R. v. D.A., 2022 ONSC 4002

COURT FILE NO.: 8368/21

DATE: 2022-07-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Trent Wilson, Counsel for the Crown

• and -

D. A.

Kenneth G. Walker, Counsel for the Accused

HEARD: June 24, 2022

VARPIO J.

REASONS FOR sentence

1I found the accused guilty of sexual assault on April 11, 2022 (2022 ONSC 1920).

2The Crown seeks a sentence of approximately four years while the accused seeks a sentence at the lowest end of the range, which he submits is three years.

THE VICTIM

3The victim submitted a victim impact statement. She indicated that she has suffered as a result of the incident. She gets phantom pains in her vagina, in her “butt” and in her throat. She suffers from anxiety, bad dreams, flashbacks and her temperament has been affected by her trauma.

THE ACCUSED

4A Gladue report was filed in this matter. The accused is a member of the Batchewana First Nation in Sault Ste. Marie. His mother was indigenous, while his father was not. He grew up in a large family with nine siblings. His father was an alcoholic. His family was poor and it is uncertain as to whether anyone on his mother’s side of the family attended residential school. One of the accused’s sisters remembered the residents of the town in which the family lived referring to the family as “dirty Indians” upon occasion.

5The accused appears to suffer from mental health issues. The Gladue report indicated that the accused was not taking medication prior to his arrest:

I stopped taking my medicine from before because my doctor wouldn’t see me anymore because I hadn’t seen her for a year. That was a lie because Dr. Keating was on vacation.

6The accused had suicidal ideations and on April 11, 2022, he admitted himself to Sault Area Hospital. He spent 13 days in the Mental Health Ward. He stated: “I’m crying all the time and I took myself to the hospital to the Mental Health Ward”. He was prescribed Citalopram and Risperidone. The accused states that he now feels much better and he speaks with an out-patient psychologist. The accused’s sister says she sees a difference in the accused as a result of the treatment. Another sister believes that the accused is schizophrenic and that the medication is making a difference, however this sister notes that the accused cries every day.

7The accused admits that he is an alcoholic and would like to engage some form of treatment.

8The accused has a limited criminal record with two entries for willful damage in 1989 for which he received fifteen days in custody, a mischief under in 1990 and an impaired driving conviction in 2002 for which he received a suspended sentence.

THE LAW

Sentencing Principles Contained Within the Criminal Code of Canada

9Section 718 of the Criminal Code of Canada describes the general principles to be considered in sentencing offenders:

Purpose

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

10Section 718.04 of the Criminal Code deals with the principles to be applied with respect to vulnerable victims:

Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

11Section 718.2 of the Criminal Code provides further direction regarding how to apply the principles of sentencing:

Other sentencing principles

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(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.

The Range of Sentence

12The Crown and the offender agree that sentences for sexual assaults of this nature range from between three and six years: see R. v. P.M. 2022 ONCA 408; R. v. Ruelas 2022 ONCA 262; R. v. Henry 2022 ONCA 1919; R. v. V.L. 2020 ONCA 87; R. v. Finney 2014 ONCA 866

13The parties differ, however, on the impact of the Gladue factors, and whether the restorative features of those principles are such that the sentence ought to be reduced in the circumstances of this case.

Gladue and Ipeelee

14In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada enunciated principles regarding the sentencing of indigenous offenders. These principles were revisited in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. At para. 59 of Ipeelee, the majority of the Supreme Court reaffirmed the principles initially described in Gladue:

The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

15At para. 60 of Ipeelee, the majority also described those matters about which the court must take judicial notice:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts 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 attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.

16It is also clear that the offender need not show any causal links as between his or her background as an indigenous individual and the commission of criminal offences (Ipeelee at para. 82).

17Equally, I must be cognizant of the fact that, per para. 79 of Gladue,

[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, event taking into accounts their different concepts of sentencing.

18However, at para. 85 of Ipeelee, the majority of the Supreme Court cautioned against placing an overemphasis on this passage. In particular, the majority stated at para. 85:

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

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

This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 214 O.A.C. 127; R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 196 O.A.C. 119; R. v. Abraham, 2000 ABCA 159, 261 A.R. 192).

APPLICATION TO THIS CASE

19It is obvious that, given the nature of my findings, deterrence and denunciation must play primary roles in sentencing this offender. In fact, a penitentiary sentence is necessary to send the appropriate message to both the offender and the community that the conduct he undertook is unacceptable. Further, a penitentiary sentence will tell the offender and the community that such conduct will be met with meaningful consequences.

20The following are aggravating features of this case:

1. The age of the victim, while not a part of the gravamen of the offence, suggests that the victim was vulnerable;
2. The effect that the crimes had upon the victim;
3. The number of instances of sexual assault;
4. The frequency of the sexual assaults; and
5. The fact that the victim was the accused’s intimate partner.

21There are few mitigating features of this case. Specifically, the offender’s lack of a criminal record is the only true mitigating feature of the case. Also, the offender’s mental health issues play a role in sentencing as well, although there is no suggestion that the offender’s mental health problems contributed to this crime thereby rendering him less morally culpable: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 (C.A.)

22The Gladue factors are such that I must consider the offender’s indigenous background when sentencing him. I instruct myself as to the factors described in paragraphs 14 to 17 of these reasons.

23In this instance, the aggravating features of this case are such that a sentence beyond the low-end of the range is necessary to reflect society’s abhorrence for this kind of crime. As the Crown appropriately described, but for the Gladue factors, the accused could easily be looking at five years in custody given the factors described in para. 20 above.

24Nonetheless, the offender’s status as an indigenous person is such that the restorative components associated with sentencing an indigenous person reduce the quantum of jail. The offender resided in the same small town where he was called “dirty Indian” with an alcoholic father. One can readily understand how such an impoverished and difficult upbringing, coupled with mental health issues, could lead to substance abuse and other tragic conduct, as has been in Gladue and other cases.

CONCLUSION

25In the totality, therefore, the accused is hereby sentenced to four years custody. This quantum reflects an appropriate balance of the powerful aggravating features of this case, as contrasted with the minimal mitigating features of the case and the need for restorative justice driven by the Gladue factors.

26The offender will be subject to a s. 743.21 order while in custody and shall have no contact with the victim except through legal counsel.

27The offender will also be subject to a SOIRA order for a period of 20 years.

28The offender will provide a sample of this DNA to the police pursuant to s. 487.051(1) of the Criminal Code of Canada.

29The offender will be subject to a s. 109 order for a period of 10 years.

Varpio J.