COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Nahanee,

2021 BCCA 13

Date: 20210114

Docket:
CA46730

Between:

Regina

Respondent

And

Kerry Alexander
Nahanee

Appellant

Restriction on publication:
A publication ban has been mandatorily imposed under
s. 486.4(2) of the
Criminal
Code
in cases
involving sexual offences to ban the
publication, broadcasting or transmission in any way of evidence that could
identify a
complainant or any witness under the age of 18. This publication ban
applies
indefinitely unless otherwise ordered.

Pursuant to s. 16(4) of the
Sex Offender
Information Registration Act
[
SOIRA
], no
person shall disclose any information that is collected pursuant to an order
under

SOIRA
or the fact that information relating to a person is collected
under
SOIRA
.

Before:

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Fenlon

The Honourable Madam Justice Griffin

On appeal from:  An
order of the Provincial Court of British Columbia, dated
February 7, 2020 (sentence) (
R. v. Nahanee
,
North Vancouver Dockets 66176‑1 and 66435‑2‑C).

Counsel for the Appellant
(via videoconference):

H. Lucky

Counsel for the Respondent
(via videoconference):

M. Shah

Place and Date of Hearing:

Vancouver, British
  Columbia

November 20, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2021

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Madam Justice Fenlon

The Honourable Madam Justice Griffin

Summary:

The appellant pleaded guilty
to two counts of sexual assault and was sentenced to eight years imprisonment.
He appeals his sentence on the basis that the judge erred in (1) failing
to alert counsel that she planned to impose a sentence in excess of that sought
by Crown counsel, (2) imposing a demonstrably unfit sentence, (3) incorrectly
applying statutory and common law aggravating factors, and (4) failing
to properly consider his Aboriginal heritage. Held: Appeal dismissed. Because
the guilty plea was not accompanied by a joint submission on sentencing, the
trial judge was not obliged to notify counsel that she planned to impose a
longer sentence than that sought by the Crown. The sentence was in line with those
imposed on offenders who sexually assaulted children while in positions of
trust. The judge was permitted to consider the appellants lack of insight or
ongoing risk to the public, the victims ages, and the age differential between
the victims and appellant when determining the sentence, and she properly
considered whether the appellants Indigenous heritage attenuated his culpability.

Reasons for Judgment of the Honourable
Mr. Justice Willcock:

Introduction

[1]

On January 30, 2019, the appellant pleaded guilty to
sexually assaulting S.R. on one occasion on July 12, 2018. On
December 10, 2019, he pleaded guilty to sexually assaulting E.N. on
many occasions between October 1, 2010 and June 30, 2015.

[2]

When the second guilty plea was entered, defence counsel advised
the court as follows:

Through extensive
resolution discussions with my friend, including quite a thorough statement of
facts and Crown's sentencing decision which was provided by my friend's office,
and a copy has been provided to Mr. Nahanee
, I do have instructions to
resolve Information 66435 [the charges in relation to E.N.]. It's a three count
Information, and specifically a plea of guilty to Count 1 which alleges a
sexual assault of [E.N.] between the 1st day of October, 2010, and the 30th day
of June, 2015, ....

[Emphasis added.]

[3]

The appellants counsel confirmed he had reviewed s. 606(1.1)
of the
Criminal Code
with his client. Before accepting the plea, the sentencing
judge reviewed the provision with the appellant as follows:

Mr. Nahanee, just so you
know, it's a provision of the
Criminal Code

that a judge has to make sure it's
been complied with before a guilty plea can be accepted. And it requires that
the accused who's entering the guilty plea do so voluntarily, no pressure,
understands that there will be consequences to the guilty plea; is
acknowledging that he or she did the things that make up the offence, and that
even if your lawyer and Crown counsel have the same view of what the
appropriate or the right sentence is, that it's the sentencing judge who has to
make the ultimate decision and the judge isn't bound by what the lawyers say.
So that's why I'm asking, Mr. Lucky, when I say have you reviewed those
provision.

[4]

Submissions on sentencing for both offences were heard on January 23,
2020. The sentencing judge then had a pre‑sentence report, a psychiatric
assessment prepared by Dr. Kropp, a
Gladue
report (
R. v. Gladue
,
[1999] 1 S.C.R. 688)
and two Statements of Fact,
all of which were marked as exhibits without objection.

[5]

The material facts were recounted by the Crown.

[6]

The offence against S.R. was committed in July 2018. Mr. Nahanee
was then 27 years old. S.R. was 15 years old. She spent the evening
of July 11, 2018 drinking and smoking with friends in North
Vancouver. Instead of taking a bus home to Surrey, she went to her grandparents
home in North Vancouver. The appellant, her uncle, was living there. In the
middle of the night, S.R. awoke as the appellant digitally penetrated her; he
then removed her shorts and had unprotected sex with her. At approximately 3:15
in the morning, she called the police to report being sexually assaulted. She
was taken to the hospital where examination confirmed injuries consistent with
non‑consensual sex. Vaginal swabs were taken. The appellants DNA was
later found to be present on the swabs.

[7]

Following his arrest, in a warned statement, Mr. Nahanee
told a West Vancouver Police Department detective that S.R. had awakened him
from a dead sleep and threatened to scream if he didn't have sex with her. He
admitted he stuck his fingers in S.R.s vagina for approximately five to 10
minutes before having sex with her.

[8]

The offences against E.N. were committed over a long period. E.N.
lived at the North Vancouver home of her grandparents, in their care, together
with the appellant, between 2010 and 2015. When she first moved into
their home in 2010, she was 13 years old, and the appellant, her
uncle, was 19 years old. Approximately five months after E.N. moved into
the home, the appellant began repeatedly assaulting her at night. E.N. would
wake up to find him digitally penetrating her. In October 2010, when she
had just turned 14 years old, the assaults escalated to include vaginal
intercourse. E.N. lost track of how many times the appellant sexually assaulted
her because the assaults happened frequently. She estimates approximately 10
to 15 assaults, with intercourse occurring about eight times.

[9]

E.N. came forward to the police in August 2018, after
learning that Mr. Nahanee had also assaulted her younger cousin, S.R.

[10]

The Agreed Statement of Facts with respect to the offence against
S.R. included the following admissions:

25.       SR
had told her grandmother about past assaults by her uncle, but was not believed
by her family. Instead, SR's grandmother characterized her as 'vindictive',
with 'mental health problems' and 'difficult'.

26.       In her statement to
police dated July 12, 2018, SR expressed:

I didn't want to be called crazy
for it anymore...it's all in my head is what she would told me, no it's not,
this is what happens when you let someone like him get away with what it was...and
they didn't believe me; it's all in my head. I smoked too much pot. It's always
this; it's always that.

It's been so long she's told me: it's all in my head and
I've wanted to believe that. I wanted to (unintelligible) it's all in my head
'cause I couldn't imagine my own...uncle doing this to me and...I don't know.
He just... It just hurts that she doesn't believe me.

Sentencing Submissions

[11]

In sentencing submissions, Crown Counsel relied upon a series of
cases in support of the proposition that the sentencing range for an offence
against a
child involving sexual intercourse is
three to five years
, including
R. v. R.R.M.
,

2009 BCCA 578;
R. v. R.E.L.
, 2010 BCCA 493
;

R. v. E.S
., 2017 BCCA 354; and
R. v. Jaden
, 2018 BCSC 1685.

[12]

The Crown recognized the guilty
plea as a mitigating factor but emphasised the following aggravating factors:

a)

the fact the appellant was the victims uncle, an
aggravating factor codified by s. 718.2(a)(ii) and (iii) [the Crown
now acknowledges this was an error as that aspect of s. 718.2(a)(ii) was
not in force at the time of the offences and therefore did not apply];

b)

he abused a position of trust;

c)

the young age of the victims, 13 and 15
years, another codified aggravating factor under s. 718.2(a)(ii.1);

d)

the age differential;

e)

penetrative intercourse occurred, and a condom was not
used;

f)

the vulnerability of the victims;

g)

the number of offences;

h)

the fact the appellant when questioned by the police
attempted to shift blame to the victim;

i)

physical injuries were suffered by S.R.; and

j)

the profound impact of the
offences on the complainants mental well‑being, including familial
alienation.

[13]

There was some discussion in the course of submissions of the
formal admission that S.R. had complained to her grandmother about past
assaults by the appellant. The judge noted the guilty plea referred to only one
incident involving S.R. and asked Crown counsel what weight could be placed
upon that particular admission by the appellant. She questioned whether that
was a matter that might be taken into account in weighing the extent to which
the guilty plea was mitigating. Crown counsel took the position that the
admission could be weighed in measuring the impact of the index sexual assault
on S.R. Counsel noted:

MS. MCPHERSON :  Certainly he's not been charged with
any of those offences, but it does put into context the extreme emotional
trauma that she has suffered through the alienation, the disbelief on the part
of her family members, the lack of support and the fact that what she had to do
essentially was endure a serious sexual assault in order -- in her young mind
to consider that she would have what she called proof to. So if Your Honour is
asking  in terms of sentencing  how much weight essentially to put on a
complainant's allegation of prior events, that is a very complicated, difficult
question that Crown is not in a position to be able to answer for Your Honour.
Perhaps my friend will be able to speak more to that. There were certainly
never any dispute with respect to these prior allegations, but at the same time
they were not investigated, nor was Mr. Nahanee ever charged with any of
these incidents. So what we have before the court today is a single incident, a
serious sexual assault from July of 2018, and that, Crown says, is what the
court is able to --

THE COURT: That's what I am required to sentence him on.

MS. MCPHERSON: Sentence him on.

THE COURT: Yes, I'm clear on that. And that is what I will do
--

MS. MCPHERSON: Yes.

THE COURT: -- is sentence with
regard to that single offence with regard to that particular Information. And
perhaps -- well, your submissions with regard to the impact on S.R. is
something I will take into consideration. I'm sure [the appellants counsel]
will address these questions.

[14]

The Crowns position on sentencing, in brief, was:

The Crown will be asking Your Honour to consider a global
sentence of four to six years of incarceration, with respect to both files.
Disposition is based on aggravating facts of each count; the mitigation of Mr. Nahanee's
guilty pleas; the primary sentencing considerations of denunciation and
deterrence as set out in the
Criminal Code
, and sentencing precedents.

In the Crown's view a three to
five year sentence of incarceration is an appropriate sanction for each offence
individually, but that globally, taking into account the principles of
totality, a four to six year sentence is fair and meets the primary sentencing
objectives of denunciation and deterrence, while not losing sight of Nahanee's
rehabilitation. This is not a joint position, Your Honour. I anticipate that my
friend will ask Your Honour to consider a shorter period of incarceration.

[15]

Defence counsel emphasised the appellants guilty plea as a
mitigating factor and took the position that the offences in question were not
as egregious as many of those addressed in the precedents cited to the court.
He submitted that less egregious offences had
resulted in sentences at the low end of the range suggested by Crown counsel,
citing
, among other cases,
R. v.
William
, 2014 BCSC 1639, and
R.
v. W.F.G
., 2013 BCPC 302. He argued that sentences at the high end of
the range were imposed where there was no guilty plea and egregious abuse over
time by a person in a position of trust, as in
R. v. D.E.L
., 2006
BCPC 79, and
R. v. J.G.B.
, 2008 BCSC 1069
.

[16]

Insofar as the shifting of blame is concerned, defence counsel
emphasised that the offensive blaming of the victim S.R. occurred as the
appellants first reaction to being confronted with something horrible that
he's done  about something that he himself has not yet acknowledged he's done ....

[17]

It is fair to say
Gladue
factors were not stressed by the
appellant. In submissions, his counsel acknowledged that while such common
features as addiction or substance abuse, childhood abuse and mental health
issues were not present, it was nevertheless important to bear in mind t
he systemic, intergenerational effects of the
collective experience of First Nations people. The sentencing judge
acknowledged that fact but noted that ultimately she had to have in mind the offenders
moral culpability.

[18]

The trial judge addressed
Gladue
factors in submissions,
in part, as follows:

THE COURT: But isn't there also in , the material before me,
isn't there a  factual circumstance and that is notwithstanding the fact that,
for example, the grandparents went to Indian Residential School and mom did the
Day School; that Mr. Nahanee's childhood was actually pretty much not
impacted by that because of the efforts and the pretty positive environment
that his parents were able to create because of their awareness.

MR. LUCKY: Yes. I cant
take issue with what Your Honour has said or what's in the reports in front of
the court.

[19]

The sentencing judge assured counsel that she would take
Gladue
factors into account, but was seeking to identify factors specific to the
appellant.

[20]

The appellants position, briefly stated, was:

Mr. Nahanee is aware that
the offences for which he's entered his guilty plea do require federal custody.
He's asking the court to consider a sentence in the range of 36 to 42 months
which would be three to three and a half years globally for both offences.

[21]

Defence counsel did not make any submissions with respect to what
weight the sentencing judge could place upon the appellants admission that
S.R. had complained of other prior incidents of sexual abuse at the hands of
the appellant.

Sentencing

[22]

The sentencing judge began her
reasons by noting there was not a joint submission on sentencing, and by
summarizing the parties respective positions on the appropriate sentence
range.

[23]

She erroneously believed that
because the Crown had proceeded by indictment in both cases, s. 271 of the
Criminal Code
provided a maximum sentence of 14 years jail on each
count.
Prior to June 18, 2015 (the date of assent to
S.C. 2015, c. 23
),
the maximum sentence for the offence of
sexual assault, where the Crown proceeded by indictment, was imprisonment for a
term of
ten years
. That maximum applied to the offence charged in
relation to E.N. From 2015 to 2020,
the
maximum sentence for the offence of sexual assault, where the Crown proceeded
by indictment, was
imprisonmen
t
for a term of
14 years
, if the complainant was
under the age of 16
years
. S.R. was assaulted in 2018, when she was 15 years old. A 14‑year
maximum therefore applied in relation to that charge only.

[24]

Citing s. 718.01, the judge
held that because the offences involved the abuse of victims under 18
years old, primary consideration must be given to denouncing and deterring such
conduct.

[25]

She considered what she understood
to be four codified aggravating factors applicable in relation to both the
assaults of E.N. (which occurred between 2010 and 2015) and S.R. (in
July 2018):

a)

Mr. Nahanee abused a member of his family in
committing the offence (referring to s. 718.2(a)(ii));

b)

he abused a person under the age of 18 (s. 718.2(a)(ii.1));

c)

he abused a position of trust, as the victims uncle
and, for E.N., as an adult residing in the residence in which she resided as a
place of refuge (s. 718.2(a)(iii)); and

d)

the offence had a significant
impact on the victims (s. 718.2(a)(iii.1)).

[26]

The first of these was not a statutory aggravating factor in
relation to either offence. In 2018, s. 718.2(a)(ii) provided that
abuse of a common‑law spouse or partner was an aggravating factor. The
reference to family members was not added until 2019 (by S.C. 2019,
c. 25, s. 293).

[27]

The last of the enumerated statutory aggravating factors was not in
force until January 2013 (by S.C. 2012, c. 29) and was therefore
applicable in relation to only some of the offences against E.N., and the
offence against S.R.

[28]

In addition to the statutory aggravating factors, the sentencing
judge considered the following to be aggravating in relation to E.N.:

a)

The repetition of sexual intercourse with E.N. on
eight occasions;

b)

the sexual intercourse was unprotected, exposing the
victim to the risk of pregnancy and STDs;

c)

the assaults occurred at the height of E.N.'s
vulnerability, when she was alone and asleep; and

d)

they occurred in a home where she
had been placed by her family as a place of safety.

[29]

Some of these factors were also
aggravating in the case of S.R. In particular, the judge noted:

a)

this was not an isolated incident;

b)

the sexual assault involved not only digital
penetration, but also sexual intercourse;

c)

the appellant did not wear a condom;

d)

the assault occurred at the height of her
vulnerability, when she was asleep;

e)

the assault was brazen, in that it was committed while
other children slept nearby;

f)

it occurred in a place where S.R. had sought safety;

g)

there was a twelve-year age difference between the
appellant and S.R.; and

h)

there was an initial effort to
shift blame.

[30]

She took into account as mitigating
factors in both cases:

a)

the appellant had entered a guilty plea;

b)

he had a good work history, and a supportive family in
the community;

c)

he had no criminal record and is relatively young;

d)

he performed well on bail;

e)

while he demonstrated limited insight, his expression
of remorse was genuine; and

f)

he expressed a need and
willingness to undergo treatment.

[31]

Gladue
factors were considered at length by the trial judge,
but did not weigh significantly in sentencing. The judge described the
appellants youth and upbringing and noted that he had grown up on the Squamish
Nation Capilano Reserve in West Vancouver, observing: This is not a rural or
remote area. Referring to the
Gladue
report and the evidence of the
appellants mother, she weighed the fact the appellant had not endured violence
or abuse, and was raised in a safe home. She described the appellants familys
history, and his forebears experience in residential schools and their loss of
cultural and spiritual connections.

[32]

Referring to the comments of this Court
at para. 13 in
R. v. Eustache
, 2014 BCCA 337, the sentencing
judge recognized her obligation to consider the systemic and intergenerational
effects of the collective experiences of Aboriginal peoples, and that the
appellant was not required to establish a causal link between those factors and
the commission of the offence. However, she was of the view that the law
required her to consider the extent to which
Gladue
factors actually
affected the appellant, citing
R. v. D.G.
,

2014 BCCA 84,

and
R. v. Morris
,

2004 BCCA 305, in particular this Courts
conclusion (set out in the following passages) in
Morris
,

where
the sentencing judge had failed to consider how the
Gladue
factors
should be weighed in assessing the moral blameworthiness of the offender:

[60]       [T]he sentencing
judge failed to appreciate the moral culpability of this offender. Although he
identified Mr. Morris as an aboriginal offender, he did not properly
assess how any systemic or background factors related to that identity
contributed to bringing him before the court. In particular, Mr. Morris is
not a victim of alcohol or other substance abuse. There is no evidence that he
endured a childhood of family breakdown or dysfunction. And although he
mentioned residential school in his submission, I do not understand him to say
that he had been victimized or abused in school.

[61]      We are bound to be
aware of and sensitive to systemic issues faced by aboriginal peoples
generally. However, there do not appear to be any of the personal mitigating
factors so often present in cases of aboriginal offenders.

[33]

She held:

[71]      These passages from
Morris
are helpful in my
assessment of the application of the
Gladue
factors here. I am mindful
that Mr. Nahanee is an Aboriginal offender. I am mindful of his family's
historic experiences. However, he grew up in an urban area, in a happy home,
devoid of violence or substance abuse. He attended public school, did fairly
well, has no cognitive deficits. There are none of the personal mitigating
factors so often present in cases of Aboriginal offenders, such that his
blameworthiness is consequently attenuated.

[73]      I note further in
Morris
,
Chief Justice Finch stated at paragraph 53 that
Gladue
made it clear
that it was not the principles of sentence that varied in sentencing Aboriginal
offenders, but the application of those principles to a particular case.

[34]

Following
R. v. R.R.M.
, the
sentencing judge adopted the approach described in
Gladue
at para. 80
as follows
:

[
80]      As
with all sentencing decisions, the sentencing of Aboriginal offenders must proceed
on an individual (or a case-by-case) basis: for this offence, committed by this
offender, harming this victim, in this community, what is the appropriate sanction
under the
Criminal Code
?

[35]

She placed significant weight upon
the fact the victim and the community in question here were Aboriginal, and the
victims, as a result, were much more vulnerable to sexual assault that their
non‑Aboriginal counterparts:
R. v. Barton
, 2019 SCC 33;
R.
v. S.P.S.
, 2019 BCPC 158.

[36]

She found assistance in
identifying the appropriate range of sentences for the offence against E.N. in
R.
v. D.(D.
) (2002), 163 C.C.C. (3d) 471 (Ont. C.A.); and in the
review of cases in
R. v. J.M.
, 2019 BCPC 235, including
R. v. T.A.D.

(1995),
68
B.C.A.C. 236
. In relation to
the offence against S.R., the decision of this Court in
R. v. R.R.M
. was
found to be most helpful.

[37]

She distinguished the cases relied
upon by the appellants counsel,
William
,
W.F.G.
, 2013 BCPC 302,
and
R. v. McLean
, 2014 BCSC 1293, as cases where there were highly
significant
Gladue
factors that are absent here, including substance
abuse and a history of childhood sexual abuse, attenuating the offenders
culpability.

[38]

The sentencing judge concluded:

[107]    Having found that the appropriate sentence for Count
1 on lnformation 66435-2-C is six years and the appropriate sentence for the
offence set out in Count 1 of Information 66176 is four years, I must apply the
principle of totality, as the two sentences for the two offences shall be
served consecutively.

[108]    In my respectful view,
the appropriate length of jail for these two offences is eight years in total.
The sentence with regard to the offence of sexually assaulting E.N. shall be
reduced to five years jail; the sentence with regard to the offence against
S.R. shall be reduced to three years jail, , to be served consecutively.

Grounds of Appeal

[39]

Mr. Nahanee appeals his sentence on the grounds the judge
erred by:

a)

failing to alert counsel that she was planning to impose a sentence in
excess of that sought by Crown counsel, a global sentence of 4 to 6
years incarceration;

b)

imposing demonstrably unfit sentences in relation to each of the
offences to which he pled guilty;

c)

incorrectly applying statutory and common law aggravating factors; and

d)

failing to
properly consider the appellants Aboriginal heritage.

Discussion

Imposition of a Sentence Not Sought

[40]

The Crown says the decision of this Court in
R. v. R.R.B
.,
2013
BCCA 224,
is a complete answer to the argument that the sentencing
judge erred in law by imposing a sentence greater than that sought by the
Crown. In that case, the sentencing judge imposed a sentence of four years
imprisonment, when the Crown had sought a jail term of between two and three
years, and the defendant sought a conditional sentence order of between 18
and 24 months. One ground of appeal was that the sentencing judge had
erred in failing to give notice to counsel that he intended to exceed the range
suggested by the Crown and then failed to afford counsel the opportunity to
make further submissions. Prowse J.A., writing for the court, held:

[
22
]       [A]s noted in [
R v. Allen
,
2012 BCCA 377
] and many other decisions of this and other
appellate courts, there is no requirement that, if a judge disagrees with the
range of sentence proposed by one or more counsel, he/she is obliged to advise
counsel that he/she is considering imposing a sentence outside that range.
While it is undoubtedly preferable for the sentencing judge to afford that
opportunity to counsel in appropriate circumstances,
failure to do so does
not amount to an error of law or principle
.

[
23
]

I accept that submissions
of counsel arising from plea bargaining should be given careful consideration
by sentencing judges, whether or not they result in a joint submission as to
the precise nature of the sentence to be imposed. In this case, there is no
indication that the sentencing judge ignored or overlooked counsels
submissions. In the result, he simply did not agree with them.  It is, of
course, the judge who ultimately makes the decision as to what constitutes a
fit sentence, not counsel.

[
24
]

Nor
am I persuaded that it was incumbent on the sentencing judge to advise counsel
that he proposed to impose a greater period of imprisonment than that proposed
by them and to then give them the opportunity to make further submissions
.
Counsel had already made thorough submissions, both written and oral,
canvassing all relevant sentencing factors, and had provided the sentencing
judge with all of the tools necessary to enable him to determine a fit sentence.
 Counsel for R.R.B. suggested on appeal that further details could have been
provided to the sentencing judge justifying the plea bargain, but I see nothing
in her submissions, or in the materials, which persuades me that there was any
unfairness in the sentencing process which would have affected the result.

[Emphasis added.]

[41]

Crown counsel contends that not only is this good law, but that the
case is on all fours with this appeal. Here, as in
R. v.

R.R.B
.,
there was no joint submission. Adversity at sentencing between the accused and
the Crown resulted in full submissions being made in relation to aggravating
and mitigating factors. A range of sentencing cases was put before the judge.
There is nothing more that could have been said for the accused if he been
alerted to the judges inclination to impose a longer sentence than that sought
by the Crown.

[42]

The appellant submits that we are not bound by the decision in
R.
v.

R.R.B
., because that decision was founded upon precedents that
have been overtaken. The appellant contends that the Supreme Courts
examination of the procedure that should be followed by a sentencing judge who
is not inclined to accept
a joint submission
, and the standard of review
for sentences imposed in such circumstances, in the October 2016 decision
in
R. v. Anthony-Cook
, 2016 SCC 43, fundamentally altered the
landscape.

[43]

While it is correct, in my view, to say that the judgment in that
case settled a significant question regarding the circumstances in which a
sentencing judge may depart from a joint submission on sentence following a
negotiated guilty plea, the decision does not fundamentally undermine the
decision of this Court in
R. v.

R.R.B.

[44]

The Supreme Court in
Anthony-Cook
emphasised the
importance of giving counsel an opportunity to make submissions with respect to
whether the public interest demands a departure from a joint submission. It
held fundamental fairness dictates that an opportunity be afforded to counsel
to make further submissions in an attempt to address the  judges concerns
before the sentence is imposed (at para. 58). In doing so, the Court
cited, as a precedent statement of that proposition, a decision of the Court of
Appeal of Alberta that predated
R. v.

R.R.B
.:

R.
v. G.W.C
., 2000 ABCA 333.
In the Alberta case, Berger J.A. for the majority wrote:

[26]

In
addition to the foregoing, the procedure followed by the sentencing judge in
rejecting the joint submission in this case is a matter of concern. Once a
sentencing judge concludes that he might not accede to a joint submission,
fundamental fairness dictates that an opportunity be afforded to counsel to
make further submissions in an attempt to address the sentencing judges concerns
before the sentence is imposed. In this case, lengthy submissions were made by
both counsel in support of a probationary term which evoked no expressions of
concern by the sentencing judge. He then retired to consider the disposition of
the case. It was only upon his return to the courtroom, and in the course of
giving reasons for rejecting the joint submission, that counsel had any
indication of concern on his part. As a result, they were afforded no
opportunity to address that concern. Indeed, had the sentencing judge made his
concern known to counsel in a timely fashion, the foundation upon which the
joint submission rested might well have been laid. I do not suggest that any
particular procedure is
de rigueur
; I say only that the principle of
audi alteram partem
should be followed.

[45]

When this Court decided
R. v.

R.R.B.
, it was
generally recognized that a sentencing judge should not depart from a
joint
submission
without giving counsel an opportunity to make submissions on
whether it is appropriate to do so. For that reason, Prowse J.A.
emphasized there had not been a joint submission on sentencing.
Anthony-Cook
did not fundamentally alter the landscape in that respect.

[46]

A different approach has been taken in cases where the guilty
plea is not conditional upon agreement to a joint submission. The rule, as set
out in
R. v.

R.R.B.
, is, while it is preferable to advise counsel
of the intention to impose a sentence outside the range suggested by either
counsel, it is not an error of law or principle to fail to do so. That rule
appears to have been adopted in Alberta and Québec as well.

[47]

In
R. v. Keough
, 2012 ABCA 14 at para. 20,
Slatter J.A. held:

[20]      The case law
recognizes the importance of a trial judge giving fair warning to counsel when
he or she proposes to sentence outside the recommended range:
R. v Hood
,
2011 ABCA 169
at para.
15;
R. v Abel
,
2011 NWTCA 4
at para.
23;
R. v Beal
,
2011 ABCA 35
at paras.
15,
18, 502 AR 177, 44 Alta LR (5th) 306. This is a component of a wider principle
that the parties are entitled to reasonable notice if the judge proposes to
decide the case in a way not advocated by either party:
R. v Al-Fartossy
,
2007 ABCA 427
at paras.
22-5
,
83 Alta LR (4th) 214
,
425 AR 336
;
Murphy
v Wyatt
,
[2011] EWCA Civ 408
,
[2011] 1 WLR 2129
at paras.
13-19
;
Labatt
Brewing Co. v NHL Enterprises Canada
,
2011 ONCA 511
at paras.
5, 14, 106 OR (3d) 677;
In Re
Lawrence's Will Trusts
,
[1972] Ch 418
at p. 436-7
.
Nevertheless, the sentencing
judge has an obligation to impose a fit sentence, and neither exceeding the
recommended range, nor failing to give counsel notice of intention to exceed
the range, is, without more, reviewable error. If the sentence imposed is not
demonstrably unfit having regard to the principles of sentencing in the
Criminal
Code
, appellate interference is not warranted. Failing to seek the input of
counsel may, however, make it more likely that the trial judge may overlook or
overemphasize the relevant factors, rely on an irrelevant factor, impose a
sentence based on an error in principle, or commit some other reviewable error
.

[Emphasis added.]

[48]

A similar result was
obtained in
Gabriel c. R.
, 2015 QCCA 1391, which cited both
R.
v.

R.R.B.
and
Keough.

[49]

In
R
v. Parr
, 2020 NUCA 2
, the
majority of the Nunavut Court of Appeal took a similar approach, concluding
that a sentencing judges failure to advise counsel of his intention to exceed
the recommendation of counsel was not an error of law per se, but could result
in the failure to consider a material fact or principle.
Slatter
and Feehan JJ.A.

wrote:

[
54
]

While the failure of a sentencing judge to flag an
intention to sentence outside the recommended range is strongly discouraged,
when this does occur, the question for the appellate court is whether the
sentence imposed is unfit:
R v Ehaloak
,
2017 NUCA 4
, paras
34-39
.
However,
the accused must be given fair notice of the case he has to meet. While Mr. Parr
was aware of the Crowns position on sentence, the trial judge never warned him
that there were other concerns at issue. The trial judge could have easily
advised counsel that he thought their ranges of sentence were low. He could
also have warned the parties that he was aware of cases that he thought gave a
different range.

[Emphasis in original.]

[50]

The approach adopted in this province was left undisturbed by the
Supreme Court in
Anthony-Cook
. In a footnote to the judgment in that
case, Moldaver J. wrote:

[T]hese reasons do not address sentencing flowing from plea agreements in which
the parties are not in full agreement as to the appropriate sentence. In other
instances, the Crown and accused may negotiate sentencing positions that
reflect partial agreement or an agreed upon range. Such arrangements may
involve a comparable
quid pro quo
. In such circumstances, it may be that
similar considerations would apply where a trial judge is, for instance,
inclined to exceed the ceiling proposed by the Crown, but we leave that
question for another day.

[51]

In
R. v. Scott
, 2016 NLCA 16, Rowe J.A.
(as he was) considered
R. v.

R.R.B.
and the divergent opinions of
other appellate courts on this question, including:
R. v. Burback
,
2012 ABCA 30
;
R. v. Abel
,
2011 NWTCA 4
;

R. v. Hood
,
2011 ABCA 169
;

R.
v. Hagen
,
2011 ONCA 749
;
R. v.
Williah
, 2012 NWTSC 53;
R. v. G.W.R.
,
2011
MBCA 62
; and
Keough

(which he
considered to stand for a different rule than
R. v.

R.R.B.
).

He concluded that fairness mandated that the
sentencing judge take what he described at para. 18 as a simple
procedural step  to ensure that all relevant facts are before the judge before
he or she imposes sentence after a guilty plea.

[52]

The appellant urges this approach upon us. He says all of the
logic in
Anthony-Cook
in support of affording counsel a right to make
informed submissions before departing from a joint submission, is as applicable
where the court is considering a sentence in excess of that sought by the Crown
on a guilty plea.

[53]

There is some merit in that argument. However, in my view, as a
division of three justices we are bound by the decision in
R. v. R.R.B.
,
and it cannot be said to have been overturned or overtaken by the judgment in
Anthony-Cook
.
The decision in
Scott
predates the decision in
Anthony-Cook
. It
is a considered and valuable contribution to the jurisprudence that may be
addressed by a five‑person division of this Court, or by the Supreme
Court of Canada, but cannot be relied upon here in the face of the clear
precedent of
R. v. R.R.B
.

[54]

For that reason, I am of the view that it is not open to us to
hold that the sentencing judge erred in law by failing to advise counsel of her
intention to impose a sentence in excess of the range proposed by the Crown,
without more.

[55]

Having said that, if the trial judge had been obliged to advise
counsel of her intention and to hear further submissions, but failed to do so, the
appellants remedy would be to apply for leave to adduce new or fresh evidence
on appeal or to make additional or further submissions on sentence. The
appellant here does seek to introduce new evidence, which speaks only to the
fact that the second guilty plea was entered after the appellant was assured of
the position that would be taken by the Crown on sentencing.

[56]

As the Crown rightly points out on this appeal, the appellant has
not demonstrated that he was prejudiced by the lack of a warning and
opportunity to make submissions. The sentencing judge was aware of the fact
that in entering his guilty plea the appellant had relied upon the sentencing
position taken by the Crown. There is little else that can be said in favour of
giving effect to the Crowns sentencing position. Having considered the fresh
evidence the appellant seeks to introduce, I am of the view that this evidence
would not have had any impact upon the sentence imposed. As I have noted, the
court was made aware by defence counsel at the sentencing hearing that the
appellant had entered his second guilty plea following extensive resolution
discussions which included a thorough statement of facts and Crown's
sentencing decision.

[57]

It follows that I would not accede to the appeal on this ground.
It remains for us to consider whether the sentence imposed is demonstrably
unfit having regard to the principles of sentencing and, in particular, whether
the sentencing judge overlooked or overemphasized relevant factors, relied on
an irrelevant factor, imposed a sentence based on an error in principle, or
committed some other reviewable error:
R. v. Lacasse
,
2015 SCC 64
.

Demonstrably Unfit Sentence

[58]

The appellant says the trial judge erred by characterizing the
gravity of the offence against S.R. as being on the very high end of the
spectrum. He submits the jurisprudence establishes an appropriate range of
sentence for the sexual assault to which he pleaded guilty in this case in the
range of 2 to 3 years, subject to an assessment of aggravating and
mitigating factors. He submits that several aggravating factors are absent in
this case. In particular, he argues that he did not stand
in loco parentis
to the complainant S.R.

[59]

In relation to the events against E.N., the appellant says the
jurisprudence establishes the range of sentence of 5 to 8 years, and
this offence falls at the very low end of that spectrum given the guilty plea
and numerous mitigating factors. Further, he says the trial judge erroneously
considered the maximum sentence for the offence to which he pleaded guilty to
be 14 years and that must have factored in the setting of his sentence.

[60]

As I have noted, the judge placed
significant reliance upon
R. v. R.R.M.
in sentencing the appellant for
the offence committed in relation to S.R. In that case, the trial judge had
surveyed cases where offenders sexually assaulted children in trust situations.
Some involved offenders who stood
in loco parentis
to the victims. The
sentencing judge in the case at bar noted (at para. 103) that the
appellant did not stand in that place, but she did have regard to his position
of trust and his familial connection to his victim. For that reason, she found
the precedents in
R. v. R.R.M
. to be helpful. The categories of
relationship that can give rise to a relationship of trust are not strictly
defined. In
Jaden
,
DeWitt-Van Oosten J.
(as she was) held:

[32]      The Crown does not
argue that Mr. Jaden was in a position of trust or authority in relation
to the victim, within the meaning of s. 718.2(iii) of the
Code
.
However, it is apparent from the Admissions of Fact that Mr. Jaden was
actively engaged with A.U.'s family, regularly bringing groceries to their
apartment and visiting with A.U. and her mother, approximately three to four
times a week. A.U.'s mother obviously trusted him enough to provide him with a
key. Within this context, the offence against A.U. constitutes a significant
betrayal.

[61]

In my view, DeWitt-Van Oosten J.
was correct to find a betrayal of trust in
Jaden
; similarly, the
sentencing judge in the case at bar was correct to find the appellant was in a
position of trust and significantly betrayed the victim, S.R.

[62]

Insofar as the offence against E.N. is concerned, the Crown
admits the judge erred in describing the
applicable
maximum sentence. The Crown says, however, there is no indication this error
affected the sentence imposed. I agree. When setting the sentence in relation
to this offence, the trial judge surveyed the relevant cases and placed
significant weight on
R. v. T.A.D.
and
R. v. R.E.L
. In the latter
case Hinkson J.A. (as he was), for the court, held that a five‑year
sentence imposed on an offender who had pleaded guilty to sexually abusing his
step‑daughter over years was within the appropriate range of sentences
for prolonged sexual abuse of a child, as described in
R. v. T.A.D.
(as 5
to 89 years) and in
R. v. O.M.
,
2009 BCCA 287
(4 to 7 years). These cases, of course, preceded the increase
in
the maximum sentence in 2015. The sentencing range in these cases was
expressed in relation to an offence for which the maximum sentence was then 10
years.

[63]

In
R. v.
Friesen
, 2020 SCC 9,
the Court held:

[
100
]

To respect Parliaments decision to increase maximum
sentences, courts should generally impose higher sentences than the sentences
imposed in cases that preceded the increases in maximum sentences. As Kasirer
J.A. recognized in
Rayo
in the context of the offence of child
luring, Parliaments view of the increased gravity of the offence as reflected
in the increase in maximum sentences should be reflected in [
translation
] toughened sanctions (para. 175;
see also
Woodward
, at para. 58). Sentencing judges and appellate
courts need to give effect to Parliaments clear and repeated signals to
increase sentences imposed for these offences.

[64]

Reference to
R. v. T.A.D.
,
R. v. O.M.
and
R. v. R.E.L
. for guidance in sentencing continues to
be appropriate in relation to offences committed before the increase in the
maximum sentence for the offences in question. However, these older cases are
less helpful in relation to sentencing for the prolonged sexual assault of
children occurring after the increase in the statutory maximum, as they may
underestimate our current assessment of the gravity of such offences.

[65]

It follows from what I have said, that I am of the view the
sentences imposed are not demonstrably unfit.

Consideration of Aggravating Factors

Prior Incidents

[66]

The appellant says that although he pleaded guilty to a single
incident of non‑consensual intercourse with S.R., the trial judge wrongly
considered the fact that the offence was not an isolated incident to be an
aggravating factor. In my view, it was not an error for the trial judge to
address the harm done to S.R. by placing the offence in context, including the
facts admitted by the appellant that magnified the impact of the specific
offence to which he pleaded guilty.

[67]

In
Friesen
, the Court noted:

[60]

Sexual
violence causes additional harm to children by damaging their relationships
with their families and caregivers. Because much sexual violence against
children is committed by a family member, the violence is often accompanied by
breach of a trust relationship (
R. v. D.R.W.
,
2012 BCCA 454
,
330 B.C.A.C. 18
, at para.
41).
If a parent or family member is the perpetrator of the sexual violence, the
other parent or family members may cause further trauma by taking the side of
the perpetrator and disbelieving the victim
(see The Statutory Rape
Myth, at p. 292). Children who are or have been in foster care may be
particularly vulnerable since making an allegation can result in the end of a
placement or a return to foster care (see
R. v. L.M.
,
2019 ONCA 945
,
59 C.R. (7th) 410
). Even when a parent or caregiver is
not the perpetrator, the sexual violence can still tear apart families or
render them dysfunctional (
R. v. D. (D.)

(2002),
58 O.R. (3d) 788 (C.A.)
, at para.
45).
For instance, siblings and parents can reject victims of sexual violence
because they blame them for their own victimization
(see
Rafiq
,
at para. 38). Victims may also lose trust in the ability of family members
to protect them and may withdraw from their family as a result (
Rafiq
,
at paras. 39-41).

[61]

The ripple
effects can cause children to experience damage to their other social
relationships. Children may lose trust in the communities and people they know.
They may be reluctant to join new communities, meet new people, make friends in
school, or participate in school activities (C.-A. Bauman, The Sentencing of
Sexual Offences against Children
(1998),
17
C.R.
(5th) 352
, at p. 355)
. This loss of trust is compounded
when members of the community take the side of the offender or humiliate and
ostracize the child (
R. v. Rayo
,
2018 QCCA
824
, at para.
87
(CanLII)
;
R. v. T. (K.)
,
2008 ONCA 91
,
89 O.R. (3d) 99
, at paras.
12
and 42). Technology and social media can also compound these problems by
spreading images and details of the sexual violence throughout a community
(see
R. v. N.G.
,
2015 MBCA 81
,
323 Man.R. (2d) 73
).

[62]

The
Criminal Code
recognizes that the
harm flowing from an offence is not limited to the direct victim against whom
the offence was committed. Instead, the
Criminal Code
provides
that parents, caregivers, and family members of a sexually victimized child may
be victims in their own right who are entitled to present a victim impact
statement (B. Perrin,
Victim Law: The Law of Victims of Crime in
Canada
(2017), at p. 55; see also
Criminal Code
,
ss. 2 (victim) and 722).

[Emphasis
added.]

[68]

The admission made by the appellant, reproduced above, amounted
to an admission that there had been prior, uncharged assaults, the victim had
reported them to her grandmother, and she had been disbelieved. Given that the
admission was made to assist the court in sentencing following a guilty plea,
no other purpose could be served by the admission. It was certainly not an
admission that the victim had previously made
false
reports to her grandmother.

[69]

The appellant knew the admission was tendered by the Crown to
put into context the extreme emotional trauma that [E.N.] has suffered through
the alienation, the disbelief on the part of her family members [and] the lack
of support. The judge noted she would take that submission into consideration,
subject to what the defence had to say. The appellant did not object, in fact
consented, to the evidence of prior complaints
forming
part of the record on sentencing, and took no position with respect to its use
for the purpose described. It my view, in the circumstances, it was not an
error to rely upon the fact the offence was not an isolated incident as an
aggravating factor. As this Court noted in
R.
v. Ladue
, 2011 BCCA 101:

[31]

There
is no question that the Crown has the obligation to prove any aggravating fact
beyond a reasonable doubt: see s. 724(3)(e) and
R. v. Gardiner
,
[1982] 2 S.C.R. 368
.
Any party wishing to
rely on a relevant fact, including a fact in a pre-sentence report, has the burden
of proving the fact: see s. 724(3)(b). However, these provisions do not
come into play until the fact is disputed. What constitutes a dispute may
differ depending on the circumstances, but any dispute over the facts presented
on a sentencing hearing must be clear and unequivocal: see
R. v. Ford
,
2010 BCCA 105
,
254 C.C.C. (3d) 442
; and
R. v. Hodwitz
,
[1985] B.C.J. No. 1676 (C.A.)
.

Statutory Aggravating Factors

[70]

The appellant says the trial judge incorrectly applied statutory
aggravating factors that were not in effect at the time the defences were
committed, specifically the provision in s. 718.2(a)(ii) identifying the
fact the abuse involved a family member as aggravating.
The Crown
admits this provision was not in effect at the material
time (although Crown counsel relied upon it at sentencing), but says that is
not relevant because the family relationship would inevitably have been treated
as a separate aggravating factor that exacerbated the harm. I agree. As pointed
out above in
Friesen
, the Supreme Court of Canada has expressly taken
note of the significance of the harm that the breach of trust caused by the
offence occasions in such circumstances. It stands to reason that Parliament
has embodied in the statutory aggravating factors one factor that common sense
would have judges consider in any event.

[71]

The same may be said for the explicit addition, as a statutory
aggravating factor, of the
significant impact of
the offence on the victims.

Common Law Aggravating Factors

[72]

The appellant takes issue with the judges consideration of two
other aggravating factors: his initial efforts to shift blame, and the age
differential between himself and the victims.

[73]

The Crown says the appellants statements to the police that cast
blame upon S.R. could properly be considered as a lack of insight, a factor
that may be taken into account in sentencing, pursuant to
R. v. May
,
2018 BCCA 391. In that case Fitch J.A. held:

[
35
]      It was open to the judge to find that the appellant had
not taken responsibility for his actions. In my view, it would have been open
to the judge in this case to conclude that the appellant demonstrated a
shocking lack of insight into his own behaviour and a callous disregard for the
devastating impact his behaviour had on others. From there, it would have been
open to the judge to impose a sentence that reflected the appellants guarded
rehabilitative prospects and emphasized the need for specific deterrence as a
matter of public protection:
R. v. Montgomery
, 2018 BCCA 27 at
para.11;
R. v. Alderman
, 2017 BCCA 26 at para. 15;
R.
v. Athey
, 2017 BCCA 350 at paras. 37-38;
R. v. Purdy
, 2012
BCCA 272 at paras. 23-26. If the judge had approached the issue in
this way, she would not have been punishing the appellant for failing to
express remorse; rather, she would have been calibrating the sentence to take
account of the extent to which he posed a continuing risk to the public. That
the judge does not appear to have taken the analysis this far is not something
the appellant can complain about.

[74]

In the case at bar, the sentencing judge did not expressly
describe the purpose for which she considered the appellants initial denial of
responsibility. However, the only express reference to the denial is in the
following passage, in the judges discussion of the sentencing cases relied
upon by the appellant, in some of which the offender had taken steps to address
underlying conditions:

[105]    While all of these cases
simply provide me with a guideline, I note that Mr. Nahanee faces no
immigration consequences; denied the offence when the police dealt with him and
offended against a family member which is statutorily aggravated. It was not an
isolated incident in relation to S.R.

[75]

The passage suggests the denial was considered in relation to the
extent to which the appellant had insight or posed a continuing risk. I cannot
say his initial denial was inappropriately relied upon in sentencing the
appellant.

[76]

Further, the appellant says the judge double‑counted the
age of the victim as an aggravating factor because she considered it both as a
statutory and a common law aggravating factor (t
he
abuse of a person under the age of 18 being a statutory factor (s. 718.2(a)(ii.1),
and age differential being a common law factor).

[77]

These are, however, different aspects of the offence. While there
is some overlap, as with many aggravating factors, the separate consideration
of
age differential
, as distinct from the
absolute age
of the
victim, is appropriate. As Goepel J.A., writing for the Court in
R. v.
S.C.W
., 2019 BCCA 405, noted (relying in part on reasoning in
R. v. B.S.
,
2019 ONCA 72
),
the former
is relevant to assessing the degree of the offenders
culpability, the latter is relevant to assessing the victims degree of
vulnerability.

Indigenous Heritage

[78]

Finally, the appellant says the sentencing judge erred when she
stated that the intergenerational impact of colonialization was successfully
ameliorated in the appellants case.

[79]

I would not accede to that ground of appeal. The judges finding
that, as a result of the efforts of the appellants parents, his childhood was
not affected by the impact of colonialization and he enjoyed a positive
environment cannot be said to have been founded upon a misapprehension of the
evidence. Defence counsel acknowledged as much in colloquy with the judge.

[80]

As noted above, the sentencing judge acknowledged the obligation
to consider the
Gladue
principles in this case, as in every case
involving an Indigenous offender. Having done so, it was not an error to
consider the extent to which the offender himself was affected by cultural
oppression, social inequality and systemic discrimination.

[81]

As the Supreme Court of Canada
noted in
R. v. Ipeelee
, 2012 SCC 13 at para. 83:

[T]he operation of s. 718.2(
e
)
does not logically require [a
direct causal link
between the offenders circumstances and his offending]
. Systemic and
background factors do not operate as an excuse or justification for the
criminal conduct. Rather, they provide the necessary context to enable a judge
to determine an appropriate sentence. This is not to say that those factors
need not be tied in some way to the particular offender and offence. Unless the
unique circumstances of the particular offender bear on his or her culpability
for the offence or indicate which sentencing objectives can and should be
actualized, they will not influence the ultimate sentence.

[82]

In
R. v. Elliott
, 2015 BCCA 295,
Donald J.A. held:

[
16
]      A sentencing judge must take
judicial notice of the systemic and background factors that affect all
Aboriginal persons in Canada, including lingering institutional racism and the
historical effects of past policies and injustice. But this does not mean that
every offence committed by an Aboriginal offender is motivated by or a
consequence of these factors to any extent. Nor does every offender with some
Aboriginal heritage hold a worldview that reduces the rehabilitative effects of
incarceration. In every case, the sentencing judge must create a fit sentence
for this particular offender committing this particular crime.

[
17
]      In
summary, a sentencing judge must consider the factors discussed above when
determining a fit sentence. To fail to consider these factors is a legal error
that may lead to a disproportionate sentence:
Ipeelee
at para. 87.
However, once a judge has considered these factors, a fit sentence is still in
her or his discretion.
Gladue
does not impose a particular result; it
imposes a particular process. Aboriginal offenders are not expected to receive
a diminished sentence in every case. Each sentence is individually made by the
sentencing judge and  absent an error in principle, a failure to consider a
relevant factor, or an overemphasis of the appropriate factors  is subject to
substantial deference by this Court:
R. v. M. (C.A.)
, [1996] 1 S.C.R.
500 at para. 90.

[83]

In my view, appropriate care was taken in this case to identify
Gladue
factors and to determine whether they attenuated the appellants moral
blameworthiness. In this case, as in
Elliott
, I am of the view the
following may be said:

[
30
]      The judge expressly considered the unique circumstances
the appellant faced as an Aboriginal offender, and then placed little weight on
it in the particular context of this offence. The weight to place on given factors
was within the judges discretion, and this Court should defer to it.

[84]

It should be borne in mind that the application of the
Gladue
principles in this case must also have been tempered by consideration of the
fact the victims were Indigenous children. In
Friesen
, the Court wrote:

[
70
]      Children who belong to groups that are marginalized are
at a heightened risk of sexual violence that can perpetuate the disadvantage
they already face. This is particularly true of Indigenous people, who
experience childhood sexual violence at a disproportionate level (Statistics
Canada,
Victimization of Aboriginal people in Canada, 2014
(2016),
at p. 10). Canadian government policies, particularly the physical,
sexual, emotional, and spiritual violence against Indigenous children in Indian
Residential Schools, have contributed to conditions in which Indigenous
children and youth are at a heightened risk of becoming victims of sexual
violence (see British Columbia, Representative for Children and Youth,
Too
Many Victims: Sexualized Violence in the Lives of Children and Youth in Care
(2016),
at p. 8 (
Too Many Victims
);
The Sexual Exploitation of
Children in Canada: the Need for National Action
,

at pp. 29-33).
In particular, the over-representation of Indigenous children and youth in the
child welfare system makes them especially vulnerable to sexual violence (
Too
Many Victims
, at pp. 11-12). We would emphasize that, when a child
victim is Indigenous, the court may consider the racialized nature of a
particular crime and the sexual victimization of Indigenous children at large
in imposing sentence (T. Lindberg, P. Campeau and M. Campbell, Indigenous
Women and Sexual Assault in Canada, in E. A. Sheehy, ed.,
Sexual
Assault in Canada: Law, Legal Practice and Womens Activism
(2012),
87, at pp. 87 and 98-99).

[85]

The effort at reconciliation that, in part, motivates the
Gladue
approach to sentencing, is not served by sentences that do not sufficiently
deter violence against Indigenous children.

Disposition

[86]

For all of these reasons I would dismiss the appeal.

The Honourable Mr. Justice Willcock

I agree:

The
Honourable Madam Justice Fenlon

I agree:

The Honourable Madam Justice
Griffin


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Pawson,

2021 BCCA 22

Date: 20210114

Docket: CA46604

Between:

Regina

Respondent

And

Erik John Henning
Pawson

Appellant

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

The Honourable Madam Justice DeWitt-Van Oosten

On appeal from: An
order of the Provincial Court of British Columba, dated October 4, 2019 (
R.
v. Pawson
, Sechelt Docket 17524-2-C).

Oral Reasons for Judgment

Counsel for the Appellant

(via videoconference):

K.M. Lee

S. MacDonald

Counsel for the Respondent

(via videoconference):

J.R.W. Caldwell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 12, 2021

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2021

Summary:

The appellant was convicted
of causing an accident resulting in bodily harm while operating a motor vehicle
with a blood alcohol level over .08.  He challenges that conviction on the
basis that the judge erred in finding that he had not been arbitrarily detained,
that there was a suspicion justifying the demand for an ASD sample, that the
first breathalyzer test was administered within two hours of the accident, and
that the presumption of identity applied.  Held: Appeal dismissed. The judge
made no errors when she concluded the appellant was not detained until the
officer smelled alcohol on his breath.  The judge did not err in finding that
the officers subjectively held suspicion of alcohol consumption was
objectively reasonable on the basis of the odour of alcohol, the appellants
admission to having one beer, her belief that the accident had just occurred,
and her belief that the appellant probably had more than one beer.  The judge
made no errors in her factual findings about when the accident occurred.
Finally, the presumption of identity applies in transitional cases.

[1]

FRANKEL J.A.
: Erik John Henning Pawson was convicted by Judge
Craig of the Provincial Court of British Columbia of causing an accident
resulting in bodily harm while operating a motor vehicle with a blood alcohol level
over .08.  Following the accident, Mr. Pawson provided a breath sample into
an approved screening device (ASD) that resulted in a fail.  As a result of
that fail, he was arrested and taken to a police detachment where he provided
breath samples into an approved instrumentcommonly referred to as a
breathalyzerthat produced two readings over .08.  Mr. Pawson now
appeals.  His grounds centre on the trial judges finding that his blood alcohol
level at the time of the accident was over .08.

[2]

Mr. Pawson contends the judge erred in finding that: (a) he was not
detained before a police officer demanded he provide an ASD sample; (b) the suspicion
needed to make an ASD demand existed; (c) the first breathalyzer test was
administered within two hours of the accident; and (d) the statutory presumption
of identity applied even though that provision of the
Criminal Code
,
R.S.C. 1985, c. C‑46, was repealed during the trial.  This last
argument relates to the fact that
An Act to amend the Criminal Code
(offences relating to conveyances) and to make consequential amendments to
other Acts
, S.C. 2018, c. 21, made major changes to the drinking and
driving provisions of the
Code
.

[3]

The judge made the first two disputed findings following a
voir dire
held to deal with Mr. Pawsons application to have the ASD and breathalyzer
results excluded on the basis of violations of his rights under the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
,
being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11.  Mr. Pawson
did not testify or call evidence on that
voir dire
.  As well, he did not
testify or call evidence on the trial proper.

[4]

The accident occurred on July 28, 2017, on the Sunshine Coast Highway
(Highway 101) between Gibsons and Sechelt.  Where the accident occurred the
highway is undivided, with one lane in each direction.  Mr. Pawson lost
control of the vehicle he was driving, swerved into the oncoming lane and off
the road, and struck Mehran Mirani, who had just gotten off a bus.

[5]

Kate Haxton, who had gotten off the same bus, witnessed the accident.
She immediately ran to Mr. Mirani, who was lying in the bush, moaning, and
in a semiconscious state.  Ms. Haxton flagged down a passing truck.  The
driver of the truck, Bruce McNiven, also witnessed the accident.  Mr. McNivens
wife called 9-1-1 and spoke to an emergency call taker.  Mr. McNiven and Ms. Haxton
also spoke to the call taker.  Following the 9-1-1 call, firefighters,
paramedics, and police officers attended at the scene.  A helicopter
transported Mr. Mirani to Vancouver General Hospital.

[6]

Constable Andrea Ceulemans of the Royal Canadian Mounted Police was one
of the officers who attended at the scene.  She was on patrol in a police
vehicle when she received a dispatch at 8:07 p.m. from Emergency Health
Services who were then en route to where a pedestrian had been struck on the
highway.  Constable Ceulemans arrived at the scene at approximately 8:12 p.m.;
firefighters and paramedics were already there.  Constable Ceulemans saw a grey
vehicle in the ditch area, facing in the opposite direction of normal traffic.
There were marks on the roadway and on the gravel next to the roadway leading
to that vehicle, indicating that the vehicle had skidded across the highway.  It
was clear to Constable Ceulemans that the grey vehicle had been involved in an
accident in which a pedestrian had been struck.  Mr. Pawson was standing
at the front of that vehicle looking at Mr. Mirani.  The fire chief pointed
out Mr. Pawson as the driver involved in the accident.

[7]

Constable Ceulemans approached Mr. Pawson.  She asked him if he was
the driver; he responded, Yes, I am and gave her his name.  Mr. Pawson
was emotional and appeared very concerned about Mr. Mirani.  Being
concerned about Mr. Pawsons emotional state and wanting to find out what
had happened, Constable Ceulemans asked Mr. Pawson to follow her to her
vehicle, which was parked a short distance away.  As Mr. Pawson appeared
fairly shaken up she told him he could sit down on the back seat of her
vehicle.  He did so, with his legs and feet outside the vehicle.  Constable
Ceulemans asked Mr. Pawson for his drivers licence and used the radio
attached to her shoulder to check his name and date of birth.

[8]

Mr. Pawson told Constable Ceulemans he had spent some time on his
boat in the Gibsons area and was driving home when the accident happened.
Because of the noise from the firefighters and paramedicsConstable Ceulemans
described the scene as loud and chaoticshe leaned towards Mr. Pawson
to hear him.  When she did soat approximately 8:14 p.m.she detected the
slight smell of alcohol coming from Mr. Pawsons breath as he was
speaking.  She asked him whether he had had any alcohol that day; he replied he
had had a beer at 5:00 p.m.

[9]

Constable Ceulemans suspected Mr. Pawson had operated a motor
vehicle within the preceding three hours with alcohol in his body.  Acting
under what was then s. 254(2) of the
Criminal Code
, she made an ASD
demand at approximately 8:18 p.m.  She testified she formed that suspicion on
the basis of the following: (a) her belief the accident had occurred just prior
to her being dispatched; (b) the odour of alcohol on Mr. Pawsons breath;
(c) his admission to having had one beer; and (d) her belief he probably had
had more than one beer.

[10]

As already mentioned, the result of the ASD test was a fail.  Based on
the fail, Constable Ceulemans arrested Mr. Pawson for impaired driving causing
bodily harm at 8:22 p.m.  She then advised him of his
Charter
rights
and, acting pursuant to what was then s. 254(3) of the
Criminal Code
,
demanded he provide breath samples.

[11]

Constable Ceulemans drove Mr. Pawson to the Sechelt Detachment
where a breathalyzer technician, Constable Michelle Larsen, was waiting.  After
arriving at the detachment, Mr. Pawson stated he wished to speak with a
particular lawyer and he did so at 8:56 p.m.  At 9:10 p.m., Constable Larsen,
at Mr. Pawsons request, telephoned Mr. Pawsons girlfriend to let
her know he had been in a collision and was alright.  Constable Larsen analyzed
two samples of Mr. Pawsons breath.  The first sample, taken at 9:24 p.m.,
registered .140.  The second sample, taken at 9:44 p.m., registered .150.

[12]

Mr. Pawson contends the trial judge erred in finding that he was not
arbitrarily detained in violation of his rights under s. 9 of the
Charter
before the ASD demand was made.  His position is that he was detained as soon
as Constable Ceulemans approached him to determine the cause of the accident
and that she placed him in the back of her vehicle.  Mr. Pawson further
says that when Constable Ceulemans approached him she was obligated to immediately
advise him of his rights as required by ss. 10(a) and (b) of the
Charter
.
I see no merit in these arguments.

[13]

In her
voir dire
ruling, the judge, who found Constable Ceulemans
to be a credible and reliable witness, said the following with respect to
detention:

[45]       I make the following findings from Constable
Ceulemans evidence surrounding her question[ing] of Mr. Pawson
:

1.
Constable Ceulemans did not tell Mr. Pawson to come to
her vehicle, she asked him to follow her to her vehicle, and to talk about what
happened, and Mr. Pawson followed her there
.

2.  While at the police vehicle Constable Ceulemans did not see any
injuries on Mr. Pawson, but was concerned about his emotional state, and
recognized that he may be in shock from the accident. She asked him if he was
okay, and he said he was okay.

3.
Constable Ceulemans told Mr. Pawson he could sit in the
back of the police vehicle, which he did
.  Mr. Pawson sat sideways in
the rear seat with his legs out of the vehicle and feet on the ground.  This is
some indication to me that Mr. Pawson was not being restrained physically
or mentally. The car door remained open throughout the conversation.

4.  Constable Ceulemans stood in front of Mr. Pawson as
he
was seated.  She leaned in towards him when he
told
her
what he had been doing that day leading up to the incident.  I accept Constable
Ceulemans evidence that she leaned in so that she could hear Mr. Pawson,
with her face approximately one foot from Mr. Pawsons face.

5.
I
accept Constable Ceulemans evidence that she would have moved out of the way
if Mr. Pawson got out of the vehicle.  I accept that she was not blocking Mr. Pawsons
egress, nor was she
crowding
him, and that Mr. Pawson
could have got up and walked away without bumping into Constable Ceulemans
.

6.  Constable
Ceulemans testified that she believed she detained Mr. Pawson once she
read him the ASD demand.  She accepted in cross-examination that she would
probably have detained Mr. Pawson if he tried to get up and leave after
she smelled alcohol on his breath, but before she asked him if he had had
anything to drink.

7.  The
duration of Constable Ceulemans interaction with Mr. Pawson from the time
she first approached him to the
time
she read the ASD
demand was approximately five minutes.  Constable Ceulemans ran checks on Mr. Pawsons
identity at 8:14 p.m., just after they arrived to her vehicle.  She made the
ASD demand at 8:18 p.m.  The demand was made after Mr. Pawson said he had
one beer at 5:00 p.m., which was after Constable Ceulemans had asked him if he
had had alcohol to drink that day when she smelled liquor on his breath.

[46]
Taking into account all of these circumstances,
I do not believe that a reasonable person in Mr. Pawsons position would
believe that his right to choose how to interact with Constable Ceulemans had
been removed when he talked to Constable Ceulemans
.  I find that Mr. Pawson
was not detained when he was seated in the back of the police vehicle, until
after the officer smelled alcohol on his breath.  I find that his detention
crystallized once Constable Ceulemans smelled alcohol on Mr. Pawsons
breath.

[Emphasis added.]

[14]

In
R. v. Suberu
, 2009 SCC 33 at para. 26, [2009] 2 S.C.R.
460, the Court said that in the absence of physical restraint or a legal
obligation to comply with a request to wait, the analysis must consider
whether the officers conduct in the context of the encounter as a whole would
cause a reasonable person in the same situation to conclude that he or she was
not free to go and that he or she had to comply with the officers request.
The Court also stated:

[29]      The line between
general questioning and focussed interrogation amounting to detention may be
difficult to draw in particular cases.  It is the task of the trial judge on a
Charter
application to assess the circumstances and determine whether the line between
general questioning and detention has been crossed.

That is exactly what the trial judge did and I can see no
error in her factual findings in regard to the interaction between Constable
Ceulemans and Mr. Pawson or in the conclusion she reached on the basis of
those findings.

[15]

The next issue concerns whether a legally sound basis existed for the
ASD demand.  Mr. Pawson contends the judge erred in finding that the
suspicion required to make an ASD demand existed.  As discussed by Justice
Fitch in
Mackenzie v. British Columbia (Superintendent of Motor Vehicles)
,
2018 BCCA 354, 16 B.C.L.R. (6th) 301, there is both a subjective and objective
aspect to this question:

[35]      The demanding
officer must subjectively entertain an honest suspicion that the detained
driver has alcohol in his or her body.  Credibility issues and the need to make
factual findings as a consequence thereof will most commonly arise in resolving
whether the officer subjectively entertained the requisite honest suspicion.

[36]      Further, the suspicion must be based on objectively
verifiable circumstances which, taken together and subjected to independent
judicial scrutiny, establish that the suspicion subjectively entertained by the
officer was reasonable:
R. v. Chehil
, 2013 SCC 49 at paras. 26 and
29.  The inquiry is based on circumstances known to the police officer at the
time and asks whether it was reasonable, based on the totality of those
circumstances, for the officer to suspect that the driver had alcohol in his or
her body.  The objective component of the test may be framed in these terms:
[W]ould a reasonable person, standing in the shoes of the investigating police
officer and aware of all of the objectively verifiable evidence, reasonably
suspect the driver had alcohol in his or her body?:
R. v. Yates
, 2014
SKCA 52 at paras. 33‒34.

[37]      The inquiry is
fact-based, flexible, and grounded in common sense and practical, everyday
experience:
Chehil
at para. 29.

[16]

I see no merit in the argument that Constable Ceulemans did not
subjectively believe she had the suspicion needed to make a lawful ASD demand.
As the trial judge stated in her reasons:

[23]       The defence did not
seriously challenge Constable Ceulemans credibility, or the honestly of her
belief - for good reason.  Constable Ceulemans came across as an honest
witness,

The real issue is whether, having regard to the trial
judges findings of fact, the officers suspicion was objectively reasonable.
This is a question of law:
R. v. MacKenzie
, 2013 SCC 50 at para. 54,
[2013] 3 S.C.R. 250.

[17]

In considering this ground of appeal it is important to keep two things
in mind.  The first is that reasonable suspicion deals with possibilities,
rather than probabilities:
R. v. Chehil
, 2013 SCC 49 at para. 28,
[2013] 3 S.C.R. 220.  The second is that the officer who makes the demand does
not have to believe the driver is impaired or some other crime has been
committed:
R. v. Gilroy
, 1987 ABCA 185 at para. 5, 3 M.V.R. (2d)
123, leave to appeal refd [1988] 1 S.C.R. ix;
R. v. Lindsay
(1999), 134 C.C.C. (3d) 159 at para. 2 (Ont. C.A.).

[18]

In the present case, the trial judge said this in finding the ASD demand
was validly made:

[24]      The real challenge from the defence was to the
objective basis for Constable Ceulemans suspicion.  The defence says that
Constable Ceulemans suspicion was not reasonable since it was only formed
after Mr. Pawson admitted to drinking a beer.  The defence argues that the
admission has very little significance since the beer was consumed three hours
earlier.  I agree that the significance of Mr. Pawsons admission to
consuming alcohol was attenuated by the fact that it had been over three hours
earlier, but that does not mean the admission carries no weight.  In my view it
is just one of the factors that contributed to an objectively reasonable
suspicion that Mr. Pawson had alcohol in his body, and a minor factor.

[25]      More significant than the admission by Mr. Pawson
to consuming alcohol three hours earlier was the fact that there was an
unexplained collision of Mr. Pawsons vehicle with a pedestrian on the
side of the road. There were skid marks consistent with very erratic driving.
They showed the vehicle had swerved across the centre yellow lines of the road,
across the oncoming lane, and then off the road and through the gravel to land
adjacent to the forested area facing the wrong direction.

[26]      Constable Ceulemans sought an explanation for the
cause of the collision when she talked to Mr. Pawson.  When she talked to Mr. Pawson,
Constable Ceulemans smelled alcohol on his breath.  Although it was described
as a slight smell, when combined with the unexplained accident, and the
admission to alcohol consumption, I am satisfied there were objectively
reasonable grounds for Constable Ceulemans to suspect that Mr. Pawson had
alcohol in his body.

[33]      Mr. Pawson provided further information to
indicate that he had been recently driving.  Constable Ceulemans testified that
Mr. Pawson told her that he had spent the day in North Vancouver, then had
taken a ferry to Langdale, and then had spent some time on his boat, and was
driving from Gibsons to his home in Madeira Park.  He told her he had had a
beer at 5:00 p.m.

[34]      Given this
constellation of factors, I am satisfied that Constable Ceulemans subjectively
believed that Mr. Pawson was the driver of the vehicle that struck the
pedestrian, and that he had been driving in the previous three hours.  That
belief was objectively reasonable.  I find that Constable Ceulemans had the
requisite grounds to demand Mr. Pawson to provide an ASD breath sample.

I see no error in the judges conclusion.  However, there are
two arguments advanced by Mr. Pawson that I will specifically address.

[19]

Mr. Pawson says the judge should not have had regard to there
having been an unexplained accident because Constable Ceulemans did not state
this was something she considered in deciding to make the ASD demand.  However,
to state the obvious, it is clear that when Constable Ceulemans made the demand
the fact there had been an accident was in her mind.  This is reflected in the
following exchange during her examination-in-chief:

Q         When you -- when you made the ASD demand did
you have any indi -- any sense of when you believed he had been operating a
motor vehicle?

A          Just previously, probably to police getting
there.  I had no doubt that that collision had just occurred prior to -- prior
to me getting there, prior to -- to us being dispatched --

Q         And -- and what --

A          -- to the call.

Q         -- lead you to that conclusion?

A          Oh, it -- its the only highway on the
Sunshine Coast.  Its -- like I said, its -- its -- its a single lane
highway going one lane in each direction, and the vehicle left serious or I
would call them very noticeable skid marks and was on the side of the highway
in an opposite direction.  I dont think that theres any way that that would
go unnoticed.

Q         Was there anything else about the -- the --
the location of the vehicle and the information you had that would --

A          No, it was fairly
obvious that there was an accident there and I think anybody -- anybody that
would be driving by would notice that and -- and, yeah.

[20]

Mr. Pawson also says the trial judge erred in finding there was an
objective basis to suspect he had been driving in the preceding three hours as
required by s. 254(2).  As the ASD demand was made at 8:18 p.m., he
argues, in effect, that there is no objectively reasonable possibility the
accident occurred at or after 5:18 p.m.

[21]

Although there was no direct evidence as to the exact time of the
accident, it is clear the 9-1-1 call was placed within minutes of it occurring.
The trial judge found that Constable Ceulemans received a dispatch at 8:07 p.m.
and that when she arrived at the scene at 8:12 p.m., other first responders
were already there.  The judge also accepted the officers evidence that the
accident occurred on a busy highway during the summer tourist season and would
have been obvious to anyone travelling that highway.  In light of this, it
strains credulity to accept that Constable Ceulemans belief that the accident
occurred just before she arrived on the scene was not objectively reasonable.  To
accede to Mr. Pawsons argument one would have to accept it took more than
two and one-half hours after the 9-1-1 call was placed for the police to be
dispatched.  As Chief Justice McEachern stated in
R. v. To
(1992), 16 B.C.A.C 223, in dealing with whether the beyond‑a‑reasonable-doubt
standard for conviction had been met,
[i]t must be remembered that we are not expected to treat
real life cases as a completely intellectual exercise where no conclusion can
be reached if there is the slightest competing possibility: at para. 41.

[22]

Next, Mr. Pawson challenges
the trial judges finding that he was driving within two hours of when the first
breathalyzer sample was taken.  This argument relates to the former s. 258(1)(c)
of the
Criminal Code
, which contained what is known as the presumption
of identity.  It provided that if the first sample was taken not less than two
hours after an alleged offence, then the results
of the breathalyzer tests were conclusive proof of the
blood alcohol level at the time of the offence.  In this case, the first sample
was taken at 9:24 p.m. and, therefore, for the presumption to apply, the Crown
had to prove the accident occurred at or after 7:24 p.m.

[23]

The exact time of the
accident was a matter of considerable controversy and conflicting evidence.
For example, Mr. Mirani thought the accident occurred at 3 or 4 p.m.  Mr. McNiven
said it could have been around 6 or 7 p.m.  Another driver who witnessed the
accident believed it happened between 7:40 and 7:45 p.m., based on the time she
usually gets off work.  A firefighter said he was dispatched around 7 or 8
p.m., but believed it was closer to 8 p.m.

[24]

In rejecting the defence
theory that the accident happened before 7:24 p.m., the judge relied on evidence
of the timing and sequence of events that she found reliable.  Based on that
evidence, she found that:

·

the 9-1-1 call was placed very
shortly after the accident;

·

an ambulance was dispatched at
8:03 p.m. and arrived on scene at 8:08 p.m.; and

·

the ambulance arrived 22 to 25
minutes after the accident.

In other words, she found that
the accident occurred at or after 7:43 p.m., well within the two-hour window.

[25]

Mr. Pawsons arguments are no more than an attempt to retry this
issue on appeal.  The judges assessment of the reliability of the various
aspects of the evidence and of the weight to be assigned to the evidence were
hers to make and are entitled to deference.  It cannot be said the judges
findings are clearly wrong, unsupported by the evidence or otherwise
unreasonable:
R. v. Clark
, 2005 SCC 2 at para. 9, [2005] 1 S.C.R.
6.  Accordingly, I would not accede to this ground.

[26]

The last ground of appeal concerns whether the Crown was entitled to
rely on the presumption of identity given that it was repealed when the new
impaired driving regime came into force on December 18, 2018.  Under this
regime, the Crown is no longer required to prove a drivers blood alcohol level
at the time of driving.  What the Crown must now prove is that the drivers
blood alcohol level is equal to or over .08 within two hours of driving.  This
change made the presumption of identity redundant.  However, the transitional
provisions in the new legislation are silent with respect to whether the
presumption continues to apply to offences alleged to have been committed
before December 18, 2018.

[27]

At trial, Mr. Pawson argued the Crown could not rely on the
presumption and that, without it, there was no evidence of his blood alcohol level
at the time of the accident; his position was that the Crown was required to
call an expert witness to establish that fact.  Mr. Pawson relied on
R.
v. Shaikh
, 2019 ONCJ 157, 49 M.V.R. (7th) 130, and
R. v. Jagernauth
,
2019 ONCJ 231, 49 M.V.R. (7th) 157, a case which followed
Shaikh
.  Both
are judgments of the Ontario Court of Justice.  For its part, the Crown relied
on several subsequent decisions of that court which held the presumption
continues to apply in transitional cases.  The trial judge preferred the
reasoning in those latter cases.  As a result, she applied the presumption and
found Mr. Pawsons blood alcohol level at the time of the accident to have
been .140.

[28]

On appeal, Mr. Pawson continues to rely on
Shaikh
.  However,
not only has
Shaikh
been widely rejected in the Ontario Court of
Justice, it was held to have been wrongly decided in
R. v. Persaud
, 2020
ONSC 3413, a summary conviction appeal judgment upholding a conviction for
driving over .08.  That case refers to two previous summary conviction appeal judgments
in which
Shaikh
was not followed:
R. v. McManus
, 2019 ABQB 829,
55 M.V.R. (7th) 31, leave to appeal granted on other grounds 2020 ABCA 84, and
R.
v. Cameron
, 2020 NSSC 58, 59 M.V.R. (7th) 82.
Shaikh
has also not
been followed in
R. v. Mombourquette
, 2020 NSSC 105, 61 M.V.R.
(7th) 207, and
Gohier Goyer c. R.
, 2020 QCCS 2881, leave to appeal granted
on other grounds 2020 QCCA 1656.

[29]

Much judicial ink has been spent on whether the presumption of identity
applies in transitional cases.  As I agree with those judgments that have held that
the presumption does apply in such cases, there is no need for me to use more than
a modicum of ink.  It is enough to say that I adopt the reasons in
Persaud
at paras. 3360.

[30]

In the result, I would dismiss this appeal.

[31]

GOEPEL J.A.
: I agree.

[32]

DEWITT-VAN OOSTEN J.A.
: I agree.

[33]

FRANKEL J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Frankel