



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 657

DATE: 20201020

DOCKET: C63744

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryle Wade Brown

Appellant

Nathan Gorham and Breana Vandebeek, for
    the appellant

Samuel Greene, for the respondent

Heard: September 18, 2020 in writing

On appeal from the sentence imposed on November 10, 2016 by Justice Alan C.R. Whitten of the Superior Court of Justice with reasons at 2016 ONSC 5854.

Trotter J.A.:

[1]

The appellant, Daryle Brown, attacked and raped
    a woman at random in August 2012. He entered a plea of guilty to aggravated
    sexual assault, contrary to s. 272(2)(b) of the
Criminal Code
, R.S.C.
    1985, c. C-46, and was sentenced to imprisonment for 12 years, less credit for
    pre-sentence custody (PSC). He appeals his sentence.

[2]

The appellant submits that the sentencing judge
    failed to properly consider his Inuit heritage in accordance with
R. v.
    Gladue
,
[1999] 1 S.C.R. 688, and did not give effect to the
    principles of proportionality and restraint, resulting in a sentence that was
    unduly harsh. The respondent argues that the sentencing judge did not err in
    his consideration of
Gladue

factors or in his application of
    sentencing principles.

[3]

In the following reasons, I explain why I would
    grant leave to appeal but dismiss the appeal. While I agree that the sentencing
    judge erred in his application of
Gladue

principles, I am
    satisfied that the sentence he ultimately imposed is fit in the circumstances
    of this case.

A.

THE FACTS OF THE
    OFFENCE

[4]

The appellants attack on the victim took place in
    the early morning hours of August 9
th
, 2012 in Brantford, Ontario.
    The appellant had been drinking excessively the previous evening. He got into a
    fight with a group of men he encountered and sustained considerable injuries. The
    appellant said that he went home and lost consciousness after walking into a
    wall. Paramedics took him to the hospital where his blood alcohol level was
    measured at 198 milligrams of alcohol in 100 milliliters of blood. The
    appellants former foster mother drove him home from the hospital. He has no
    memory of what happened from this point forward.

[5]

At some point after being driven home, the
    appellant ventured out into the night. While out, the appellant found and
    followed two women as they walked to their respective homes.

[6]

He began following the first woman after she
    left a coffee shop in downtown Brantford. Nervous about being followed, this
    woman walked towards a couple who were going the same way. The appellant
    continued to follow. The woman walked past the couple and went to a convenience
    store, but it was closed. She knew that the people who ran the convenience
    store lived in an adjoining house. She walked towards the house. The couple she
    had passed on the street walked in the same direction. Suddenly, the appellant
    appeared out of nowhere and moved towards her. However, he backed off when he
    noticed other people around. The couple realized the seriousness of the
    situation and took the woman to their home to retrieve their dog and a baseball
    bat. From their porch, they saw the appellant from a distance in the bushes.

[7]

Shortly after this disturbing encounter, the
    appellant turned his attention to the victim. She had just left her job at a
    restaurant to walk home. Suddenly, the appellant jumped up on her. He grabbed
    her by the neck and twisted her head from side to side. He bashed the victims
    head against some rocks and then choked her until she was unconscious. When the
    victim regained consciousness, she noticed that the assailant had removed her
    pants and underwear. She had been raped. The victim described feeling intense
    pain; as she said in her Victim Impact Statement: It felt as though my head
    had been struck by a wrecking ball. The appellant had also stolen the victims
    identification and credit cards, which were never recovered. She was able to
    get herself to safety at a nearby gas station, leaving a trail of blood behind.

[8]

The victim suffered horrible injuries. She
    required 100 stitches to her head. She had cuts and bruises on her face that
    caused her eyes to swell shut. She could not see for days, nor could she speak
    because her tongue was so swollen. The victim also suffered neck injuries,
    vertigo, and a torn rotator cuff. She remained in the hospital for a week. Even
    a year later, she was required to return to the doctor to have a rock fragment removed
    from her head.

[9]

The psychological impact on the victim was
    profound. She suffered from post-traumatic stress disorder and has trouble
    sleeping. She is always on hyper-alert and afraid of social situations. In her
    Victim Impact Statement, the victim detailed the many ways that this attack impacted
    her day-to-day life.

B.

THE SENTENCING
    PROCEEDINGS

[10]

This case took a long time to resolve. It would
    not be until November 30
th
, 2015 that the appellant entered his
    guilty plea, more than three years after the offence. Another year passed while
    the Crown considered commencing dangerous offender proceedings under Part XXIV
    of the
Criminal Code
. Ultimately, the Crown decided not to pursue this
    course. Nonetheless, a great deal of information was gathered about the
    appellant. The sentencing judge received a Pre-Sentence Report (PSR), a
Gladue

Report, and a psychological assessment. The appellant also testified during
    the sentencing hearing.

[11]

From the information gathered, a picture emerged
    of a person who had endured a very difficult upbringing. The PSR summarized the
    appellants history as follows:

The subject was raised in an unstable home and
    negative environment. His mother was an alcoholic, he had no relationship with
    his biological father and lacked a positive father figure. He was a victim and
    a witness to violence in the home. He was neglected by his mother and was
    placed into care as a youth. The subject has no support from his family members
    but does have positive support from his ex-partner and past foster mother.

[12]

While in care, the appellant had his first
    encounter with the criminal justice system. He was convicted of sexual assault
    and mischief in relation to a foster sister. He testified at the sentencing
    hearing that the touching was accidental and that he entered a plea of guilty on
    the advice of his lawyer.

[13]

The appellant was 25 years old when he was
    sentenced for the offence before the court. By that point, he had children of
    his own. He is currently 29.

[14]

At the sentencing hearing, there was evidence
    that the appellant accepted responsibility for his actions, even though he had
    no memory of them. He also expressed remorse.

[15]

It is clear that alcohol played some role in the
    offence. The degree to which the appellant struggles with alcohol in general is
    less clear, owing to his inconsistent reporting on his relationship with
    alcohol. However, the preponderance of information suggested that the appellant
    has an alcohol problem. He attended a number of treatment programs for alcohol
    dependency while in PSC, including Alcoholics Anonymous.

[16]

There were serious concerns about recidivism in this
    case. There is still no explanation for the events of that night. The trigger
    of the appellants behaviour remains unknown. Accordingly, it is unsurprising
    that the psychological assessment of the appellant revealed that he had a
    moderate to moderate-high risk to re-offend in a sexual manner. Likewise, a
    psychiatrist concluded that he was a high-moderate risk to re-offend.

[17]

An issue that eluded clarity at the proceedings related
    to the appellants lineage. After receiving the
Gladue

Report,
    the Crown disputed the appellants assertion that he is indeed Inuit. He
    submitted that establishing ones Indigenous heritage is a pre-condition to the
    application of principles established in
Gladue
and subsequent cases.

[18]

Understandably, a good deal of the appellants
    knowledge about his heritage came from his mother and the person the appellant
    believes is his father: Lyle Thompson. Mr. Thompson is Inuit. The appellants
    mother and other family members have insisted to the appellant that Mr.
    Thompson is his biological father. Confusion arose because the father of the
    appellants step-sister, Darren Lamb, who apparently is not Indigenous, signed
    the appellants birth certificate as his father. The appellant testified that,
    by the time he was born, Mr. Thompson was no longer in the picture and his
    mother was with Mr. Lamb. According to the appellant, Mr. Lamb signed his birth
    certificate without his mothers knowledge. The appellant said in his
    testimony: My mom was with Darren Lamb when I was born and thats about it.
    Thats all I know. Mr. Lamb has never told the appellant that he is his
    father.

[19]

The appellant met Mr. Thompson when he was 18.
    He testified that they share the same facial characteristics, hair colour, and
    skin tone. He learned that he has two half-sisters and one half-brother from
    his father.

[20]

The appellant relayed to the author of the
Gladue

Report an argument he had with Mr. Thompson long ago, which ended with Mr.
    Thompson telling him: Youre not my son so fuck off. The Crown relied heavily
    upon this utterance in maintaining that
Gladue
principles did not
    apply. The appellant testified that this comment was said in the throes of
    anger.

[21]

The author of the Gladue Report interviewed the
    appellants aunt; an aunt whom he had never met, and who was Mr. Thompsons
    sister. She relayed that she and Mr. Thompson are Inuit from the Western Arctic.
    Their family has a deep history of trauma stemming from colonial state policies.
    The appellants aunt reported that both of her parents spent the majority of
    their childhoods and adolescences in residential school. Likewise, Mr. Thompson
    and the appellants aunt were forcibly separated from their family and
    community while they were children. She had attended residential school and Mr.
    Thompson was scooped in the 1970s; that is, he was adopted into a
    non-Indigenous family. According to the appellants aunt, Mr. Thompson
    struggled with identity issues and had trouble connecting with his family when
    he eventually returned for visits.

[22]

The appellants testimony created further
    confusion when he said that his mother has Métis heritage. The appellant did
    not relay this information to the author of the
Gladue
Report.  In his
    testimony, the appellant explained that, at the time that he was interviewed by
    the
Gladue

Report writer, he did not know about his mothers
    lineage.

[23]

Unfortunately, neither the appellants mother
    nor Mr. Thompson were able to testify at the sentencing hearing. Both were in
    British Columbia at the time and unable to get to Ontario.

[24]

Another issue to be resolved was the question of
    credit for time spent in PSC. The appellant testified about the conditions he
    experienced while in PSC. He was triple-bunked on occasion, in cells with no
    toilets. This resulted in inmates having to call a guard to be escorted to the
    washroom. If an inmate could not wait, he would urinate into a used potato chip
    bag, a towel, or on the floor.

[25]

The appellant also filed a letter from a retired
    chaplain who had more than 21 sessions with him while in PSC. The chaplain
    reported that the appellant had participated in Alcoholics Anonymous, another
    substance abuse program, as well as various Christian-based programs. He
    described the appellant as a model inmate.

[26]

At the sentencing hearing, the Crown sought a penitentiary
    sentence of 12-15 years, less credit for 50 months of PSC on a 1:1 basis. The
    appellant sought a sentence of 6 to 8 years imprisonment, less credit on a
    1.5:1 basis.

C.

THE REASONS OF THE
    SENTENCING JUDGE

[27]

The sentencing judge provided detailed reasons
    for the sentence imposed. He reviewed the facts of the offence as well as the
    materials referred to above. He considered in some detail the conflicting materials
    bearing on the appellants background; an issue I return to below.

[28]

In terms of PSC, the sentencing judge acceded to
    the defence position and credited the appellant with 50 months on a 1.5:1 basis
    to produce a total credit of 75 months (or six years and three months).

[29]

The sentencing judge considered a number of
    decisions from this court: namely,

R. v. Last
, 2008 ONCA 593,
    91 O.R. (3d) 561, revd on other grounds 2009 SCC 45, [2009] 3 S.C.R. 146;
R.
    v. Kavanaugh
, 2009 ONCA 759, 255 O.A.C. 285; and
R. v. Anderson
,
    2012 ONCA 373, 292 O.A.C. 365. From these cases he charted the following
    approach:

When crafting a sentence for a sexual assault,
    a jurist may consider this non-exhaustive list of factors that emerge from
    precedent:

a)

The degree of brutality or violence employed in the assault;

b)

Steps taken by the perpetrator to overcome the resistance of the
    victim;

c)

The resulting emotional and physical injuries to the victim, both in
    the short run and in the long run;

d)

The degree of degradation of the victim;

e)

The vulnerability of the victim;

f)

The risk of the victim contracting a sexually transmitted disease or
    becoming pregnant;

g)

The risk of reoffending or possibility of future dangerousness; and

h)

Any explanation for the accuseds conduct.

[30]

The trial judge characterized the appellants
    conduct as a horrific crime perpetrated on a vulnerable young woman, a
    complete stranger, while she was walking home after having completed her shift
    at a fast food outlet. He noted that the photos of the victim in her hospital
    bed are horrific. The sentencing judge observed that: There was absolutely no
    explanation for the attack, aside from the fact that the accused appeared to be
    on the prowl. As he said, at paras. 102-103:

The random nature of this attack would
    inevitably cause one to think, in the absence of an explanation, why would this
not
happen again? There were no predictors of this behaviour. The
    accused was convicted of sexual assault as a youth: he minimized his
    culpability and he pled because he had acted in accordance with his lawyers
    advice. But that latter conviction was so far removed from the magnitude of
    what transpired in this case.

What is the explanation, for this massive
    acceleration of dangerousness? No wonder Dr. Chaimovitz concludes that Mr.
    Brown is of moderate to high risk to reoffend.

[31]

As described above, the sentencing judge imposed
    a sentence of 12 years imprisonment less 75 months credit for time served in
    PSC.

D.

ISSUES ON APPEAL

(1)

The Principles in
Gladue

(a)

The Positions of the Parties

[32]

The appellant submits that the sentencing judge
    misapplied the principles in
Gladue
by concluding that the seriousness
    of his offending precluded the consideration of his Inuit background. The
    appellant relies on the following passage from the sentencing judges reasons,
    at paras. 72-73, which was the last thing he said about this issue:

Having observed that there is minimal
    connection between Mr. Brown and his alleged aboriginal roots and that there is
    some issue as to his being identified as an aboriginal,
it must be said that
    these issues are somewhat moot because of the seriousness of the offence that
    he committed
.

In
R. v. Gladue
, at paras. 78-80, the
    Court recognized that there are some offences of such seriousness and violence
    that, as a practical reality, the seriousness of the offence demands a sentence
    of imprisonment, irrespective of the persons aboriginal heritage.
In other
    words, any effort to distinguish the circumstances of the aboriginal becomes
    eclipsed by the circumstances of the offence.
This is such a case. 
    [Emphasis added.]

[33]

The appellant submits that the error lies in
    reading
Gladue
in isolation. The sentencing judge referred to a passage
    from that decision in which Cory and Iacobucci JJ. said the following, at para.
    79:

Yet, even where an offence is considered
    serious, the length of the term of imprisonment must be considered. In some
    circumstances the length of the sentence of an aboriginal offender may be less
    and in others the same as that of any other offender.
Generally, the
    more violent and serious the offence the more likely it is as a practical
    reality that the terms of imprisonment for aboriginals and non‑aboriginals
    will be close to each other or the same, even taking into account their
    different concepts of sentencing.
[Emphasis added.]

[34]

Subsequently, in
R. v. Ipeelee
, 2012 SCC
    13, [2012] 1 S.C.R. 433, the Supreme Court clarified whether
Gladue
applies
    to sentencing decisions for violent or serious offences. Writing for the
    majority, LeBel J. observed that courts have misunderstood the above quoted
    passage from
Gladue
.  As he wrote, at paras. 84-85:

Numerous courts have erroneously
    interpreted this generalization as an indication that the
Gladue
principles
    do not apply to serious offences
(see, e.g.,
R.
    v. Carrière
(2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

Whatever criticisms may be directed at the
    decision of this Court for any ambiguity in this respect, the judgment
    ultimately makes it clear that sentencing judges have a
duty
to
    apply s. 718.2(
e
): There is no discretion as to whether to consider the
    unique situation of the aboriginal offender; the only discretion concerns the
    determination of a just and appropriate sentence (
Gladue
, at para. 82).
    [Emphasis added.]

See also
R. v. Wells
, 2000 SCC
    10, [2000] 1 S.C.R. 207, at para. 50.

[35]

The respondent submits that the sentencing judge
    made no error in his approach to this issue. According to the respondent, the
    appellant relies on a single phrase of the sentencing judges reasons  these
    issues are somewhat moot because of the seriousness of the offence  out of
    context. The respondent presents a different interpretation of this statement:
    what the sentencing judge was really saying was, whether the appellant was in
    fact an Indigenous offender was moot, because he was prepared to assume that
    he was Indigenous for the purposes of sentencing.

[36]

The respondent also relies upon this courts
    decision in
R. v. Altiman
, 2019 ONCA 511, 56 C.R. (7th) 83, in which the
    sentencing judge was alleged to have made the same error in this case. The
    court rejected this submission. As Brown J.A. said, at para. 84:

While the sentencing judges reasons would
    have benefitted from a reference to
Ipeelees
clarification
    of
Gladu
e on this point, his are not the only reasons to have
    lacked that completeness. For example, this court in
R. v. Fraser
,
    2016 ONCA 745, referred to the passage in
Gladue
about the
    seriousness of the offence without also mentioning
Ipeelee
: at
    para. 26.

[37]

Lastly, it is the respondents position that,
    irrespective of any error, the sentence was otherwise fit.

(b)

Analysis

[38]

The sentencing judge's reasons reveal an
    in-depth appreciation of the remedial purposes of
Gladue
. He recognized
    that s. 718.2(e) of the
Criminal Code
is designed to address the
    overrepresentation of aboriginals in the prison system. He also commented on how
    colonial policies, such as residential schools and the phenomenon of
    scooping, resulted in the destruction of aboriginal culture and the social
    handicapping of aboriginal peoples.

[39]

The sentencing judge also understood that these
    circumstances must be taken into consideration in the sentencing of an
    Indigenous offender, noting that: Jurists must recognize the negative aspects
    of this colonization on the lives of aboriginal offenders appearing before
    them. He specifically referred to
Ipeelee
for the proposition that
    courts must consider background factors that may have played a role in the
    offence coming before the court, without requiring the offender to establish a
    direct causal link between his circumstances. It was from this vantage point
    that the sentencing judge evaluated the appellants asserted Inuit heritage.

[40]

However, the sentencing judges application of
    this important framework became distorted by his reference to the mootness of
    the appellants lineage as it related to the severity of the offence. The
    impugned passage suggests that it did not really matter whether the appellant
    was Inuit because it could have no effect  on the sentence. As discussed below,
    although the appellants Inuit heritage may not have had any tangible impact on
    the sentence imposed, it was still important to the mode of analysis required
    by the
Gladue
line of cases.

[41]

It would have been preferable had the trial
    judge: (1) made an explicit finding about the appellants parentage; and (2) if
    satisfied that
Gladue
was in play, applied the principles in accordance
    with
Gladue
and
Ipeelee
.

[42]

As for parentage, the respondent is correct that
    the sentencing judge seemed prepared to assume, for the purpose of the
Gladue
analysis, that Mr. Thompson was the appellants father and that the
    appellant had Inuit heritage. The sentencing judge addressed the conflicting evidence
    around the appellants identity as follows, at para. 69:

The jurist has to take a practical approach to
    ensure that the
Gladue
principles are honoured. The inconsistent
    evidence as to the parentage of Mr. Brown, and his lack of aboriginal documentation,
    may very well be a function of his obviously chaotic childhood flowing from
    having an alcoholic mother with several partners. It also may be due to
    inconsistent recording of lineage, since a big component of aboriginal history
    is oral. To compel Mr. Brown to provide direct documentary evidence, even to
    establish on a balance of probabilities his parentage, simply may not be
    realistic or doable.

[43]

I see no error in this approach. The appellant
    has been told his whole life that Mr. Thompson was his father. There is no
    other reason that the appellant would have tracked down Mr. Thompson when he
    was 18. Moreover, to require the appellant to prove his heritage in these
    circumstances would create an undue evidentiary burden that is inconsistent
    with the overarching remedial purposes of s. 718.2(e). Again, it would have
    been preferable had the sentencing judge made an explicit factual finding on
    this issue. Nonetheless, I would likewise proceed on the same basis that the
    appellant is of Inuit heritage.

[44]

In terms of the application of
Gladue
principles, I am satisfied that the sentencing judge made the
Ipeelee
error
    that the appellant identifies. With respect, I cannot accept the respondents
    interpretation of the passage from the sentencing judges reasons, reproduced
    in para. 32, above. The appellants submission is not predicated on a single
    phrase, as the respondent submits. The somewhat moot passage was followed by
    a paragraph that cited the very part of
Gladue
that was clarified in
Ipeelee.
The sentencing judge concluded that paragraph by saying that the
    circumstances related to the appellants Indigeneity were eclipsed by the
    circumstances of the offence in this case.

[45]

The gravity of the offence did not, and could
    not, render the circumstances relating to the appellants Indigenous heritage moot.
    Rather,
Gladue
and its progeny prescribe a different method of analysis
    in determining a fit sentence for Indigenous offenders, which must be followed
    regardless of the severity of the offence at hand:
Ipeelee,
para. 59. Put
    another way, the
impact
of
Gladue
factors may vary in any given
    case but the method of analysis does not. The application of
Gladue
factors
    is always necessary to achieve a proportionate sentence for Indigenous
    offenders, and a failure to do so warrants appellate intervention:
R. v.
    Swampy,
2017 ABCA 134, 347 C.C.C. (3d) 105,

at paras. 26 and 36;
Ipeelee
,
    at para. 44. Considering the sentencing judges words at face value, and in the
    context of his reasons as a whole, I am left to conclude that he failed to adhere
    to this aspect of the
Gladue
principles.

[46]

That said, this type of error is not necessarily
    fatal. Granted, the sentencing judges reasons are not entitled to the customary
    appellate deference that they would normally attract; this court is required to
    consider the fitness of sentence afresh: see
R. v. F.H.L.
, 2018 ONCA 83,
    360 C.C.C. (3d) 189, at para. 36;
R. v. Collins
, 2011 ONCA 182, 104 O.R.
    (3d) 241, at para. 38;
R. v. Fraser
, 2016 ONCA 745, 33 C.R. (7th) 205,
    at para. 20. However, a re-assessment on appeal need not lead to a different
    outcome: see
F.H.L.
, at paras. 36-37;
R. v. Kakekagamick
(2006),
    81 O.R. (3d) 664, at para. 58, leave to appeal refused, [2007] S.C.C.A. No. 34;
    and
Swampy,
at paras. 37-38.

[47]

Looking at this aspect of the case afresh, I am satisfied
    that 12 years imprisonment is a fit sentence. The impact of the appellants
    Inuit ancestry on his moral blameworthiness does not outweigh the egregious
    nature of the appellants attack on a vulnerable, unsuspecting stranger.

[48]

An accused person is not required to draw a
    straight line between Aboriginal status and the offences for which he or she is
    being sentenced: see
Ipeelee
, at paras. 82-83;
R. v. Kreko
, 2016
    ONCA 367, 131 O.R. (3d) 685, at paras. 21-22. Such a requirement
imposes an
    evidentiary burden on offenders that was not intended by
Gladue
:
Ipeelee
,
    at para. 82.
However, more is required than the
    bare assertion of Aboriginal status:
R. v. Monckton
, 2017 ONCA 450, 349
    C.C.C. (3d) 90, at para. 115;
F.H.L.
, at para. 38;
R. v. E.C.
,
    2019 ONCA 688, at para. 16.

[49]

This courts decision in
R. v. Radcliffe
,
    2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No.
    274 outlines what more is required. Drawing on the framework in
Ipeelee
,
    Watt J.A. said the following, at paras. 54-55:

Courts are required to take judicial notice of
    the systemic and background factors affecting Aboriginal people in Canadian
    society.
But, on their own, these matters about which judicial notice must
    be taken do not necessarily justify a different sentence for Aboriginal
    offenders.
They provide the necessary
context
for understanding
    and evaluating the case-specific information which counsel have a duty to
    present, absent express informed waiver of the right to have it
    presented:
Ipeelee
, at para. 60.

Although systemic and background factors
    provide the necessary context to enable a judge to determine an appropriate
    sentence, rather than to excuse or justify the underlying conduct, it is only
    where the unique circumstances of an offender bear on culpability, or indicate
    which sentencing objective can and should be actualized, that they will
    influence the ultimate sentence:
Ipeelee
, at para. 83. [Emphasis
    added.]

See also
F.H.L.
, at paras.
    40-41.

[50]

In determining the extent to which
Gladue
factors bear on an offenders culpability, the court must consider whether the
    offender has lift[ed] his life circumstances and Aboriginal status from the
    general to the specific:
F.H.L.,
at

para. 45. Put another way,
    the sentencing judge must determine the degree to which unique circumstances related
    to the offenders background played a part in bringing that offender before the
    court. This is necessarily a case-specific inquiry.

[51]

The extent to which an Indigenous offenders
    unique circumstances mitigate moral culpability is a matter of degree. Here, the
    appellants potential loss of a father figure comes to bear on his blameworthiness
    in that it may have affected his positive development in childhood and
    adolescence. In that sense, I agree with the sentencing judges finding that
    the appellant can be seen as a recipient of the trickle down effects of the
    colonization referred to [in]
R. v Gladue
.

[52]

However, beyond that, the sentencing judge found
    that the appellants connection to his Inuit heritage was remote at best. While
    his fathers absence played a role in the appellants traumatic upbringing, the
    tumultuous nature of his childhood is more likely attributed elsewhere. His
    mother struggled with alcoholism and had a series of abusive partners, one of
    whom apparently strangled him to the point of unconsciousness on multiple
    occasions. He had his first drink at age seven, at the behest of one of his
    mothers partners. He recalls lacking proper food and clothing. The Childrens
    Aid Society apprehended the appellant at the vulnerable age of 10. He had
    limited contact with his biological mother for the remainder of his
    adolescence.

[53]

The appellants traumatic upbringing is more
    likely attributed to an unstable and abusive home that went well beyond any
    impact of the appellants father. It did not rise from the general to the
    specific in a way that diminished his moral culpability to a degree that it
    ought to have any impact on the sentence imposed: see
Altiman
, at para
    114. This was a case that required a sentence driven by the principles of
    denunciation and deterrence: see
F.H.L.
, at paras. 50-51.

[54]

In assessing this aspect of the case afresh, I
    agree with the sentencing judges ultimate conclusion that 12 years is a fit
    sentence, notwithstanding his error in principle. I would not interfere with
    the sentence on this basis.

(2)

The Principle of Proportionality

[55]

The appellant submits that the trial judge
    failed to apply the principle of proportionality. To a large extent, this ground
    of appeal overlaps with the appellants previous ground of appeal. This ground
    of appeal also relies on the same factors that relate to the appellants moral
    blameworthiness, such as a difficult upbringing and his struggle with alcohol.

[56]

Proportionality is the fundamental principle of
    sentencing in Canada, reflected in s. 718.1 of the
Criminal Code
, which
    provides:

718.1
A
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender.

[57]

In
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42, LeBel J. described
    proportionality as serving a limiting or restraining function. He also observed
    that proportionality aligns with a just deserts approach to sentencing, which
    requires that an offender be held accountable and that 
the sentence properly reflects and condemns their role in the
    offence and the harm they caused: para. 42. Synthesizing these conceptual
    strands, LeBel J. explained, at para. 42:

Whatever the rationale for proportionality,
    however, the degree of censure required to express society's condemnation of
    the offence is always limited by the principle that an offender's sentence must
    be equivalent to his or her moral culpability, and not greater than it.
The
    two perspectives on proportionality thus converge in a sentence that both
    speaks out against the offence and punishes the offender no more than is
    necessary
. [Emphasis added.]

See also
Ipeelee
, at para. 37.

[58]

In
R. v. Nur
, 2015 SCC 15, [2015] 1
    S.C.R. 733, McLachlin C.J. said that imposing a proportionate sentence is a
    highly individualized exercise, tailored to the gravity of the offence, the
    blameworthiness of the offender, and the harm caused by the crime: para. 43.

[59]

Sexual offences raise particular considerations in the
    proportionality analysis. In
R. v. Friesen
, 2020 SCC 9, 444 DLR (4th) 1,
    the Supreme Court said, at para. 75: In particular, courts need to take into
    account the wrongfulness and harmfulness of sexual offences against children
    when applying the proportionality principle. Accurately understanding both
    factors is key to imposing a proportionate sentence. There is no reason to
    think that it does not also apply to sexual offences at large.
As the Supreme Court observed, taking the harmfulness of these
    offences into account ensures that the sentence fully reflects the life-altering
    consequences that can and often do flow from the sexual violence:
Friesen,
at para. 74.

[60]

In this case, the sentencing judge did not make
    specific reference to the principle of proportionality. However, reading his
    reasons as a whole, it is evident that he properly balanced the elements that
    drive proportionality. He was aware of the appellants unfortunate background,
    as well as his difficult relationship with alcohol, which appeared to have been
    a factor on the night that he attacked the victim.

[61]

However, these circumstances were clearly
    overtaken by the gravity of the offence and the harm that it caused. The
    appellant stalked two randomly-chosen women that night. One got away; the other
    did not. As the sentencing judge said, the attack was horrific, with
    devastating physical and psychological repercussions for the victim.

[62]

Moreover, the harm caused by this type of
    offending  when women are attacked at random  is far-reaching. A random
    attack on an innocent stranger shakes the community. It breeds fear that anyone
    is a potential target. This is rightly considered an aggravating factor in
    sentencing: see
R. v. Henderson,
2018 ONSC 3550 at p. 15;
R. v.
    Trumpa,
2017 ONSC 5966, at para. 27;
R. v. K.T.,
[2002] OJ No. 4649
    (OCJ), at paras. 18, 24. This feature of the appellants offending adds to his
    moral blameworthiness through the harm that it caused. It naturally calls for a
    sentence that emphasizes denunciation and deterrence.

[63]

Relatedly, the sentencing judge observed that
    the appellants behaviour that night was completely unexplained. This was a
    factor that contributed to his unfavourable risk assessments; it is relevant to
    the principle of proportionality.

[64]

I am satisfied that the trial judge took all of
    these factors into account in arriving at the sentence that he did. It was not
    disproportionate.

(3)

The Principle of Restraint

[65]

The appellant submits that, given the
    appellants minimal criminal record and sentencing history, the sentence
    imposed did not reflect the appropriate degree of restraint. The appellant
    points to the fact that he accepted responsibility for committing the offence,
    a prison chaplain described him as a model inmate, and the appellant was
    committed to rehabilitating himself by engaging in prison programs, including
    Alcoholics Anonymous.

[66]

The sentencing judge noted these factors in his
    reasons. However, he was dubious of the appellants sincerity, especially in
    light of the psychological report that suggested the appellants self-reporting
    may not be accurate because of a trait like tendency towards positive
    impression management. In other words, the appellant has a reluctance to acknowledge
    personal shortcomings that most would admit to.

[67]

In the end, given the unexplained and random
    nature of the attack, the sentencing judge was right to place great emphasis on
    the principles of general deterrence and denunciation, over that of restraint. As
    this court said in
R. v. Reesor
, 2019 ONCA 901, at para. 8:

The principle of restraint, like all
    principles of sentencing, operates in conjunction with other principles that
    often pull in a different direction. For offences like this, particularly
    committed in the context of domestic violence, the restraint principle must, as
    the trial judge noted, yield, to a large degree, to concerns associated with
    deterrence, denunciation and protection of the victim. A significant
    penitentiary sentence was necessary in this case.

The same approach was warranted in the
    context of this case of random sexual violence against a stranger.

[68]

Thus, I am satisfied that the principles of
    deterrence and denunciation must take precedence over the principle of
    restraint in this case.

(4)

The Appropriate Sentence in this Case

[69]

Before the sentencing judge, the appellants counsel
    submitted that a sentence of six to eight years was appropriate; on appeal, the
    appellant submits that his sentence should be reduced to eight years.

[70]

There is no doubt that the appellant received a
    significant custodial sentence. However, the circumstances in this case
    undeniably called for it. The cases from this court that the sentencing judge
    cited (
i.e.
,
Last
,
Kavanaugh
, and
Anderson
) justify
    the approach of the sentencing judge.

[71]

The appellant attempts to distinguish these
    cases in various ways. But as Lang J.A. said in
Last
, at para. 72, it
    is difficult to compare sentences in the disparate circumstances of offences
    and offenders. There are some differences between this case and the cases
    cited by the sentencing judge. However, they share an important similarity with
    this case: they all call out for exemplary sentences that properly reflect the
    wrongfulness inherent in sexual violence, and the harm that it causes to the
    victims and to our society at large.

[72]

Lastly, the appellant submits that the
    sentencing judge erred in not awarding greater credit for PSC due to
    overcrowding. The respondent received exactly what he asked for  credit on a
    1.5: 1 basis. The appellant has identified no error in the sentencing judges
    approach to this issue. There is no basis to intervene on appeal.

E.

DISPOSITION

[73]

I would grant leave to appeal sentence, but I
    would dismiss the appeal.

Released: DB October 20, 2020

Gary
    Trotter J.A.

I
    agree. David Brown J.A.

I
    agree. David M. Paciocco J.A.


