COURT FILE NO.: CR-19-50000141-0000

DATE: 20210329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.S.

Defendant

Michael A. Townsend, for the Crown

Anthony DeMarco and Anthony Marchetti, for the Defendant

HEARD: January 27, 2021

JUSTICE S. NAKATSURU

[1] A wise judge, long since retired, once said to me: “Sentencing a fellow human is the hardest part of the job.”

[2] I must agree. Some cases are harder than others. This case has proven to be one of the hard ones.

[3] R.S. The jury acquitted you of one count of sexual assault. They found you guilty of another count of sexual assault and the offence of choking with intent to overcome resistance to facilitate the sexual assault. My task is to sentence you for these serious crimes. I must apply the sentencing law to you fairly and justly. A part of that law is my duty to recognize your Indigenous identity, your Indigenous lived experience, and the colonial legacies affecting Indigenous persons.

[4] L.H. I want to say something to you. The voices of the victims of sexual crimes must be heard by the courts. The pain and anguish you suffered at the hands of someone you believed was a good friend must be recognized. I saw and heard it when you testified. It is there in the heart-felt statement you wrote for this sentencing. I will refer more to this later. But for now, I want to stress that although much of my decision will be about R.S. – by necessity, this must be so - I have heard your voice clearly.

[5] This is the brief road map to my decision: (1) the factual overview of the offences; (2) the Crown and the defence position on sentence; (3) the constitutional issue raised by the defence; (4) your background, and; (5) my sentencing analysis, including whether a conditional sentence is the fit sentence.

A. THE SEXUAL ASSAULT AND CHOKING

[6] R.S. and L.H. met at work. They became good friends. They had common interests. They regularly communicated with each other.

[7] On March 25, 2018, R.S. and L.H. went to see a hockey game. They each had three beers at the game. Afterwards, they went to a restaurant in the Liberty Village area of Toronto. L.H. believed that during their time there, they each had three more beers. R.S. also had Bloody Caesars, though L.H. was not sure how much he drank. At the restaurant, L.H. kissed R.S. They left the restaurant to go back to L.H.’s apartment. R.S. was going to help her prepare for a job interview the next day. L.H. could not recall how they got back to her place, but she later realized they had taken GO transit. She admitted that perhaps they were kissing at the GO station, but she could not specifically recall.

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

[9] At this point, the neighbor upstairs who heard noises that sounded like someone in distress coming from L.H.’s basement apartment, came down and pushed the door of L.H.’s apartment open. She asked L.H. if she was okay. R.S. replied they were fine. Then the neighbor thought that she had just interrupted people having loud sex. The neighbor hurriedly excused herself. L.H.’s cat got out through the open door. L.H. told her neighbor that this was fine. L.H. testified that she could not really speak as she was still processing everything that was happening.

[10] L.H. went to her bed and curled up. Her neighbor texted her to apologize. L.H. texted back not to worry about the cat. R.S. stood by silently. He eventually said he was going to leave. He did.

[11] There was a further exchange of texts between R.S. and L.H. as she lay on her bed. She was crying. R.S. texted that no one, L.H., R.S., or the neighbor, did anything wrong. She texted back to R.S. to get home safe. L.H. testified that she could not handle what had just happened and that she was trying to ignore the whole thing.

[12] However, that proved impossible. That night, L.H. called a close friend of hers. The friend arrived at L.H.’s place an hour later. L.H. was upset, shaking, disheveled, and nervous. L.H. had a red mark and bruising on her neck. A spot on her stomach was bruised and swollen. L.H. then called the police.

B. THE POSITION OF THE PARTIES ON SENTENCE

[13] R.S. submits that the prohibition on a conditional sentence for sexual assault is unconstitutional. R.S. argues that the impugned provision violates ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. In light of its unconstitutionality, the defence submits that a fit sentence is a conditional sentence of 18 months to 2 years less a day. This remains a jail sentence, but one served in the community. Added to this, a period of probation for up to 3 years is suitable. R.S. submits that this sentence takes into account all the relevant factors, including R.S. being an Indigenous offender.

[14] The Crown submits that the fit sentence for R.S. is 3 to 4 years. Given the length of that sentence, a conditional sentence is unavailable. As a result, the constitutional issue raised by R.S. need not be decided. Alternatively, if the appropriate sentence is to be less than 2 years, the Crown submits that a conditional sentence would be contrary to the fundamental purpose and principles of sentencing. Therefore, a jail sentence should be imposed. For this reason as well, the constitutional question is moot and unnecessary to resolve.

[15] In the further alternative, the Crown submits the relevant sentencing provision does not violate ss. 7 or 15 of the Charter. Finally, if it does violate the Charter, it is nonetheless saved by s. 1 of the Charter.

C. THE CONSTITUTIONAL CHALLENGE TO S. 742.1(f)(iii)

[16] I will first deal with the constitutional challenge to the criminal sentencing law.

[17] R.S. brings an application to have s. 742.1(f)(iii) of the Criminal Code declared of no force and effect under s. 52 of Constitution Act, 1982. R.S. alleges that the section violates ss. 7 and 15 of the Charter and is not saved by s. 1.

[18] Section 742.1(f)(iii) states that a conditional sentence is not available for the offence of sexual assault when prosecuted by way of indictment.

1. The Position of the Parties on the Constitutional Challenge

[19] The applicant relies primarily on the Ontario Court of Appeal’s reasons in R. v. Sharma.[^1] He submits that the reasoning of the majority, which found other subsections of s. 742.1 violative of ss. 7 and 15 of the Charter, has equal application to the material provision in the case at bar.

[20] In response, the Crown’s primary position is that the constitutional challenge need not be reached.[^2]

[21] In the alternative, the Crown submits that s. 742.1(f)(iii) does not violate either ss. 7 or 15 of the Charter. The Crown submits that Sharma dealt primarily with s. 742.1(c) which made conditional sentences unavailable for a significant number of Criminal Code offences. This is different from the applicant’s challenge. The applicant challenges a conditional sentence’s unavailability for a single serious criminal offence: sexual assault. In this different context, the Crown submits that the applicant has not met his onus in proving either violation.

[22] In the further alternative, the Crown submits that any violation is saved under s. 1 of the Charter.

[23] Let me address the Crown’s primary argument. I do not gainsay that the appropriate range of sentence for cases such as this could attract a penitentiary sentence. The Crown’s cases show this. Also, the Crown’s general approach has been met with approval in other cases. Two Ontario courts have declined to consider the constitutionality of other provisions of s. 742.1 post-Sharma on the basis it was not necessary to do so on the facts.[^3]

[24] However, none of the cases relied upon by the Crown involved an Indigenous offender where a sentencing analysis unique to such offenders must be conducted. Moreover, based upon the defence cases, I am persuaded that a conditional sentence could be given for these offences if the constitutional challenge is successful. In these circumstances, it would not be moot to decide the constitutional challenge. Indeed, in my view, to really grapple with the difficult sentencing issues raised in this case, the constitutional validity of s. 742.1(f)(iii) must first be determined.[^4]

[25] I further observe that in keeping with general Charter review principles, R.S., who otherwise has standing, is entitled to seek a declaration of invalidity under s. 52 of the Constitution Act, 1982, on the grounds that a law has unconstitutional effects not just in his own case but also when applied to others. Permitting such a challenge promotes the rule of law.[^5]

[26] To begin the analysis, I will set out a brief summary of Sharma.

2. R. v. Sharma

[27] Ms. Sharma is an Indigenous woman who pled guilty to importing cocaine into Canada. She had endured a traumatic childhood due to the legacy of residential schools and committed the offence in order to pay rent for herself and her young daughter.

[28] Section 6(3) (a.1) of the Controlled Drugs and Substances Act establishes a maximum penalty of life imprisonment for importing drugs. The nature of the offence and the penalty put the offence within the scope of ss. 742.1(c) and (e)(ii) of the Criminal Code, which removes the availability of a conditional sentence for certain offences. Section 742.1(c) disallows conditional sentences for offences prosecuted by way of indictment where the maximum penalty is 14 years or life imprisonment. Section 742.1(e)(ii) disallows conditional sentences for offences prosecuted by way of indictment for which the maximum penalty is 10 years that involve the import, export, trafficking or production of drugs. Ms. Sharma argued that both ss. 742.1(c) and (e)(ii) violated s. 15 of the Charter because their effect was to discriminate against Indigenous offenders based on race. She further argued that they violated s. 7 because they were arbitrary and overbroad in relation to their purpose.

[29] Feldman J.A., writing for the majority of the Ontario Court of Appeal, found that the provisions violated both ss. 7 and 15 of the Charter and could not be saved under s. 1. Miller J.A. dissented.

[30] Feldman J.A. applied the s. 15 analysis from Kahkewistahaw First Nation v. Taypotat.[^6] She found that on the first branch of the Taypotat analysis, the provisions’ impact on Indigenous offenders, including Ms. Sharma, created a distinction on the basis of race. Although the provisions were facially neutral, they created a distinction in their effect because of the substantive inequality Indigenous offenders face in the criminal justice system, which manifests in their overincarceration. One of Parliament’s purposes in creating s. 718.2(e) and the conditional sentence regime was to address the overincarceration of Indigenous offenders in Canada. Section 718.2(e) is a sentencing principle that requires judges to take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community, and to pay particular attention to the circumstances of Indigenous offenders. Removing a court’s ability to impose a conditional sentence instead of a prison sentence created a distinction between Indigenous and non-Indigenous offenders based on race.

[31] On the second branch of the test, Feldman J.A. held that the provisions denied Ms. Sharma a benefit in a manner that had the effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Indigenous person. Ms. Sharma’s failure to lead statistical evidence to prove discriminatory impact was not fatal to her claim. It was unnecessary for her to lead such evidence in this case because the impugned provisions removed an important tool that would have allowed the sentencing judge to give effect to the mandate of s. 718.2(e). The availability of other sanctions, such as suspended sentences, did not remedy this. The sentencing judge suggested that Ms. Sharma would have been a prime candidate for a conditional sentence if not for s. 742.1. The inability to impose a conditional sentence thus exacerbated the disadvantage Ms. Sharma experienced as an Indigenous person by removing the one remedy that would have allowed the sentencing judge to fulfill s. 718.2(e)’s mandate.

[32] Ms. Sharma also argued that the impugned provisions violated s. 7 of the Charter because they were arbitrary and overbroad relative to the legislative purpose. Feldman J.A. found that the provisions’ purpose was to maintain the integrity of the justice system by ensuring that serious offences always attracted a custodial sentence. The means by which the legislation implemented this purpose was by removing the availability of a conditional sentence for offences where the maximum penalty was 14 years or life, or 10 years in the case of offences involving the import, export, trafficking, or production of drugs. The court rejected Ms. Sharma’s argument that the impugned provisions were arbitrary because they created a gap in the sentencing range available for these offences by removing the middle of the range, thereby forcing judges to impose a sentence that was either too high or too low.

[33] However, the court accepted her argument for overbreadth. Feldman J.A. agreed that by using the maximum sentence for an offence as a proxy for its seriousness, the provisions captured a broad spectrum of offences that could range from the low to high end of seriousness. It rejected a Crown argument that the need for denunciation and deterrence justified the removal of the conditional sentence option for offences as serious as importing cocaine and aggravated sexual assault. In response to this argument, the court noted that conditional sentences may be appropriate even in cases where deterrence and denunciation are the paramount sentencing objectives, including those two offences.

[34] Finally, Feldman J.A. held that the s. 7 breach was not saved under s. 1 because the Crown advanced no substantive arguments to justify it. The s. 15 breach was also not saved. The provisions were not minimally impairing because they removed the only sentencing alternative that could have been available for this crime and for this offender. The salutary effect of the provisions also did not outweigh their deleterious effects because the provisions did not take account of the need to address the overincarceration of Indigenous people that results from their disadvantage based on race.

[35] The court struck down ss. 742.1(c) and 742.1(e)(ii) and declared them of no force and effect. This declaration took immediate effect. It set aside Ms. Sharma’s sentence of 17 months in prison and substituted a conditional sentence of 24 months less a day. In so doing, the court considered Ms. Sharma’s personal circumstances, guilty plea, lack of a criminal record, and the relevant factors relevant to her Indigeneity. However, since Ms. Sharma had already served her sentence in prison, further time spent under a conditional sentence was not in the interests of justice.

3. Section 15(1)

[36] Section 15(1) of the Charter provides the following guarantee:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[37] I find that s. 742.1(f)(iii) violates s. 15(1) for the following reasons.

[38] The first question of the s. 15(1) test asks whether s. 742.1(f)(iii) creates a distinction based on an enumerated or analogous ground, either on its face or in its impact. As in Sharma, this impugned provision is neutral on its face. Also, like Sharma, it is the effect of the provision that creates the distinction based upon race. I find s. 742.1(f)(iii) creates the same type of distinction as the other provisions of s. 742.1 that were struck down. The fact that the offence under consideration is sexual assault rather than the offences challenged in Sharma has little relevance to the analysis. The following passage from Sharma has equal application to the case at bar:[^7]

The distinction that is created by the impact of the impugned provisions relates to the overincarceration of Aboriginal offenders, not their overrepresentation in the criminal justice system. By removing the ability to impose a conditional sentence instead of a prison sentence for an offence, the effect on an Aboriginal offender is to undermine the purpose and remedial effect of s. 718.2(e) in addressing the substantive inequality between Aboriginal and non-Aboriginal people manifested in overincarceration within the criminal justice system, which has been acknowledged by Parliament and the courts as requiring redress.

[39] The second question of the s. 15(1) test asks whether the impugned law has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of the claimant. Like Sharma, the question here is whether the law has that effect on the applicant because he is Indigenous.

[40] In answering this, an evidentiary issue arises. The onus is on the claimant to demonstrate, through evidence, the effect of the impugned law on the claimant. The Crown argues that the applicant has failed to discharge his evidentiary onus. The Crown points to the applicant’s failure to call any evidence that the removal of the availability of conditional sentences for sexual assault has had a disproportionate impact on Indigenous offenders.

[41] I do not agree. The applicant is correct that such evidence is not necessary in the circumstances of this case. The court in Sharma observed that “if direct evidence is not available, courts may rely on logical inferences and judicial notice”.[^8] Similarly, in Université de Sherbrooke c. Québec (Commission des droits de la personne et des droits de la jeunesse,[^9] the Quebec Court of Appeal confirmed that evidence that the alleged distinction perpetuated prejudice or stereotypes is no longer required.[^10] Most importantly, as the defence pointed out, the court in Sharma found that the sentencing judge “was entitled to take judicial notice of the phenomenon of overincarceration of Aboriginal offenders and the fact that systemic discrimination is recognized as a direct cause of that phenomenon in Canada.”[^11] Therefore, in my opinion, the applicant is not required to provide specific evidence by way of statistics or expert evidence of the law’s disproportionate impact on Indigenous offenders.

[42] The applicant comes before me starting from a place of substantive inequality. The intergenerational legacy of colonialism, displacement, and cultural genocide committed by the Canadian government against the Indigenous peoples of Canada has produced, among other effects, the phenomenon of the overincarceration of Indigenous people in Canada, a fact of which I take judicial notice.

[43] As in Sharma, I find that s. 742.1(f)(iii) removes a sentencing tool that would otherwise allow a sentencing judge to give effect to the mandate of s.718.2(e). This sentencing tool can alleviate, in a modest yet crucial way, the disadvantage experienced by an Indigenous offender in sentencing. By removing it in cases of sexual assault prosecuted by way of indictment, the provision effectively reinforces, perpetuates, and exacerbates the disadvantage of the Indigenous offender in the circumstances of their case. This inference comes both naturally and compellingly.

[44] The Crown further argues that the court cannot draw the same inference that the impugned provision has a disproportionate effect on Indigenous offenders, as Feldman J.A. did in Sharma, because such offenders in the applicant’s position prior to the amendments abolishing its application, likely would not have received a conditional sentence for sexual assault because such sentences were inconsistent with the principles of sentencing. The Crown also contends that the provisions in Sharma captured more offences more broadly than the exclusion of sexual assault in s. 742.1(f)(iii).

[45] Of the latter distinction, I find it neither entirely accurate nor persuasively material. Sharma did not just consider s. 742.1(c), which involved offences with a maximum term of imprisonment of 14 years or life; a provision that would include a whole host of offences. Sharma also considered s. 742.1(e)(ii), which included the offences of importing, exporting, trafficking or the production of drugs. This is not that much less specific than s. 742.1(f)(iii).

[46] With regards to the former Crown argument, the number of potential cases affected by the unavailability of conditional sentences is not what matters. Rather, it is the disproportional effect on Indigenous offenders. That effect is not always reflected in raw numbers. As the court found in Sharma, “the legislative history and jurisprudence demonstrate that conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic overincarceration.”[^12]

[47] The insidious nature of this systemic discrimination against Indigenous people in the criminal justice system is well described in R. v. Ipeelee, where LeBel J. wrote:[^13]

Second, judges can ensure that systemic factors do not lead inadvertently to discrimination in sentencing. Professor Quigley aptly describes how this occurs:

Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination.

[48] Moreover, a scan of the jurisprudence reveals that conditional sentences were in fact being imposed for sexual assaults prosecuted by way of indictment before this option was abolished. In 2007, conditional sentences for indictable sexual assault were first precluded when “serious personal injury offences” prosecuted by way of indictment were excluded from the conditional sentence regime. Sexual assault was defined as a serious personal injury offence. Then the 2012 amendment to the Criminal Code directly prohibited conditional sentences for sexual assault. This 2012 amendment was brought in by the Safe Streets and Communities Act. Undoubtedly when conditional sentences were available, sexual assault offences prosecuted by way of indictment attracted more sentences of imprisonment than conditional sentences. A cursory search of sexual assault sentencing cases confirms this. However, equally without doubt, conditional sentences, although less common, were nonetheless being appropriately imposed by judges for such sexual assault offences.[^14] Inferentially, the removal of this sentencing tool would have had a real effect. For Indigenous offenders, given the context of the unique sentencing regime applicable to them, this effect veered into unconstitutional territory.

[49] The court in Sharma engaged in a thorough analysis of this branch of the s. 15 test. I cannot see how the Indigenous offender who is found guilty of sexual assault prosecuted by way of indictment would find themselves in a position that is any different for the purposes of the s. 15 analysis. Feldman J.A. concludes:[^15]

The intent of the Act [Safe Streets and Communities Act] is to incarcerate offenders convicted of certain offences. The reality is that the Act will result in more Indigenous offenders serving their sentences in jail rather than in their communities. Thus, I conclude that ss. 742.1(c) and 742.1(e)(ii) deny the benefit of a conditional sentence in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and is therefore contrary to s. 15 of the Charter. [Emphasis added.]

[50] Similarly, I find s. 742.1(f)(iii) contrary to s. 15(1) of the Charter.

4. Section 7: Overbreadth

[51] Section 7 guarantees that:

Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[52] It is not disputed that the applicant’s right to liberty and security of the person is engaged. The issue is whether the deprivation caused by s. 742.1(f)(iii) comports with the principles of fundamental justice.

[53] The applicant submits that s. 742.1(f)(iii) is overbroad and thus not in accordance with the principles of fundamental justice. In order to assess whether a law is overbroad, the first step is to identify the purpose of the impugned law. Following the identification of the purpose of the law, I then must ask if the impugned law is so broad in scope that it includes some conduct that bears no relation to its purpose. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts.[^16]

[54] In response, notwithstanding Sharma, the Crown relies upon the case of R. v. Anderson.[^17] The Crown submits that Sharma found the impugned provisions violated s. 7 because excluding offences from the conditional sentence regime due to their maximum penalty was overbroad when compared to the legislative purpose. In contrast, Parliament’s decision to exclude a specific serious offence, sexual assault when prosecuted by indictment, is directly tailored to the stated purpose of the legislation. He submits that purpose is where a term of imprisonment is the appropriate sentence, having that sentence be served in the community would not adequately meet the sentencing principles of denunciation and deterrence.

[55] In Anderson, McWatt J. (as she then was) rejected a constitutional challenge under s. 7 to the predecessor provision to s. 742.1(f)(iii) found in s. 742.1 of the Criminal Code, as it read from November 30, 2007 to November 20, 2012. This predecessor provision prohibited the imposition of a conditional sentence of imprisonment where an offender had been convicted of a "serious personal injury offence" as defined by s. 752 of the Code. Section 752 defined a serious personal injury offence to include the offence of sexual assault. As a result, a conditional sentence was not available in relation to the two counts of sexual assault that Mr. Anderson was convicted of. McWatt J. found that the provision was not overbroad.[^18]

[56] In Anderson, McWatt J. found that Parliament’s decision to exclude sexual assault from the conditional sentence regime was a direct response to the Supreme Court of Canada’s decision in R. v. Proulx,[^19] and the concern raised over conditional sentences being imposed for serious violent offences. She concluded that Bill C-9 (the predecessor bill to the Safe Streets and Communities Act) only removed the conditional sentence as a sentencing option for a serious personal injury offence. It did not create a minimum jail sentence. It did not remove other non-custodial sentencing options which would remain available where appropriate. McWatt J. concluded that judges had been allowed to retain discretion to impose a sentence for serious personal injury offences which would take into consideration different offenders and different types of offences in this category of offence. Only persons who had been convicted of a serious personal injury offence where a less punitive sanction, such as suspended or intermittent sentence and probation, would be inappropriate, were precluded from receiving a conditional sentence. McWatt J. ultimately concluded that this restriction of liberty could reasonably be expected in order to emphasize denunciation and deterrence. This restriction was rationally connected to the purpose and tailored to its objectives. Thus, she found the provision constitutional.

[57] Although the Crown did not refer to this case, R. v. Mason[^20] is also a relevant authority. In Mason, a constitutional challenge was brought to s. 742.1(f)(viii) under s. 7.[^21] The court upheld the provision. Section 742.1(f)(viii) prohibits conditional sentences for the offence of theft over $5000. Mr. Mason challenged the provision on the basis that it was overbroad and arbitrary. Broad J. rejected both arguments. However, counsel for Mr. Mason acknowledged that the overbreadth argument was the weaker of the two because he had accepted the Crown characterization of the provision’s objective as one emphasizing denunciation and deterrence in respect of the offence of theft over $5000. Thus, Broad J. found the provision was not overbroad. It did not interfere with some conduct which bore no connection to its objective of emphasizing denunciation and deterrence. He found that in cases where denunciation and deterrence did not need to be emphasized, the availability of lesser sentences like fines or conditional discharges avoided the inappropriate interference with conduct not connected to the objective. He concluded a “safety valve” such as a conditional sentence was not needed.

[58] Normally, judicial comity would require that I follow these decisions.[^22] However, Sharma has changed the legal landscape since those decisions were rendered. In my opinion, the authorities of Anderson and Mason cannot survive Sharma.

[59] First, Sharma came to a different conclusion regarding the purpose of s. 742.1 than the justices in Anderson and Mason.

[60] In Anderson, McWatt J. found that Parliament's purpose was to bar the use of conditional sentences for serious offenders in order to emphasize denunciation and deterrence and to contribute to the respect for the law and public safety and security. Similarly, in Mason, Broad J. found the purpose of the section he was dealing with was to emphasize denunciation and deterrence.

[61] In Sharma, Feldman J.A. found that the purpose of the impugned legislation was to “maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences.”[^23] Although she was specifically dealing with ss. 742.1(c) and 742.1(e)(ii), I cannot see her analysis as simply confined to those provisions. Feldman J.A. looked extensively at the history of the Safe Streets and Communities Act which brought in the amendments including s. 742.1(f)(iii). She identified the sources for determining the impugned law’s purpose for the overbreadth analysis: statements of purpose in the legislation; the text, the context, and the scheme of the legislation; and extrinsic evidence such as legislative history and evolution. When assessing those sources for s.742.1(f)(iii), I find that the same purpose imbues this impugned provision as well.

[62] This difference in characterizing the purpose of the provisions has a significant effect on the overbreadth analysis. In my view, it is not a matter of semantics. If the primary purpose is to emphasize denunciation and deterrence in sentencing as found to be the case in Anderson and Mason, then it is hard to envision a sentencing of an offender for sexual assault prosecuted by indictment that bears no rational connection to that purpose. Such offences would always call for there to be an emphasis on denunciation and deterrence, except for those rare and exceptional cases where simple probation might be appropriate. However, as found in Sharma, if the purpose is not so limited, then the overbreadth analysis has more substance. Since the purpose of s. 742.1 is to maintain the integrity of the justice system by ensuring those who commit serious offences go to jail, the focus of the analysis is on whether the conduct captured constitutes a “serious offence” or not. The overbreadth analysis is thereby not blocked even before it begins. As Feldman J.A. commented, one must be careful not to conflate the purpose of the provision with the means to achieve that purpose.

[63] Second, another difference between Sharma and Anderson is that the latter did not engage in the type of reasoning found in the former when Feldman J.A. concluded that the means chosen to pursue this objective had no rational connection between the impugned provision’s purpose and some of their effects. Anderson did not analyze the breadth of the offences that could fall under the category of sexual assault as a serious personal injury offence. McWatt J. merely emphasized the connection between the prohibition and Parliament’s need for deterrence and denunciation. This omission was likely the result of her different characterization of the purpose of the legislation. The same shortcoming exists in the analysis in Mason. McWatt J. also observed that in less serious cases, other options such as a suspended sentence or a short period of jail were available as less punitive sanctions. A similar argument made by the Crown in Sharma was specifically rejected by Feldman J.A.

[64] Feldman J.A. found the two provisions before her overbroad because by using the maximum sentence for an offence as a proxy for its seriousness, they captured a broad spectrum of offences that could range from the low to the high end of seriousness. Said differently, non-serious offences would be captured by the prohibition on conditional sentences.

[65] I appreciate that s. 742.1(f)(iii) does not explicitly use a maximum sentence as a proxy for seriousness. Here, Parliament has specifically set out an offence: sexual assault. However, in my opinion the result of the overbreadth analysis remains the same. The constitutional flaw is that it captures some conduct that has no rational connection to the purpose of the provision. Put simply, it captures sexual assaults that are not so serious that the offender should go to prison in order to maintain the integrity of the justice system.

[66] The offence of sexual assault encompasses a broad spectrum of conduct ranging considerably in severity.[^24] In between the high and the low end of seriousness for the offence of sexual assault in terms of the gravity of the offence where significant penitentiary sentences and non-custodial sanctions are appropriate, are cases where a person could meet all the conditions for serving the sentence in the community but for s. 742.1(f)(iii). In Sharma, Feldman J.A. rejected the Crown position that it was up to Parliament to define what a serious offence was for the purpose of the application of s. 742.1 regardless of the underlying conduct of any particular offender.[^25] Feldman J.A. further rejected the Crown argument that it was Parliament’s intent to have the consequence apply to serious offences in the abstract, regardless of whether the offence as committed in any particular case involved serious criminality.[^26]

[67] Thus, since s. 742.1(f)(iii) captures people and conduct it was not intended to, the provision is overbroad. When it comes to an offence such as sexual assault, the seriousness of the crime cannot be determined by the category of the offence viewed in isolation. As Feldman J.A. said: “Sentencing is not an abstract inquiry and cannot be divorced from the circumstances of the commission of the crime, which will reduce or increase the level of seriousness of the offence in any particular case.”[^27]

[68] Relevant to my conclusion is Feldman J.A.’s reference to a specific example raised by the intervenors HIV & AIDS Legal Clinic Ontario and Canadian HIV/AIDS Legal Network. They argued that aggravated sexual assault could be committed by non-disclosure of HIV even where all precautions were taken to prevent transmission and transmission does not occur. A conditional sentence would not be available in such a case. In Sharma the Crown argued, as the Crown argues here, that the provision was not overbroad since a lesser sentence such as a suspended sentence was still available for less blameworthy cases. Feldman J.A. rejected that argument. She concluded that even in cases where deterrence and denunciation were paramount sentencing objectives, a conditional sentence may still be appropriate. This would include the offence of an aggravated sexual assault when committed in certain circumstances. Such an example posited by her Honour directly speaks to the overbreadth of s. 742.1(f)(iii) when it comes to sexual assault. Even beyond such an example of aggravated sexual assault, there are a myriad of other fact situations involving simple sexual assault that could reasonably characterized as less serious conduct that does not require imprisonment in order to maintain the integrity of the justice system.

[69] A final observation. The Crown did not rely upon the prosecutorial discretion to elect to go by way of summary conviction proceedings in less serious cases of sexual assault in order to uphold the provision. Rightly so in my view. As in a section 12 analysis under the Charter, the constitutionality of an impugned provision cannot be salvaged by relying on the discretion of the prosecution to proceed summarily in cases that they deem the conduct to be not or less serious. The constitutionality of a law, especially one involving an inherently judicial function like sentencing, must be decided by a court and not by a discretionary decision of a Crown prosecutor. The overbreadth of a provision must be decided by me and I cannot delegate the avoidance of a violation to the prosecution[^28]

[70] In conclusion, the provision is overbroad as it applies to some offenders in circumstances that do not further the legislative purpose. For offenders who commit a sexual assault that when considered in the totality of the circumstances, is not a serious offence, the integrity of the justice system is not furthered by sending them to jail rather than permitting the sentence to be served in the community. Indeed, it could be reasonably contended that sending those offenders to jail would impair rather than enhance the respect for the administration of justice in the eyes of right-minded public members.

5. Section 1: Justifiable Limitation

[71] As in Sharma, the Crown has filed no evidence to justify the breaches of the Charter under s. 1. As in Sharma, the Crown has not made any specific arguments that relate to justifying the s. 7 violation. As in Sharma, the Crown has failed to discharge his onus to show that s. 742.1(f)(iii) is a reasonable limit on the applicant’s s. 7 right that can be demonstrably justified in a free and democratic society. Consistently since the very early days of Charter jurisprudence, few exceptional circumstances could justify placing a s. 1 reasonable limit on a s. 7 violation. In the seminal s. 7 case of Reference Re s. 94(2) of the Motor Vehicle Act (1985), Lamer J. (as he then was) stated on this point:[^29]

Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.

[72] With respect to the s. 15 violation, although I am dealing with a different subsection, Feldman J.A.’s conclusion on the s. 1 test set out in R. v. Oakes[^30] has direct application.

[73] That said, I agree that the part of the Oakes test regarding whether the deleterious effects of the impugned provision on Indigenous people are outweighed by the salutary effect of the provision, has an added dimension not expressly taken into account in Sharma. This is the prevalence of the crime of sexual assault and the need to fight it through the sentencing regime. Sexual assault is a serious offence and a plague on society. Ensuring that offenders who commit sexual violence are held accountable has significant salutary effects.[^31]

[74] However, the s. 1 justification fundamentally fails at the minimal impairment stage of the analysis. As perceptively detected by Feldman J.A. at para. 178 of Sharma:

Even if the Crown could establish that the provisions have a pressing and substantial objective, in my view, the s. 1 justification fails at the minimal impairment stage of the analysis. The Crown argues that the provisions are minimally impairing of Ms. Sharma's rights because they "only remove one sentencing option of many". As discussed above, they remove the only sentencing alternative to imprisonment that could have been available for this crime and for this offender. As in the game of musical chairs, when the chairs are removed, there is no place left to sit down.

[75] I conclude that the Crown has not discharged his onus under s. 1.[^32]

6. Remedy

[76] Pursuant to s. 52(1) of the Constitution Act, 1982, I declare that s. 742.1(f)(iii) to be of no force and effect.

[77] At this point, I will return to your sentencing R.S.

D. BACKGROUND OF R.S.: THE GLADUE REPORT

[78] You did not testify at trial.[^33] But I know you are Indigenous. Because you are Indigenous, a Gladue report was prepared by Aboriginal Legal Services. The Gladue report is thorough. It is well sourced from several people and institutional records. I have found the report written by the Gladue writer, Ms. Stephanie Matchiwita, to be very helpful. The following is some of the information in that report.

1. Indigenous Background

[79] You are 38 years old. Your roots are to the Michipicoten First Nation on the shores of Lake Superior. Your mother’s grandfather, James, was a registered member of that First Nation. He lived for a while on the reserve. While you believe you have additional Indigenous ancestry through your father’s connection to the Garden River First Nation and although many of its members share your surname, a check of their records could not confirm this.

[80] In 1927, your great grandfather tried to sever those roots. He was enfranchised. I find the term “enfranchisement” to be ironic. It masks the injustice of the government policy underlying it. Enfranchisement was used by colonial British and post-colonial Canadian governments to assimilate Indigenous people. To solve the “Indian problem” through cultural genocide. Chelsea Vowel, a Metis author and lawyer, described it in this way:

[f]or non-Indigenous peoples, enfranchisement was often viewed as victory over exclusion, the recognition of full rights or citizenship, including the ability to vote. For Indigenous peoples, enfranchisement was the often-non- consensual process through which federal recognition of Indians was withdrawn. With that withdrawal of recognition came an end to constitutional responsibility. Enfranchisement was a concrete way to assimilate Indigenous peoples out of legislative existence, extinguish their rights, and solidify colonial control over lands and resources.

[81] To say James “chose” enfranchisement is misleading. Over time, laws made this less than truly voluntary. Regardless of the degree of actual state compulsion, in order to escape the blatant discrimination that existed, some “chose” enfranchisement. For Indigenous persons to benefit from any social, economic, or political rights and benefits enjoyed by others such as being able to pursue higher education, hold private property, or to vote, they were forced to give up being an “Indian”. Moreover, an Indigenous man who gave up their status, gave it up for their wife and children. They had no “choice.”

[82] In 1985, the law was changed and descendants who were enfranchised could reapply for status under the Indian Act. Your maternal grandfather did not. He did not because his attitudes were shaped by the discrimination Indigenous people suffered. He did not want the “handouts” and felt that “Indians were taking of the system.” He did not want people to know the family was anything but white. But your aunt Maureen did. After her dad passed away, she regained her status in 1997. Your mother who was eligible did not do so. She never really had the chance.

2. Violence and Alcoholism in Your Childhood Home

[83] Raymond was your father. Carol your mother. On your father’s side, there was much violence and alcoholism. Your paternal grandfather drank too much. He violently beat his children. Including your father.

[84] The violence passed on to him. According to your uncle, your father was a very scary man. He suffered from depression, too much drink, and too much anger. He was a son who struck his own mother. He was a son who went to jail for shooting his own mother. Your sister confirms this.

[85] Your mother and father met in a department store. Your aunt said your father was a good provider but was drunk all the time. You describe it this way: “He was that kind of drinker. Was responsible then on paydays he would stay at the bar and that’s when mom got scared.” At a young age, you heard the hits and slaps. You knew what was happening. Your sister described the abuse:

Raymond was abusive to everyone in the home. “Violent. Emotionally, physically abusive. He was a crazy man. He would rage when he was drunk and was drunk all the time. He would drag kids by the hair”. Their mother would often have black eyes. [R.S.’s sister] said she would phone the police when Raymond was beating up Carol. “She said she tripped on her nightie”.

[86] Your mother suffered greatly at his hands. He was a vicious man. She was beaten up many times. Your sister remembers it being daily. Your mother was choked “countless times”. Your mother tried to cover up her injuries and her shame. Your aunt described a time when she came to your home to discover furniture knocked all over. She found your mother locked in the bathroom, terrified, holding a knife. Although your aunt told your mother to leave a “million times”, she did not. When your mother was around 30 years old, your father shot her in the shoulder with a shotgun. Your sister said your mother was pregnant at the time. Your father sat in jail for a couple of years charged with attempted murder. According to your aunt, the charges were dropped, and your father came home. Your mother took him back in.

[87] Your mother also was an alcoholic. She took Valium too. Your sister felt she abused it to cope with the abuse she suffered. At times, your mother resorted to using the children as human shields against your father’s rage. While you recall only being spanked, your older siblings were beaten more badly. Your mother was doing her best to raise eight children in such trying circumstances. Even prior to your parents separating, CAS was involved in your care.

[88] In 1987, when you were in Grade 1, your mother finally kicked your father out and got a restraining order. She took the children to a shelter. But your father stalked her. He made threats. You lived at the shelter for a few months. Then at a hotel to hide from your father. In 1988, your parents divorced. Your father got access to the kids every other weekend.

[89] On one visit, you told your father that your mother had a new boyfriend.

[90] You told Ms. Machiwita: “My guilt that I told [on] my mom. It was my fault about my parents.”

[91] On July 29, 1988, your mother disappeared. It was your sister’s birthday. Your last recollection of your mother was her leaving to go see your father who said he had child support money for her. Although she was terrified, she went. You and your siblings never saw her again. She was 41 years old. The police were called. Your father left for the west coast. He was a suspect. He left a message to the kids that took responsibility for your mother’s disappearance. Your sister described the great media attention that existed at the time surrounding these events.

[92] Your mother has never been found. She is presumed dead. In September of 1988, after a Canada-wide manhunt, your father was found dead by a self-inflicted gunshot wound.

[93] Though you were still a child when all this happened, I am certain these events during such formative years had a great impact on you.

3. CAS Involvement and Foster Care

[94] CAS apprehended you in August of 1988. All the children became Crown wards. A psychological report at the time stated that you avoided any mention of your mother and that your father had been angry because of her boyfriend. According to the records, you seemed unable to express any grief over your mother. You needed encouragement. You were described as being “stoic and emotionally constricted.” The records say some counselling was offered to you, but you don’t remember any.

[95] Initially, an Indigenous foster parent moved into the home to look after all the children. This did not last too long. You were all moved to a non-Indigenous home where you stayed until you aged out of care. The home was a religious one. There was conflict between the children and the foster parents. Lots of arguments. Shouting. Leaving the house. The foster parents meant well, but their views of what a family should be did not fit with you and your siblings’ reality. A reality shaped by such prior trauma.

[96] Even within this new home, there was violence. Your foster-father had a short temper. He hit you and your sister a few times. When CAS was told, you denied that it happened. You explained that you could not take being abandoned anymore.

[97] As your siblings each aged out of care, being younger, you stayed longer. You were bullied in elementary school. Because you were a nerd. With thick glasses. You began to withdraw. Feeling isolated. Finding solace and escape in books.

[98] Your sister described your teenage years as better. You were smart and well-behaved. Never got into trouble. You put other people before yourself. Generous to your friends even when you did not have the resources to do so. You would spend your summers with your sister who by then lived in Toronto. Like many other young Ontarians, you worked at Canada’s Wonderland.

4. Alcohol

[99] You had your first drink in high school. You were 19 years old. Prior to that, you were critical of drinking and drugs. But unlike many people who first begin to drink, alcohol had a profound effect on you. You describe it this way:

I saw what happened. My oldest brother was a heavy alcoholic. As soon as I drank, I understood why they drank. It was the person I wanted to be, laughing, happy and fun. My first drink was the first time I felt completely normal. Free of all of the worries and anxieties—very freeing. It was perfect.

[100] Your drinking seeped into all parts of your life. Starting off socially at high school house parties, drinking quickly became a problem for you as you started studies at the University of Windsor:

I drank too much or too fast. All my built-up anger, I would get mouthy or physical with people. In the first couple years of university I was really mouthy and aggressive. I didn’t believe it [alcoholism] was there. I was fun and happy then my mood and behaviour would change. I just thought I was a better drinker; it would make me relax.

[101] At university, drinking became regular. You would black out often. Working in bars, it became a part of your lifestyle. Your tolerance grew. Drinking up to 12 or 16 drinks at a time. The drinking peaked in your late twenties. That is when you developed ulcerative colitis in 2015. Even then, you could not quit. You drank more but limited the amount. You also scheduled your drinking to cope with the pain. You would drink mid-week. Stop to heal for a couple of days. Then drink again on the weekends. This pattern continued right up until you committed these crimes.

[102] Your view on why you drank: “My normal was fear and anxiety, emotions that I couldn’t control. Drinking lifted that.”

5. Your Working Life

[103] After graduating university in 2007, you continued to work at bars. You also got involved in the community, helping organize fundraisers and charity walks. You moved from Windsor to Guelph when you were 30 to live with your sister. You lived there from 2011 to spring of 2015, working at a call centre.

[104] In 2015, you moved to Toronto. The following year, you began to work for the Canadian head office of large retail corporation. You work full-time in the logistics department. Part of your job was to problem-solve the supply chain. It is a high-stress environment. Alcohol use was a coping mechanism. You would come into work hungover. You would be mean and belligerent. You told your employer in the fall of 2018 of your addiction. They have been supportive.

[105] There is more in the Gladue report that I will deal with later in my reasons.

E. ANALYSIS

[106] The general principles of sentencing are well-known. They have been imposed for many years by many judges. Those principles are now codified in the Criminal Code. While we do our very best to make sure there is parity, consistency, and fairness in applying those principles, since no two cases are exactly alike, each sentence must be individual. To the particular offence(s). For the particular offender.

[107] The fundamental purpose of sentencing is to protect society, to ensure respect for the law, and to maintain a just, peaceful and safe society. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence meets the goals of deterrence, denunciation, retribution and rehabilitation. A just sentence requires the right balance to achieve all those goals. In doing that, the aggravating and mitigating factors unique to each case must be considered.

[108] Given that I am sentencing you for two offences, sexual assault and choking, I should determine the global sentence, then assign sentences for each offence and determine whether they are concurrent or consecutive to respect the totality principle in sentencing.[^34] In my reasons, I will initially focus on the sexual assault and then turn more specifically to the choking. Why I do this will become clear later.

[109] Because I am sentencing an Indigenous person, I must consider s. 718.2(e) of the Criminal Code. This principle of sentencing states:

(e) 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.

[110] However, this section does not detract from the fundamental principle of proportionality. Moreover, the principle of parity underpins the integrity of the judicial sentencing process and preserves fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. This principle applies to both Indigenous and non-Indigenous offenders.

[111] The ground-breaking case of R. v. Gladue[^35] breathed life into s. 718.2(e). I will summarize what the case stands for.

1. The Case of Gladue

[112] The Supreme Court of Canada in Gladue decided a new way of analysis was needed in sentencing Indigenous offenders. The circumstances of Indigenous persons are unique. Thus, a judge must consider the unique systemic and background factors which have played a part in bringing the particular Indigenous offender before the court. A judge must also consider the types of sentencing procedures and sanctions that are most appropriate because of their Indigenous heritage or connections.

[113] A judge must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational achievement, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of imprisonment. This provides the context to consider the case-specific information about the offender.

[114] The judge must impose a proportionate sentence for the Indigenous offender that takes into account all these factors, remaining steadfastly mindful of the remedial purpose of s. 718.2(e), the substantive inequality faced by Indigenous persons, and the value of a restorative approach or alternatives to incarceration when it is justified.

[115] This analysis does not mean an automatic discount based upon race. Denunciation, deterrence, and separation remain important sentencing principles for Indigenous persons and communities. Especially for serious and violent offences. Fit sentences for Indigenous and non-Indigenous offenders will often be the same. The Gladue analysis mandates a different methodology when sentencing an Indigenous offender but does not mandate a lesser sentence. Nevertheless, how those sentencing principles are applied in an individual case may be influenced by Indigenous values, Indigenous world views about justice, and the realities of the Indigenous community that the offender is a part of. Moreover, regardless of how serious the offence, a Gladue analysis must always be meaningfully applied.[^36]

[116] Before I specifically address the Gladue analysis in this case, I will set out some of the aggravating and mitigating factors.

2. Aggravating Factors

[117] Aggravating factors exist. These are factors that make your crimes worse.

[118] First, your crime seriously violated the sexual and physical integrity of L.H. Although the sexual assault did not last more than a few minutes, it was not superficial or momentary. It involved digital penetration. It happened in the sanctity of L.H.’s home. It was degrading.

[119] Second, this was a sexual assault with choking to facilitate it. I appreciate that the choking is a separate offence for which you will be punished. But when I look at the gravity of your conduct in a global manner, the choking is a serious aggravating factor. It was not simply placing your hand on her throat. You squeezed until L.H. saw stars and felt as if she would black out. That said, I do acknowledge that you stopped when she touched your hand. I do acknowledge that L.H. did not actually lose consciousness. She suffered no injury aside from minor marks or bruising. Put differently, while serious, it is not the most serious set of facts in the spectrum of conduct that this offence can constitute.

[120] Third, that L.H. was not consenting was immediately clear to you. She said so repeatedly. Despite that, you did not stop. It continued until you were interrupted by the neighbor.

[121] Fourth, while L.H. was not your common-law partner, the two of you had a prior intimate relationship, although it was fairly minimal. Violence against women, even if in less defined or more fluid relationships, remains a pernicious and persistent societal problem. Put another way, while there was no power imbalance nor did you abuse a traditional position of trust, it remains relevant that, as L.H. said, she trusted you in the context of the nature of the relationship you had with her. This is aggravating.[^37]

[122] Fifth, there is the harm done to L.H. I do recognize there are factors that limit the seriousness of the sexual assault. It was not a calculated one. There was no pre-design. You did not use gratuitous violence beyond the sexual assault and the choking. L.H. suffered no lasting physical injury, though the same cannot be said about emotional ones. The emotional and mental impacts of your offences have profoundly altered her life. They continue to this day.

[123] On this point, I turn to the Victim Impact Statement. When I do, I wish to say some more things directly to L.H.

3. The Victim Impact Statement

[124] One objective of sentencing is to provide reparation for and acknowledge the harm done to victims. By doing so, we also promote a sense of responsibility in offenders.

[125] L.H. You have spoken movingly about the harm you have suffered. Your comments will not be unheeded by me. In the limited time and space I have, I cannot fully set out what you wrote in your lengthy statement. But I do want to set out the essence of it. To this day, the rawness of the pain you feel is palpable.

[126] Immediately after the attack, you felt further degraded by the treatment and the investigation that was necessary. The anti-viral drug you took had awful side-effects. The insomnia caused by the drugs did not go away. The sleeplessness and fatigue continue to haunt you. The court process only aggravated the trauma you suffered.[^38]

[127] R.S. has turned your world upside down as the traumatic memories exacerbate the pre-existing medical condition you have. You have a hard time trusting anyone now. R.S. was a friend. A trusted confidant. He supported and encouraged you. But he betrayed you by his offence. By doing so, he destroyed your trusting nature. It has affected how you view people. How you feel and act while out in public.

[128] You have been unable to move on. You describe R.S. as always being there. In your thoughts. As you watch a movie, see a hockey game, or fall asleep. When you answer the telephone. You dreaded returning to your home where all this happened. Tragically, you say you will never be able to move on.

[129] But you have coped. Survived. You have placed the bad memories in a box. To make your way through work. To maintain friendships. To keep a semblance of normalcy. You have refused to let the impact of his violence define you.

[130] Permit me to say this to you L.H.

[131] You are brave. You are resilient. You have not mentioned any counselling or treatment, but I would encourage you to seek that which you need to heal. Even though you have not given up on yourself in your struggles with this or succumbed to the exhaustion you feel, this does not mean R.S. has not harmed you. Harmed you seriously. For he has.

4. Mitigating Factors

[132] Mitigating factors exist. Factors that lessen what your punishment should be.

[133] First, you are a first offender. You have no prior criminal record or involvement with the criminal law.

[134] Second, despite the difficult circumstances you grew up in, you have managed to get through university and have held down a good job for a number of years.

[135] Third, there are a lot of pro-social aspects to who you are. I have learned this from the character letters that you provided. Such character references sometimes have only limited value when it comes to offences such as sexual assault. This is because such crimes are often committed by persons with unblemished prior character, for whom near universal disbelief greets an allegation of sexual assault. In other cases, it is the very good character held by the offender that gives the person the cover and the opportunity to commit a sexual offence.

[136] While I am acutely aware of this, looking at the whole of the evidence, I accept that this offence is out of character for you. I put weight in these letters. They consistently tell of a different person than the one who attacked L.H. that night. They also describe actions of a person who in the past has done good for others. For L.H. herself, you have helped her when she was in the hospital or needed financial assistance.

[137] You are hardworking and dependable. Consistently, people describe a man who has a big heart and who does not hesitate to help others. You have volunteered your time to charities such as the food bank. Friends, your brother-in-law, and your sister in their letters to me speak of your loyalty, kindness, and compassion. Importantly, when they write this, they know of your offences and they accept you have committed them.

[138] M.K. has been a friend of yours for 15 years. She attended the trial in support and appears to know you quite well. She describes you as a positive person despite the hardships you have had in your life. Growing up you felt estranged from your Indigenous roots. Growing up you suffered the social stigma of your parents dying by murder-suicide and being in foster care. In your interactions with others, friends, family, co-workers, she says you are selfless, humble, respectful, and willing to help. You helped M.K. through a medical emergency in 2018. M.K. also has met L.H. and you have a mutual friendship group.

[139] Fourth, while you did not plead guilty, I accept that you have remorse. The Crown does not dispute this. I have reviewed the statements you gave to me. I know I have to be cautious. I know such expressions of remorse, when they come at the stage of sentencing, may be just self-serving. However, based upon what I know about you, I accept that you truly do feel sorry. Not for yourself, but for L.H. Sorry about the pain and harm you caused her. You have apologized to her. I accept as genuine your wish that you could do so in person.

[140] I believe this because the letters unswervingly speak of your regret and remorse for L.H. early on after initially being charged. How you have expressed that ever since. How you have been deeply affected by it. Put differently, this is not just an expression of remorse that has appeared since the jury convicted you. It has become a part of who you are. Even while the trial was ongoing, M.K. described you crying as you explained how sorry you were for hurting L.H., how you absolutely hated causing her pain and how terrible you felt that these were going to be the memories she will have of your relationship.

[141] In addition, you have shown some insight into your actions. How alcohol played a role. How disturbed your thinking was. You understand that you have only yourself to blame for the punishment I must impose on you. You recognize that whatever the sentence I impose, it is not comparable to the crime you have committed. You rightly state that you must be held accountable.

[142] In my opinion, these insights are a good start. They are not the end. Issues arising from your personal history, your feelings about yourself and your attitudes towards women that are shaped by it are not fully resolved.

[143] There are other mitigating circumstances. I will expand on them as I do the Gladue analysis.

5. Application of Gladue considerations

[144] Before I get to that, I wish to deal with something upfront. You have little present connection to an Indigenous community. You were not raised in a traditional way. You have only recently become exposed to Indigenous healing practices. Some might argue the Gladue principles have little or no application to you. Some might say your ties to Indigenous identity are too tenuous.

[145] They would be wrong.

[146] There are several overarching reasons why this is so.

[147] First, the law does not require a causal connection between a person’s Indigenous background and the offence. The law recognizes that in most cases, such a link would be impossible to prove. To require it would be to impose a systemic barrier to the just sentencing of Indigenous offenders. To require it would do nothing to address the over-incarceration of Indigenous people.

[148] Second, to achieve true reconciliation, to the extent it is right to do so in crafting a sentence, I must recognize the injustices suffered by past generations of Indigenous persons. Their experiences cannot be forgotten. Buried away. Unseen. We must honor those past lives by shining a light upon them. To see if they reveal something about the offender or the offence.

[149] Intergenerational trauma is real.[^39] The trauma suffered by one generation has real effects that are passed onto their children. In many cases, the children of those children as well. Intergenerational trauma is transmitted through shared cultural memories, patterns of parenting, psychological memory processes and a biologically inherited predisposition for post-traumatic stress disorders. In this day and age, while people may disagree with the exact parameters and mechanisms of the phenomenon, no reasonable person could argue it does not exist.

[150] Third, the fact you do not “look” Indigenous is immaterial.

[151] Some racialized persons have the privilege of appearance. They are “white passing”. Thus, they can, if they choose, better avoid the pain and negative consequences of racism. But harm is still caused to them. In many ways, the harm is more sinister. It instills in you a shame of who you truly are. It isolates you from the community. It paves the path to a dark place where you begin to feel your culture and heritage-your people themselves- are somehow inferior. This is not a good place to be. It is damaging to the soul.

[152] I know. For even though I could never be “white passing”, there have been moments, especially in childhood, that I wished I were.

[153] I will now discuss some of the unique systemic and background factors that are tied in by case-specific facts to you and your offences. They bear on your culpability and how the sentencing objectives should be achieved in your case.

i. Severance from Indigenous Heritage and Identity

[154] You are disconnected from your Indigenous heritage. Your disconnection to your Indigenous identity was due to no fault of your own. Starting with your great grandfather, your maternal forebears sought to divorce themselves from being Indigenous. They wanted to make their way in Canadian society without that burden. A burden that was created and forced upon them by others. Those were different times. The racism that existed was harsh and blatant. Moreover, it was sanctioned by the state. Some felt it easier to live in a racist white society by posing as a white person.

[155] Your great grandfather tried to severe your family’s Indigenous roots by choosing enfranchisement. But, however tangled and dispersed those Indigenous roots are now, they have not been completely severed. They show themselves in the lived experience that you have.

[156] I have already mentioned some of the potential negative consequences of this. M.K too described how you felt you were losing your Native roots and that you had no immediate role models to continue practicing your heritage. You have some memories of Indigenous practices, but you are embarrassed at how distant from your heritage you were forced to be.

[157] No doubt there are other consequences.

[158] I fully concede that how this background factor ties into the offence is opaque and difficult to discern. Its influence on my decision is less tangible or exact. That acknowledged, I am confident that it has affected who you are and how it brings you into court. I must take into account the realities of Indigenous experiences in my sentence. Sometimes those realties can be complicated.

[159] On the other hand, your desire to reconnect to your Indigenous identity augers well for your rehabilitation. You have already begun to make progress in that. It is meaningful for you. You have not only learned some very positive things about yourself and your relationships with others, you have also gained a new spirituality in your life. This is helping with your addiction. While I cannot speculate, it makes me think that had you and your family not been so separated from your Indigenous heritage and identity, things may not have turned out exactly as they have. Where you find yourself here to be sentenced by me for these crimes.

ii. Violence against Indigenous Women.

[160] A more direct effect upon your development and this crime is the violence suffered by your mother at the hands of your father.

[161] Indigenous females experience disproportionate rates of violent victimization in comparison to their non-Indigenous counterparts. They are 12 times more likely to be murdered and missing than other Canadian women and 16 times more likely than Caucasian women.[^40] Further, violence against Indigenous females is also more severe. Indigenous women aged 25 to 44 are five times more likely to die from violence than non-Indigenous women in the same age bracket.[^41]

[162] Ms. Matchiwita writes about the connections between colonialism and oppression suffered by Indigenous people and the violence suffered by women.

The legacy of colonization and cultural genocide is a catalyst for violent victimization of Indigenous women and girls. Settlers inserted patriarchal ideologies into the national narrative that discriminated against Indigenous women. Residential schools and the Sixties Scoop perpetuated the victimization of Indigenous women by causing intergenerational trauma to Indigenous communities. In its 2015 report, The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) stated the following:

The intergenerational impact of the residential school system and foster or adoptive placements is directly linked to the disproportionately high rates of violence and abuse that aboriginal women and girls suffer today, given that historically, the system has shaped aboriginal communities and resulted in the break-up of families and communities.

The legacy of colonization and disadvantaged socioeconomic circumstances make Indigenous women both more likely to experience violence and less likely to escape violent situations. Indigenous women experience inadequate housing, a lack of education and employment opportunities, substance abuse problems, and limited social services. Without access to safe shelter, Indigenous women are forced to stay in violent homes. With the disproportionate amount of Indigenous children placed in the child welfare system, Indigenous women are reluctant to report incidents of violence out of fear of having their children taken away.

[163] Terribly, all of this applied to your mother. She could not protect herself or her children from violence. This type of violence has afflicted Indigenous peoples and communities. It forms the context in which I am to consider your sentencing.

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

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

iii. Foster Care

[166] After you and your siblings were placed into the care of your foster parents, life did get better. However, given you and your siblings’ past upbringing, there was conflict with the newly imposed discipline. Especially between your older siblings and the foster parents. While less violent, your sister confirmed that your foster father was physically abusive to you on occasion.

[167] While things were materially better, you began to withdraw. You suffered from low self-esteem and were bullied when you were young. It does not seem that you received the counselling or help you needed to overcome the horror of your early life.

[168] Ms. Matchiwita refers to a paper published in 2014 by the Ontario Centre for Excellence in Children and Youth which cited an influential Adverse Childhood Experiences study[^42] which found:

[…] many mental health problems, including chronic depression, anxiety and substance abuse in adulthood, are related to early childhood toxic stress. Vulnerability is cumulative and increases with the number of risk factors present and prolonged exposure to these. The study found that adults who had experienced four or more childhood exposures to harm or disadvantage during childhood were four to 12 times more likely to experience alcoholism, drug abuse, depression and suicide attempts than those who experienced none.

[169] Of the identified childhood exposures to harm or disadvantage, you experienced five: exposure to psychological abuse; exposure to physical abuse; exposure to violence against mother; living with household members who were substance abusers; and living with household members who were ever imprisoned.

iv. Addiction to Alcohol

[170] As I have outlined above, while you have done well for yourself as you gained adulthood, you became seriously sick with an addiction to alcohol. This illness is a scourge that affects many in society. Intoxication also plays a role in many crimes that we see land in the courts.

[171] But addiction in the Indigenous population is more complex. It is a symptom of the tragic injustices suffered by Indigenous peoples since their earliest contact with the settlers. As Ms. Machiwita writes:

To understand addictions in the Aboriginal population it is necessary to appreciate the impact of colonialism in Canada on the health and well-being of Aboriginal people. Colonization deeply impacted the Aboriginal population through demographic collapse resulting from early influenza, conquest, warfare, slavery, religious conversion, famine and starvation, forced removal from traditional territories, the residential school period and the child welfare practices. Traditional treatments and leaders were unable to protect members of their communities from these practices, which led Aboriginal people to question the application and effectiveness of Indigenous ways of healing and knowledge. Colonialism challenged the Aboriginal worldview with an assimilationist agenda that led to a devaluation of the role of Aboriginal spiritual and political leaders and associated Aboriginal traditions and values.

[172] Government policy, programs, and law including the Indian Act were designed to assimilate Indigenous people and control those who remained. The long-term social and psychological impacts of this on the Indigenous population are seen in numerous dysfunctionalities, including addiction.

[173] In addition, unresolved intergenerational trauma manifests itself in Indigenous populations, amongst other ways, by an increase in the prevalence of addiction as an unhealthy coping mechanism. When people experience intense feelings of fear, shame, anger and guilt and do not possess healthy coping strategies to address these negative feelings, they may respond by seeking a numbing process. Statistics on alcohol use shows that Indigenous people drink less overall than the general population, but that when they do drink, they drink more than the average person. This is consistent with behaviour that uses alcohol as a numbing agent rather than a social function.

[174] Scholars Cynthia Wesley-Esquimaux and Magdalena Smolewski, in their work for the Aboriginal Healing Foundation, share a valuable insight into the different role alcohol plays in Indigenous societies given their unique history:

Aboriginal people picked up drinking not to share and reciprocate, but to hide from an oppressive situation and to become invisible to their own tormented selves. Aboriginal people began to drink because they were emotionally numb from what happened to them and wanted to feel something other than pain and despair. Their grandchildren and great grandchildren now drink for exactly the same reasons: to mentally disassociate themselves from cumulative painful memories; to feel something else and not just mental anguish; and to belong to a group with clearly defined boundaries that shares one’s meanings, one’s understanding, one’s world (even if it is a group of alcoholics or drug addicts); and it is a plea for living on one’s own terms.

[175] You are an alcoholic. Your father and mother were alcoholics. I know your father has not been confirmed to be a member of First River Nation. Nevertheless, there is intergenerational trauma in your lived experience. Not just on your father’s side, but also on your mother’s side. In addition, your pattern of drinking is consistent with that described by the above scholars.

[176] Furthermore, I find alcohol played a significant role in the commission of your offence. Of that, no uncertainty exists.

[177] However, I wish to be clear. Intoxication is no defence, no excuse, for sexual assault. To make it a blanket mitigating factor in sentencing would be contrary to the fundamental objective of sentencing which is the protection of society. It would undermine the principles of denunciation and deterrence. Too many sexual assaults are committed by offenders who are under the influence. They blame the intoxicant. But they would be wrong. The law treats people as autonomous beings who make choices about how they act. When those choices are bad ones, in breach of minimum societal norms, then they are punished for them.

[178] That said, the assessment of alcoholism in the Indigenous offender and the role it may have played in the offence is more nuanced. It must take into account the unique systemic and background factors the Gladue report alludes to. Given these factors, I cannot be indifferent to its impact on the overall proportionality of your sentence.

6. Conclusion on the Gladue Analysis

[179] The law mandates a different methodology for assessing a fit sentence for an Indigenous offender, but it does not necessarily mandate a different result. Sometimes, the only way to express society’s condemnation of the offender’s conduct is imprisonment.[^43] Moreover, a Gladue analysis should also take into account the harm this type of violence has on the victim and the community.

[180] Therefore, there is never a race-based discount. Not for Indigenous offenders. Not for anyone. But the unique systemic and background factors can bear on what a just and proportionate sentence should be.

[181] What is important in your case is not the strength of your ties to your Indigenous culture or identity. What is important is how significant the impact those connections were on you and how it ties into your offences. The harms you experienced in childhood were extreme. Your disconnection to your identity did not provide you with another pathway to live a healthier life. Not that you would have necessarily taken those traditions up. But you were essentially denied that chance. Your alcoholism played a significant role in your offences. The trauma suffered by previous generations of your family members and the trauma you suffered as you grew into adulthood played a role in shaping you and your crime.

[182] In other cases, where the factors are less strong and one’s heritage as distant, the Gladue principles may have less weight. But not in your case. It is right that I take judicial notice of the devastating intergenerational effects of the collective experiences of Indigenous peoples in determining a fit sentence. Unquestionably, your Indigenous heritage is part of the context underlying and linked to your offences.

[183] Even in grave cases of sexual violence, the Gladue principles must be applied.[^44] Bringing these strands of analysis together, I find that they significantly reduce your moral blameworthiness for these offences. Basically, you are a decent person with good prospects of rehabilitation whose crimes are partially a product of a combination of factors connected to the injustices committed against Indigenous people, some of which is beyond your control.

[184] Yes, your life looks very different from some Indigenous offenders who find themselves in dire social and economic deprivation with limited options to escape their personal circumstances. But this does not mean the Gladue factors do not apply with force in your case. To hold otherwise would be succumbing to corrosive stereotypes of who a “deserving” Indigenous offender should be when it comes to applying the Gladue principles. The reality is that your unique personal circumstances, viewed contextually, diminishes your moral culpability.

7. The Conditional Sentence

[185] Section 742.1 of the Criminal Code provides for a conditional sentence. The test has several elements: 1) the term of imprisonment must be less than two years; 2) service of the sentence in the community must not endanger the safety of the community; and 3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[186] The principles regarding conditional sentences were explained in the case of Proulx. The Proulx approach to s. 742.1 requires a sentencing judge to proceed in two stages. At the first stage, the judge must determine if a conditional sentence is available. In doing so, the judge need not impose a term of imprisonment of a fixed duration; rather, they need only exclude two possibilities: probationary measures and a penitentiary term. If a conditional sentence is available, the judge must, at the second stage, determine if it is appropriate.

i. Imprisonment Under Two Years

[187] On the first stage, a preliminary determination of the appropriate range of available sentences must be conducted. In doing so, the judge need only consider the fundamental purpose and principles of sentencing to the extent necessary to narrow the range of sentence for the offender.

[188] In this case, given the nature and gravity of the offences, denunciation and deterrence are primary sentencing objectives. Accordingly, a suspended sentence and probation is readily excluded. Only a significant term of imprisonment will meet these goals. The core question is whether a penitentiary sentence is required to meet those objectives given all the circumstances of this case.

[189] The crimes are serious. There are the aggravating factors that I have listed. Sexual offences need to be deterred and denounced with serious sentences.

[190] On the other hand, the jury convicted you of a single incident of relatively short duration. It was not pre-meditated. It is sexual assault simpliciter and not sexual assault causing bodily harm or aggravated sexual assault.

[191] Regarding your background, you are a first offender. You have a steady job, supportive family, and are a productive member of society. You have many positive qualities. These are factors that weigh against imposing a penitentiary term. While I must impose a sentence that achieves the goals of denunciation and general deterrence, I must be careful to impose the shortest sentence that achieves it.[^45]

[192] Then there are the systemic and background Gladue factors that mitigate your moral blameworthiness. Moreover, you have done something about your problems. Since your arrest, you have made significant strides in your rehabilitation. These efforts are not recent ones only coming post-conviction. They come with meaningful remorse. A remorse that comes from your realization of the gravity and the impact of your actions. With it has come a change in attitude that reduces the likelihood of any re-offending.

[193] Alcoholics Anonymous has been life altering for you. Since first going in April of 2018, you have attended frequently and regularly. You have made a strong commitment in going to four to five meetings a week and working with your sponsor on a one-to-one basis two to four times a week for a half an hour to an hour and a half per meeting. You have provided proof of this. You have remained entirely sober since September of 2018. One close AA member, a retired psychiatric nurse, says you have gained insight and maturity. Your friends and family have confirmed this success. Your AA sponsor speaks highly of you. You have worked hard even when you found some things challenging. Your sponsor says that in his nearly three decades in AA and with all the people he has sponsored, he opines that you have far surpassed anyone else in your desire to improve your life and become a more productive member of society. He points to your kindness and compassion. You are diligent in your attendance, active in your participation at the meetings and invaluable in organizing them during the pandemic. You openly and honestly share when you speak. You have helped foster a feeling of safety and respect that has led to a dramatic increase in membership attendance at your group. Your sponsor says the group looks up to you. You are now at a point where you are sponsoring others in your AA group, albeit not in a formal relationship because of the uncertainty of this court outcome. Although your sponsor is shocked about the severity of your offence as it does not line up with the man he knows, he emphasizes your true remorse over the past two years. You have accepted responsibility for your criminal conduct. You have not questioned the judicial system. You wish to move forward with your life.

[194] Since September of 2020, you have been in the Kizhaay Anishinaabe Niiin “Kind Man” program at the Toronto Council Fire Native Cultural Centre. The program’s purpose is to engage Indigenous men to speak out against all forms of abuse towards women and others. They strive to create balanced and harmonious lifestyles to move the participants away from negative decisions and to help them make positive change. The KAN coordinator writes that to date you have done over 25 hours of programming including one-on-one counselling, healing circles, and a 12-week anger management program. According to the coordinator, you are dedicated, you have grasped all the teachings, are one of the most active participants, and are implementing what you learn in your everyday life. Due to COVID-19, you have yet to have the hands-on experience of ceremony.

[195] From all indications, you are now embracing a reconnection to your Indigenous heritage. You are working on your spirituality and continuing to learn about your culture. You have signed up to do the Fire Keeping training.

[196] You have also completed the Anger Management Program run by the Salvation Army. Ms. Machiwita was unable to connect with them for a report, but you have presented a certificate of completion.

[197] Finally, you have personally expressed your remorse and acceptance of responsibility in your written and oral statements to me. I accept the sincerity of them.

[198] I point all this out to show the numerous mitigating factors that support restraint being exercised in your sentence. This is important in determining whether a penitentiary sentence should be excluded.

[199] Amongst the sentencing principles a judge must apply, parity is important. Said simply, similar offences done in similar circumstances by offenders of similar background should receive similar sentences. This brings me to look at some caselaw.

[200] The Crown has submitted that the range of sentences for similar cases starts at a penitentiary sentence of 3 years. I am not so convinced. None of the authorities relied upon by the Crown for this range involve an Indigenous offender where the Gladue principles were applied. Moreover, some of the authorities have features that can be distinguished. While choking is an aggravating factor that exists in the Crown cases and in the case at bar, the totality of the circumstances in some cases relied upon by the Crown are very different. For instance, when Goldstein J. stated in R. v. Trumpa[^46] the range was 3 to 5 years, the facts of his case dealt with a violent sexual attack by a stranger at night in a public space; what he referred to as a “nightmare scenario”.[^47] Even then, in R. v. Thakoordeen,[^48] involving a similar type of attack, Boucher J. extended the range downwards to include a 2-year sentence.

[201] The Crown also points to R. v. Blake.[^49] Here, Spies J. relied upon the Ontario Court of Appeal endorsement in R. v. Bradley[^50] in fixing a range of 3 to 5 years for penetrative unprotected sexual assault, though the actual facts before her involved a brutal sexual assault on a vulnerable sex worker involving choking and intercourse. In Bradley, the court accepted the Crown submission of the range being 3 to 5 years “in the circumstances”. They imposed a sentence of 3 years for a police officer of good character for one act of sexual intercourse with no further violence apart from that inherent in the offence. However, even apart from the fact that the case at bar can be distinguished on the basis that there was no unprotected sexual intercourse, the facts of Bradley had some significant aggravating factors. Bradley had met a young Indigenous woman in a high school co-op program. The young victim dreamt of becoming a police officer. He became her friend and mentor including giving her many “ride alongs” in a police cruiser. When the victim was at college, she was invited to the offender’s home. That night, he raped her vaginally and anally, demanded oral sex, and made degrading comments to her and told her she “owed this” to him. He was 39 years old and she was 21. Given the vast power imbalance and the “grooming” conduct by the offender, the penitentiary range is not surprising.

[202] Looking at other authorities, I find that they support a finding that a penitentiary term is not necessary for R.S.

[203] First, decisions by our court of appeal support a range for serious sexual assaults that includes an upper reformatory sentence. For forced sexual intercourse with a spouse or former spouse, the court has articulated a range of 21 months to 4 years.[^51] For penetrative sexual assault on a sleeping or incapacitated victim, the court has articulated a range of 18 months to 3 years.[^52] For a “date rape” scenario, the range can include a reformatory sentence.[^53] Forced penetrative sex in the context of a prior relationship includes a maximum reformatory sentence.[^54]

[204] Second, while the law has rightly travelled some distance away from evaluating the seriousness of the offence of sexual assault solely on the basis of the physical act committed, some consideration should be given to the fact that no forced sexual intercourse is involved in the case at bar. The authorities have recognized the potential of transmitted disease as an aggravating factor in such conduct. Thus, although I will not give this submission undue weight, the defence relies upon a number of sentencing cases that involve digital penetration where a broad range of reformatory sentences have been given.[^55]

[205] Third, I recognize the additional violence of the choking. There is also R.S.’s intention to go further as expressed by him before the neighbor arrived. Nonetheless, even where there are additional aggravating acts of violence, given other mitigating circumstances, cases exist that support a sentence of less than 2 years.

[206] In R. v. Tronson,[^56] the offender pled guilty to aggravated sexual assault and received a sentence of 2 years less a day plus probation. The offence was very serious, involving punching, choking, and the digital penetration of his wife that caused injury. The offender had a strong employment record, shown remorse, sought counselling, and received a positive pre-sentence report. The behaviour was described as out of character for him. Finally, the victim showed support for the offender. The fact that Tronson was a member of the Westbank First Nation did not appear to factor into the court’s analysis.

[207] In R. v. W.R.,[^57] the court imposed a two-year custodial sentence for assault, sexual assault, and failure to comply with an undertaking. The victim was W.R.’s long-time romantic partner. The offender digitally penetrated the victim, touched her breasts, and had intercourse with her despite her telling him repeatedly to stop. He then threw her onto the bed, punched her, and slapped her. The victim was profoundly impacted by the assault.

[208] Lastly, the Ontario Court of Appeal imposed a 21-month conditional sentence and one year of probation in R. v. Nolan.[^58] The offender pled guilty to sexual assault and forcible confinement of his wife. During the assault, Nolan tied his wife to the bed and covered her mouth with duct tape. He punched her in the face, cut her underwear off with a knife, and threatened to cut her vagina. After cutting her loose, he had sexual intercourse with her. The court of appeal overturned the trial judge’s sentence of 100 days in custody and one year of probation. Although the offender had demonstrated his willingness to comply with court orders, the pre-sentence report showed that he tended to justify and minimize his conduct. The original sentence was found not to be enough to reflect the gravity of the offences, given that they took place in the victim’s home, were committed in the context of a marriage, and the emotional impact on the victim was severe. She also suffered bruising and swelling. The court of appeal found that a term of imprisonment of 21 months was a fit sentence. However, Nolan had already served his 100 days in custody by the time of the appeal and fresh evidence showed he was doing well. The court found that the administration of justice would not be served by reincarcerating the offender considering he was employed and was helping his unemployed children. While a conditional sentence was no longer available at the time of the appeal, the charges arose prior to the amendments. The court held that Nolan should serve the remainder of his 21-month sentence in the community.

[209] These cases provide some guidelines to imposing a sentence in R.S.’s case. Ultimately, parity is important, but it is not the be all and end all. As Wagner J. (as he then was) stated in R. v. Lacasse:[^59]

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[210] Looking at all of the circumstances, I conclude that denunciation and deterrence can be met in your case by a significant reformatory sentence. A penitentiary sentence is inappropriate given the mitigating factors, your good prospects of rehabilitation, and the Gladue factors. Thus, I find that this part of the test for a conditional sentence is met.

ii. A Conditional Sentence will not endanger the community

[211] This part of the test has too been met. Serving your sentence in the community poses little if any risk to the community. While your index offence is a crime of sexual violence and the damage that could result if you re-offend would be high, I find that with strict conditions this concern can be dealt with.

[212] You have strong family support. Your friends are there to help. Notably, they know about your crime and do not argue your innocence. You have good employment that provides you with security and stability. You have no prior criminal past. You have proven yourself capable of empathy and exercising restraint in your behaviour when sober.

[213] I have accepted that you have true remorse for L.H. This is the first step to lasting rehabilitation.

[214] Moreover, you have done much to deal with your issues. Especially your alcoholism. And through effort and self-awareness, you have achieved a large measure of success. The rehabilitation is not yet complete, but I can foresee that it will be in the not too distant future. Your pursuit of reconnecting with your Indigeneity will undeniably help.

[215] Lastly, since you have been on release pending trial and sentencing, there has not been a hint of non-compliance with the terms of your release. I find it highly likely you will obey the terms and conditions of any conditional sentence to the letter.

iii. Consistent with the Fundamental Purpose and Principles of Sentencing

[216] At the second stage of the test for a conditional sentence, I must do a comprehensive evaluation of the appropriateness of a conditional sentence for the particular offender, considering the fundamental purpose and principles of sentencing as provided in sections 718 to 718.2 of the Criminal Code.

[217] For offences of sexual violence such as this, as already highlighted, the need for a sentence that deters and denounces is primary. Furthermore, lest there is any doubt I will say it expressly, judicial attitudes about the fit sentencing of sexual offenders has seen a steady and sure evolution overtime. The need for deterrence and denunciation to reflect the true harms of sexual offences has resulted in increasingly longer periods of imprisonment.[^60]

[218] Further, I recognize that a restorative sentence will not always be appropriate for Indigenous offenders. This much is made clear by the Supreme Court of Canada in Wells where the Supreme Court upheld a 20-month sentence for an Indigenous offender who sexually assaulted a sleeping or unconscious young woman in her bedroom. The trial judge found that the necessary elements of deterrence and denunciation would be lacking if the offender was permitted to serve the sentence in the community. In deferring to the trial judge’s decision, Iacobucci J. emphasized that the determination of a just and fit sentence is always a case-by-case inquiry and must take into proper consideration all relevant sentencing principles.

[219] Nevertheless, the primary focus on denunciation and deterrence in serious sexual assault sentencing does not automatically or always mean that a conditional sentence will be inconsistent with the fundamental purpose and principles of sentencing. Non-indigenous offenders have in the past received conditional sentences for such offences at both the trial level and on appeal.[^61]

[220] I will refer in more detail to R. v. Killam.[^62]This is a decision that was relied upon by the Crown. Killam committed a serious crime. After a beach party, Killam had sexual intercourse with a sleeping friend in a cabin. He had a minor criminal record, was on probation at the time, and even after conviction, he continued to insist the sex was consensual. The trial judge imposed a conditional sentence. On appeal, Doherty J.A. expressed doubts that a conditional sentence for this offender was appropriate and would adequately address the needs of denunciation and general deterrence. He commented that a conditional sentence does not have the same effect as a period of imprisonment, which remained the most formidable denunciatory weapon in the sentencing arsenal. He concluded that a significant period of incarceration would have been more appropriate for Killam. However, Doherty J.A. acknowledged that a conditional sentence was not outside the broad range of sentences available to the trial judge and thus did not interfere with the original sentence.

[221] I mention this case for two reasons. First, even for serious sexual assaults, our appeals court has not ruled out conditional sentences where it can be justified. Second, the assessment of the appropriateness of a conditional sentence, like all sentencing, is a highly individualized task. No two cases will ever be exactly alike. Frankly, no two judges may come to exactly the same decision, as Killam shows.

[222] Important for me are the Gladue considerations in your case. Consistent with Wells, Watt J.A. stated in R. v. Jacko,[^63] that "[a]boriginal status does not guarantee a conditional sentence. It is, nonetheless, an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence." Also, I take to heart the Supreme Court of Canada’s admonishment in Ipeelee of judicial decisions that took the view that Gladue considerations were largely immaterial in serious offences where deterrence and denunciation dominate.

[223] When Gladue considerations are taken into account, conditional sentences have been given to Indigenous offenders who have committed serious sexual assaults such as the one committed by R.S.[^64]

[224] I will elaborate a bit more on R. v. White.[^65] Here Ryan J.A. overturned a 9-month jail sentence imposed after a trial and substituted an 18-month conditional sentence. White, who had been drinking after his son’s suicide, had sexual intercourse with the sleeping wife of a friend of his in her home with her young child present in the house. White had a criminal record of eight different offences including a firearms offence and an assault. White was raised on the Snuneymuxw reserve in Nanaimo. He had trouble early in his life and his father had been a physically abusive alcoholic. White began drinking while still a child and developed a serious alcohol problem. When he was arrested, he began to take part in an alcohol counselling program on his reserve. This changed his life. He remained sober for three years and took counselling for his son’s suicide. He had a large family and if required to serve his jail sentence, he was going to lose his forestry job. Ryan J.A. was careful to note that the sexual assault had a devastating effect on the victim. The trial judge found that the principles of denunciation and general deterrence demanded a period of incarceration. Ryan J.A. set aside the jail term and found that the unique circumstances of the case required more attention to the principles of rehabilitation, given the death of White’s child and his successful coming to terms with his alcoholism. I set out the facts of this case not only because it echoes some of the facts found in your case R.S., but also because, although Gladue was not expressly referred to by the court, I cannot help but think its spirit was moving through the decision.

[225] Back to your case, I find specific deterrence is not a concern. There is no need to physically separate you by jailing you to protect the public. Moreover, there is little likelihood that you will re-offend in the future.

[226] There are the aggravating factors in the commission of the offences. But the seriousness of the offences is also limited by certain factors that I have noted. While there is a clear need for general deterrence and denunciation, a conditional sentence of the appropriate length and with strict conditions can deter and denounce. That much has been long-established since Proulx. Even for serious offences such as sexual assault.

[227] Rehabilitation is a significant factor in your case that weighs heavily in favour of a conditional sentence. I have gone through in perhaps exhausting detail about who you are and what you have done since the offence. I find there is a good prospect of reinstating you as a functioning and law-abiding member of our community.

[228] The decision whether to impose a conditional sentence must be consistent with s. 718.2(e). In addition to mitigating the moral blameworthiness of your actions, the Gladue factors must also be considered in determining what the appropriate sanction should be. This Gladue imperative relates to the outcome of the sentencing process, not just the methodology. To the extent it is fit and proportional, it involves the tailoring of a disposition that replaces or reduces the punitive sanctions responsible for the overincarceration of Indigenous persons in favour of more restorative alternatives. Thus, unlike the sentencing of non-Indigenous persons, there is this added dimension when determining a fit sanction that deters and denounces.

[229] Professor Kent Roach’s 2020 article “Ipeelee in the Courts of Appeal: Some Progress but Much Work Remains”[^66] argues that Gladue and Ipeelee are still not yet being fully applied to serious offences. In his opinion, one reason for this to impose is the courts’ inadequately “consider[ing] the background circumstances of Indigenous offenders and sentencing procedures that may be particularly appropriate for Indigenous offenders”.^67 He writes:

This concern about the generally under-developed and under-theorized relation of background factors to punitive sentencing purposes is re-enforced by the frequent reference in Court of Appeal decisions about background factors not being an “excuse” or providing a “discount” for a sentence. The implicit but often unexamined assumption in such conclusions is that the length of imprisonment must increase with the need to punish, deter or denounce serious crimes and to incapacitate offenders. Indeed, the failure to relate background factors to punitive purposes of sentencing and the new slogans of “no excuse” or “no discount” have produced new shortcuts that have replaced the old shortcuts for not applying Gladue in serious cases that the Supreme Court attempted to correct in Ipeelee.

[230] This suggests that sentences should not necessarily or always increase with the seriousness of the offence when applying Gladue factors. Sentences that focus on the “need to punish, deter or denounce serious crimes”, rather than on the restorative purposes of sentencing, do not fulfill the original intent of Gladue and Ipeelee. Professor Roach identifies the restrictions on conditional sentences as one reason for this.

[231] For the offences for which I am sentencing R.S., these restrictions on conditional sentences no longer apply.

[232] Indigenous overrepresentation in jail has not gotten better. Only much worse. A criminal court judge cannot fix all that has led to this problem of the disproportional imprisonment of Indigenous peoples. Nonetheless, sentencing judges have a role, however limited, to play in remedying injustice against Indigenous peoples in Canada. As it was put in Gladue:[^68]

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

[233] I know these offences are serious. I know they have caused much harm. However, I conclude that a conditional sentence in your case is right. It is consistent with the purposes and principles of sentencing. A conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and the promotion of a sense of responsibility in the offender. While denunciation and deterrence remain primary, I find it can be met in the overall disposition I will impose. A disposition that includes a lengthy and strict conditional sentence.

8. The Blended Sentence

[234] Still, I remain troubled by the choking.

[235] Choking to facilitate an offence is inherently dangerous conduct. That is why the maximum penalty is so high. At its extreme, rendering a person insensible or unconscious easily has the potential of causing serious injury or death. While the particular facts of the choking in your case do not approach that extreme, my overall sentence must take into account this aggravating conduct, though I do not agree with the Crown position that this factor requires a lengthy period of incarceration. Again, I point out that it was one act of choking that did not last long, did not cause unconsciousness or lasting physical injury, and stopped as soon as L.H. put her hand on R.S.’s hand.

[236] Nonetheless, I find that real jail time is necessary to reflect the additional gravity of this act. Necessary to recognize the harm done to L.H. Necessary to denounce and deter. The jury found that you choked L.H. so that you could sexually assault her. I don’t need to spell out how bad that is. I hearken back to Doherty J.A.’s comment in Killam that conditional sentences, even those which impose significant restrictions on the offender's liberty, do not have the same denunciatory effect as a period of incarceration.

[237] But the real jail time must be imposed with restraint given the totality of the circumstances that exist.

[238] Here I am sentencing you for two offences. In this case, the sentence for the choking should be concurrent to the sexual assault sentence. The offences are so closely factually and temporally linked to each other that they constitute a single criminal transaction. Put another way, the choking is part and parcel of the sexual assault.[^69]

[239] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence. However, when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in section 742.1 have been met in respect of one or more but not all of the offences. The Supreme Court of Canada in R. v. Middleton[^70] held that intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes -- in full compliance with the statutory conditions by which they are respectively governed. Fish J. elaborated on this, stating:[^71]

Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of "real jail time" and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community.

That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring "taste of jail" becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.

It has not been suggested, on the other hand, that the combination of an intermittent and a conditional sentence -- even when their aggregate duration exceeds 90 days -- is similarly objectionable on any ground of correctional policy, or inconsistent with the sentencing principles enacted by Parliament in the governing sections of the Criminal Code.

On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditional sentences. This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences, while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both.

[240] The intermittent sentence will allow you to keep your job. Your close connection to your AA group that has been integral to your rehabilitation can be maintained. Pursuit of further counselling will be permitted. Your reconnecting to your Indigenous heritage and tradition will be aided. Perhaps most importantly, by completing your rehabilitation, women you meet in the future will be protected. At the same time, some actual jail will enhance the deterrent and denunciatory effect of the conditional sentence imposed. That effect will not be lessened by allowing you to serve it intermittently.[^72]

[241] A 90-day intermittent sentence for the choking concurrent to a 2-year less a day conditional sentence for the sexual assault are the fit and proportional sentences that satisfy all the objectives and principles of sentencing.

9. Disposition

[242] Recently retired Senator the Honourable Murray Sinclair, the first Indigenous judge in Manitoba and a commissioner of the Truth and Reconciliation Commission[^73] has described reconciliation as a constant conversation. He emphasized that daily effort must be put in to maintain the relationship and to change that relationship as new things arise in that conversation.

[243] This thoughtful reflection equally applies to what we do as judges. To achieve reconciliation in the criminal justice system, we must constantly and mindfully engage with it. We must acknowledge its evolving nature. We must be willing to change what we do to fit the circumstances of the Indigenous offender. Sometimes that means departing from the easy path. Sometimes that means grappling with a difficult sentencing decision.

[244] This sentencing has been difficult. Yet I am comforted by these words approved of in Ipeelee:[^74]

First, sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practices do not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities. As Professors Rudin and Roach ask, "[if an innovative sentence] can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail?"

[245] I believe this to be such a sentence.

[246] For the sexual assault, R.S., you will be sentenced to a conditional sentence of 2 years less one day; a jail term that is served in the community. The entire length of the conditional sentence will be under house arrest with limited exceptions.

[247] In addition to the compulsory conditions in s. 742.3(1), I impose the following conditions:

• Report to your conditional sentence supervisor within 3 working days and thereafter as required by your conditional sentence supervisor.

• Co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.

• House arrest: to remain in your residence at all times except for: (1) medical emergencies for yourself; (2) for going directly to and from or being at employment, court attendances, religious services and legal or medical or dental appointments; (3) for going directly to or from and being at assessment, treatment, AA meetings, or counselling sessions approved of by your conditional sentence supervisor; (4) for going directly to or from and performing community service hours; (5) you will confirm your schedule in advance with the supervisor setting out the times for these activities; (6) with the prior written approval of the supervisor. The written approval is to be carried with you during these times; (7) for three hours on one occasion per week on a date approved of by your conditional supervisor for acquiring the necessities of life; (8) for carrying out any legal obligations regarding compliance with this Order.

• During your home confinement, you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

• Do not buy, possess or consume any alcohol or drug or substance prohibited by the Controlled Drugs and Substances Act unless with a valid medical prescription.

• Attend AA meetings on a regular basis but no less than once a week.

• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor including for alcohol abuse, domestic violence which may include the Partner Assault Response (PAR) Program, anger management, and sexual behaviours.

• Sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

• Perform 80 hours of community service work on a rate and schedule to be directed by the supervisor but must be completed within 18 months of the start date to this Order.

• Do not contact or communicate, directly or indirectly, by physical, electronic, or other means with L.H.

• Do not to be within 250 meters of anyplace you know L.H. to live, work, go to school, frequents or happens to be.

• Not possess any weapons as defined by the Criminal Code.

• Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the supervisor

[248] Although this does not form a part of the Order, with your conditional sentence supervisor’s agreement, I recommend that you access the services of the Gladue Caseworker, Jonathan Yellowhead or designate, at Aboriginal Legal Services. The Caseworker can assist you with required programming as well as provide referrals to further programming, access to services in the community and assist with applications if required.

[249] Following the conditional sentence, you will be placed on probation for 2 years. The terms and conditions of the probation order will be the same as the conditional sentence order except there will no longer be house arrest and no further community service.

[250] For the choking offence, I impose a 90-day sentence to be served intermittently concurrent to the sentence for the sexual assault. You shall surrender yourself by 6 p.m. this Friday and be released at 6 a.m. the following Monday. You will continue to serve your sentence on each subsequent weekend until your sentence is completed.

[251] Finally, the ancillary orders. You will provide a DNA sample. You will be subject to a firearms prohibition for 10 years under s. 109(2). Pursuant to s. 490.013(2)(b) of the Criminal Code you will be required to be registered as a sex offender and be subject to SOIRA for 20 years.

[252] I would like to thank counsel for their diligence, professionalism, and kind assistance in this matter. Especially given these very challenging times.

Signed: Shaun Nakatsuru J.

Justice S. Nakatsuru

Released: March 29, 2021

COURT FILE NO.: CR-19-50000141-0000

DATE: 20210329

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.S.

Defendant

REASONS FOR JUDGMENT

NAKATSURU J.

Released: March 29, 2021

[^1]: 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal to S.C.C. granted, [2020] S.C.C.A. No. 311.

[^2]: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (C.A.).

[^3]: R. v. Riley, 2020 ONSC 6145 and R. v. Nobbs, 2020 ONSC 7341. Also, two other trial courts have declined to extend Sharma to strike down s. 742.1(f)(iii). In R. v. Bear, 2021 SKQB 26, Mr. Bear was convicted of sexual assault and asked the Saskatchewan Court of Queen’s Bench to strike down the provision based on Sharma. Popescul C.J. refused to do so because of the seriousness of the offence of sexual assault (as opposed to importing cocaine); because Sharma was not binding on him; and because leave had been granted to appeal the decision to the Supreme Court of Canada. Popescul C.J. held that it was unnecessary to decide the constitutionality of the provision since the facts before him warranted a jail sentence. The Alberta Provincial Court similarly did not apply Sharma to strike down s. 742.1(f)(iii) in R. v. Dichrow, 2020 ABPC 224. Fraser J. noted that he was not bound by the Ontario Court of Appeal’s decision and found that the majority’s decision did not apply to Mr. Dichrow in any event because the complainants were children. He found that after R. v. Friesen, 2020 SCC 9, sexual assaults on children were clearly exempted from conditional sentencing.

[^4]: R.S. has also been found guilty of a s. 256(a) offence; that is, he did, with the intent to commit an indictable offence, choke L.H. to overcome her resistance. The maximum punishment for this offence is life imprisonment. A conditional sentence used to be precluded under s. 742.1(c) as it is an offence punishable by a maximum of 14 years or life. As the Court in Sharma struck this provision down, a conditional sentence is now not precluded by this offence. Only the sexual assault conviction does.

[^5]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 51.

[^6]: 2015 SCC 30, [2015] 2 S.C.R. 548.

[^7]: At para. 79.

[^8]: At para. 101.

[^9]: 2015 QCCA 1397.

[^10]: Ibid, at para. 49.

[^11]: At para. 102.

[^12]: At para. 70.

[^13]: 2012 SCC 13, at para. 67.

[^14]: Some caselaw searches provide relevant information. Caution must be exercised in assessing the results as not all cases express whether the Crown proceeded summarily or by indictment. A Quick Law search between 1997-2007 of sexual assault sentencing cases reveals that 484 cases resulted in imprisonment and 111 cases resulted in a conditional sentence. Of the 111, 17 decisions reference the proceeding as summary. In a Rangefindr search from 1999-2021 (there is no date restriction function in the search engine), there are 117 sexual assault cases where a conditional sentence was imposed. Of the 49 of those cases decided before 2007, 12 cases were in the provincial courts, of which 2 cases specifically mention a summary proceeding and 3 specifically mention it was by indictment.

[^15]: At para. 132

[^16]: Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 111-112.

[^17]: 2016 ONSC 7501.

[^18]: A challenge under s. 12 of the Charter was also rejected.

[^19]: 2000 SCC 5, [2000] 1 S.C.R. 61.

[^20]: 2017 ONSC 15.

[^21]: Two other cases previously noted are R. v. Riley, 2020 ONSC 6145 and R. v. Nobbs, 2020 ONSC 7341. Both discuss 742.1(e)(i) which precludes the offence causing bodily harm and declined to extend the ruling in Sharma to this provision. In the former, no constitutional challenge had been brought. In the latter, the court declined to decide the constitutional issue because on the facts of the case, a conditional sentence was inappropriate.

[^22]: R. v. Scarlett, 2013 ONSC 562 at paras. 43-44, per Strathy J. (as he then was).

[^23]: At paras. 148, 157.

[^24]: See comments to this effect in R. v. Solomon, 2019 ONCJ 305, at para. 35; R. v. Pijogge, 2019 NLSC 15, at para. 9; R. v. Sandercock, 1985 ABCA 218, at para. 11.

[^25]: At para. 158.

[^26]: At para. 162.

[^27]: At para. 167.

[^28]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 85-97, per McLachlin C.J.

[^29]: 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, 23 C.C.C. (3d) 289, at para. 313 (S.C.C.),

[^30]: 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

[^31]: R. v. Friesen, 2020 SCC 9, at para. 118; R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1; R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191.

[^32]: I would be remiss in my reasons if I did not mention the recently introduced Bill C-22, An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act which received first reading on February 18, 2021. The new federal crime bill repeals s. 742.1(e) and (f) of the Criminal Code, making conditional sentences available for sexual assault (among other offences). To be clear, this very early legislative action forms no part of my reasons for judgment. That said, it could be reasonably argued that the amendments were intended to promote judicial discretion in sentencing and to address the over-incarceration of Indigenous people. If so, it would significantly undermine any argument that s. 742.1(f)(iii) minimally impairs the s. 15 right to equality.

[^33]: R.S. did testify on a voir dire further to a s. 276 application.

[^34]: R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30.

[^35]: 1999 CanLII 679 (SCC), [1999] 1 S.C.R 688.

[^36]: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

[^37]: R. v. McGregor, 2008 ONCA 831, 94 O.R. (3d) 500 at paras. 30-31.

[^38]: I wish to make clear that the police investigation into the sexual assault and the accused’s exercise of his right to a trial are not aggravating factors. I mention them only to highlight and legitimize the feelings of L.H. about this process.

[^39]: Of course, the nature and degree of the effects of intergenerational trauma will depend very much on the individual facts of the case. Not every person or family suffers the effects in the same way.

[^40]: The National Inquiry into Missing and Murdered Indigenous Women and Girls Interim Report: Our Women and Girls Are Sacred (Vancouver: National Inquiry into Missing and Murdered Indigenous Women and Girls, 2017) at p. 8.

[^41]: Report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. UN Doc CEDAW/C/OP.8/CAN/1 (6 March 2015) at para. 95.

[^42]: Felitti, M D, Vincent, J et al. Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study 1998. American Journal of Preventive Medicine, 14:4 at pp. 245-258

[^43]: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; R. v. Macintyre-Syrette, 2018 ONCA 706.

[^44]: Friesen, at para. 92.

[^45]: R. v. Borde, 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36.

[^46]: 2017 ONSC 5966.

[^47]: See also R. v. Myers, [2000] O.J. No. 1787 (S.C.).

[^48]: 2019 ONSC 1540,

[^49]: 2020 ONSC 5658.

[^50]: 2008 ONCA 179.

[^51]: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87; R. v. H.E., 2015 ONCA 531, at para. 44.

[^52]: R. v. Ghadghoni, 2020 ONCA 24, at para. 48; R. v. Colbourne, 2013 ONCA 308, at para. 17.

[^53]: See Schreck J.’s informative discussion of appellate cases in R. v. Ignacio, 2019 ONSC 2832; R. v. Hughes, 2017 ONCA 814; R. v. Garrett, 2014 ONCA 734; R. v. McKenzie, 2017 ONCA 128, 136 OR (3d) 614.

[^54]: R. v. Orwin, 2017 ONCA 841, at paras. 56-57.

[^55]: R. v. Nwaiku, 2012 ONSC 21; R. v. Scinocco, 2017 ONCJ 359; R. v. Stambuk, [2009] O.J. No. 4338 (S.C.); R. v. M.D., 2018 ONSC 2792; R. v. Vaughan, 2020 ONSC 3942.

[^56]: 2009 YKTC 88.

[^57]: 2012 ONSC 3935.

[^58]: 2009 ONCA 727.

[^59]: 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57.

[^60]: R. v. Friesen.

[^61]: See R. v. Nikkanen (1999), 1999 CanLII 7339 (ON CA), 140 C.C.C. (3d) 423 (Ont. C.A.) (sexual intercourse with sleeping victim); R. v. Kain, 2004 ABCA 127, 185 C.C.C. (3d) 501 (sexual intercourse with a sleeping or passed out victim during drinking); R. v. Nicholson (2004), 2004 ABCA 310, 191 C.C.C. (3d) 26 (forced sexual intercourse after an evening of drinking); R. v. P.C., 2010 BCSC 924 (sexual intercourse with unconscious 16 year old); R. v. Yusuf, 2011 BCSC 626 (sexual intercourse after punching a victim unconscious); R. v. Sampson, [2008] O.J. No. 209 (S.C.) (sexual intercourse with an intoxicated 18 year old).

[^62]: (1999), 1999 CanLII 2489 (ON CA), 29 C.R. (5th) 147 (Ont. C.A.).

[^63]: 2010 ONCA 452, 101 O.R. (3d) 1, at para. 73

[^64]: R. v. Pecoskie, [2000] O.J. No. 1421 (S.C.J.) affirmed (2002) 2002 CanLII 41523 (ON CA), 170 O.A.C. 396 (oral and vaginal sex with an intoxicated or passed out victim); R. v. Paulin, 2011 ONSC 5027 (a military captain attempting oral and anal sex); R. v. W.J.N., 2012 ONSC 5917 (historical sexual offences against children); R. v. Paton, 2006 NUCJ 7 (sexual intercourse with a victim who was a minor that was recorded on video).

[^65]: 2000 BCCA 516.

[^66]: Kent Roach, “Ipeelee in the Courts of Appeal: Some Progress but Much Work Remains”, 2020 67 C.L.Q. 386.

[^68]: At para. 65.

[^69]: Friesen at para. 155; R. v. Finney, 2014 ONCA 866.

[^70]: 2009 SCC 21, [2009] 1 S.C.R. 674.

[^71]: At paras 45 to 48.

[^72]: R. v. Simoes, 2014 ONCA 144 at para. 14; R. v. Stambuk, [2009] O.J. No. 4338 (S.C.).

[^73]: While the Truth and Reconciliation Commission, “The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5: The Legacy” (McGill-Queens University Press, 2015) reports do not explicitly add anything new to support the application of Gladue factors to sexual and violent offences, they include personal stories that strongly suggest avoiding incarceration as punishment for Indigenous offenders, including for serious offences. Volume 5 of the Report advocates for community sanctions, including conditional sentences, for offences including sexual assault. The report concludes that (at p. 240) “for Aboriginal people, many, if not most, offences committed by them result in sentences of incarceration that fail to address the underlying causes of offending behaviour in a manner that supports their mental, spiritual, and cultural needs or reduces crime.”

[^74]: At para. 66.