R v Kishayinew, 2021 SKCA 32

Appeal allowed against sentence. A substitution of four years minus pre-sentence custody and removal of a victim surcharge is given to an Indigenous man who sexually assaulted an intoxicated woman after luring her to his home under the guise of safety.

Indigenous Law Centre – CaseWatch Blog

This matter deals with a sentence appeal for Mr. Monty Kishayinew, an Indigenous man from Yellow Quill First Nation. He was convicted of sexually assaulting an intoxicated and vulnerable woman who he encountered in an alley in Saskatoon, where under the pretence of offering her help, he took her to his home. There, he sexually assaulted her in his basement, and until she feigned needing to use the bathroom and was able to escape (R v Kishayinew, 2017 SKQB 177).

Mr. Kishayinew was sentenced to four-and-a-half years in prison, minus credit for pre-sentence custody but has appealed both conviction and sentence. Appeal for his conviction was granted and a new trial was ordered. As a result, his sentence appeal was not addressed. The conviction was restored by a subsequent appeal to the Supreme Court of Canada, which remanded the matter to this Court to determine the sentence appeal.

After conviction, the trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr. Kishayinew was sentenced to 54 months of incarceration, minus a pre-sentence credit of 17 months and 2 days, and for Mr. Kishayinew to pay a victim surcharge in the amount of $200 within 30 days, with 2 consecutive days in default of payment (R v Kishayinew, 2017 SKQB 340).

Mr. Kishayinew appeals his sentence pursuant to s 675(1)(b) of the Criminal Code. A sentencing decision is entitled to considerable deference upon appeal (R v LV, 2016 SKCA 74, [2017] 1 WWR 439 ). This Court concluded, however, that the trial judge committed errors in principle by erroneously relying on the absence of remorse as an aggravating factor and by misstating Mr. Kishayinew’s position on sentencing in a material manner. The combination of the errors shows that there was an impact on sentence and appellate intervention is required.

The circumstances of this offence are extremely grave and Mr. Kishayinew’s lengthy criminal record is an aggravating factor with convictions of at least sixty-three prior offences dating back to 1996. At the time he committed the current offence, Mr. Kishayinew was on bail with an undertaking to keep the peace and be of good behaviour. Mr. Kishayinew’s high risk to reoffend, generally and sexually, is also a relevant factor. Mr. Kishayinew’s actions in relation to this matter were reprehensible. He knew the woman was distraught, intoxicated and vulnerable and he took advantage of this situation to convince her that she was not safe but would be safe with him. Using this deception, he took her to his house where he sexually assaulted her. These actions speak to a high level of moral culpability.

Mr. Kishayinew, however, has considerable Gladue factors and these principles must be applied even in serious cases involving sexual violence (R v Friesen, 2020 SCC 9). Even when the circumstances of a case unquestionably call for a penitentiary sentence, these factors remain relevant (R v Ratt, 2021 SKCA 7). He suffered extensive abuse from family members who suffered significant intergenerational trauma. Mr. Kishayinew has issues with substance abuse, but has completed grade 11 while incarcerated, and continues towards his GED. His personal supports and relationships are limited along with his employment history.

The gravity of the offence is severe and Mr. Kishayinew’s moral blameworthiness is high, although his moral culpability is somewhat tempered by Gladue factors. The appropriate sentence for this offence, for this offender, for the harm caused to this victim is four years with pre-sentence custody credit. The victim surcharge of $200, and the two days in default of payment for the victim surcharge, is set aside (R v Boudreault, 2018 SCC 58).

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