R. v. MacIntyre-Syrette, 2016 ONSC 6496

CITATION: R. v. MacIntyre-Syrette, 2016 ONSC 6496

COURT FILE NO.: 7530/14

DATE: October 19, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRAVIS MACINTYRE-SYRETTE

D. Kirk, for the Crown

D. Orazietti, Q.C. for Mr. MacIntyre-Syrette

HEARD: August 3 and September 21, 2016

VARPIO J.

CORRECTED REASONS FOR SENTENCE¹

Corrected Reasons for Sentence: The text of the original reasons for sentence was corrected on March 5, 2018. The Notice of Publication Ban was removed in accordance with a court order and the complainant’s name in paragraph 39 was initialized.

1In reasons dated May 10, 2016, I found the accused guilty of sexual assault contrary to section 271 of the Criminal Code of Canada and unlawful confinement contrary to section 279(2) of the Criminal Code of Canada.

2The sentencing hearing in this matter raised a number of nettlesome issues, specifically the advisability of imposing a conditional sentence and the impact of the offender’s indigenous heritage upon that decision. The Crown seeks a term of incarceration of two years less one day while Mr. MacIntyre-Syrette asks the Court to impose a conditional sentence of six months. After considering counsel’s submissions and, for the following reasons, I sentence the accused to six months in jail to be followed by three year’s probation. I will review the ancillary orders later in this judgment.

FACTS

3The facts surrounding the offence have been described in my reasons for judgment and I will not repeat them here save and except where necessary.

MR. MACINTYRE-SYRETTE

4The offender comes before the Court with no criminal record, having pursued a traditional indigenous lifestyle and having made significant contributions to the community. The offender is a member of the Batchewana First Nation (“BFN”) and, as described in the PSR and Gladue Reports, his family have occupied positions of leadership within same.

5Mr. MacIntyre-Syrette’s parents attended residential school but, in their adult lives, they were at the forefront of a rekindling of the indigenous culture within their First Nation. Accordingly, the evidence at trial revealed that Mr. MacIntyre-Syrette was immersed in his culture and undertook activities such as performing in a drum group as a pipe keeper and drum carrier.

6The offender attended community college and university. He secured employment at the detoxification centre in Sault Ste. Marie as an addictions worker. He also secured employment at Nog-da-win-da-min Child and Family Services as a customary care worker. He has lost that employment, presumably as a result of the charges that were before the court.

7He currently works at the Bonifero Mill Works in Sault Ste. Marie as a full-time employee earning $20.00 an hour.

8He has never used or abused alcohol or any non-prescription drugs.

9The offender thus comes from a strong family background and has suffered from few (if any) of the tragic circumstances that are often associated with cultural dislocation (substance abuse, transience, et cetera).

10Also, I note that Mr. MacIntyre-Syrette is currently embroiled in a family law dispute involving the CAS and his children. The specifics of this dispute are not germane to my sentencing decision save and except to state that the offender and his family appear to believe that their inability to see the offender’s children stems directly from matters that were originally before the court.²

11There is a further matter I must address. The PSR contained the following paragraph:

The offence appears to be an undercurrent of a suggested grouping in the small community that have convalesced in a shadenfrede manner hoping to destroy his character and is contraindicative of the voluminous character letters filed with Probation Services attesting to the goodness, decency and well-meaning of this first offender[sic].

12This is an inappropriate statement for a Pre-Sentence Report. It effectively indicates that the PSR writer disagrees with the Court’s verdict. That is not the function of a PSR.

13Of note, the victim in this matter testified that she did not come forward initially because she was afraid of the accused and the influence exerted by both him and his family within his indigenous community. In the PSR, the writer states that he recalls the offender’s family as volunteers at the Algoma Treatment and Remand Centre. Accordingly, I do not know whether or not the PSR writer’s knowledge of the offender and his family has influenced his decision (which is consistent with the victim’s concern). Fortunately, I do not need to resolve this issue since it is clear from the objective evidence described in the PSR that Mr. MacIntyre-Syrette has had significant involvement in the BFN and is respected by many of its members. He ought to be credited for same.

VICTIM

14The victim filed a victim impact statement in which she expressed a level of vehemence and anger toward the offender. The defence suggested that the victim’s input ought to be discounted as a result.

15While I accept that the manner in which the victim’s emotion was communicated was accusatory and caustic, it is clear that the incident in question had a significant impact upon her. Specifically she indicated “I felt so ashamed that you did that to me. So ashamed. I began to doubt my own self-worth”.

16Thus, I accept beyond a reasonable doubt that the offence had a strong emotional impact upon the victim. I do not give her Victim Impact Statement any added weight because the victim’s language was directed at the offender. Neither do I lessen its impact. I simply find that the incident left a powerful, negative, emotional impression upon the victim and caused her to “question her self-worth”. This is, unfortunately, a typical reaction for victims. The victim provided no description of any outward effects that this emotional state had upon her life (ie. substance abuse, loss of jobs, et cetera) and I draw no conclusions – aggravating or mitigating - beyond the offence’s emotional impact upon the victim.

ANALYSIS

Statutory Regime

17Sentencing is governed by s. 718 of the Criminal Code of Canada which, at the apposite time, read as follows:

718. The fundamental purpose of sentencing is 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;

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 acknowledgement of the harm done to victims and to the community. 1995, c.22, s. 6.

18Section 718. 2 of the Criminal Code specified:

A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 1995, c.22, s.6; 1997, c.23, s.17; 2000, c.12, s.95(c);2001, c.41, s.20

19Conditional sentences were governed by s. 742.1 of the Criminal Code which, at the apposite time, read as follows:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

a. Imposes a sentence of imprisonment of less than two years, and

b. Is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3. 1995, c.22, s. 6; 1997, c.18, s. 107.1

Sentencing Range and Conditional Sentences

20In R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61 the Supreme Court of Canada considered the principles to be applied under section 742.1 as it then existed. The Court suggested that conditional sentences had the following characteristics:

a. Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to be both punitive and rehabilitative;

b. In deciding whether or not to impose a conditional sentence, the court should not proceed in a rigid two-step process determining the length of the term and then making the decision whether or not to impose a conditional sentence. Instead, the court must determine whether or not a penitentiary sentence or a non-custodial disposition is appropriate. If the court answers no to both those inputs, the court is to consider the appropriateness of a conditional sentence;

c. With respect to “safety of the community”, the threat described is that of the specific offender and not the broader respect for the law;

d. A conditional sentence is available for all offences in which the statutory prerequisites are satisfied;

e. There is no presumption in favour of a conditional sentence however serious consideration should be given to the imposition of same in all cases;

f. The conditional sentence can provide a significant amount of denunciation especially when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence;

g. When the objectives of rehabilitation, reparation or promotion of the sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction subject to considerations of denunciations and deterrents;

h. While aggravating features may exist in a case, a conditional sentence may be imposed even if such factors are present;

i. Neither party has the onus of establishing that an offender should or should not receive a conditional sentence.

21In suggesting that a sentence of two years less a day is appropriate, the Crown pointed to the case of R. v. Ajimotokan [2013] O.J. No. 344 in which Goldstein J. (at para 19) described the case law involving violent sexual assaults. I note that the cases referred to by Goldstein J. involved, in many instances, more serious factual allegations than the ones in the case before the Court:

I conclude from this brief review of the cases that I retain a great deal of discretion in sentencing, but that the range accepted by the Court of Appeal for a serious sexual assault involving a single victim goes from mid reformatory to at least six years.

22That is not to state that sexual assaults are not “serious offences” in and of themselves. For example, in the case before me, the victim testified, and I accepted, that the offender’s penis touched the victim’s vagina but did not penetrate her. With respect to penetration and sexual assault, the Court of Appeal said in R. v. F.P. [2005] O.J. No. 2747:

Absence of intercourse cannot be characterized as mitigating. However where intercourse does occur, as it did in D.D., it is characterized as aggravating it is so characterized because it likely results in physical and psychological trauma, and because it heightens the risk of disease and, where girls are victims, pregnancy. Thus, all sexual assaults are serious irrespective of whether or not penetration is involved.

23In his submissions, defence counsel made reference to the fact that, prior to the legislative change whereby indictable sexual assaults became “serious personal injury offences” and thus became ineligible for conditional sentences, sexual assault cases with more aggravating factors than the case before the Court would receive conditional sentences from trial courts. Some of these decisions withheld appellate scrutiny.

24A review of the precedents suggests that defence is correct in that submission: see R. v. Roberts, [2000] O.J. No. 2248 (Ont. S.C.J.); [2000] O.J. No. 3750 (Ont. C.A.); R. v. S.W. [1998] O.J. No. 2867 (Ont. C.A.); R. v. Burn [2007] B.C. P.C. 353; R. v. Kneale [1999] O.J. No. 4062 (S.C.J.); R. v. Pecoskie [2000] O.J. No. 1421 (S.C.J.); R. v. Sampson [2008] O.J. No. 209 (Jan. 22, 2008) (S.C.J.); R. v. Hamilton [2008] N.B.J. No. 35, 2008 NBQB 56.

25In R. v. Killam 1999 CanLII 2489 (ON CA), [1999] O.J. No. 4289 (Ont. C.A.), Doherty J.A. upheld a conditional sentence on a sexual assault. In Killam, the accused and the victim were at a weekend beach party. On the second night of their stay, the accused and the victim slept in the same room and the victim awoke to find the accused having sexual intercourse with her. The accused was convicted after trial and given a conditional sentence.

26Despite ruling that a conditional sentence was an available disposition in the circumstances, Doherty J.A. had the following to say at paragraphs 6 – 9 and 12 – 16:

In considering whether a conditional sentence is appropriate, Section 742.1 requires that one look both to the danger that may exist to the safety of the community and to the other fundamental purposes and principles of sentencing. In a case like this one, those fundamental principles must include deterrence both specific and general and denunciation.

It must also be recognized that the conditional sentence provided a new option in sentencing, the intention of which was to reduce the number of persons who are incarcerated. In R. v. Gladue (1998), 1999 CanLII 679 (SCC), 133 C.C.C. (3d) 385 at 402, Cory J. said:

The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration ...

The respondent was 20 years old at the time of the offence. He was sentenced some two years after the offence. He has a minor criminal record and was on probation when this offence was committed, although he had apparently fully complied with the order and had been relieved from his obligations under the terms of the probation order by his probation officer. The respondent experienced some medical and emotional problems as a young teenager. Between the ages of sixteen and eighteen he used drugs, did not attend school regularly and fell in with the wrong crowd. At the time this offence was committed, his parents felt that he was beginning to turn his life around. His change in attitude and lifestyle followed the birth of his daughter. He continued to develop a positive lifestyle between the date of the commission of this offence and sentencing. At the time of sentencing, the respondent was attending school, working part-time, playing an active role in his daughter's life and providing some financial support for her.

Despite his prior record and the absence of any remorse (the respondent continued to insist that the sexual contact was consensual), the pre-sentence report was favourable. It concluded with these words:

Should the court be considering community supervision in its disposition, although the defender denies the offence, given his past response to community supervision and the positive direction of his lifestyle he is considered a suitable candidate for further probation supervision.

There is no doubt that incarceration at this time would have significant negative effects on the respondent's continued progress and on the lives of those around the respondent, particularly his young daughter. In my view, there was ample reason to conclude that a conditional sentence posed no danger to the safety of the community. Further, in my view, there was ample reason to conclude that the principle of specific deterrence did not demand incarceration.

That leaves for consideration the principles of general deterrence and denunciation. I am particularly concerned about denunciation. As indicated in R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), a conditional sentence, if properly understood, can adequately address the needs of denunciation and general deterrence even in cases where those principles are paramount. I think, however, it must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender's liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

I admit to considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public. I am, however, satisfied that the case law commands that my doubt yield to the deference that must be afforded to the decision made by the trial judge…

I must stress, I am not suggesting that a conditional sentence should become the norm in cases like this one. Far from it. My reasons should be taken only as indicating that in the circumstances of this case, a conditional sentence was not outside the broad range of sentences available to the trial judge. I do not suggest that other sentences, particular a significant term of imprisonment, would have been inappropriate. Indeed, I might even go so far as to say a period of incarceration would have been more appropriate. That is, however, a basis upon which I cannot vary a sentence under s. 687 of the Criminal Code. [emphasis added]

27It is clear from this passage that Doherty J. did not intend Killam to stand as precedent for the notion that conditional sentences ought to be the normal sentencing option for sexual assaults. Indeed, his obiter states that “I do not suggest that other sentences, particular a significant term of imprisonment, would have been inappropriate. Indeed, I might even go so far as to say a period of incarceration would have been more appropriate.” Thus, while it is clear that a conditional sentence is an available sentence in cases of sexual assaults with aggravating features, it cannot be said that a conditional sentence is the presumptive disposition given the gravity of the offence and the concomitant need for deterrence and denunciation.

Gladue and Ipeelee Principles

28R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee [2012] S.C.C. No 13 govern the sentencing of indigenous people. Gladue stands for the proposition that, when dealing with indigenous offenders, a Court must pay special attention to their unique circumstances. The Court stated at paragraph 93:

Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.

2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.

4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.

5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.

10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.

13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

29R. v. Ipeelee clarified point 13 above. The Court emphasized, irrespective of the severity of a crime, a Court must always consider an offender’s indigenous background (paras 84 and 85):

The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, “appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.)).

Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” (Gladue, at para. 82). Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.

30The case before me constitutes a difficult application of the Gladue principles. As noted in Gladue, Ipeelee and other cases, while these sentencing principles often seek to redress situations whereby an individual has suffered disadvantages, courts must always look to an offender’s aboriginal background as a sentencing factor. Such will be the case even in unusual cases as, for example, where the offender did not know of his aboriginal heritage until he was in his later teens, and suffered none of the overt consequences typically associated with cultural displacement (see R. v. Kreko 2016 ONCA 367).

31Nonetheless, the Ontario Court of Appeal has also ruled that an individual offender’s situation, despite his indigenous background, may be such that he or she does not receive the full benefit of Gladue considerations. For example, in R. v. D.B. 2013 ONCA 691, the unanimous Court considered a situation where an offender was given a more lenient sentence as a result of his indigenous heritage. In determining that the trial Court gave undue weight to the Gladue principles, Watt J.A stated at paras 13 to 15:

While the sentencing judge did correctly state the Gladue principles, he failed to "tie them in some way" to the offender and the offence and in so doing, underemphasized the respondent's moral culpability for this offence. While an Aboriginal offender need not establish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offender and the offence (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 83. See also R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). The rationale for Gladue is that many Aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development and these circumstances may diminish their moral culpability (R. v. Ipeelee, at para. 73).

In this case the respondent's circumstances did not diminish his moral culpability. As the Gladue report indicated, the respondent's knowledge of, and participation in, his Aboriginal culture was limited. He grew up off-reserve and was raised by parents who have been married for over 45 years and who ran a successful business. There was no suggestion of any residential school history within his mother's family of origin. The respondent never attended a residential school and there is no evidence he experienced any sexual abuse, discrimination, or forced displacement.

In the circumstances, the judge's emphasis on addressing the impact of residential schools, displacement from communities, and higher incidents of suicide, substance abuse and incarceration among Aboriginal people was misplaced in this case. There was nothing in the Gladue report that would warrant a sentence outside the normal range. [emphasis added]

32Thus, counsel for both the Mr. McIntyre-Syrette and the Crown indicated that Kreko and D.B. appear to indicate that the weight to be attributed to the Gladue factors is case specific.

APPLICATION TO THE FACTS

33In this case, both counsel accept that the Gladue principles are not to be afforded as much weight as they would in situations where an offender directly suffered through obvious manifestations of cultural displacement. While Mr. MacIntyre-Syrette’s parents’ (and grandparents’) experience with residential schools, alcohol abuse and the like demand that Gladue must be considered in this case, Mr. MacIntyre-Syrette’s stable and relatively prosperous upbringing, coupled with his strong connection to his culture, mandate that the weight to be attributed to those Gladue principles are lessened relative to those situations where an offender suffers clear and obvious direct personal strife owing to cultural displacement.

34I also accept that given his background of non-criminality, Mr. MacIntyre-Syrette would not pose a threat to the community if he were placed on a conditional sentence. I equally accept that neither a penitentiary sentence, nor a non-custodial sentence is appropriate. As such I must consider the advisability of a conditional sentence and the question of the “fundamental purposes and principles of sentences”.

35In this matter, the aggravating features of the case are as follows:

a. Sexual assaults are inherently serious and thus demand a careful consideration of the need for both denunciation and general deterrence;

b. This sexual assault was, despite the lack of penetration, relatively violent. It was not one where an accused placed an unwanted, over the clothes, hand upon the victim’s genitals or other sexual area. It was an attempt at forcible sexual conduct that was only thwarted by the victim’s persistence in fighting off the accused;

c. In committing the sexual assault, Mr. MacIntyre-Syrette forcibly confined the victim in the women’s change room; and

d. The offence had a significant impact upon the victim’s emotional state.

36The mitigating features of the case are as follows:

a. The accused’s Gladue factors auger against a custodial disposition, however, both counsel concede that this factor is to be given limited weight;

b. The offender appears to have led an otherwise productive life without criminal conviction; and

c. The offender has considerable support from his community.

37Upon considering all the aforementioned factors, and giving due weight to the Gladue component, I find that a six month jail sentence is appropriate in the circumstance. While this is not a case that is at the “very violent” end of the sexual assault spectrum, neither is it a less serious incident. The incident involved the accused touching the side of the victim’s vagina with his penis. This can properly be characterized as an attempted rape whereby it is unclear as to what would have happened had the victim not fought back and had she been wearing something other than jean shorts. Accordingly, considerable weight must be given to the need for both denunciation and deterrence. Given Mr. MacIntyre-Syrette’s lack of criminal antecedents and the dated nature of the offence, it cannot be said that specific deterrence should be accorded any weight. Nonetheless, despite the considerable mitigating factors in this case, I consider the nature of the violent act committed and the emotional turmoil caused to the victim and thus find that general deterrence and denunciation be brought to the foreground. As Doherty, J.A. suggested in Killam, some cases require the use of the “most formidable denunciatory weapon,” that is, a custodial disposition.

38With respect to the range, two years less one day is too high based upon my review of the case law previously described in these reasons and fails to adequately consider the mitigating features of this case. Rather, I agree with defence counsel’s assessment that six months is the appropriate time range.

39Accordingly, Mr. MacIntyre-Syrette is sentenced to the following: Six months jail followed by three years of probation with the terms that he have no contact with the complainant A.A. (concurrent on both counts). There will also be an order under s. 490.01(3)(2)(b) for 20 years. The sexual assault conviction is a primary compulsory offence of the DNA scheme and as a result, Mr. MacIntyre-Syrette will be ordered to provide a sample of his DNA in custody pursuant to s. 487.051 of the Criminal Code of Canada within seven days of his incarceration. Finally, I hereby order a s. 109 weapons prohibition for 10 years.

Varpio J.

Footnotes

1. 1A section 486.4 Order was in place during the trial. On October 19, 2016 the Crown advised me that the complainants no longer wished to have such an Order in place. Accordingly, the publication ban was lifted on that date.
2. 2It was brought to my attention that charges – potentially involving a child – were withdrawn prior to trial.