R v RS, 2021 ONSC 2263

A jury acquitted an Indigenous man of one count of sexual assault, but found him guilty of another count of sexual assault and the offence of choking with intent to overcome resistance to facilitate the sexual assault. 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 which will allow the accused to keep his job, while seeking rehabilitation. The sentence is to be followed by probation for 2 years.

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The accused and victim initially met at work, where they struck up a friendship. However, in 2018, they both became intoxicated on a social night out. Eventually they reached her residence, but cannot recall all the events that led to it, but became aware of a sexual assault occurring on her in her home. She struggled and repeatedly told the accused ‘no’, and tried getting away. Her throat was grabbed and she was overpowered when he forced himself on her. A neighbor who thought she heard distress, attempted to intervene but both the accused and the victim made it appear that there was nothing wrong. After texting the accused after he left, the victim realized how upset she was and reported her state to a friend, then subsequently called the police.

The accused is 38 years old, and has substantial Gladue factors. He is connected to the Michipicoten First Nation on the shores of Lake Superior. There was domestic violence and substance abuse in his home. There are a number of aggravating factors to consider, however, mitigating factors are present, such as the employability of the accused, he is a first time offender, and has post-secondary education as well as shown insight into his actions, including remorse.

The sentencing in this matter is for two offences, sexual assault and choking. Indigenous women experience disproportionate rates of violent victimization in comparison to their non-Indigenous counterparts. 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.

Determining a conditional sentence in this matter will not endanger the community in this matter. The decision whether to impose a conditional sentence must be consistent with s 782.1(e). The Gladue imperative relates to the outcome of the sentencing process, not just the methodology. The Court, however, is troubled by the choking to facilitate an offence, as it is inherently dangerous conduct. Real jail time is necessary to reflect the additional gravity of this act. 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. 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 s 742.1 have been met in respect of one or more but not all of the offences.

R v Bennett, 2021 NLSC 26

A first time Inuit offender, who maintains his innocence, was convicted of sexual assault involving forced anal intercourse with an Indigenous victim. The Court determined that a further 90 days imprisonment and 18 months supervised probation with ancillary orders was fit in the circumstances.

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Mr. Bennett, an Inuit man, was convicted of sexual assault against the complainant contrary to s 271 (1) of the Criminal Code (R v Bennett, 2020 NLSC 147). In 2017, the accused and complainant consensually engaged in sexual intercourse after meeting in a bar and both were heavily intoxicated. After an attempt at anal intercourse, the complainant protested, and the accused acquiesced. However, he attempted again and forced anal intercourse against her will and firm protestations. The complainant subsequently called the police. Upon seeking medical observation, and because she was still inebriated, she gave a formal statement regarding the sexual assault in the following days. The accused has denied any guilt, although he testified he had no recall of the events.

Her explicit communication during their sexual activity, that the accused did not have consent for anal intercourse, did not prevent her from being physically restrained by the accused who forced himself on her anyways. Women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact.

The accused has Gladue factors to be considered, but has been a long term relationship and has two children. He is employable as a construction worker and has had a steady work history. Despite his intoxication of the night of the sexual assault he does not appear to suffer from substance abuse. He has no prior criminal history, and now that he has been in remand, fears homelessness and significant debt upon release.

Balancing the mitigating and aggravating factors and relevant caselaw, the fit sentence for sexual assault in these circumstances is the lower range of 3 years imprisonment. A further 90 days in custody from the time already spent in remand and an order for supervised probation of 18 months with ancillary orders, is determined to be a fit sentence.

R v Kolola, 2020 NUCJ 38

In sentencing an Inuit offender, the Court sought to meet the purpose and objectives of sentencing through consideration of the unique circumstances of this case, including competing sentencing principles, Gladue factors, and the frequency of violence against sleeping and unconscious women in Nunavut.

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Indigenous CaseWatch Blog

This case deals with the sentencing of Mr. Kolola, an Inuit offender who committed sexual assault on a sleeping female victim. The Court sought out to ensure that the sentence imposed was fit to the offender and the crime. Given that Mr. Kolola is an Inuit offender, the Court accounted for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit people, articulated through Gladue factors.

The aggravating factors included Mr. Kolola’s criminal record, which demonstrated a pattern of violence against women through multiple convictions for serious intimate partner violence. The nature of Mr. Kolola’s sexual assault was quite predatory, as he assaulted the victim while she was asleep and in her own home. It was also noted by the Court that this assault seemed to be premeditated as he sought out his particular victim. There are several mitigating factors including Mr. Kolola’s Gladue factors which revealed his unfavourable childhood riddled with addiction and abuse, and his tangible efforts at rehabilitation through his continued sobriety.

The Court also took into account that sexual offenses involving sleeping women in Nunavut are unfortunately a common occurrence. As a result, there is widespread perception that the Court minimises the nature and severity of sexual violence. Therefore, the Court sought to impose a sentence in which sought to repair this distrust and fear of the criminal justice system by victims of sexual violence, while also holding Mr. Kolola demonstrably responsible for his crime. Through consideration and application of these unique circumstances and the competing sentencing principles, the Court concluded by ordering that Mr. Kolola serve 30 months (900 days) in a federal penitentiary.

R c Kanatewat, 2020 QCCQ 3293

A jail sentence is warranted for the offender who committed a sexual assault on the victim after entering a private residence. Gladue factors were considered, along with other competing sentencing principles, in crafting a restorative sentence that includes probation and community service.

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In 2019, Mr. Kevin Kanatewat, the offender, entered very early in the morning the residence rented by the victim, a male of 30 years old, and sexually assaulted him. The attack lasted approximately one hour and was for the victim intimidating, intrusive, humiliating and a painful experience. The offender was found guilty of sexual assault committed on the victim under s 271 a) of the Criminal Code; two counts of breach of his conditions under s 145; resisting or wilfully obstructing a peace officer in the execution of his duty, s 129 a); and with assaulting a peace officer engaged in the execution of his duties, 270 (1) a). The offender pleaded guilty to failing to comply with a conditions of an undertaking not to drink alcoholic beverages and to not completing all of the 150 hours of community work services he had to execute on a probation.

The Presentence Report mentioned a number of Gladue factors, including an upbringing marked by negligence and violence induced by consumption problems. The offender ceased school in Grade 9 and did not return to any scholastic or vocational program. He has an unstable history of employment where he worked various jobs, some which he lost or quit because of his consumption difficulties. The offender suffers from drug and alcohol abuse but would not participate in any services offered in the correctional facility, nor has he made any therapy demands. There are a number of priors regarding breaches and offenses against persons where the offender got short sentences of jail, generally suspended sentences and probations and even community work. The offender has a low level of maturity and a mitigated sense of responsibility with an elastic capacity for empathy.

This intrusive and forceful sexual assault has seriously harmed the victim, a pharmacy technician, as he suffered a very humiliating and destructive harm on his sense of dignity and security. The subjective gravity of the sexual assault warrants a sentence of jail that symbolizes strong denunciation and deterrence but also calls for weighing appropriately the historic and systemic community background factors as well as the personal background factors in a restorative and individualized fit sentence. This sentence has to be proportionate without trivializing or condoning the violent course of behavior.

The offender’s risk of reoffending is considered high, but could be reduced through the healing process under judicial surveillance. The Court is of the opinion that a sentence of imprisonment of 18 months would be a fit sentence, and probation of 24 months with a long healing and compelling process, along with 240 hours of community work to be performed. The probation and the community work are more likely to get the offender on the right track after a significant term of jail and an involvement in the healing programs.