



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Macintyre-Syrette, 2018 ONCA 259

DATE: 20180319

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 conviction entered on May 10, 2016,
    with reasons reported at 2016 ONSC 2969, and 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]

This appeal from conviction and sentence was argued on January 31, 2018.
    We dismissed the appeal from conviction for sexual assault and stayed the
    conviction for unlawful confinement, with reasons to follow. We now provide
    those reasons.

[2]

We reserved judgment on the sentence appeal. As set out below, we have
    concluded that the pre-sentence and
Gladue
reports were not sufficient
    and did not put the sentencing judge in a position where he could meaningfully
    assess the appropriateness of a non-custodial sentence. It was an error for the
    sentencing judge to proceed without taking further steps to address the
    shortcomings in the reports. It is necessary that a supplementary pre-sentence
    report be prepared prior to this court re-sentencing, and the sentence appeal
    remains under reserve.

Background

[3]

The appellant was convicted of an historical sexual assault that took
    place on June 1, 1999. The facts were carefully set out by the trial judge and
    there is no need to repeat them in any detail. The central events are, on the
    complainants evidence, as follows. The appellant, the complainant, and another
    person had been moving furniture, and stopped for a quick swim at a lake.
    Afterwards, when the complainant went to change in the womens change room, the
    appellant followed her in, came up behind her, spun her around, and attempted
    intercourse over her objections. The appellants account was entirely
    different. He only followed her into the womens change room to put his shirt
    back on. While she was changing in front of him, he asked if she would like to
    have sex with him. She said that she would, just not at that time. He then
    asked if she would mind if he masturbated while watching her change. She had no
    objection, and he did so.

[4]

The trial judge accepted the complainants testimony, rejected the
    appellants testimony, and found that on the whole of the evidence he accepted,
    he was not left with a reasonable doubt as to the appellants guilt. He
    convicted the appellant of sexual assault and unlawful confinement and sentenced
    the appellant to six months imprisonment.

Analysis

(1)

Sexual assault conviction appeal

[5]

The appeal of the sexual assault conviction is framed in terms of the
    trial judges misapprehension of the appellants testimony, and uneven scrutiny
    of the complainants and appellants testimonies. We were not persuaded that
    the trial judge made either error.

[6]

The trial judges misapprehension of evidence is said to have flowed
    from the following brief question and answer from the appellant on
    cross-examination:

Q: At this point, [prior to walking into the changing room,]
    theres nothing sexual between [the two of] you, correct?

A: No.

[7]

The trial judge understood the appellants evidence to be: (1) there
    was, to that point, nothing of a sexual nature between the appellant and the
    complainant (no sexual tension, no communication of sexual attraction), and (2)
    that the appellant had no sexual interest in the complainant up to that point.
    The trial judge found the latter assertion implausible: [s]uch a lack of
    sexual interest (prior to entering the change room) does not square with common
    sense. It occurs to me that a man seeking to get changed would not follow a
    woman into the womens change room unless he was sexually interested.

[8]

The appellant argued that the trial judge misapprehended his evidence:
    it was not his evidence that he had no sexual interest in the complainant.
    Attributing this implausible statement to him, the appellant argued, led the
    trial judge to reject the appellants credibility and testimony.

[9]

We rejected this submission. The trial judge understood the appellants
    evidence, and drew permissible inferences. Furthermore, the trial judge gave
    other reasons for rejecting the appellants evidence, which failed on its own
    terms. The appellant did not testify that he went into the womens change room
    to pursue the complainant. His evidence was that the reason he went into the
    womens change room was to change his clothes. The trial judge found this
    unbelievable: the only article of clothing the appellant brought with him was
    his shirt, which he had carried from the dock. He had no other clothes to
    change into. Why, the trial judge asked, would he go into a change room to put
    his shirt back on? And why, if he went into the change room to change rather
    than to pursue the complainant, did he choose to go into womens change room
    instead of the mens change room a few steps away?

[10]

The appellants second argument was that the trial judge erred by
    uncritically accepting the complainants testimony, notwithstanding a serious
    inconsistency in it. The complainant testified that she had stood inside the change
    room facing towards the open doorway, that the appellant had come up from
    behind her, and that she did not see him enter the change room. At trial, the
    complainant speculated that there must have been another door that the
    appellant used. The evidence clearly established, however, that there was no
    other door.

[11]

We rejected this argument as well. The trial judge did not err in
    failing to find that this inconsistency diminished the complainants
    credibility. Her statement that there must have been a second door was a
    deduction, not an observation. The deduction was wrong, but her failure to
    observe the appellant approaching is easily reconciled with her other evidence.
    She testified she was mid-pull in pulling her wet shirt over her head when
    the appellant grabbed her from behind. At some point when the complainant was
    removing her shirt, her vision would have been obscured, either by the shirt
    itself or by closing her eyes. There was no failure to scrutinize the
    complainants evidence.

(2)

Unlawful confinement conviction appeal

[12]

The Crown conceded that the conviction for unlawful confinement ought to
    have been stayed pursuant to the
Kienapple
principle. We agreed. The
    conviction for unlawful confinement in the change room was an integral part of
    the sexual assault conviction.

(3)

Sentence appeal

[13]

The appellant argues that the sentencing judge erred in imposing a
    custodial sentence of 6 months instead of a lengthier non-custodial sentence to
    be served in the community. The source of this error is said to be a failure to
    properly apply the principles for sentencing Aboriginal offenders set out in
R.
    v.

Gladue
, [1999] 1 S.C.R. 688. When sentencing Aboriginal
    offenders,
Gladue
requires courts to consider:

(1)

The unique systemic or background factors which may have played a part
    in bringing the particular Aboriginal offender before the courts; and

(2)

The types of sentencing procedures and  sanctions which may be
    appropriate in the circumstances for the offender because of his or her
    particular Aboriginal heritage or connection (
Gladue
, at para. 66)

[14]

The
Gladue
factors are highly particular to the individual
    offender, and so require that the sentencing judge be given adequate resources
    to understand the life of the particular offender. But that is not all. A second
    enquiry is required by
Gladue
, assessing available sentencing
    procedures and sanctions, requires an understanding of available alternatives
    to ordinary sentencing procedures and sanctions. In particular, if, as in this
    case, the offender lives as a member of a discrete Indigenous community, the
    sentencing judge needs to be told what institutions exist within that community
    and whether there are specific proposals from community leadership or
    organizations for alternative sentencing to promote the reconciliation of the
    offender to his or her community:
Gladue,
at para. 84;
R. v.
    Laliberte
, 2000 SKCA 27, at para. 59. The ordinary source of this
    information is the
Gladue
report.

[15]

In
Laliberte
, the Saskatchewan Court of Appeal helpfully
    itemized the type of information a sentencing judge needs from a
Gladue
report:

1) Whether the offender is aboriginal, that is, someone who
    comes within the scope of s. 25 of the
Charter
and s. 35 of the
Constitution
    Act, 1982
;

2) What band or community or reserve the offender comes from
    and whether the offender lives on or off the reserve or in an urban or rural
    setting. This information should also include particulars of the treatment
    facilities, the existence of a justice committee, and any alternative measures
    or community-based programs.



4) Whether imprisonment would effectively deter or denounce
    crime in the subject community. Within this heading it would be useful for the
    Court to determine whether or not crime prevention can be better served by
    principles of restorative justice or by imprisonment.

5) What sentencing options exist in the community at large and
    in the offender's community. For example, does an alternative measures program
    exist in the offender's community if he lives on a reserve?

[16]

The
Gladue
report in this case documents the appellants
    familys history, including his parents strategy of overcoming race-related
    adversity by immersing the appellant in Anishinabe culture. Under their
    guidance, he grew into a leadership role in his community and at a young age
    became a highly successful conduit of his culture, particularly through music
    and song. He has no prior history of offences and avoids alcohol and drug use.
    He was employed in a detox centre and later, after leaving university, at a
    child welfare agency. The report is overwhelmingly positive in its assessment
    of the appellant and in the tremendous contributions he has made to his
    community. The sentencing judge took notice of the appellants stable and
    relatively prosperous upbringing.

[17]

The sentencing judge concluded, and defence counsel conceded at the
    sentencing hearing, that in light of the foregoing, the
Gladue
factors
    carried less weight than they would for a person in different circumstances.
    The sentencing judge did not suggest that the appellant has never directly or
    indirectly experienced conflict or disadvantage due to others actions or
    attitudes towards Indigenous peoples. But he nonetheless concluded that the
    appellants moral culpability for the offences is higher than it would have
    been if he had grown up in vastly different circumstances, such as in an
    unstable home without the benefit of wise parental guidance and example, with
    alcohol or drug-related struggles, or without having played a leadership role
    in the resurgence of his communitys cultural practices.

[18]

It would have been better had the sentencing judge not accepted defence
    counsels concession that
Gladue
factors should have less weight in
    the circumstances of the appellant. The application of
Gladue
factors
    is not a matter of weight, and the duty to apply
Gladue
factors does
    not vary with the offender. This is, however, more of a semantic failing, and
    what we understand the sentencing judge to have held, rightly, is that the
    circumstances of this particular appellant do not diminish the moral
    culpability of his actions:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at para. 73.

[19]

It was an error, however, for the sentencing judge to have proceeded
    with sentencing on the strength of the materials before him. The
Gladue
report gave insufficient assistance to the sentencing judge with respect to the
    second aspect of the
Gladue
analysis: of determining the types of
    sentencing procedures and sanctions that would be appropriate given the
    offenders connection to his specific Aboriginal community:
Ipeelee
,
    at para. 74. 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.

[20]

The
Gladue
report recommended the following:

1) That [the appellant] continue participating with sweat
    lodges. [The Appellant] can prepare the lodge, participate as a Fire Keeper,
    participate inside the lodge and/or run his own lodge;

2) That [the appellant] continue participating in Pow Wows and
    ceremony, singing and drumming, in that partaking in these ceremonies will
    assist [him] in his healing process;

3) That [the appellant] continue participating in workshops and
    conferences which primarily focus on the healing of Aboriginal People.

[21]

A difficulty with these recommendations is that they were prepared
    without interviewing anyone outside the appellants family. There is no
    indication of any broader engagement with the community. Perhaps there is good
    reason for this. If so, the author should have said so. By not informing the
    sentencing judge of circumstances within Batchewana Reserve other than through
    the appellants parents  either in the
Gladue
report or the
    pre-sentence report  the sentencing judge was not put in a position to
    understand what could be done, specifically, to promote reconciliation within
    that community and other goals of restorative justice.

[22]

The
Gladue
report and the pre-sentence report both relay
    statements from the appellants family that their community is divided over the
    appellant, and that he has been ostracized and left out of ceremonies because
    peers have been unwilling to be seen with him. Although the
Gladue
report recommends steps for the healing of the appellant, it does not address
    the difficult question of reconciling him to this particular community. The
    appellant asserted on appeal that removing an offender from the community is
    not the traditional way of First Nations. The traditional way would be for him
    to serve his sentence in the community, engaging in the cultural activities
    that he has led in the past, encountering those who are hostile to him, and
    thereby creating the conditions that could promote healing between offender and
    community.

[23]

The problem with this submission is that there was nothing before the
    sentencing judge that could help him assess its practicality. There was no
    alternative sentencing proposal put forward, beyond the bare submission that he
    serve a conditional sentence. 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.

[24]

It was an error, in our view, for the sentencing judge not to have
    identified these shortcomings in the
Gladue
and pre-sentence reports
    and either ordered a supplementary report or summoned the author or other
    witnesses from the community to address these questions
viva voce
:
R.
    v. Kakekagamick
, (2006), 81 O.R. (3d) 664 (C.A.), at para. 45;
R. v.
    Kakekagamick,
2006 CanLII 11656 (Ont. C.A.). Without this information, the
    sentencing judge was not in a position where he could meaningfully assess the
    appropriateness of a non-custodial sentence.

[25]

The sentencing judge, by virtue of his proximity to the communities he
    serves, is well placed to understand how sentencing goals can be achieved with
    respect to a particular offender in a particular community. It would be
    preferable to remit this matter to the sentencing judge to re-sentence after
    considering a supplementary
Gladue
or pre-sentence report. But that
    option is not available to us under s. 687 of the
Criminal Code
and,

having found the sentencing judge committed an error in principle, this
    court must impose a new sentence:
R. v. Kakekagamick
(2006), 81 O.R.
    (3d) 664 (C.A.), at para. 60;
R. v. Pahl,
2016 BCCA 234, 336 C.C.C.
    (3d) 221, at para. 85. We are, however, unable to do so on the record before
    us. Accordingly, we order a further pre-sentence report be completed in
    relation to the appellant, addressing the issues identified in paragraph 23
    above, and to be received within 90 days. We trust that arrangements can be
    made by Crown counsel. Upon completion, the report is to be filed with this
    court to the attention of this panel.

Disposition

[26]

The appeal from the conviction of sexual assault is dismissed. The
    appeal from the conviction of unlawful confinement is stayed pursuant to the
Kienapple
principle. The appeal against sentence remains under reserve. A supplementary
    pre-sentence report is ordered. Parties can submit brief written submissions (5
    pages or less) addressing the supplementary pre-sentence report within 15 days
    of receipt of the report.

R.G. Juriansz
    J.A.

David Watt J.A.

B.W. Miller J.A.


