Court Information

Date: August 2, 2019

Information No.: FD15-1554

Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

Her Majesty the Queen

- and -

R.B.

Counsel

Ms. A. Woolf for the Crown

Mr. A. Fazari for the accused

Judicial Officer

NADEL, J.

Publication Ban

An order has been made under s. 486.4 directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

Introduction

[1] R.B. and S.B. had a sometimes volatile intimate relationship. As children, they had been across-the-street neighbours. They reconnected on social media in 2012 and began to date. They lived together between 2013 and 2015. In the spring of 2015 they fought on March 6th but reconciled the next day. However, they broke up "finally" in April of 2015.

[2] Some weeks later, on May 5th, S.B. contacted R.B. by text. After communicating through text messages, they met and spent the rest of that night and much of the next day together at R.B.'s home. What happened between them during those hours was the subject-matter of this trial.

[3] S.B. made a complaint to the police in the late afternoon of May 6, 2015 resulting in R.B. being tried, by indictment. In written reasons for judgment, dated January 11, 2019, I found him guilty of the following offences:

• Count 1: assault, contrary to s. 266 of the Code;
• Count 2: sexual assault, contrary to s. 271 of the Code;
• Count 3: unlawful confinement, contrary to s. 279(2) of the Code; and,
• Count 4: threatening death, contrary to s. 264.1(2) of the Code.

[4] Counsel made their sentencing submissions on June 17, 2019 and filed casebooks of precedents to assist me in arriving at a fit sentence. In addition to those oral submissions and prior precedents I have had the benefit of a pre-sentence report, a Gladue report, reference letters, a victim impact statement (the inappropriate aspects of which have been ignored by me), an additional reference letter beyond the bound volume of reference letters, and, finally, the viva voce testimony from K.D., one of R.B.'s referees.

The Facts of the Offences

[5] A full description of the facts and my findings is set out in my reasons for judgment dated January 11, 2019. For these purposes the following description of the facts and events should suffice.

[6] R.B. and S.B. met at a bar and drank copious amounts of beer. R.B. also drank some shots of liquor. After a stop at S.B.'s apartment R.B. drove them to his house. Both were highly intoxicated by alcohol. By S.B.'s assessment, they were an 8 on a 10 point scale where 10 was as drunk as one can get.

[7] The evening quickly degenerated into acrimony with R.B. complaining that S.B. shat on everything he tried to do. He assaulted her by holding her nose and mouth closed to cut off her breathing on several occasions over the ensuing hours. He pulled off her pants and underwear and attempted to sodomize her. He was flaccid and could not penetrate her but he did touch her anus with his penis. He punched her on the top of her head and he pulled her by her breasts up a set of stairs causing her top and bra to be removed.

[8] At that point S.B. was naked and she stopped resisting him. He bound her ankles and her wrists with painters' tape and then hog-tied her using a length of coaxial cable. The easiest way to picture these bonds is to imagine a person kneeling and holding their hands behind their back. The cable was tied around her ankles, and then around her wrists and then around her neck. If she tried to straighten her legs the cable would get taut around her neck.

[9] S.B. was made to lay on her side, naked and bound all night. She slept fitfully and fearfully as her pleas to be released were ignored. Indeed, R.B. told her that things had gone "too far" and he could not let her go. He threatened to kill her and then himself and to burn the house down around them.

[10] S.B. awoke to find R.B. watching her. At that point he untied her, allowed her to put on a pair of his shorts and one of his t-shirts. He then took her downstairs where they watched television all day until he fell soundly asleep and S.B. was able to escape and run for help.

[11] Her physical injuries were photographed and documented by P.C. Sathmary as follows:

• some bruising and swelling around her left orbital bone;
• some small bruising at her right clavicle area;
• on the inside of her left wrist there was some slight redness;
• on the outside of the left wrist there was some bruising as well;
• on the inside of her right bicep there was a small red mark; and,
• on the left side of her lower back there was some bruising and a scratch.

The Position of the Crown

[12] The Crown's position is that R.B. ought to be sentenced to a maximum reformatory sentence together with three years of probation along with the following ancillary orders: (i) DNA on a primary basis for the sexual assault conviction; (ii) a s. 743.21 non-contact order; (iii) a SOIRA order for 20 years; and, (iv) a s. 109 order for 10 years.

The Crown's Gladue Submissions

[13] R.B.'s mother is a Mohawk. Because none of the Crown's case precedents related to an indigenous offender she began her submissions by spending some time on Gladue factors.

[14] In her submissions the Crown identified what she termed "classic" Gladue factors. The first such factor was a history of substance abuse. The Crown acknowledged the presence of this factor in R.B.'s life but stressed that R.B. felt it was under control. Despite his feelings the Gladue reporter highlighted the need for treatment at Ontario Correctional Institute for alcohol, should a custodial sentence be imposed. Ms. Woolf noted that R.B. told the pre-sentence reporter that his use of alcohol is under control and that he is not drinking. Further, his collateral sources did not see alcohol abuse as an issue for him. Given that, Ms. Woolf questioned whether alcohol abuse is an issue for R.B. now, although she did acknowledge that control of alcohol abuse can be a lifelong struggle.

[15] Ms. Woolf submitted that physical abuse is another Gladue factor but that does not apply to R.B. who denied having to endure inappropriate or unusual or undue or other discipline. He was never victimized by familial physical abuse. Nonetheless, he witnessed familial substance abuse and familial acrimony that resulted in police attendances, on occasion, according to the pre-sentence report.

[16] R.B. did relate an incident of sexual abuse while growing up to the pre-sentence reporter but he did not provide any details and only made a passing reference to this complaint.

[17] Another Gladue factor identified by the Crown was low academic achievement. R.B. was apparently neither interested nor engaged in school and left as soon as he was permitted to do so. He reported that he was challenged to maintain appropriate behaviour in school, in part as a reaction to racist taunts. As a result he preferred to leave school and work.

[18] R.B.'s prior criminal record was not well identified. He acknowledged a domestic related conviction in the USA, for which he received probation. His current convictions are his first convictions in Canada. Significantly there is no suggestion of any familial history of criminality. Indeed, the Crown noted that R.B. was raised by parents who inculcated positive community values in him.

[19] Likewise there are no identified mental health concerns reported by any sources or referees.

[20] The most significant factor in R.B.'s attitudes is his distrust of formal authorities and non-natives. This mindset is the consequence of his exposure to racist attitudes and actions toward him. His views of distrust are so set that his prior spouse is concerned that he will skew their child's views as a result of his own.

[21] Since the birth of his son in April of 2017 R.B. has developed a closer cultural connection to his indigenous background. This has resulted in regular attendance at and participation in events at the indigenous friendship centre servicing his community.

[22] The Crown acknowledges that a different sentencing analysis is to be accorded to indigenous offenders. Further, the Crown accepts that courts are directed to find alternatives to jail and to apply restorative principles and sentences if possible. In applying those approaches Ms. Woolf submits that the court must consider the sincerity of an accused's rehabilitative plan and whether there are any appropriate alternatives to incarceration.

[23] In sum, the Crown submits that Gladue aims at proportionality. The object is to determine a fit sentence; a sentence that is proportional. One that fits the crime and one that fits the offender's moral culpability.

[24] Here, given the facts of his crimes, a jail sentence is inescapable. Given the severity of his crimes, because of all of the aggravating features implicated by those crimes, the sentence should not vary from what a similarly placed non-indigenous offender would face.

The Crown's Submissions on the Range of Sentence

[25] Relying on R. v. E.M., 2018 ONSC 6951, R. v. Smith, 2011 ONCA 564 and R. v. C.S.M., 2017 ONCA 107, Ms. Woolf submitted that the Court of Appeal has identified a broad range of sentence of between 21 months to four years for cases involving forced intercourse with a spouse or former spouse, depending upon the specific facts at issue.

The Crown's Review of Case Law

[26] While Ms. Woolf provided and reviewed several cases of domestic violence, little is to be gained by a laborious review of the particular facts of each of these cases. However, I will note a number of aggravating features and commentary from them.

[27] In almost all of the cases submitted by the Crown the following aggravating fact-patterns repeated:

• the threat of violence or death to an intimate partner;
• unlawful confinement of an intimate partner for substantial duration;
• unlawful confinement enforced or exacerbated by the use of ligatures;
• non-sexual violence to an intimate partner;
• invasive or penetrating sexual assault or violence of an intimate partner;
• criminal behaviour amounting to a breach of trust;
• the perpetration of the crimes in the sanctity of the victim's home or in places where the victim had a reasonable expectation of safety; and,
• the crimes exacted a physical; but, more importantly the crimes exacted a continuing psychological toll.

[28] The devastating and dehumanizing consequences of these kinds of crimes, which occur when offenders treat their partners as objects, were stressed in Ms. Woolf's references to paragraph [24] of R. v. Shackleton, [2017] O.J. No. 2495 (S.C.), where K.A. Gorman J. quoted liberally from paragraphs [15] and [16] of R. v. Sandercock, 1985 ABCA 218 (which I append next in edited form):

15 The key … is the ... "contemptuous disregard for the feelings and personal integrity of the victim". … Many believe that gratification of sexual desire by almost any means is not only normal but "healthy". This attitude … has led to … the belief … that society also permits the use of others as objects for sexual gratification. It does not, and denunciatory sentences are needed to reinforce the point.

16 The other aspect which creates a major sexual assault is the effect on the victim. … This harm includes not just the haunting fear of another attack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingering sense of powerlessness. … [W]hile we all are aware in an intellectual way about the fragility of normal existence, to experience a sudden and real threat to one's well-being, a threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants.

[29] Ms. Woolf submitted that while R.B.'s crimes are worse, the case most similar to R.B.'s actions is R. v. Satkunarajah, 2012 ONSC 6470, where the offender isolated his victim in a motor vehicle, threatened her with death and sexually assaulted her. She was able to escape by jumping from the moving vehicle. That accused had an unrelated record and pleaded guilty. The attack left substantial residual effects on the victim. Given the lack of actual penetration in R.B.'s sexual assault, Ms. Woolf submitted that paragraph [24] of Satkunarajah is apposite:

"While our courts seem to reserve harsher punishment where a sexual assault involves intercourse or penetration one cannot overlook the circumstance of this assault and the impact on the victim. These events were horrifying for the victim. She was in a vulnerable position; she was confined in a dark isolated area; the offender's crude groping was accompanied by death threats. She thought she was going to die. …"

[30] On these facts and circumstances R.N. Beaudoin J. imposed a two-year concurrent penitentiary sentence on the offences of sexual assault, forcible confinement and threatening death.

[31] The Crown also adverted to R. v. Nolan, 2009 ONCA 727, where the facts were even more egregious than R.B.'s behaviour. Nolan confined his wife of 19 years by tying her down on a bed. He duct-taped her mouth, punched her in the face, cut her underwear off with an exacto knife and threatened to cut her vagina. He tried unsuccessfully to rape her but after cutting her loose they did engage in intercourse.

[32] On these facts the initial 100 day sentence, which the Crown appealed against, was clearly inadequate. As noted by the Court, at paragraph [7], this "victim was confined and violated in a particularly degrading manner in her own home. She suffered physical harm that included bruising and swelling on her face, ear and shoulder and emotional harm that included feelings of vulnerability and hopelessness." In the result a 21-month sentence (albeit to be served conditionally as permitted at that time), was substituted.

[33] The Crown stressed comments made by J.F. Kenkel J. in R. v. A.M.W., 2018 ONCJ 461 at paragraph [8] where he said, "Even considering the fact that the accused is a first offender, a sentence of two years less one day for forced anal intercourse where the victim was bound and forcibly confined is at the lowest end of the range for these offences."

[34] Ultimately, both counsel accept the law respecting "ranges" as explained in R. v. Lacasse, 2015 SCC 64. The principle was subsequently voiced in R. v. C. (S.M.), 2017 ONCA 590 at paragraph [7]: "… The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed was appropriate in the specific circumstances of the case."

[35] It was for this reason that Ms. Woolf referred to R. v. E.M., 2018 ONSC 6951 at paragraphs [15] through [18], which I have edited and reproduce next:

15 … The jurisprudence clearly indicates that in cases of sexual assault the principles of deterrence and denunciation are the primary considerations for the court to consider. The rehabilitation of the offender should be taken into account, as is indicated in section 718 (d) of the Criminal Code, but this is to take secondary place to the primary consideration of deterrence and denunciation. The actions of E.M. call for a custodial sentence. As to the length of the sentence, the court is guided by the comments of the Ontario Court of Appeal in R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, where at paragraph 87 the court states that,

In all cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.

This statement in Smith was quoted with approval by the Ontario Court of Appeal as recently as February 8, 2017 in R. v. S.M.C., [2017] O.J. No. 590.

16 Courts must be careful when considering ranges for sentence which are only a helpful guide. At the end of the day, the sentencing exercise is not an exact science but rather an art -- one that must be tailored to the individual and reflect the gravity of the offence and the degree of responsibility of the offender. As noted in paragraph 7 of the Ontario Court of Appeal in R. v. Smith,

The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in the specific circumstances of the case.

17 The act of sexual assault strips the victim of their dignity and the ability to make a choice about acts of intimacy and what happens to their body. The courts have commented about this in the past. At paragraph 272 in R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134, the Alberta Court of Appeal notes that "non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person's dignity, equality, security of the person and sexual autonomy". In R. v. McCraw, [1991] 3 S.C.R. 72, the Supreme Court of Canada stated at paragraph 29 of its decision,

For women, rape under any circumstances must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence.

18 The psychological trauma experienced by J.B. as a result of the actions of E.M. mirror the comments made at paragraph 32 in McCraw wherein the Supreme Court of Canada states,

The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem.

The Crown's Submission Summarized

[36] Applying these principles and the need to denounce and deter such behaviour, as well as the need to separate offenders from society and to promote a sense of responsibility in offenders, and having regard to the aggravating features of R.B.'s crimes the Crown urges its sentencing submission.

[37] The Crown noted in closing that while not an aggravating feature, R.B. maintains his innocence. The Crown submitted that the significance of that stance is that he has failed to reflect on his behaviour or to identify the factors that led him to commit the offences and, equally, that he has failed to identify what steps he could take to address those issues.

[38] In short, R.B. lacks insight into his conduct and therefore continues to present a risk of reoffending, especially to a domestic partner that he may engage with in the future. Therefore, a lengthy period of probation is required to compel him to participate in counselling to educate him to address his issues and to help him rehabilitate. In addition, a lengthy period of probation will provide a safety circle and some level of comfort to his victim for an extended period of time.

The Position of the Defence

[39] Mr. Fazari began his submissions by noting a number of circumstances that he urged mitigated R.B.'s crimes; viz:

• that R.B. had worked productively his whole life and had been a contributing member of society;
• that both R.B. and S.B. were substantially intoxicated that night;
• that it was S.B. who initiated their contact that night;
• that S.B. conceded that engaging in sex with R.B. was a possibility that she adverted to early in their contact that night; and,
• that the victim impact statement filed by S.B. was not in prescribed form and it lacked any substantial detail.

[40] Mr. Fazari submitted that the fact that sex was a possibility in S.B.'s mind distinguished R.B.'s crimes from the cases submitted by the Crown. I respectfully disagree.

[41] Regardless, the defence submitted that the Crown's cases are extreme fact patterns and the sentence to be imposed must be geared to this trial's specific facts. On that basis, given the facts found by me, Mr. Fazari submitted that a fit sentence on the sexual assault conviction ought to be 30 to 60 days to be served intermittently. The balance of the offences should attract a conditional sentence of between nine and twelve months, together with probation. That would be a fit sentence as required by s. 718.1.

[42] Turning to the concept of the gravity of the offence Mr. Fazari reminded me that I am to be guided by Justice Doherty's comment at paragraph [90] of R. v. Hamilton:

[90] The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a).

[43] Mr. Fazari contended that the most important consideration is the appropriate sentence for the sexual assault conviction. He said that a review of the Crown's cases including the "range" identified by the Court of Appeal necessitate the conclusion that the crime committed by R.B. is at the very lowest end of sexually assaultive behaviour.

[44] Specifically, there was no penetration and the sexual assault only lasted seconds, unlike the much more extreme intrusiveness of the cases cited by the Crown. Moreover, there was no sexually assaultive behaviour committed while S.B. was tied up on his bed. And, once again, Mr. Fazari stressed that S.B. attended his home voluntarily, she was not forced to come with him and she may have been prepared to engage in sexual relations with him.

[45] Counsel next turned to Justice Doherty's comment in Hamilton on the issue of proportionality, at paragraph [91]:

[91] The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantial elements of the offence – especially the fault component – and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. …"

[46] The defence contended that this factor is a substantially mitigating one given R.B.'s indigenous background by virtue of the application of R. v. F.A.L., 2018 ONCA 83. Essentially, Mr. Fazari said that these events were the product of alcohol abuse by R.B. and that his descent into alcoholism was a reaction to the racism that he faced due to his native heritage.

[47] R.B. has a problem with alcohol and he admits that he does. He admits that he is an alcoholic. He suffered racism as a child in school. Ironically, he was ostracized by his schoolmates in city schools as an Indian and ostracized by his native schoolmates on the reserve as a "half-breed".

[48] More significantly, as a young man he was brutally attacked for being an Indian chatting up a white girl. He suffered very severe injuries and was comatose for a significant period of time as a result and hospitalized for many months.

[49] R.B. reported that despite being victimized in this vicious fashion the men who assaulted him were never prosecuted. As a result he has developed a mistrust of non‑natives and the criminal justice system.

[50] Mr. Fazari submitted that R.B.'s root problem with alcohol resulted from this assault. That it was because of his victimization at the hands of these men that he started drinking and became an alcoholic.

The Defence Submission on "Range" of Sentence

[51] Mr. Fazari relies, appropriately, on the comments made at paragraph [90] of R. v. Jacko, 2010 ONCA 452, which anticipates similar language in Lacasse:

[90] Sentencing "ranges", such as that described in Wright are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality and is not faithful to the teachings of Wright. Individual circumstances matter.

[52] Counsel stressed the same point by referring to Justice Moldaver's comments in R. v. D.D., [2002] O.J. No. 1061 at paragraph [33]:

[33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[53] Mr. Fazari highlighted that the events before the court occurred more than four years ago. R.B. has been law-abiding and productive since then. Since May of 2015 he has had a son from a short-lived failed relationship but one that was not marred by any domestic violence. He is in another relationship now and, again, it is a placid and non-violent one. He is held in high esteem by his employer and has many referees who think highly of him as a result of his character and past actions respecting those referees or their families.

[54] While R.B. is currently abstaining from the use of alcohol he is prepared to engage in probation to assist in his continued sobriety. He continues to harbour guarded feelings towards non-aboriginals and law enforcement but despite those feelings he remains law-abiding and productive. He has become deeply involved in his indigenous culture and is described as a role model for other men insofar as his behaviour and involvement in his culture are concerned.

[55] R.B. spent three days in pre-sentence custody and for approximately one and a half years was subject to a 9:00 p.m. to 7:00 a.m. curfew. He has been law-abiding and compliant with his bail release terms for more than four years.

[56] While the defence concedes that the principles of deterrence and denunciation are paramount, given the passage of time from these events, and R.B.'s subsequent behaviour and current circumstances his prospects for rehabilitation cannot be completely ignored.

[57] When considering the injuries sustained by S.B., which are substantially less than what was inflicted on the other victims in the cases cited by the Crown, the court ought to find that while the range of sentence espoused by the Crown may be correct for those facts that range has little application on this case. The Crown's cases were very violent crimes with permanent consequences and that same ought not to be said for this case.

The Defence Position on Comparable Cases

[58] Mr. Fazari referred to several cases of sexual assault in which the sentences imposed were markedly lower than in the cases submitted by the Crown. For example, in R. v. M.S., 2018 ONCA 706 the appellant, an indigenous male, attempted to force intercourse on a female that he had been swimming with by following her into the women's change room. He was thwarted in doing so. After an extensive adjournment to obtain an appropriate Gladue report, the Court of Appeal upheld the six months' jail sentence imposed by the trial judge. In that case the offender's penis apparently touched his victim's vagina but no penetration occurred. The defence suggested that those facts mirror R.B.'s crime. However the offender there was thwarted by his victim's resistance and his inability to displace her clothing. There are many facts that distinguish that case from R.B.'s, including the prior domestic relationship between R.B. and S.B., the fact that R.B. was able to pull S.B.'s jeans and panties off and the fact that an act of anal intercourse did not occur because R.B.'s penis was flaccid, not because he was thwarted by S.B.

[59] Mr. Fazari next referred to R. v. Wong, 2018 ONCJ 131, a sentencing decision by Justice D.A. Harris in which His Honour imposed a blended sentence combining imprisonment for the equivalent of 90 days to be served intermittently along with a conditional sentence of one year that His Honour found was appropriate in the circumstances of that case. There are many points of distinction between Wong and this case, not the least of which is that in Wong the Crown's position was a sentence range of nine to ten months and that the Crown proceeded summarily.

[60] Mr. Fazari then turned to R. v. Ouellet, 2014 QCCA 135 for its sentencing guidance. After a trial the offender was convicted of sexual assault, forcible confinement and assault causing bodily harm. The facts are outlined at paragraphs [13] to [22] of that decision. Ouellet was sentenced to 18 months concurrent on all three counts plus lengthy probation. On appeal that sentence was varied to 90 days intermittent concurrently, 45 weeks on a conditional sentence for the forcible confinement count. While there are many differences between Ouellet and this case, I accept that the facts are in some ways more egregious than this case.

[61] Ouellet was 63, had no prior criminal record and had never been violent to his ex‑spouse previously. The Quebec Court of Appeal found 18 months to be a disproportionate sanction for these crimes. At paragraph [113] they held that Ouellet's life "cannot be summed up in these 30 minutes". Significantly, they took pains to note that despite the effect his crimes had on her, his victim did not want him to be incarcerated.

[62] Mr. Fazari provided other cases for my consideration including R. v. Tulk, 2014 NLTD(G) 18 as well as R. v. Smarch, 2007 YKSC 43. Both of these cases are distinguishable on many grounds including the Crown's position, which was for a much more modest sentence than that advocated for by Ms. Woolf, although I hasten to add that the Crown's position is only one of many factors that need to be taken into account. Nonetheless, Mr. Fazari stressed paragraph [46] of Smarch where the sentencing judge noted that Smarch's experiences at residential school left him very traumatized. As a result, the sentencing judge found that "Smarch's residential school experience was likely a contributing factor to his alcoholism, and less directly, to the current offences".

[63] Finally, Mr. Fazari referred to R. v. G.A.M., 2001 ABPC 252 where a conditional sentence for a violent and degrading crime of sexual assault with a weapon was imposed together with a 90-day intermittent sentence on the count of forcible confinement. The Crown's position in that case was a three-year sentence on the major count. A conditional sentence was then potentially available for such a crime.

Defence Comments on the Gladue and Pre-Sentence Reports

[64] Mr. Fazari reviewed aspects of both the pre-sentence report and the Gladue report. The upshot of his submissions was that given that he behaved badly on this occasion his productive prior history demonstrates that but for his abuse of alcohol he would not be before the court. He has insight into his abuse of alcohol and he has been and will continue to be a productive and contributing member of society. He has aged parents to care for, along with a young son to raise. He is inculcating that child into indigenous culture and tradition and is a role model for other native fathers. He has spent more than four years at large on terms without incident. For 18 months he was on a tight curfew. R.B.'s actions are on the lower end of the scale of inappropriate behaviour when compared to the cases the Crown has pointed to. In all of these circumstances a fit sentence would be an intermittent sentence on the sexual assault and a conditional sentence on the balance plus probation.

Reasons for Sentence

[65] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions directed to achieving one or more of the objectives set out in s. 718 of the Criminal Code of Canada.

[66] "The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a 'just and appropriate' sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender."

[67] Those words were written by Chief Justice Lamer. Since that time the Criminal Code of Canada has substantially circumscribed that duty statutorily. Justice Lamer's dictum has been encapsulated by s. 718.1: "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[68] To assist in carrying out this fundamental principle a court must take into consideration any of the applicable principles identified in s. 718.2.

[69] Here, R.B.'s victim was his former common law partner. While the word "former" does not appear in s. 718.2, it is clear from the facts, that the couple's meeting was to investigate reconciliation and in these circumstances, I am of the view that s. 718.2(a)(ii) applies. This is a statutorily aggravating factor.

[70] In addition s. 718.2(a)(iii.1) also applies as an aggravating factor. The psychological trauma suffered by S.B. was substantial and continues to affect her four years on. Her very brief, but cogent, victim impact statement is appended in the following footnote.

[71] In my view R.B. did not abuse a position of trust or authority in relation to S.B., but the fact that she was attacked by him in the home they once shared is an aggravating feature of these crimes. One's home should be a sanctuary from the vicissitudes of life and R.B. was inviting S.B. back to that home.

[72] Parliament has decreed by s. 718.2(b) that parity should be strived for in the imposition of sentence. Hence, both sides have urged "comparables" upon me. Likewise, controlling appellate courts have directed that like cases be treated alike.

[73] In R. v. Devaney, [2006] O.J. No. 3996 at paragraph [13] our Court of Appeal said:

"... it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract like sentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range."

[74] Nonetheless, as noted by both counsel and as demanded by statute, sentencing is an individualized exercise and the principle of parity cannot trump fitness. Ranges of sentence may have developed but ranges are merely prior and often historical results. The lessons from Lacasse must be adhered to.

[75] There are many other aggravating features of R.B.'s crimes. The indignity of being stripped naked and kept that way for hours is a major aggravating feature. The demeaning nature of being forced to be naked, and the vulnerableness and powerlessness engendered by those actions, even when exercised by competent and authorized authority is described and identified by R. v. Golden, 2001 SCC 83.

[76] Being subjected to an act of unwanted anal intercourse is a further degrading and humiliating feature of R.B.'s crimes. I acknowledge that he did not penetrate S.B.'s anal cavity with his penis but it was not for lack of trying. While it is correct to note that R.B.'s attempt at sodomizing S.B. was short-lived and lasted only for a matter of seconds of actual skin-on-skin contact, he first had to overpower her and pull off her jeans and panties and lay her on her stomach on the loveseat in his living room. This act is not at the lower end of the spectrum of sexual assault. It was not a mere butt slap or a momentary fondling of a breast, for example.

[77] Having her airways cut off by R.B. on several occasions must have been very frightening. Likewise the threats made by R.B. that "things had gone too far", that he could not let her go and that the events would end in a murder/suicide with the house being burned down around them was undoubtedly a terrifying experience exacerbated by the length of S.B.'s captivity.

[78] In short, R.B. subjected S.B. to a horrifying ordeal. R.B. clearly recognized the extent of his criminal behaviour because, initially at least, his response was to try to end his life, whether out of shame or to avoid penal consequences is unclear.

[79] In my view these were serious crimes. I reject the defence's contention that they can be looked at in isolation. The defence contends that since the attempted act of anal intercourse was merely perpetrated for a few seconds and without success this is a modest crime at the low end of the sexual assault spectrum.

[80] Looking at the various crimes charged in isolation misses the forest for the trees. It is an artificial parsing of these events.

[81] Before leaving aggravating circumstances, I note one factor that is not aggravating. R.B. pleaded not guilty and had a trial. That is not an aggravating circumstance. As Mr. Joseph Dubeck, (the doyen of criminal lawyers in Hamilton for many decades), used to say, "Everyone is entitled to be properly convicted."

[82] The only consequence of pleading not guilty is that R.B. cannot list a guilty plea as one of the mitigating factors to be weighed in the balance.

[83] Other matters worth noting, which are neither aggravating nor specifically mitigating are: (i) that the actual violence inflicted by R.B. all occurred at the time when he was most intoxicated; (ii) there were no permanent physical injuries inflicted; (iii) he did not subject S.B. to violence while she was naked, bound and completely vulnerable; and, (iv) while his domination of her continued over the following day, he did not inflict any actual physical violence upon her during those hours.

[84] There are a number of mitigating facts and circumstances, which I shall attempt to identify, albeit not in any ranked order.

[85] R.B. has no prior record that has been proved. He concedes a conviction imposed in the USA for a domestic related crime of violence and for which he was apparently sentenced to probation. However, the particulars of that offence, (that is to say, the date of the conviction, the place of the conviction, the particular crime in question and even the details of the sentence,) are not before me. (See Watt J.A.'s judgment in R. v. M.C., 2019 ONCA 502 for the impropriety of this kind of evidence.) In these circumstances I shall treat R.B. as a first offender.

[86] R.B. has a lifetime of productive work credits to draw against. He has firm and secure prospects for rehabilitation.

[87] He spent approximately 18 months on a 9:00 p.m. to 7:00 a.m. curfew early in the history of this prosecution, without any breaches and he had remained crime-free and law‑abiding for over four years since committing these offences. He is entitled to some Downes credit against an appropriate sentence for the strictures on his liberty.

[88] He has remained productive while on bail, continuing to work and fathering and becoming engaged in the upbringing of his young son.

[89] He acknowledges that he is an alcoholic and is prepared to continue to take counselling to keep his alcoholism under control. He is currently deeply engaged in his indigenous community spending many days each week at the Fort Erie Native Friendship Centre, where he is involved both in cultural activities and in counselling sessions.

[90] R.B. is a "Status Indian" under the Indian Act. His mother, too, and her parents are also native Canadians. His maternal grandmother moved her family off-reserve to avoid having her children attend one of the infamous residential schools to which Indian children were forcibly taken. She also chose to live close to the USA border so that she could flee with her family to avoid the "60's scoop".

[91] R.B.'s father is non-native, as is S.B. It is beyond my ken to attempt to determine how his antipathy toward non-natives played out in these crimes. That is a psychological investigation that I am not equipped to attempt. Nonetheless, like L.F. Gower J. in Smarch, I am prepared to accept that R.B.'s alcoholism is a consequence of his experiences as a native Canadian.

[92] R.B.'s abuse of alcohol is linked to his upbringing, which was a product of his mother's upbringing. In addition, sexual assault was, according to R.B.'s sister, rampant in their family tree. While R.B. has on occasion admitted to having been sexually assaulted as a child, he is not prepared to discuss the matter.

[93] "The child is father to the man," as the saying goes. R.B.'s alcoholism is, in my view, sufficiently a product of his upbringing as a native Canadian to have some bearing on his moral culpability.

[94] In attempting to apply the Gladue principles I am guided by paragraphs [40] to [47] of R. v. F.H.L., 2018 ONCA 83, which I have edited as follows:

40 … For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.

41 The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness."

43 From a sentencing judge's perspective, adhering to this approach requires attention to two factors.

44 First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include "such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. This list is not exhaustive.

45 Second, a sentencing judge must consider whether those systemic and background factors "bear on the [offender's] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing": Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender's own life experiences -- in other words, whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": Monckton, at para. 117; R. v. Bauer, 2013 ONCA 691, 119 O.R. (3d) 16, at para. 13. If systemic and background factors have impacted an Aboriginal offender's own life experiences, the sentencing judge must then consider whether they "illuminate the offender's level of moral blameworthiness" or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23. The Supreme Court provided the following comments about moral blameworthiness in Ipeelee, at para. 73:

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability". Failing to take these circumstances 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. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Underline Emphasis Added, Italic Emphasis in Original]

46 Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders -- viewed in the light of the systemic and background factors described above -- "diminish their moral culpability". In conducting this inquiry, however, courts must display sensitivity to the "devastating intergenerational effects of the collective experiences of Aboriginal peoples", which are often difficult to quantify: Ipeelee, at para. 82. When inquiring into "moral blameworthiness", courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove: Kent Roach, "Blaming the Victim: Canadian Law, Causation and Residential Schools" (2014) 64 University of Toronto L.J. 566, at 588-593; Clayton Ruby, Gerald Chan, Nader R. Hasan, Annamaria Enenajor, Sentencing: Ninth Edition (Markham: LexisNexis Inc., 2017), at 712; R. v. Quinn, 2015 ABCA 250, 606 A.R. 233, at para. 49 (per Bielby J.A., dissenting). I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach that sentencing judges should follow:

The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge ... In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.

47 Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee, at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.

Conclusion and Imposition of Sentence

[95] These were offences of domination and violence. R.B.'s efforts at reconciliation with S.B. were rejected by her and he lashed out angrily and violently. He kept her forcibly confined for approximately 14 hours. During that time he abused her physically, sexually and psychologically. The ordeal that he subjected her to has had long-term consequences for her.

[96] While R.B.'s alcoholism is related to his indigenous background, which in turn has affected his upbringing, his abuse of alcohol has not prevented him from working productively. This is a demonstration that he can control his abuse of alcohol. He can pick and choose when to get drunk. I am of the view that any diminishment of or mitigation of his moral culpability as a result of his alcoholism is extremely modest.

[97] Of greater weight is his entitlement to Downes credit and his demonstration, (through four years of law-abidingness while on bail), that a crushing sentence ought to be avoided because R.B.'s prospects for rehabilitation, (as a productive member of the community), are secure.

[98] Finally, I take into account that R.B. is a first offender, albeit not a youthful one and further, that I must consider the totality of the sentences being imposed.

[99] In the result, in addition to all of the collateral orders sought by the Crown and in addition to three years on probation to commence upon the expiry of his warrant of committal, (on terms to be pronounced in court on the date when this sentencing judgment is released), I sentence R.B. as follows:

On Count 2: sexual assault, contrary to s. 271 of the Code to six months in a provincial reformatory;

On Count 3: unlawful confinement, contrary to s. 279(2) of the Code to six months in a provincial reformatory consecutive to the time imposed on Count 2;

On Count 4: threatening death, contrary to s. 264.1(2) of the Code to four months in a provincial reformatory consecutive to the time imposed on Counts 2 and 3; and,

On Count 1: assault, contrary to s. 266 of the Code to two months in a provincial reformatory consecutive to the time imposed on Counts 2, 3 and 4.

Dated at St. Catharines this 2nd day of August 2019.

J.S. Nadel, (OCJ)