An Indigenous man without any previous criminal record, was charged with one count of sexual assault. The Court took into account the purpose, principles and objectives of sentencing, the circumstances of the offender, including his associated Gladue factors and case law. A sentence of 12 months’ imprisonment to be served in the community was imposed.
SEL is a 29 year-old Indigenous man charged with one count of sexual assault. The victim JM regarded SEL as a very close friend. She had no reason to believe that by allowing him to sleep on her sofa, she was exposed to a risk of the violation of her sexual integrity. A major sexual assault is of a nature of character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm whether or not physical injury occurs (R v Arcand, 2010 ABCA 363). SEL’s entry into JM’s bedroom, in her own home, as her very good friend, knowing she was unconscious and unresponsive, supports classifying his sexual assault on her as major. Any reasonable person could foresee the psychological harm that did ensue to JM as a result of the commission of this sexual assault in these circumstances despite there being no physical injury.
In determining the sentence, the Court considered that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention paid to the circumstances of Indigenous offenders. The Pre-Sentencing Report details that SEL was raised in a traditional lifestyle and is close to his parents and grandparents, who all attended residential schools. SEL was exposed to significant alcohol abuse and violence as a child but reports feeling loved and supported by his parents. He is interested in bettering himself, including addressing his issues with alcohol. SEL has no criminal record, has held gainful employment in the past and has served his community as a town councillor. His Pre-Sentence Report details signs of remorse.
A period of 12 months’ imprisonment is imposed. His service of the sentence is to be done in the community rather than in prison. It would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. This sentence may also aid the community in healing and possibly lead to a restorative justice opportunity wherein if JM chooses, she may allow SEL to personally express his remorse to her. For the duration of his 12 month sentence, he will be bound by a number of conditions pursuant to section 742.2 of the Criminal Code. Following his sentence, he will be subjected to a probation for a period of 18 months with a number of conditions as well.