borne in mind, along with the fact that R.S. was a suitable candidate for a restorative sentence, it was reasonable for the trial judge to arrive at the sentence he imposed, notwithstanding that the sexual offence R.S. committed was serious, intrusive, degrading, violent, and damaging to the complainant.

[49] The fact that the trial judge relied on R.S.’s indigeneity to support this outcome, after finding that his indigeneity played a significant role in R.S.’s behaviour, makes it all the more pressing, in my view, to recognize the fitness of the sentence imposed by the trial judge. There is a documented tendency of courts to shy away from Gladue principles, and to give them little, if any, impact in serious cases: see Kent Roach, “ Ipeelee in the Courts of Appeal: Some Progress but Much Work Remains”, (2019) 67 Crim.L.Q. 436. I do not want to perpetuate the impression that this is appropriate by overturning a judge who gave those principles close and careful consideration and then reasonably acted on them by using a tool specifically designed to facilitate the principled sentencing of Indigenous offenders by achieving the balance between competing interests that the trial judge was seeking.

[50] In my view, deference is required.

THE GRAVITY OF THE OFFENCES

[51] My colleague has done an excellent job in describing the gravity of the offences. These considerations were not lost on the trial judge, nor was the fact that R.S.’s crimes called for a deterrent, denunciatory sentence. The trial judge described the gravity of the offences, recognizing that R.S.’s criminal act was aggravated by the degrading, penetrative and non-transient sexual assault he committed. The trial judge also recognized that R.S.’s act of choking the complainant to near blackout to facilitate the attack was “a serious aggravating factor” in the overall attack, and he recognized that the sexual assault did not end until it was interrupted by a neighbour. He said the attack was further aggravated by the fact that it occurred in the sanctity of the complainant’s home, despite the complainant’s protests and in violation of the trust she had reposed in R.S. The trial judge recognized that R.S. “seriously violated the sexual and physical integrity of [the complainant]”. He also appreciated the “seriously harmful” impact that the offences had on the complainant, finding that the attack had lasting emotional and mental impact on her that has profoundly altered her life.

[52] Ordinarily such circumstances would indeed demand a significant sentence of institutional incarceration, not a conditional sentence. As I have indicated, it was the trial judge’s findings as to the extreme impact that the Gladue principles had in mitigating R.S.’s degree of responsibility for these serious offences, and the diversity of the tool of conditional sentencing that enabled the trial judge to impose the sentences that he did. I will turn to those principles and their application to the facts found by the trial judge.

THE GLADUE PRINCIPLES

[53] The Gladue principles affect sentencing determinations for Indigenous offenders, including the identification of a “fit and proper sentence”, in two primary ways: Ipeelee, at para. 72.

[54] First, a sentencing judge is to “pay particular attention” to “the unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts”: Gladue, at para. 66. The degree of responsibility of the offender is diminished to the extent that the deprivation and damage done by dislocation, marginalization and racism could reasonably have contributed to the offending, thereby reducing the offender’s level of moral blameworthiness: Ipeelee, at para. 60. This reduced moral responsibility, if it exists, must be reflected in the sentence imposed.

[55] Second, the sentencing judge must consider the relevance of the offender’s Indigenous heritage and their experiences as an Indigenous person to the type of sentencing procedures and sanctions which may be appropriate in the circumstances, including opportunities for restorative sentencing: Gladue, at paras. 66-69; Ipeelee, at para. 61. Section 718.2 (e) of the Criminal Code punctuates the need for restraint in imprisoning Indigenous offenders where less restrictive sanctions may be appropriate in the circumstances.

[56] The trial judge, as he was entitled to, made important case specific findings of fact relating to the application of Gladue principles that were not challenged on appeal and must be respected.

[57] Specifically, he found that although R.S. had only tenuous ties to his Indigenous identity, this occurred because his maternal great grandfather “enfranchised” his family nearly 100 years before by “giving up” their “status” pursuant to a legislated vehicle for assimilation. Little was known about the loss of his father’s family’s link to its Indigenous roots. Speaking directly to R.S., the trial judge commented, correctly, that “[w]hat is important in your case is not the strength of your ties to your Indigenous culture or identity. What is important is how significant those connections were on you and how it ties into your offences”.

[58] The trial judge found, in this regard, that both of R.S.’s parents suffered from alcoholism, and that R.S.’s father was a “very scary man”. He shot his own mother, and he was jailed for a time for shooting R.S.’s mother, whom he beat and repeatedly choked in front of their eight children, whom he also abused. His father was released from custody, after which R.S.’s mother took him back. When his mother finally attempted to leave his father, his father stalked and threatened her. The family took refuge in a shelter. In 1988, after his mother met his father to obtain required child support money from him, his mother disappeared and was never found. His father left a message for the children taking responsibility for her disappearance, and then shot himself after being the subject of a Canada-wide manhunt. R.S., who was six years old at the time, blamed himself because he had told his father about his mother’s new boyfriend.

[59] As is true of too many Indigenous children, following the death of his parents R.S. was raised as a Children’s Aid Society ward in foster-care, where he was physically abused by his foster-father. Unlike his parents, R.S. ultimately went to university, but like them he became a seriously addicted alcohol abuser.

[60] After cautioning himself that there is no “race-based discount” for Indigenous offenders or no mandated “lesser sentence”, the trial judge closely examined R.S.’s particular circumstances, including the history I have described to determine the role that Gladue factors would play in identifying a fit and proper sentence. He took judicial notice, as he was required to, that family violence, alcohol abuse, and family breakups are sequelae of colonialism and intergenerational trauma. The trial judge recognized that “the law does not require a causal connection between a person’s Indigenous background and the offence”, but found that in this case, such a causal connection had been established. He described the harm that R.S. experienced as the result of his indigeneity as “extreme”. Again, addressing R.S. directly, the trial judge made the following findings:

[I]t does not take clinical training to be struck by the fact that you committed an act of violence against a woman you cared about when your own father committed so many acts of violence against your mother. Not only were you forced to bear witness to the violence, but you must also have felt the kind of indescribable terror that only a young child can feel. Somewhere inside you, this horrific childhood trauma, buried deep though it may now be, still affects who you are today.

It is a trite that victims of abuse sometimes become victimizers. Trite but no less true because of it. I have little doubt that this part of your early life played a part in this offence. It certainly plays a part in who you have become.

[61] The trial judge also linked R.S.’s alcoholism to his indigeneity, both through the example in his home during his early years and as a dysfunction linked to intergenerational trauma. He concluded, “I find alcohol played a significant role in the commission of your offence”. The trial judge did not commit the error of treating intoxication as a mitigating circumstance, but appropriately situated R.S.’s alcoholism and his abuse on the night of the offence as part of “the unique systemic and background factors [his] Gladue report alludes to.”

[62] Having made these findings, the trial judge concluded that he “cannot be indifferent to [the Gladue factors] impact on” what a just and proportionate sentence should be. “The reality is that your unique personal circumstances, viewed contextually, diminishes your moral culpability.”

[63] The trial judge also considered the impact that Gladue principles should have on the kind of sentence he would impose. Supported by testimonials as to R.S.’s character; R.S.’s pro-social lifestyle; the alcohol counselling he had undertaken and the abstinence he had achieved; the fact that R.S. did not have a criminal record; and his expressions of remorse which the trial judge accepted as genuine, the trial judge concluded that he was a good candidate for a conditional sentence.

[64] Based on this assessment, the trial judge concluded, as he was entitled to, that R.S. is “a decent person with good prospects of rehabilitation whose crimes are partially a product of a combination of factors connected to the injustices committed against Indigenous people, some of which is beyond your control”.

THE SENTENCE IMPOSED

[65] It was in this context that the trial judge identified a sentence that he concluded would respect the principles that apply in sentencing sexual offences, including by denouncing and deterring the conduct, while at the same time respecting the Gladue principles. That sentence would respect the Gladue principles by fairly reflecting R.S.’s degree of responsibility, accommodating applicable restorative and rehabilitative goals embraced by Gladue, and giving effect to the principles of restraint set out in s. 718.2 (e).

[66] As my colleague has explained, the trial judge imposed a blended, overlapping sentence of two years less a day conditional sentence, on strict punitive house arrest conditions for sexually assaulting the complainant, contrary to s. 271 (a) of the Criminal Code, as well as 90 days of intermittent incarceration for choking the complainant “to enable or assist himself … to commit [the] indictable offence” of sexual assault, contrary to s. 246 (a) of the Criminal Code.

[67] Although the Crown focused its appeal on the fitness of the conditional sentence for the sexual assault that occurred, for the sake of simplicity and in recognition of the fact that the trial judge relied on the integrated sentences to achieve the goals and principles of sentencing, I will assess the fitness of the sentence as a whole.

ANALYSIS

[68] A judge may impose a conditional sentence where four prerequisites are met: (1) the offence must not carry a minimum period of incarceration; (2) the trial judge must determine appropriately that a sentence of less than two years of incarceration will be imposed; (3) serving the sentence in the community would not endanger the safety of the community, and (4) a conditional sentence would be consistent with the fundamental purposes and principles of sentencing: R. v. Proulx, [2000] 1 S.C.R. 61, at para. 46; s. 742.1 of the Criminal Code. Where these requirements are satisfied, conditional sentences are available for sexual assaults, even when prosecuted indictably. [2]

[69] The Crown does not take issue on this appeal with the first three preconditions. The Crown argues, however, that the fourth criterion – that a conditional sentence would be consistent with the fundamental purposes and principles of sentencing – cannot be met because a conditional sentence is unfit when those purposes and principles of sentencing are properly applied.

[70] I disagree and I would dismiss the appeal on this basis.

[71] It is important to appreciate that a conditional sentence is a sentence of imprisonment, albeit one that may be served entirely in the community. It is described as a sentence of imprisonment in s. 742.1 of the Criminal Code: Proulx, at para. 29. [3] The punitive impact of a conditional sentence should not be understated, even though an offender may not experience institutional incarceration where a conditional sentence is imposed. Conditional sentences carry significant consequences, and they are punitive, not lenient, and can be as harsh in application as sentences of incarceration: Proulx, at para. 41.

[72] Specifically, if the offender breaches the conditions on which they are permitted to serve their sentence of imprisonment in the community, they will presumptively be incarcerated in an institution for the remainder of their sentence, a not infrequent outcome. The Crown need not prove breaches of a conditional sentence beyond a reasonable doubt for this to occur. Breaches proved on the balance of probabilities are enough.

[73] Indeed, if a breach occurs early in the sentence, the offender may end up being incarcerated for longer than they would have been if they had initially been sentenced to incarceration. This is because conditional sentences are often longer than sentences of incarceration in recognition that serving a sentence in the community, although punitive, tends not to be as punitive as the equivalent sentence of incarceration, and because conditional sentences are not eligible for parole.

[74] Even when the conditions are complied with, a conditional sentence will have punitive conditions, unlike the conditions imposed on probation, parole, or statutory release. Conditional sentences tend to include real limits on liberty through house arrest provisions. The attraction of the conditional sentence is that it “incorporates some elements of non-custodial measures and some of incarceration”: Proulx, at para. 21. It is therefore capable of achieving both punitive and restorative objectives, simultaneously.

[75] As Lamer C.J.C. emphasized in Proulx, at paras. 22, 41, a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence”. See also R. v. Bunn, [2000] 1 S.C.R. 183.

[76] Having said this, incarceration is more effective in achieving denunciation and deterrence because of the immediate and certain incarceration. Therefore, there are cases where incarceration will be the only suitable way to achieve the denunciation and deterrence that is required: Proulx, at para. 106; R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at para. 32. However, I would make two points.

[77] First, it is an error in principle to decide that a conditional sentence is not fit, based solely on the level of violence committed during the offence, or because denunciation and deterrence are the primary sentencing goals. In Ali the trial judge committed both of these errors. As Zarnett J.A. said in Ali, at para. 38:

It was an error in principle for the trial judge [in Ali ] to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.

[78] The same holds true, in my view, with sexual offences, which are acts of violence. It would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred. To the extent that my colleague’s decision may suggest that conditional sentences will never be fit for sexual offences as serious as the one that occurred in this case, I must express my disagreement.

[79] Second, it would be an error in principle to hold that a conditional sentence is unavailable because the sentencing range for an offence generally exceeds the maximum period for a conditional sentence of two years less a day. Sentencing ranges are identified by courts. They should not be used to remove legislated sentencing tools from consideration. But more importantly, sentencing ranges are “guidelines, not hard and fast rules”: Friesen, para. 37. In R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77, after close consideration of the relevant principles, Fairburn A.C.J.O. clarified that the appropriate sentencing range for sexual assaults involving forced oral, vaginal, or anal sexual assaults, including between former intimate partners, is three to five years. She was careful at para. 77, however, to specify that “there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate”.

[80] No doubt an important part of the reason why sentencing ranges cannot be rigid and mandatory is that sentencing ranges are generally established based on the relative gravity of the offences to which they generally apply. However, the degree of responsibility of an offender, an equally important consideration in determining a proportionate sentence, may vary tremendously from case to case. This is particularly so where Gladue principles operate, a point addressed by LeBel J. in Ipeelee, at para. 79:

In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. … To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances – circumstances which are rationally related to the sentencing process.

[81] Even in Friesen, where the Supreme Court of Canada so powerfully reinforced the need for punitive sentences for sexual offences against children, it cautioned at para. 92, that “even in extremely grave cases of sexual violence against children” sentencing judges must apply Gladue principles. The same caution applies with adult victims, as in this case.

[82] It is also important to appreciate that conditional sentences were developed in large measure to provide a sentencing tool capable of responding more effectively to the needs of Indigenous offenders and to enable judges to honour the legislated principles of restraint that apply to Indigenous offenders. In R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at para. 73, Watt J.A. recognized that Aboriginal status is “an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence.”

[83] Bearing all of this in mind, I cannot find that the conditional sentence imposed by the trial judge was unfit. The sentence that the trial judge imposed was arrived at after extensive consideration based on the correct identification of the proper principles of sentencing based on coherent, unchallenged findings of fact. After accurately identifying competing sentencing considerations, he crafted a sentence that he concluded would meet the complex demands of the case before him. Even though it is outside of the usual range for offences of this kind, the conditional sentence the trial judge imposed was reasonable, notwithstanding that the offence R.S. committed was vile, disturbingly violent, degrading, and harmful to the complainant. What made it so was how significantly R.S.’s experiences as an Indigenous person were found to have contributed to his criminal conduct, thereby reducing his blameworthiness. The fitness of the conditional sentence is also supported by the fact that R.S. was an appropriate candidate for a restorative sentence. He was remorseful, revolted by his own conduct, and had already demonstrated his desire to avoid future offending by taking meaningful and impressive steps to address the alcohol addiction that contributed to his offending.

[84] Finally, the trial judge took steps to ensure that the conditional sentence he imposed would be punitive enough to meet the needs of the sentencing principles that apply to sexual assaults. He imposed the maximum conditional sentence permissible by law and included a highly punitive, restrictive house arrest provision for its entire duration. He then enhanced the denunciatory and deterrent effect of the sentence through the creative and legally proper use of a concurrent 90-day intermittent sentence of incarceration, as approved by the majority of the Supreme Court of Canada in R. v. Middleton, [2009] 1 S.C.R. 674.

[85] For these reasons I am not persuaded that the Crown has met the “very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence”: Lacasse, at para. 52. The sentence imposed by the trial judge was not “demonstrably unfit”, “clearly unreasonable”, “clearly excessive or inadequate”, or a “substantial and marked departure”: Lacasse, at para. 52. Whether or not I would have imposed this sentence, I am not persuaded that it was an unreasonable departure from the principle of proportionality: Lacasse, at para. 53. I feel obliged to defer to it.

[86] I would dismiss the appeal on this basis.

Released: September 20, 2023 “G.H.”

“David M. Paciocco J.A.”

Footnotes:

[1] R.S. was convicted of these two offences in relation to an incident that occurred on March 25, 2018. The jury acquitted him of sexual assault in relation to an incident that occurred on December 25, 2017.

[2] At the time R.S. was sentenced, s. 742(1)(f)(iii) prohibited conditional sentences for sexual assaults that were prosecuted indictably, but the trial judge declared that provision to be of no force or effect after relying on this court’s decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209. In R. v. Sharma, 2022 SCC 39, [2022] S.C.J. No. 39, the Supreme Court of Canada subsequently overturned this court’s decision in Sharma, thereby undercutting the trial judge’s reasoning. However, prior to this appeal being heard, Parliament subsequently repealed s. 742(1)(f)(iii). R.S. is entitled to the benefit of that legislative repeal, leaving a conditional sentence on the table for the purposes of this appeal.

[3] The meaning of the term “imprisonment” varies throughout the Criminal Code: R. v. Middleton, [2009] 1 S.C.R. 674, at para. 14. Some statutory provisions do limit the use of the term “imprisonment” to cases of actual incarceration.