2018 ONSC 6325

Court File No. CR-17-60

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

RAPHEAL SUTHERLAND

S E N T E N C I N G

BEFORE THE HONOURABLE JUSTICE FUERST

on MARCH 9, 2018 at BARRIE, Ontario

BY COURT ORDER UNDER SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA, INFORMATION THAT MAY IDENTIFY THE PERSON(S) DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT(S) MAY NOT BE PUBLISHED, BROADCASTED OR TRANSMITTED IN ANY MANNER.

Appearances:

L. Saunders Counsel for the Provincial Crown

J. Mor Counsel for Rapheal Sutherland

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

IN-CH

CR-EX

RE-EX

No Witness Examinations

Transcript Ordered....................... September 2018

Transcript Completed..................... October 23, 2018

Ordering Party Notified.................. October 23, 2018

FRIDAY, MARCH 9, 2018

FUERST, J. (Orally):

Rapheal Sutherland is a 22 year old first offender. He pleaded guilty to assault causing bodily harm. The issue is whether I should impose a jail term.

CIRCUMSTANCES OF THE OFFENCE

In December 2015, Mr. Sutherland attended Base Borden for Canadian Ranger Training. So too did K.B.. Both Mr. Sutherland and Ms. K.B. are Indigenous persons, but they reside in different Northern Ontario communities. They had never dealt with one another before.

On the night of December 3, 2015, a large group of Rangers went to the Base bar for drinks. Mr. Sutherland and Ms. K.B. were among the group. They had limited, if any, interaction while at the bar.

Everyone was socializing and drinking. Both Mr. Sutherland and Ms. K.B. consumed a significant amount of alcohol. Ms. K.B. was very intoxicated. So too was Mr. Sutherland, who vomited in the washroom.

Around midnight, a large group left the bar to go back to barracks. Mr. Sutherland and Ms. K.B. ended up walking together. They became separated from the group.

Ms. K.B. was having black-outs as a result of her alcohol consumption.

Mr. Sutherland grabbed Ms. K.B.'s arms with force and held onto her without her consent. She dropped her body to the ground in an attempt to get out of his grip. She told him to stop, but he persisted with the grabbing in an effort to touch her sexually.

Eventually, Mr. Sutherland had Ms. K.B. on the ground. He forced her to perform fellatio on him without her consent.

Mr. Sutherland and Ms. K.B. then went in separate directions. Each of them was lost. Mr. Sutherland called 911 for assistance. Ms. K.B. flagged down an officer and reported that she had been assaulted. She was taken to the hospital for treatment.

Mr. Sutherland was arrested. He provided a statement to the police. Although his recollection for parts of the evening was affected by the consumption of alcohol, he acknowledged that Ms. K.B. had resisted.

Ms. K.B. suffered bodily harm, specifically bruising. She was in pain for some days after the assault.

Ms. K.B. declined to provide a Victim Impact Statement.

THE CIRCUMSTANCES OF MR. SUTHERLAND

I was provided with comprehensive Gladue and pre-sentence reports, as well as a raft of letters in support of Mr. Sutherland. All of this material was very helpful to me in understanding Mr. Sutherland's life circumstances, as well as his character.

Mr. Sutherland is a 22 year old first offender. He is indigenous. He is both an Aboriginal person and a Cree status Indian, as legislatively defined. He is a registered band member of Constance Lake First Nation, a community of about 1500 people, which is located 32 kilometres west of Hearst, Ontario. He lives on Constance Lake First Nation. It is comprised of two reserves. Opportunities for employment are limited, alcohol and drug use is a problem, there is a high incidence of violent behaviour, and social support systems in the community also are limited.

Mr. Sutherland's biological mother and father are also both registered band members of Constance Lake First Nation. He does not know his biological father. He has some contact with his biological mother, who now lives off the reserve. He is close to his maternal grandfather, who lives on the reserve. Two of his mother's sisters attended residential school. The Gladue report writer noted that the residential school experience is linked to a wide range of social problems in Indigenous communities, including addiction and physical and sexual abuse.

Mr. Sutherland's mother was a single parent when he was born. She had an alcohol problem. Mr. Sutherland was apprehended by the Children's Aid Society when he was an infant. He was placed in foster care, eventually with Janet and James Sutherland, who were also members of Constance Lake First Nation. Their daughter, Lizzie Sutherland, adopted him when he was three or four years old. She too is a member of Constance Lake First Nation. Two of her aunts attended residential school. She raised Mr. Sutherland and a biological son, on the reserve, as a single mother. She is a hardworking and caring individual. Alcohol or drug use were not features of the home environment. The Gladue reporter describes her as a constant support for Mr. Sutherland. He has a close relationship with her.

As a teenager, Mr. Sutherland lived with and helped care for his adoptive grandfather, for about four years. His grandfather encouraged him to stay on the right path and do well in life.

Relevant information about some trauma experienced by Mr. Sutherland in childhood is set out at page 4 of the Pre-Sentence Report, and pages 9 and 10 of the Gladue Report.

Mr. Sutherland attended school on the reserve. He has a learning disability, and was held back in elementary school. He had an Individual Education Plan, meaning that he followed a curriculum modified to his needs. He struggled in high school, but in June 2017 obtained his grade 12 diploma. He has some difficulty with English comprehension and needs help filling out paperwork.

While he was in high school, Mr. Sutherland was employed by Constance Lake First Nation, helping with yard maintenance and cutting grass.

In the fall of 2015 when he was 19 years old, Mr. Sutherland was sworn into the Canadian Rangers. They are part of the Canadian Armed Forces Reserves. They perform tasks such as assisting in search and rescue efforts and with natural disasters. Mr. Sutherland committed the offence while he was at Base Borden for training, about two months after he was sworn in. As a result, he was unable to finish his training, although he remains a member of the Canadian Rangers. His Canadian Rangers Instructor describes him as extremely reliable and dependable.

Mr. Sutherland began drinking alcohol when he was 13 years old. Eventually, he began to use it as a coping mechanism. He would binge drink on weekends. He reports that he was heavily intoxicated at the time of the offence, and that it would not have happened if he had not been drinking. He admits that he has an alcohol problem. He would like to get treatment for it. He told the Gladue reporter that he does his best to stay sober, but drinks occasionally. He does not use drugs. He has started working out to stay healthy. The Gladue reporter recommends that he attend a residential treatment program for alcohol abuse.

Since he was charged, Mr. Sutherland has lived in Constance Lake with his adoptive mother. She does not have a driver's licence, and depends on him for transportation. Her need for his assistance increased in December 2017, when her grandchildren by her biological son were placed in her care by the Children's Aid Society.

In the summer of 2017, Mr. Sutherland was employed with the band's logging company. He was laid off in October. In November he was hired as a supply janitor at the day care centre on the reserve, for about six weeks.

In September 2016, Mr. Sutherland began to have suicidal thoughts. He engaged in some counselling. In March 2017, his adoptive grandfather died. This was difficult for Mr. Sutherland. He again engaged in some counselling. In December 2017 he was admitted to hospital as a result of having suicidal thoughts, apparently related to the court process. He was diagnosed with anxiety, depression, and post-traumatic stress disorder. He was prescribed medication.

The counselling has included discussion about alcohol use. It also has involved education about the effects of the offence on the victim. One of the counsellors reports that Mr. Sutherland showed insight about this, and had done some research on his own.

Mr. Sutherland is described as a hard worker who goes out of his way to help people. He does some volunteer work with the Junior Rangers program. He is said to be someone to whom the youth listen, and a person to whom they look up. He is a volunteer firefighter on the reserve. He is often asked to help out at the school, for example by chaperoning students on trips. He volunteers at community pow-wows. The Chief of Constance Lake First Nation referred to him as a good role model for the younger generation in the community.

One of the counsellors who has worked with Mr. Sutherland told the Gladue reporter that jail would be "devastating" for Mr. Sutherland.

Mr. Sutherland would like to complete his Canadian Rangers training. He is interested in a career with the Canadian Armed Forces.

Mr. Sutherland expressed remorse for his offence to the pre-sentence reporter, and took responsibility for his actions.

Before me in court, Mr. Sutherland apologized to the victim and her family. He expressed his realization that he may have caused her anxiety, depression, and post-traumatic stress disorder. He said that he took responsibility for his actions.

THE POSITIONS OF THE PARTIES

On behalf of the Crown, Ms. Dafoe seeks a sentence of six months in jail, followed by three years of probation. She also seeks a DNA order, a s. 109 order, and a non-communication order while in jail. She acknowledges that Mr. Sutherland is a youthful first offender who pleaded guilty, that the offence was out of character for him and he has insight into his actions, and that the Gladue report in particular is very favourable. But, she emphasizes that the offence was sexual in nature, that it involved a very intoxicated victim, and that the victim is a vulnerable young Indigenous person.

On behalf of the defence, Mr. Mor seeks a suspended sentence and three years of probation. He agrees that the applicable ancillary orders should be made. He emphasizes that Constance Lake is a difficult community in which to live, but despite his challenges, Mr. Sutherland finished high school, volunteered in the community, joined the Canadian Rangers, and has done his best to find work. He is recognized as a role model in the community. Mr. Mor concedes the seriousness of the offence, but describes it as an isolated mistake that was out of character. Mr. Sutherland gave a statement to the police, pleaded guilty, and has done all that he could to demonstrate that he deserves a second chance.

THE PRINCIPLES OF SENTENCING

The objectives of sentencing were codified in s. 718 of the Criminal Code. They are: the denunciation of lawful conduct and the harm done to victims or to the community, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and 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 be considered.

Section 718.2(e) provides that in considering the latter factor, particular attention should be given to the circumstances of Aboriginal offenders. The Supreme Court of Canada explained in R. v. Ipeelee, 2012 SCC 13 that the impetus for the specific reference to Aboriginal people in s. 718.2(e) was the overrepresentation of Aboriginal people in the Canadian criminal justice system. I note that the term "Aboriginal" is used in s. 718.2, and in the various appellate court decisions that have commented on the provision. I use the term "Indigenous" instead.

In Ipeelee, the Court reiterated the approach that judges must take in sentencing Indigenous offenders, as initially expressed in R. v. Gladue, [1991] 1 S.C.R. 688. Judges are to have recourse to a restorative approach. They must pay particular attention to the circumstances of Indigenous offenders, because those circumstances are unique and different from those of non-Indigenous offenders. When sentencing an Indigenous offender, a judge must consider the unique systemic or background factors that may have played a role in bringing the Indigenous offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection.

The Court was very clear that s. 718.2 is not some kind of affirmative action provision or race-based discount on sentencing. Rather, it is a direction to judges to take into account the unique circumstances of Indigenous offenders that bear on the sentencing process, and to craft sentences in a manner that is meaningful to Indigenous peoples.

ANALYSIS

I must impose a sentence that is proportionate to both the gravity of the offence and the degree of responsibility of the offender: see Ipeelee, at para. 286. I take judicial notice of the systemic and background factors affecting Indigenous people in Canadian society, in particular, the history of colonialism, displacement and residential schools that impacted Indigenous persons, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Indigenous offenders: see Ipeelee, at para. 60.

I also have the benefit of very thorough Gladue and pre-sentence reports that provide case-specific information about Mr. Sutherland and his circumstances.

The maximum sentence for assault cause bodily harm is 10 years in jail. However, Crown and defence counsel agree that the range of sentence for assault causing bodily harm is very broad, and includes both significant jail terms and non-custodial sentences.

The bodily harm that was specified in the Agreed Statement of Facts and admitted by Mr. Sutherland was bruising to the victim's body and the causing of pain that lasted for some days.

It is important to bear in mind that although the offence occurred in the context of non-consensual sexual contact with a young woman, I am not sentencing Mr. Sutherland for sexual assault. That is not the offence to which he pleaded guilty.

That said, I agree that the fact the offence occurred in the context of non-consensual sexual contact with a young woman is an aggravating factor. I also treat as aggravating the fact that the victim was an Indigenous person, and that she was very intoxicated and so in a vulnerable state.

By all accounts, however, this offence was very much out of character for Mr. Sutherland. He is consistently described by those who know him as polite, respectful, well-mannered, and a person who helps others in need.

The mitigating factors are numerous. Mr. Sutherland pleaded guilty without setting a trial date. This is an expression of his remorse and willingness to accept responsibility for his actions. It also spared the victim from having to testify, and avoided the allocation of court time to a trial.

Mr. Sutherland is a youthful first offender. As a result of his guilty plea, he now has a criminal record.

Mr. Sutherland grew up on and continues to live on a reserve where opportunities are limited, and alcohol and drug abuse is prevalent. Members of both his biological and adoptive families were sent to residential schools. He was taken from his biological mother when he was an infant, because she had an alcohol problem. There was a period of instability in his early childhood when he was placed with different foster families. Fortunately, he was adopted by a woman, who along with her parents, provided him with love, caring and stability. She deserves a great deal of credit for the many positive comments that have been made about Mr. Sutherland.

Although Mr. Sutherland struggled in school because he has a learning disability, he persevered and obtained his grade 12 diploma. Jobs on the reserve are scarce, but he has done his best to find work, including as a janitor. He is a member of the Canadian Rangers and would like to have a career in the Canadian military. He volunteers in his community, at the local school, as a volunteer firefighter, and with the Junior Rangers. He is viewed as a role model to other young men on the reserve. He is connected to his Indigenous heritage.

Unfortunately, despite his youth, Mr. Sutherland has an alcohol problem. Excessive drinking played a role in his offence. He recognizes that. He recognizes that he needs professional help, and he is willing to get treatment for his alcohol problem. He also has discussed with counsellors that he suffered some trauma as a child, which may well have played a role in the commission of his offence. He recognizes that he needs to deal with that issue as well.

I am satisfied from his remarks in court and the information provided in the reports that Mr. Sutherland is sincerely remorseful for his offence. He was spoken with counsellors about the impact of his behaviour on the victim. He also did his own research to better understand it. He has demonstrated a measure of insight into his actions that is remarkable.

The objectives of sentencing for this offence of assault causing bodily harm are denunciation and deterrence, most particularly general deterrence. It is important that other young men in the community understand that the kind of behaviour in which Mr. Sutherland engaged is simply unacceptable, no matter where it occurs. Mr. Sutherland's rehabilitation, however, cannot be ignored. And, while I am satisfied that specific deterrence has largely been achieved by Mr. Sutherland's exposure to the court process, some professional supports going forward will be reinforcing.

The Supreme Court of Canada recognized in R. v. Wells (2000), 141 C.C.C. (3d) 369 the possibility that in appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that the Indigenous offender committed a serious crime. This is one of those cases. I am satisfied that a jail term is not necessary to meet the objectives of sentencing. Rather, it would be destructive of this young Indigenous person, and the very impressive steps he has taken to meet and overcome challenges. He should be encouraged to continue in his efforts to contribute to his community and broader society.

Mr. Sutherland, please stand. I suspend the passing of sentence and impose a period of probation of three years. The terms of your probation will be the statutory conditions, plus the following:

1. Report in person to a probation officer today, and thereafter as directed by the probation officer or anyone authorized by the probation officer to assist in your supervision;

2. Attend and participate in any assessment, counselling or rehabilitative programs as directed by the probation officer, including for alcohol abuse and mental health issues;

3. Sign releases of information so that your probation officer can monitor your progress in assessment, counselling or rehabilitative programs;

4. Not consume alcohol outside of your residence;

5. Have no communication direct or indirect with K.B.;

6. Not be within 100 metres of any places where you know K.B. to be, live, work or attend school;

7. Perform 50 hours of community service work, commencing no later than April 3, 2018 at a rate not less than 4 hours each month until completed.

Do you understand those conditions?

MR. SUTHERLAND: Yes Your Honour.

THE COURT: Are you able to obey them?

MR. SUTHERLAND: Yes.

THE COURT: I order that the probation supervision be transferred to the location closest to Constance Lake First Nation.

I make a DNA order, a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life.

I impose the victim surcharge of $200, with three years to pay.

You can be seated Mr. Sutherland.

I would like to express my appreciation to the authors of the Gladue report and the pre-sentence report. Both reports were detailed and insightful. They were very helpful to me.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and

accurate transcript of the recording of R. v. Rapheal Sutherland in

the Ontario Superior Court of Justice, held at 75 Mulcaster Street,

Barrie, Ontario, taken from Recording

No.(’s)3811_01_20180309_083150_10_FUERSTM.dcr which has been

certified in Form 1.

October 23, 2018 __________________________________

Shannon Heryet - ACT #3389634078