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.

Indigenous Law Centre – CaseWatch Blog

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.

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