WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) MANDATORY ORDER ON APPLICATION — 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.

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

ONTARIO COURT OF JUSTICE

DATE: 2024 07 22 COURT FILE No.: 22-SA5028

B E T W E E N :

HIS MAJESTY THE KING

— AND — RALPH KING

Before: Justice F.M. Finnestad Heard on: April 11, 2024 Reasons for Sentence released on: July 22, 2024

Counsel: Dallas Mack and Shakiba Azimi ...................................................... counsel for the Crown Celine Dostaler ....................................................... counsel for the defendant Ralph King

FINNESTAD, J.:

[1] Mr. King appears before the court today for sentencing. He was found guilty of sexual assault against three women. These offences occurred in the course of private healing ceremonies each woman had with Mr. King, when he was a visiting spiritual healer, or medicine man, at the Wabano Centre for Aboriginal Health in Ottawa. While there was some contact with a deer bone implicit in the ceremony, it did not properly include any physical contact with the medicine man’s body. In the course of applying the deer bone, Mr. King touched each woman repeatedly with his hand, in intimate areas over her clothing. Details of the offences are set out in a judgment released November 14, 2023 (R. v. King, 2023 ONCJ 619).

Position of the parties

[2] The defence sought a sentence of 18 months to two years less a day, and urged that it be served conditionally, as appropriate in the circumstances of this 61-year-old Indigenous first offender.

[3] The Crown sought a total sentence of three years imprisonment and took the position that even were a sentence of two years or less to be imposed, a conditional sentence of imprisonment would be inappropriate in the circumstances.

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.

Materials provided

[4] In addition to over 40 cases provided, material supporting the oral submissions of counsel included a Gladue Report, three Victim Impact Statements and a letter of support from Maureen King, Mr. King’s wife.

Statutory considerations

1. Purpose, principles, and objectives of sentencing

[5] The Criminal Code provides guidance with respect to the purpose of sentencing and the principles to be applied in determining a just sentence.

[6] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[7] The fundamental principle of sentence noted in s. 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires that full consideration be given to both the seriousness of the offence and the moral blameworthiness of the offender. Section 718.04 may have an impact on assessment of the former. Gladue factors may have an impact on an assessment of the latter.

[8] Other sentencing principles set out in s. 718.2 include that a sentence should be increased or reduced as a result of consideration of aggravating and mitigating factors, that there should be parity of sentences imposed in similar circumstances, that the combination of consecutive sentences should not be unduly long, and that a person should not be deprived of liberty if less restrictive sanctions may be appropriate. Subsection (e) provides that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[9] Section 718.2(a) sets out a number of specific factors to be considered in aggravation of sentence. Section 718.2(a)(iii) notes it as aggravating where the offender has abused a position of trust or authority in relation to the victim, and s. 718. (a) (iii.1) where the offence has had a significant impact on the victim.

[10] Section 718.04 provides an objective of sentencing where the offence involves the abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female. In such circumstances the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct.

[11] While all principles, purposes and objectives are to be considered, in this case attention is directed to several enumerated sections specific to Mr. King’s situation. These include the two aggravating factors of s. 718.2(a), the direction to give primary consideration to the principles of denunciation and deterrence, and the need to pay particular attention to the circumstances of this Indigenous offender in considering all available sanctions.

2. Interplay between s. 718.04 and s. 718.2(e)

[12] Section 718.2(e) provides that all sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. A relatively recent provision in s. 718.04 requires that primary consideration be given to denunciation and deterrence in circumstances where the victims of an offence are vulnerable, particularly where they are Indigenous women. The issue is thus the relationship between the provisions, and the effect of the operation of both in determining a fit and appropriate sentence.

[13] In R v Cope, 2024 NSCA 59 the Nova Scotia Court of Appeal said at para 119 that:

while ss. 718.04 and 718.201 do not negate or dilute the application of s. 718.2(e), or the imperatives in Gladue and Ipeelee, they contribute to the challenges judges confront when endeavouring to balance … two aspects of the ongoing legacy of colonialism in the Canadian criminal justice system: the mass incarceration of Indigenous people and the failure to protect Indigenous women and girls from violence.

[14] In R v Friesen, 2020 SCC 9, at para. 104 the Supreme Court of Canada noted that while s. 718.04 makes deterrence and denunciation the primary considerations, nonetheless, “the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence”.

[15] Recent provincial appellate decisions give effect to this. The Alberta Court of Appeal in R v AD, 2024 ABCA 178, (AD (2024)) at para 34, and the Ontario Court of Appeal in R v Wawatie, 2021 ONCA 609, at paras 6-7, held that the principles mandated by s. 718.2(e) must be applied even where Parliament has directed that denunciation and deterrence are paramount.

[16] The principles of s. 718.2(e) may be a significant consideration in a particular case. The Supreme Court of Canada noted that the systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness, and that similarly, a different or alternative sanction might be more effective in achieving those primary sentencing objectives in a particular Indigenous community.

[17] Nonetheless, while para 92 of R v Friesen states that the factors in Gladue and Ipeelee, 2012 SCC 13 must be considered, it also reinforces the Criminal Code provision that no other sentencing objectives can be elevated to a priority equal to or greater than, those of denunciation and deterrence in the circumstances of an offence against an Indigenous female victim.

[18] In R v Nahanee, 2021 BCCA 13 at para 85 the British Columbia Court of Appeal wrote that “the effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do not sufficiently deter violence against Indigenous children”. In R v McDonald, 2021 ABCA 252 at para 29–30 the Alberta Court of Appeal adopted that language, saying that the comments about Indigenous children were equally applicable to Indigenous women.

[19] The Quebec Court of Appeal in R v LP, 2020 QCCA 1239 stated at para 123 that:

There are some serious offences and some offenders for which and for whom the aforementioned goals of deterrence, denunciation and separation remain fundamentally relevant. In cases of sexual violence against Indigenous women, the Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context, the whole to meaningfully achieve the fundamental purposes of sentencing and protection of the public.

[20] A similar view was taken by the Nunavut Court of Appeal in R v Kownirk, 2023 NUCA 2 at para 2, which noted the “while Indigenous men and women may bear the burdens of colonialism equally, the harms of sexual violence are overwhelmingly borne by women, and in particular, Indigenous women.”

[21] The Manitoba Court of Appeal in R v Wood, 2022 MBCA 46, said at para 36 that:

…section 718.04 does not merely direct a sentencing judge to consider the circumstances of a vulnerable victim, including in circumstances where the victim is Aboriginal and female. Rather, it mandates primary consideration of the objectives of denunciation and deterrence, factors that often lead to a harsher sentence.

[22] The same court held in in R v Bunn, 2022 MBCA 34, at para 110, that the section:

… is not intended to diminish Gladue principles. The application of Gladue principles will not necessarily result in a lesser sentence, but they may, depending on the circumstances. Nonetheless, the principles of denunciation and deterrence often mandate a harsher sentence in the interest of the protection of the public.

[23] While Gladue factors are important considerations in all aspects of sentencings, the weight to be given them does not exceed the weight to be given to achieving the goals of denunciation and deterrence in the case of Indigenous female victims. They may factor into how those goals are achieved but they are not the primary objective of a sentence for this offence.

Materials filed

1. The Gladue Report

[24] The Alberta Court of Appeal in R v AD, (2024) (supra) at para 33 referenced its earlier decision in R v AD, 2019 ABCA 396 at para 27–29 and noted that:

Considering the circumstances of the victim and the effects of the offence on the community does not mean that the circumstances of the offender, in particular the circumstances of Aboriginal offenders, are disregarded or… that consideration of the victim’s circumstances effectively disentitles the offender from a meaningful Gladue analysis under s. 718.2(e). What it does mean is that, in arriving at a fit sentence, judges must take into account the circumstances of the offender, the circumstances of the victim and the effect of the crime on the community in which it took place. The fact that a sentencing judge is required to consider one set of circumstances does not mean other circumstances are ignored.

[25] A comprehensive report was prepared by Ottawa Aboriginal Legal Services writer Katherine Melanson. The report details a history of intergenerational trauma and substance abuse, and its effects on Mr. King.

[26] Ralph King is one of four siblings and is a status Indian registered with Moose Deer Point First Nation, located on the eastern shore of Georgian Bay. His maternal family are from Beausoleil First Nation on Christian Island. For most of the past 30 years, Mr. King and his family have resided on Chippewas of Rama First Nation, where his wife was born and raised. They have two adult children.

[27] Mr. King’s mother attended Day School on Christian Island from the age of six to 14. She was abused at the school and forced to learn English. As a result of being punished for speaking her first language of Ojibwe, she was afraid to teach her own children that language for fear they would suffer the same consequences.

[28] The report notes that Indigenous languages have been recognized as an effective way to retain cultural identity, cultural knowledge, and a connectedness with a cultural community. When a language is lost, the culture, health and identity of a people are also threatened.

[29] When Mr. King’s mother married, she moved to Moose Deer Point with her husband, and Mr. King and his siblings were raised there. The first 15 years of his life were spent in poverty. The community was remote and there was a significant lack of amenities. There were no schools in the community and children had to be bussed 30 and 45 minutes for elementary and high school. Mr. King suffered bullying at school and struggled with learning abilities, both of which caused him frustration and despair.

[30] The family’s financial situation improved in 1978 when his father opened a marina, and his mother began working as a welfare administrator and later running the marina.

[31] Mr. King reported that addiction issues are inter-generational on both sides of his family, and he was exposed to much of the consequences. He has memories of both parents being intoxicated from before he was 10 years old. His father became violent, and the children would have to run and hide in the bush. When his parents left on weekends to go drinking, the children would be left with babysitters, some of whom sexually abused Mr. King.

[32] The report details and explains the relationship between unhealthy alcohol consumption patterns among Aboriginal people and colonial government practices. The effects of unresolved trauma are transmitted to successive generations. This can include transmission of unhealthy coping strategies such as an inability to trust people or institutions, or to even understand root emotional causes of unhealthy behaviours. This makes it difficult to seek out forms of professional assistance, or to believe there is a system available that could help them.

[33] When Mr. King was in his late teens both parents quit drinking. Unfortunately, he began at age 12 and by age 15 was addicted. This compounded his difficulties in high school and worsened after that, when he began using drugs as well. Mr. King met his wife Maureen in 1989 and they married in 1991. Around this time, he too quit drinking in order to be a good parent.

[34] Mr. King learned to hunt, trap and fish with his father. They would share their results with the community and elders. He described in his evidence at trial the long process by which he became a medicine man. He has performed tens of thousands of healing ceremonies. It is clear that traditional ways of life are an integral part of Mr. King’s identity.

[35] Over the years that Mr. King has lived on Chippewa of Rama First Nation reserve, he has been employed working as a full-time firefighter and other public works jobs. He and Maureen have raised their two children there.

[36] Mr. King has been taking anti-anxiety medication on and off for 15 years and has seen a counsellor or therapist intermittently over that time. He reported to the writer that he had struggled with mental health issues of anxiety, depression and PTSD for most of his life. This was at its worst in the seven years he worked as a full-time firefighter at Rama, where he was at many calls with violent deaths. His wife reported that he did not learn to use healthy coping mechanisms to process the workplace trauma he experienced, and he held in much of it. He reported this as his biggest mental health struggle, being largely unresolved and leaving him with haunting mental images. He told the report writer that much of the trauma from the sexual abuse he suffered as a child is still unresolved, and was reflected in his unwillingness to leave his own children with other caregivers.

[37] Mr. King reports struggling with mental health over the two years since these charges were laid. He hasn’t been able to hunt or fish, or work as a medicine man. He is on medication for heart problems and has sleep apnea, diabetes and back problems. His wife describes him as depressed and withdrawn from the community.

[38] The writer recommended significant counselling support for Mr. King to deal with these issues, and he has indicated an interest in pursuing that.

2. Letter from Maureen King

[39] Ms. King was present throughout the trial and her support for her husband has been clear. The letter she provided referenced her work as a Human Resources Specialist with the Chippewas of Rama First Nation. She and Mr. King have resided there for the better part of 35 years. She described her husband as a good father and a caring man, with a natural inclination towards helping others. She referred to the hardships that would be occasioned should Mr. King be incarcerated, and his family’s need of him financially and emotionally. The family is grieving the recent passing of his mother.

3. Victim Impact Statement of M.S.

[40] At trial, M.S. described herself as a strong and capable woman. She held a leadership position as an Indigenous woman in a large organization. She was alerted to Mr. King’s visit by her daughter and scheduled a meeting with him in hopes of gaining some relief from the trauma she carried from childhood sexual abuse. She described herself as very emotional and weeping throughout the ceremony. She tolerated the intimate touching because she was given to understand that only through that could her trauma be healed. She was horrified, and at first disbelieving, when she learned that such touching was not in fact part of a proper healing ceremony. Mr. King had testified that although he was not qualified to deal with childhood trauma such as that M.S. had, he did not mention this to her, but rather performed a healing that was more generally for negative energy. That was not at all what M.S. understood was happening when she tolerated the disturbing touching.

[41] M.S.’s victim impact statement notes that she had felt she was in a safe place with someone she could trust. She wrote “as an Indigenous woman I felt safe with my elder”. It has been hard for her to process that in that vulnerable and trusting situation, she had been abused. The most profound effect has been her loss of a sense of where, when, and with whom she is safe. She doubts her own ability to assess this anymore. She struggles with relationships, intimacy and trust, and the effect this has on her life, on a daily basis. She feels that she was let go from her job as a result of her disclosure.

[42] She wrote that Mr. King gave up the gift he was given by his ancestors and will probably never understand what he has taken from her. She hopes that he will never be able to serve as a Medicine Man, Spiritual Healer or Traditional Knowledge Keeper to anyone ever again.

4. Victim Impact Statement of K.P.S.

[43] K.P.S. is the one victim who is not of Indigenous heritage. She was native to the Phillipines but when she came to Canada and began working with Indigenous people, she embraced their spirituality and it became part of her life. She had great respect for the ceremonies and the Elders she encountered. She was employed at the Wabano Centre and like another victim, A.E., considered herself fortunate when appointments with the visiting medicine man were opened up to staff. Unlike the others, K.P.S had two such appointments with Mr. King, and was touched inappropriately at both. She attended the second one because she blamed her reaction to the first on her own weakness, and believed she was more likely to have misperceived things than Mr. King was to have betrayed a trust. She saw Mr. King because she was exhausted from her job performed during covid, and she needed help with sleeping, arthritis and “finding her voice”.

[44] K.P.S.’s victim impact statement is an anguished cry. She was a child psychologist at Wabano who mistrusted her own feelings of discomfort at the touching, and blamed herself for feeling uncomfortable with what a trusted healer felt was necessary. At trial she testified that after her second session she felt ashamed and humiliated, and determined not to tell anyone about her experience. In the Statement she describes feeling disgusted afterwards. She didn’t want to be hugged or touched. Her relationships were affected. She had physical pains, difficulty sleeping and eating, and felt sick to her stomach. She criticized herself for allowing this to happen to her as a professional; questioning her identity and wondering what was wrong with her. She felt that while her job was to help others, she was unable to help herself. She did not feel she had the support of her boss or team lead and shortly after this she left her position at Wabano and did not work for months.

[45] K.P.S. described feeling broken and disrespected, and that she had been taken advantage of in her vulnerability. She felt she could not share this with anyone and that she was expected to build herself up again. She spoke at length of her guilt for allowing this to happen to her, and of her shame. She wrote that over the years she has moved through shame and rage and now “I cannot change what you did to me I can only change my perspective”. She has begun opening up and telling others what happened, and feels some support. She is resolved to stand up for herself and to not let anyone do anything to her or her body again. Like M.S., she speaks of the importance of Mr. King not being allowed to do this to anyone else again. She ends by wishing Mr. King well.

5. Victim Impact Statement of A.E.

[46] A.E. is an Innuit person from Goose Bay, Labrador and described herself as a very spiritual person. She went to see Mr. King because she felt that her heart was hurting, and her spirit was lost. She was struggling with gender identity. She felt that a person with his gifts could help her heal and give her spiritual guidance. She said that she could be completely free with a medicine man in a way she could with no other person. It was a safe space. She said that when Mr. King was touching her, she was very tense, as she had been abused as a child.

[47] A.E. wrote a brief note of strength to Mr. King, saying that he chose to abuse the beautiful gift he was given by the Creator, to “hurt people in their lower states of life” and then tried to make them look like liars. While she needed time to regain her strength afterwards, he did not take it away. While he made her feel she needs to be more cautious when meeting with elders, he has not taken away her urge to learn from them. He retriggered past traumas for her. She concluded “And I do forgive you, but don’t get it mixed up and fail again. I forgive you for me”.

Aggravating factors

1. Abuse of a position of authority s. 718.2(a)(iii)

[48] As a guest medicine man, Mr. King conducted his healing ceremonies in a Centre for Indigenous Health, a place A.E. described as providing for safe and non-judgmental care in the Indigenous community. The Cedar Lodge in which they were performed was considered a sacred place. The evidence was manifestly clear that as a medicine man, Mr. King occupied a very special position. The respect and trust inspired by this position was so profound that when women had to choose between doubting themselves or Mr. King, they doubted themselves and felt ashamed. He was viewed as endowed with gifts from the Creator which he shared with others. These women opened themselves up to him in a way they would to no other. They confided their fears and struggles and allowed him to touch their bodies, in the belief that he was on their side and had not only a desire to help them, but the ability to do so. The amount of faith and trust with which these women approached their healing ceremonies with Mr. King was described fully at trial and cannot be overstated. The abuse of this reverence and trust is an aggravating consideration.

[49] The Supreme Court of Canada in Friesen noted that an offender who abuses a position of trust to commit a sexual offence (in that case against a child) should receive a lengthier sentence than one who is a stranger to the victim. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, as well as increasing the offender’s degree of responsibility.

2. The offence had a significant impact on the victims, considering their personal circumstances s. 718.2(a)(iii.1)

[50] It was clear from the evidence at trial that these offences had a significant effect on these three women. Two of the women sexually assaulted had already been victims of childhood sexual abuse. All three were so committed to the idea that Mr. King could not and would not hurt them, that two blamed themselves for their negative reactions to the touching and were ashamed. The third, when she realized she had been misled about the nature of the touching to which she consented, lost confidence in her own ability to understand her surroundings and assess her own safety. Two described resulting problems with intimacy. Two either lost or left their jobs as a result of their reactions to the offence and their making complaints. All three are committed to the idea that Mr. King must not be allowed to perform these ceremonies again with other women.

3. Number of victims

[51] These offences were not isolated, but committed against three women, for one of whom it occurred on two occasions.

4. The element of fraud

[52] The three victims allowed this touching on the representations of Mr. King, implicit or explicit, that it was a necessary part of healing. None would have consented but for this.

5. Vulnerability of the victims as Indigenous women s. 718.04

[53] While s. 718.2(e) provides for restraint in sentencing Indigenous offenders to the extent that is it “consistent with the harm done to victims or to the community”, s. 718.04 is a reminder that in having regard to the circumstances of Indigenous offenders, the courts are not to discount the lives of, or harms done to, Indigenous victims of crime, their families and their communities.

[54] In 2019 Parliament added s. 718.04 to the Criminal Code, shortly after the release of The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. That inquiry found that the criminal justice system was failing to effectively hold accountable those who commit violence against Indigenous women, and that such violence was often met with impunity.

[55] The Alberta Court of Appeal in para 31 of R v AD (2024) (supra) noted that “section 718.2(e) specifically identifies Indigenous offenders because Parliament recognized the cycle of intergenerational trauma and the dysfunction it has created in too many families. Section 718.04, applied in these circumstances, aims to break that same cycle”.

[56] An ongoing legacy of colonialism in the criminal justice system, which must be rectified, is historic failures in protecting Indigenous women from sexual violence. This factor is a very real consideration in sentencing on two of the three counts, and aggravates what constitutes an appropriate sanction.

[57] I would note that K.P.S. is not an Indigenous woman and does not come within the provisions of this section. While her situation is aggravated by the conduct occurring twice, and while the assaults occurred because she embraced Indigenous spirituality and was participating in an Indigenous ceremony when they occurred, there is not the need for denunciation and deterrence to be the overriding considerations, for that reason, with respect to that one count.

[58] In these cases, it is not simply a coincidence, or one aspect of the victims, that M.S. and A.E. are indigenous. The fact that they are Indigenous women is an integral part of the offences, and provided the unique opportunity for them to occur. It was in seeking help for precisely the trauma and the vulnerability that the justice system seeks to recognize, in what should have been a safe and culturally sensitive environment, that both were victimized. Both women suffered the intergenerational traumas of Indigenous people. Both were affected by childhood sexual assaults. To have this trauma compounded by being sexually assaulted by a trusted healer as adults seeking help is egregious. The moral blameworthiness of Mr. King, who was intimately aware of all of this, is very high. There must be a strong recognition by the court of the vulnerability of these women and the harm done to them.

Mitigating Factors

1. Release pending trial

[59] Mr. King has complied with all conditions of his release for two years, indicating a respect for the justice system, and both an ability and a willingness to comply with court orders. He has had negative consequences of that release order, which did not allow him to work as a medicine man or to perform ceremonies such as smudging. He has not been hunting or fishing, cultural and practical activities important to him and his community.

2. Prosocial lifestyle

[60] Mr. King is a 61-year-old man who has endured many hardships and shown the ability to regain his sobriety, maintain a long-term relationship with his wife and raise two children. He has positive social relationships and strong family support. He takes his responsibilities to his community seriously. He has been a hardworking man throughout challenging public service jobs, such as those involving being a first responder.

3. Consequences of his own actions

[61] Mr. King has not escaped negative consequences for his commission of these offences. He has lost a livelihood and a spiritual activity that he took years to learn, and which was important to him. It provided him with high standing in the community and the respect of others. By virtue of abusing that position he has lost it, and all the legitimate benefits that came with that. He has lost the ability to participate in cultural activities that are of great importance to him.

4. Mental and physical health

[62] Mr. King suffers from a number of medical issues including sleep apnea, high blood pressure, diabetes, hand tremors, back pain and cardiac issues. At least as significant are his mental health issues which include anxiety and depression, trauma which has come through intergenerational issues, unresolved trauma from sexual abuse as a child, and PTSD as an adult.

Gladue factors and the consideration of s. 718.2(e)

[63] All other sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered, with particular attention to the circumstances of Indigenous offenders. The systemic and background factors that have played a role in bringing an Indigenous person before the court may have a mitigating effect on moral blameworthiness. Further, a different or alternative sanction might be more effective in achieving denunciation and deterrence in his community.

[64] Gladue recognizes that courts have failed to take into account the unique circumstances of Indigenous offenders that bear on the sentencing process. Section 718.2(e) “is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples”. (R v Ipeelee, 2012 SCC 13 at para 75) The court should consider community-based consequences, accountability and restorative principles as possibilities through which the goals of sentencing can be attained.

[65] The fact that Mr. King exercised his right to be presumed innocent and to have a trial is in no way to be held against him in this process. However, there is no mitigating effect of an expression of remorse, and no indication of accountability for wrongdoing. All of the counselling proposed in the Gladue report is for Mr. King’s personal benefit, and none of it is geared towards reducing the likelihood of recurrence, or addressing what motivated the commission of these offences.

[66] The harm here has been done not just to three women, but to the Indigenous community. A safe and culturally appropriate haven for healing has been violated. Trust in one of the most respected roles of an Indigenous leader has been eroded. The application of Gladue principles may in certain circumstances result in a lesser sentence. They do not in this case. Mr. King by virtue of his own lived experience knew and understood exactly what the vulnerability of these women was, and exploited it for his own benefit. The harm done to the victims and the moral blameworthiness of Mr. King are exacerbated by the breach of trust within his community.

Sentencing caselaw

[67] While parity is an important sentencing principle, it is difficult to find cases exactly on point with that of Mr. King.

[68] R v Friesen in 2020 changed the landscape of sentences for sexual assaults, and not just those against children. The Supreme Court of Canada noted that “as time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens”. (at para 110) The Court cautioned sentencing courts on defining a range of sentence based on the specific type of sexual activity in question, and cautioned against relying on dated sentencing precedents that did not reflect society’s current awareness of the impact of sexual abuse. A Court should be similarly cautious when relying on sentencing decisions that pre-date the provisions of s. 718.04 respecting vulnerable victims.

[69] Ms. Dostaler on behalf of Mr. King provided nine cases involving breach of trust sexual assaults. While instructive, none is directly on point. Some cite covid as a factor and one is a guilty plea. None of them involved Indigenous offenders or Indigenous female victims, two very important factors. Three other cases were provided simply to illustrate that conditional sentences have been imposed in cases of sexual assault.

[70] The Crown provided five cases of breach of trust sexual assaults beyond those provided by the defence and which did not involve Indigenous offenders or Indigenous female victims. Only one considered the statements made in R v Friesen and none involved a consideration of s. 718.04, both of which would increase a sentence imposed since that time.

[71] The Crown has provided three further cases that deal with breach of trust in the context of Indigenous healings or teaching, and which resulted in custodial sentences. All involve teenage victims which is an aggravating factor not present here. However each case involved a single victim, and all predated both Friesen and the enactment of s. 718.04. These three differences are important considerations, and distinguishing features from Mr. King’s case.

Conclusion

[72] All sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particular attention to the circumstances of this Indigenous offender. Any mitigating effect on an appropriate sentence considering Mr. King’s particular circumstances, and the effects that historic colonialism, substance abuse, poverty, neglect and abuse may have had on his criminal conduct, must be “consistent with the harm done to victims or to the community”.

[73] Consideration of the harm done to these women or the community in this case must include recognition: that there were three victims and four incidents; that there was a serious breach of trust; that there was lasting emotional harm done to all three women; and that there was an increased vulnerability of the victims, both statutorily mandated and factually apparent. Two of the victims are Indigenous. Two of the three had been sexually abused as children. All three were participating in an Indigenous ceremony when they were assaulted. Lastly, there was harm to the community in that a sacred place in a healing centre was violated by this conduct, and the highly respected role of a spiritual healer was abused.

[74] Three of those factors are statutorily mandated to be considered in aggravation of sentence, one of them providing that denunciation and deterrence are, as a result, to be the primary consideration. There is no taking of responsibility or expression of remorse to mitigate these factors, or to suggest that there is anything short of a significant sentence of incarceration that would reflect them.

[75] I recognize Mr. King’s background, his age, his health and many pro-social aspects of his life to this point. I recognize the fall from grace that he has caused himself through his own actions. I recognize that an experienced medicine man is a rare thing; one who is valued and revered. No one doubts Mr. King’s abilities. The three women in question all felt, despite the abuse they suffered, that Mr. King had a gift from the Creator, and that there were some positive aspects of their healing sessions. By abusing that position, Mr. King has deprived his community of the help that he himself could have given to many more people in their healing journeys, and perhaps created distrust in a role for others that was previously above question.

[76] In increasing a sentence on appeal, the Alberta Court of Appeal in AD (2024) (supra) expressed that the sentencing judge had taken note of strong connectedness between Gladue factors that ran through both sides of the accused’s family and impacted him and his criminal conduct, but failed to give weight to the effect of the offences on the victims as an Indigenous woman and girls. At para 41 the Court of Appeal noted that:

it appears the sentencing judge was deeply concerned about the respondent’s own past victimization – rightly so – but was not equally concerned that in committing these offences the respondent extended that victimization to another generation.

[77] To give effect to the relevant provisions of the Criminal Code I must give primacy to deterrence and denunciation while showing as much restraint as is reasonable in the circumstances, and consistent with the harm done to victims or to the community.

[78] The Crown has proceeded summarily. The maximum sentence for each count is 18 months. Separate offences against separate victims call for consecutive sentences, with the principle of totality applied to ensure that the combined sentence is not unduly long, or harsh. In my view a similar sentence is appropriate for each count. While the offence against KPS is not aggravated by the vulnerability inherent in an offence against an Indigenous woman, it is aggravated by occurring over two occasions, by the breach of trust, and by causing her significant emotional and other consequences.

[79] Considering all of the above, a fit sentence for Mr. King in these circumstances is one of 12 months on each count, consecutive.

[80] While in custody he will have no contact with the three named complainants pursuant to s. 743.21.

[81] He is prohibited pursuant to s. 110 from possessing any weapons for the next 10 years. An exception is made for sustenance hunting.

[82] The offences are primary designated offences for purposes of DNA, and it is ordered that he provide a sample.

[83] An order is made that he comply with the provisions of the Sex Offender Information Registration Act for a period of life.

[84] Given the challenges to Mr. King’s family’s financial situation as a result of his incarceration, the Victim Fine Surcharge is waived.

Released: July 22, 2024 Signed: Justice F.M. Finnestad