



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Macintyre-Syrette, 2018 ONCA 706

DATE: 20180830

DOCKET: C62825

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Macintyre-Syrette

Appellant

Kristin Bailey and John Fennell, for the appellant

Kevin Rawluk, for the respondent

Heard: January 31, 2018

On appeal from the sentence imposed on October 19, 2016,
    with reasons reported at 2016 ONSC 6496 by Justice Michael N. Varpio of the Superior
    Court of Justice.

REASONS FOR DECISION


OVERVIEW

[1]

On March 19, 2018, we released our reasons for decision in which we
    dismissed the appellants appeal from conviction for sexual assault and stayed
    the conviction for unlawful forcible confinement.
[1]
With respect to the sentence appeal, we concluded that the sentencing judge
    erred in principle in sentencing the appellant on the basis of an inadequate
Gladue
report without ordering a supplementary report or otherwise seeking additional
    information. That determination necessitated that this court reserve the
    sentence appeal pending receipt of a supplementary
Gladue
report.

[2]

In our reasons, we directed the Crown to obtain a supplementary report. Specifically,
    we sought additional information that would help us determine whether a
    non-custodial sentence could be crafted that would be proportionate to the
    offence and could also promote the reconciliation of the appellant to his
    community  a community which includes the complainant. We have now received
    the supplementary report, and the parties submissions. We are grateful to
    Aboriginal Legal Services for their diligence in obtaining the relevant information.
    We are satisfied that the information provided puts us in a position where we are
    able to assess the resources available in the appellants community to support
    a non-custodial sentence.

[3]

No non-custodial sentencing alternative has been identified  in the
Gladue
reports or by counsel  that would be proportionate to the offence. Accordingly,
    based on the
Gladue
reports provided and the record before the
    sentencing judge, we have determined that a fit and just sentence is the
    sentence that was originally imposed by the sentencing judge. For the reasons
    set out below  as well as those outlined in our earlier decision  we would grant
    leave to appeal sentence but would dismiss the appeal.

BACKGROUND

[4]

The appellant is a member of the Batchewana First Nation. He was
    convicted of a sexual assault that took place on June 1, 1999. The appellant,
    the complainant, and another person were swimming at a lake together. Afterwards,
    the appellant followed the complainant into the womens change room, came up from
    behind her, and attempted to force intercourse. The trial judge found that the
    appellant had attempted to rape the complainant, but was thwarted by the
    complainants resistance and the appellants inability to displace the
    complainants clothing. The appellant was convicted of sexual assault, and was
    sentenced to six months imprisonment, followed by three years of probation.

[5]

The sentencing judge considered the appellants request for a
    conditional sentence in the context of
R. v. Gladue
, [1999] 1 S.C.R.
    688, and s. 718.2(e) of the
Criminal Code
. As we noted in our previous
    reasons, he ultimately concluded that the circumstances of this particular
    appellant did not diminish the moral culpability of his actions.  The sentencing
    judge accepted that given the appellants background of non-criminality, he
    would not pose a threat to the community if he received a conditional sentence.
    However, the sentencing judge nonetheless held that a conditional sentence was
    not appropriate because of the primacy of the need for deterrence and
    denunciation of this offence in these circumstances.

[6]

On appeal, the appellant argues that the sentence should be varied and
    that the appropriate sentence is a 12 month conditional sentence, to be served
    in the community.

Analysis

[7]

In our previous reasons, we held that it was an error for the sentencing
    judge to proceed with sentencing with the limited materials before him,
    particularly with respect to the second aspect of the
Gladue
analysis:
    determining the types of sentencing procedures and sanctions that would be
    appropriate given the offenders connection to his specific Aboriginal
    community:
R. v. Ipeelee,
2012 SCC
    13, [2012] 1 S.C.R. 433
, at para. 74.

[8]

As we noted in our reasons, at para. 19:

Section 718.2(e) imposes an affirmative obligation on
    sentencing judges to inquire into the relevant circumstances of the offender,
    including the types of sentencing procedures and sanctions which may be
    appropriate because of his or her particular Aboriginal heritage or connection;
    either from the parties or on his or her own initiative, a sentencing judge must
    be made aware of alternatives to incarceration that exist whether inside or
    outside the aboriginal community of the particular offender:
R. v. Wells
,
    2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54;
Ipeelee,
at para.
    72,
Gladue
, at para. 84. This information was not made available to
    the sentencing judge in this case in either the pre-sentence report or the
Gladue
report.

[9]

Our concern with the initial
Gladue
report was that it did not
    put the sentencing judge in a position where he could meaningfully consider alternatives
    to incarceration. This was, in part, because the
Gladue
report
    contained no information from the Batchewana First Nation or any other source as
    to what institutions or alternative sentencing procedures, such as sentencing
    circles, exist within the appellants community, or are otherwise available.
    Such institutions, where they exist, can be used to craft a fit and effective sentence
    that is proportionate to the appellants offence and the degree of his responsibility.
    Where community based institutions exist, they can further the remedial purpose
    of s. 718.2(e) as well as restorative sentencing objectives, such as
    reconciling the offender to the community:
Ipeelee,
at paras. 72, 74,
R.
    v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207
,
at para. 39.

[10]

The
    initial
Gladue
report recommended that the appellant participate in
    sweat lodges, Pow Wows, and community ceremonies as a means to the appellants personal
    healing. However, it was unclear from the report what specific ceremonies or
    other cultural practices were in fact open to the appellant in his community.
    It was also unclear to what extent such practices would further restorative
    justice or other sentencing objectives in the case of this particular offender 
    a high-achieving person who already possessed an advanced knowledge of his
    culture, and whose offence was committed nearly 20 years ago. As we said in our
    reasons, at para. 23:

There was no information about the institutions in the
    appellants community, what opportunities exist for the appellant to
    participate in the various ceremonies recommended, whether the cooperation of
    other persons would be required, or whether that cooperation would be
    forthcoming. There was no proposal for any sort of mediation or other practice
    aimed at the specific reconciliation of this offender to his community. There
    was no explanation of how participation in the various ceremonies would benefit
    the appellant, given that he already possesses a highly advanced understanding
    of his culture. If this information was unavailable, or it would be impractical
    to obtain it, this should have been explained in the report. If sentencing
    judges are to fulfill the requirement of the second part of
Gladue
,
    they must be given information that puts them in the position to do so.

[11]

In
    light of this error, it is necessary for this court to consider and fashion an appropriate
    sentence after consideration of the supplementary
Gladue
report filed
    and the parties further submissions.

(1)

The supplementary
Gladue
report

[12]

The
    supplementary report appropriately sought input from the leadership of the
    Batchewana First Nation. The most salient information received  after the
    Chief and council delegated the questions posed by the authors of the report to
    the Director of the Batchewana Health Centre, and after several months of follow-up
     is that the Batchewana First Nation has no formal restorative justice practice
    or programs. The appellants father  a former Chief of the community  was
    interviewed for the supplementary report and stated that he believed this to be
    a deliberate and longstanding decision by the Batchewana First Nation, in order
    to avoid exposure to complaints about the process or any substantive decisions
    made. The report noted that the restorative justice options this court was particularly
    interested in in our earlier reasons do not appear to be available for [the
    appellant]. Whatever the reason, it appears that the Batchewana First Nation
    has chosen not to establish an institutional structure for the pursuit of
    restorative justice. It is under no obligation to do so.

[13]

The
    Batchewana First Nation provided an inventory of its social and cultural
    activities, and stated that there is no barrier to the appellants participation
    in them. However, the appellant argues that the situation is more complicated
    than that, due in part to the conditions of his bail, as well as orders which
    may be in force from other proceedings, and the participation in these
    activities by the complainant and other persons who have made sexual assault
    allegations against him. On the appellants assessment of these circumstances,
    he is not in fact able to participate.

[14]

The
    supplementary report did identify two avenues for counselling and mentoring of the
    appellant by a community Elder, in the one instance, and a traditional health
    practitioner in the other. The report recommends such counselling in the
    interests of healing in the community. The appellant is willing to participate
    in these. However, it remains unclear to us how the recommended counselling
    would relate to the offence or to restorative justice in the sense of
    reconciling the appellant with the community. It may be of great personal
    benefit to the appellant, but it does not appear to address the goals of
    sentencing in the context of this offender and this offence.

(2)

The proportionate sentence in light of the supplementary
Gladue
report

[15]

Section
    718.2(e) of the
Criminal Code
provides that all available sanctions
    other than imprisonment that are reasonable in the circumstances should be
    considered by a sentencing judge, with particular attention to the
    circumstances of Aboriginal offenders. This provision encourages the
    consideration and application of restorative justice principles in sentencing,
    and has at its core a remedial purpose:
Gladue
, at para. 48;
Wells,
at para. 36.

[16]

We
    are conscious of the Supreme Court of Canadas admonition in
R. v. Proulx
,
    2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22 and 90,

that we are to
    give serious consideration to a conditional sentence in these circumstances,
    and that a conditional sentence is generally more effective than incarceration
    at achieving the restorative objectives of rehabilitation, reparations to the
    victim and community, and the promotion of a sense of a responsibility in the
    offender. Further, a conditional sentence is itself a punitive sanction
    capable of achieving the objectives of denunciation and deterrence:
Proulx,
at para. 22. A focus on denunciation and deterrence in sentencing does not
    necessarily foreclose a conditional sentencing order in the circumstances:
R.
    v. Cooper,
2010 ONCA 452, 101 O.R. (3d)
,
at para. 80.

[17]

As
    the Supreme Court noted in
Wells,
the sentencing principles developed
    in
Gladue
are relevant to the determination of whether a conditional
    sentence is appropriate in the circumstances. A court must consider the
    offenders Aboriginal status in determining whether to impose a conditional
    sentence:
Cooper
, at para. 73.

[18]

However,
    as LaForme J.A. noted in
R. v. Kakekagamick
(2006), 81 O.R. (3d) 664,
    leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no
    general rule that in sentencing an Aboriginal offender the court must give the
most
weight to the principle of restorative justice, as compared to other legitimate
    principles of sentencing. The relative weight to be assigned to the goals of
    restorative justice as against the principles of denunciation or deterrence will
    be connected to the severity of the offence:
Wells,
at para. 39. The
    principles of denunciation and deterrence may predominate where the offence is
    sufficiently serious:
Kakekagamick,
at para. 42.

[19]

The
    scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to
    those sanctions that are reasonable in the circumstances: see
Wells,
at
    para. 39. In keeping with this principle, there are circumstances in which the
    need for denunciation and deterrence is such that incarceration is the
only
suitable way to express societys condemnation of the offenders conduct:
Proulx,
at paras. 106-107. As Doherty J.A. noted in
R. v. Killam
(1999)
,
126 O.A.C. 281, at para. 13, a conditional sentencedoes not, generally
    speaking, have the same denunciatory effect as a period of imprisonment.
    Incarceration remains the most formidable denunciatory weapon in the sentencing
    arsenal.

[20]

Ultimately,
    after considering the requirements of s. 718.2(e) and the information provided
    in the two
Gladue
reports, we conclude, as did the sentencing judge at
    first instance, that denunciation must be a primary sentencing objective in the
    context of this offender and this offence. As the sentencing judge found, the
    sexual assault committed by the appellant was forceful, involved confinement,
    and has had a significant impact upon the complainant.

[21]

We
    directed inquiries into whether resources exist to fashion some non-custodial
    disposition that would nevertheless satisfy this objective, and have the added
    benefit of promoting reconciliation between the appellant and his community.
    From the information we received, we conclude that such an option is not
    available in the appellants community. A conditional sentence served in the
    community with individual counselling, as proposed by the appellant and
    supported by the
Gladue
reports, would not be a reasonable or proportionate
    sentence for this offence. This offence requires denunciation, as an
    affirmation of the dignity of the complainant, and no appropriate sentencing
    proposal or sanction, short of a custodial disposition, appears to be
    available.

[22]

Accordingly,
    and notwithstanding the sentencing judges error in his analysis of the
    sufficiency of the first
Gladue
report, we are of the view that the
    sentence imposed was in all the circumstances fit and proportionate: see, for
    example,
R. v. Twati
(2005), 204 O.A.C. 232;
R. v. Syed
(2005),
    195 O.A.C. 229;
Kakekagamick,
at para. 74. We would not interfere with
    it on appeal.

Disposition

[23]

Leave
    to appeal against sentence is granted, and the appeal from sentence is dismissed.

R.G. Juriansz
    J.A.

David Watt J.A.

B.W. Miller J.A.





[1]

Reported at
2018 ONCA 259.


