ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: R v Parr, 2020 NUCA 2

Date: 20200409
Docket: 03-19-001 CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Respondent

- and -

Elee Parr

Appellant

Restriction on Publication
Identification Ban – See the Criminal Code, section 486.4.
By Court Order, information that may identify the complainant must not be
published, broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the identification ban.

_______________________________________________________

The Court:
The Honourable Mr. Justice Frans Slatter
The Honourable Madam Justice Jolaine Antonio
The Honourable Mr. Justice Kevin Feehan
_______________________________________________________
 Memorandum of Judgment of The Honourable Mr. Justice Slatter
and The Honourable Mr. Justice Feehan

Memorandum of Judgment of The Honourable Madam Justice Antonio,

dissenting in part

Appeal from Conviction and Sentence by

The Honourable Mr. Justice Bychok
on the 5th and 6th day of December, 2018
(File No 03-17-168-1)
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Majority:

I. Overview

[1] Elee Parr appeals his convictions of December 6, 2018, that on September 29, 2017 at Cape
Dorset, Nunavut, he committed sexual assault contrary to s 271 of the Criminal Code, RSC 1985,
c C-46, and breached two recognizances for failing to keep the peace and be of good behaviour,
and to abstain from intoxicating substances, contrary to s 145(3) of the Criminal Code.

[2] Mr Parr also appeals his sentence of five years on the sexual assault conviction and 60 days
consecutive for each of the breaches of recognizance, for a total sentence of 1,945 days, less 649
days’ credit for pre-trial detention, for a remaining sentence of 1,296 days (43.2 months).

[3] For the reasons set out below we dismiss the appeal on conviction. We allow the appeal on
sentence, and impose afresh a global sentence of four years.

II. Decision of the trial judge on conviction

[4] Mr Parr was at the time of trial 26 years old, had four children, and was a hunter and carver.
The trial judge rejected his evidence on material points.

[5] Mr Parr said that on the night of September 28, 2017, he and others were drinking at his
sister’s place. He said he and the complainant “were getting drunk. Not that drunk, but we were
getting [a] bit.” He said he drank “almost two mickeys of vodka” and felt “Kind of drunk. Not that
drunk, but drunk. Buzzed.” He later said the complainant was “not drunk, not at all.”

[6] While outside the house for a cigarette, Mr Parr asked the complainant about having sex
and she did not reply to him. Later that evening, he said they started talking and kissing, and at
some point “went on the mattress [on the floor of the living room], started having sex.” He said
they took off each other’s pants.

[7] When asked, “How did that end?”, Mr Parr said the complainant asked him to “get off”
her, so he “got off right away” and she went upstairs. He then said, in answer to defence counsel’s
following question as to whether the complainant had said anything before that, she had asked him
three times to allow her to climax first. He said she never did climax and he never did ejaculate
before she asked him to get off her.

[8] After the complainant went upstairs, Mr Parr said he followed to ask her what was going
on. When she did not reply, he told her to leave but she did not and he went downstairs.
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[9] The trial judge said he did not believe Mr Parr “nor [did] Mr Parr’s evidence raise a doubt
in [his] mind.” He found Mr Parr “not a credible witness.” He specifically rejected Mr Parr’s
evidence that he was not significantly drunk after he had consumed about 26 ounces of vodka. He
said Mr Parr had changed his evidence “on a very significant point” when he said the complainant
had told him to get off her, and then said she had asked him three times to let her climax first. The
trial judge said:

It is inconceivable that the very willing, even eager partner Mr. Parr described
would, after asking three times to be able to [climax] first, would then suddenly
change her mind and demand he get off her. There is no [air] of reality to this
evidence, and I reject it.

[10] The trial judge also said Mr Parr’s evidence firstly that he and the complainant were
“getting drunk” and then later that she was “not drunk at all” struck at the “very heart of his
defence” and showed him to be not credible: “I do not believe that Mr. Parr was truthful in Court.
I must reject his evidence.”

[11] The trial judge also considered the evidence of the complainant. He accepted some but not
all of her evidence. The complainant was 17 at the time of the offence. She said her best friend,
Mr Parr’s niece, GP, invited her to come drinking at her place. However, the niece dropped her off
at the party and then left to go on a “joy ride.” The complainant said she had consumed “about one
inch of vodka in a glass before she left for [the niece’s]” and then when she got to the party “they
were drinking straight vodka.” She said “I get drunk pretty easily” but maintained she was not
significantly intoxicated later that evening.

[12] The complainant said Mr Parr had touched her thighs, both inside and out, and her face,
and she told him to stop.

[13] Later in the evening, the complainant estimated she was probably five out of ten inebriated.
She said she had consumed at the party about “a full glass-and-a-half of straight vodka.” She said
she laid down on a mattress on the living room floor fully dressed, under blankets, and fell asleep.
She woke up at sometime after 2:00 in the morning with Mr Parr’s penis inside her vagina and she
was naked from the waist down. She said she tried to stop him but he just giggled.

[14] She said she tried to push him off with her hands on his chest and shoulders. She said it
felt like it lasted for a long time, “probably 15 minutes.” She denied having asked him to allow her
to climax first.

[15] When Mr Parr stopped, she grabbed her clothing, ran upstairs, and pushed a dresser against
the door. She said Mr Parr followed her upstairs and tried to get in saying that he wanted to
continue having sex with her.
 Page: 3

[16] The complainant was asked whether she had ever thrown up at the party and even though
she was specifically challenged with the contrary evidence of another friend, MM, said she had
not.

[17] The trial judge found the complainant a credible witness. He said “[s]he was thoughtful
and responsive to all the questions put to her. She did not answer a question until she knew what
the questioner meant. Her story was logical, consistent, and it made sense,” except for her evidence
about alcohol consumption and that she did not throw up that evening.

[18] MM, a 17-year-old friend of the complainant’s, was said by the trial judge to be the “only
sober person at [the niece’s].” The trial judge found the friend, MM, to be “an impressive
witness… credible and truthful.” She appeared to be impartial. Her evidence was straightforward
and logical, and the trial judge placed considerable weight on it.

[19] MM testified that both the complainant and Mr Parr were “already drunk when she arrived”
around 9:00 pm. She said the complainant appeared to be more drunk than Mr Parr. She heard Mr
Parr asking the complainant if she wanted to have sex and the complainant did not answer. She
testified that sometime later, Mr Parr and the complainant were on a couch together, he tried to
kiss her and she simply laughed. The friend’s, MM’s, evidence was that still later in the evening
the complainant was lying on the couch and had been vomiting onto the floor while she slept. She
said she wiped up the mess and then went upstairs with the niece, GP, to smoke marihuana. When
she came down, she found that the complainant had “puked a bit more.” She said goodbye to the
complainant but there was no response.

[20] GP, Mr Parr’s niece and the host of the party, said she did not recall the complainant having
thrown up, and agreed that “if someone had thrown up, she would remember.”

[21] After considering all of the evidence, and giving particular weight to that of the friend,
MM, the trial judge found the complainant was “so ill around 11 p.m., that she did vomit onto the
livingroom floor,” and later, when MM left the party, “the complainant was not responsive... [and]
so intoxicated...she does not remember vomiting.”

[22] On all of the evidence, the trial judge was “satisfied beyond a reasonable doubt that [the
complainant] fell asleep...alone...fully clothed,” and “she next woke up to find Mr. Parr on top of
her with his penis in her vagina.” He concluded that Mr Parr “took advantage of his sleeping
victim” and was guilty of sexual assault.

III. Decision of the trial judge on sentencing

[23] In sentencing submissions, the Crown said the appropriate sentence for the sexual assault
in this case was four years’ jail and for the two breaches of recognizance 45 days each, consecutive
to the sentence for sexual assault. That would be 1,551 days, less a credit of 649 days, leaving 902
days left to serve or approximately two and one-half years. In making that recommendation, the
 Page: 4

Crown relied primarily upon R v Akpaliakluk, 2016 NUCJ 24, and R v Ipeelie, 2015 NUCA 3,
602 AR 98.

[24] Defence counsel argued that a primary consideration would be to allow Mr Parr to serve
the remaining portion of his sentence in Nunavut so that he would not be removed “from [his]
culture and family and friends and any contact with [his] people....” The trial judge, in argument,
referenced his decision in R v Itturiligaq, 2018 NUCJ 31, paras 80 and 86, where he questioned
“why after 19 years of division, we continue to send our federal offenders out of Nunavut to the
south.”

[25] Relying upon R v Alainga, 2014 NUCJ 34, defence counsel suggested a sentencing range
of three to four years globally as “the high end of the [range] for this offence.” He said the starting
point should be three years and that sentence in this matter should be “36 months...to 44 months,”
giving Mr Parr a sentence “of less than two years going forward” and allowing him to stay in the
territory to serve his remaining sentence.

[26] The trial judge delivered oral reasons on sentencing and indicated he would provide
“detailed written reasons,” which he does not appear to have done. The trial judge identified as
important the principles of deterrence and rehabilitation, and the principle that like offenders
should be treated alike if the offences are alike.

[27] In explaining why he exceeded the recommendations of both the Crown and defence
counsel, he said:

It is clear to me that the reported case law in Nunavut does not reflect the present
day range of sentencing for this offence in these circumstances with this repeat
offender in Nunavut.

He did not cite any specific cases nor explain the difference between the reported Nunavut
decisions and the “present day range” of sentences in Nunavut. He did say “Domestic violence,
family violence, alcohol related sexual violence, is a crisis in our society.”

[28] The trial judge also said he was required to take into account the provisions of s 718.2(e)
of the Criminal Code, that the Court must pay particular attention to the circumstances of
Indigenous offenders. Finally, he repeated the comments he had made earlier during argument that
he needed to take into account that federal jail time required that the Court “continue to send
federal Inuit prisoners to the south.”

[29] The trial judge found no mitigating factors.

[30] As to aggravating factors, he said “when Mr. Parr raped his victim, he was on probation”
and had been released on bail only two days earlier. He also said that Mr Parr “assaulted a sleeping
vulnerable intoxicated victim,” he “overpowered his victim’s resistance and he continued to assault
 Page: 5

her.” He observed that the victim was a minor, and that the offence had a profound traumatic effect
upon her, particularly because she was “hassled and bullied by the people in this community who
had heard about what had happened.”

[31] Finally, repeating his concern that “in Nunavut the sentencing range for this offence has
not been reflected to date in the emerging case law,” he sentenced Mr Parr to five years’ federal
penitentiary time for the sexual assault and 60 days consecutive for each of the two breaches of
recognizance, for a total sentence of 1,945 days with 649 days’ pre-trial credit leaving remaining
1,296 days in federal prison (approximately 43.2 months).

IV. Grounds of appeal

[32] On conviction, Mr Parr says the trial judge erred in applying a more exacting standard of
scrutiny to his evidence than he did to the evidence of Crown witnesses, resulting in a miscarriage
of justice. On sentence, Mr Parr says the trial judge committed both errors of law and procedure
that impacted on the sentence he imposed.

V. Analysis

a) The conviction decision

[33] Mr Parr says that in applying a more exacting standard of scrutiny to the defence evidence
than he did to Crown evidence, the trial judge seized on meagre opportunities to reject Mr Parr’s
evidence and that if he had been equally unforgiving of the Crown’s evidence he might have found
reasonable doubt.

[34] In support of the submission, Mr Parr says the trial judge erred in accepting the evidence
of the friend, MM, over that of the complainant, himself, and the niece, GP, with respect to
interactions between the complainant and Mr Parr that evening, their alcohol consumption, and
whether the complainant had vomited. The trial judge concluded that the complainant “was so
intoxicated…she does not remember vomiting” and was too intoxicated to consent to sexual
activity. He concluded the complainant “was clearly a nine or ten out of ten” on intoxication,
despite her own estimate that she was only “five out of ten”.

[35] Additionally, Mr Parr says the friend, MM, had not informed the police in her original
statement that the complainant had vomited and she had cleaned it up, and this evidence was only
first mentioned as the complainant and MM discussed their evidence on the way to trial. The trial
judge dealt with this new evidence at trial by saying “it is not unusual for witnesses to speak to
different facts at different times” or “to recall different details in different venues at different
times.”
 Page: 6

[36] On the other hand, the trial judge was critical that Mr Parr “changed his evidence” as to
when the complainant told him to get off her, and that she had asked him to make sure she climaxed
first. The relevant questions and answers were:

Q. How did that end?

A. Not good.

Q. How?
A. Like, she started saying - - she wanted me to get off, so I got off right away.
And then put my pants on. Right after I put my pants on, she went upstairs.

I tried asking her what’s going on. She didn’t say anything. And then I told
her to leave right away, because I didn’t know what was going on between
- - in her head. I even tried to get her out of the house, but she stayed.

Q. Was anything said to you before she said, “Get off”?

A. Pardon?

Q. Did she say anything to you before she said, “Get off” when she - -
A. Yeah, she said, “Make me [climax] first. Make me [climax] first.” She said
it three times.

The trial judge appears to have overemphasized the effect of these answers when read together.
The order of the appellant’s answers was determined by the order of counsel’s questions. The
appellant did not change his testimony, although his evidence was implausible: see supra para 9.

[37] The trial judge also said Mr Parr had changed his evidence with respect to whether he and
the complainant were drunk. He had said earlier in the evening that they were both “getting drunk.
Not that drunk, but we were getting [a] bit,” and later in the evening he was “Kind of drunk. Not
that drunk, but drunk. Buzzed.” The trial judge said that was inconsistent with his admission that
Mr Parr had consumed about 26 ounces of vodka. With respect to the complainant, the trial judge
was critical of Mr Parr’s evidence later in the evening that “She was not drunk, not at all.” We do
not find fault with the trial judge’s evaluation of this evidence. It was reasonable and supportable
on the evidence to find that both the complainant and Mr Parr were quite drunk that evening and
we do not find an error in principle nor a palpable and overriding error in that conclusion.

[38] Finally, Mr Parr says he was harshly evaluated on his evidence about when he was talking
with or kissing the complainant which the trial judge said was “confusing.” Mr Parr says there was
nothing confusing about his account. He started off on one couch when they were talking. He
moved to the second couch with the complainant when they began kissing, and then they both
moved to the mattress when they started having sex.
 Page: 7

[39] The Crown replies that if the trial judge did misstate certain parts of Mr Parr’s evidence,
particularly when he said that Mr Parr did not testify that he had asked the complainant about
having sex or that she told him she wanted to have sex with him, there is no basis upon which to
suggest this was intentional or became a path to an easier rejection of Mr Parr’s version of events.
Overall, the Crown submits it was fair to say that Mr Parr’s testimony was that he was interested
in having a sexual encounter with the complainant, the complainant knew this and agreed to a
sexual encounter. The friend, MM, testified that “He said it loud and clear.” The trial judge
acknowledged that the evidence of MM was that Mr Parr had “persistently tried to convince [the
complainant] to have sex with him.”

[40] Finally, the Crown says the trial judge was entitled to accept the evidence of the friend,
MM, with respect to whether the complainant was drunk and vomiting, over the evidence of the
complainant, Mr Parr, and the niece, GP. As to consenting to sexual intercourse, the Crown says
that it was the “very heart” of the accused’s defence that the complainant was “a sober and willing
sexual partner,” and the trial judge was entitled to find that she was not because she was too drunk
to have been able to consent. The Crown says these are all assessments of credibility and reliability
made by the trial judge; he did not believe Mr Parr, did believe the complainant on these essential
matters, and those conclusions are reviewed deferentially.

[41] Overall, it appears that the trial judge may have misstated the details in some of the
evidence, particularly with respect to the interaction between the complainant and Mr Parr over
the course of the evening, and whether Mr Parr had changed his evidence as to the exchange
between them during sexual intercourse. However, we find that the trial judge was entitled to
properly arrive at his essential conclusions on credibility and reliability, and accept the evidence
of the friend, MM, whenever it conflicted with the evidence of Mr Parr, the niece, GP, or the
complainant. That is the role of a trial judge. We do not find that the trial judge’s misstatements
of some of the details amounted to palpable and overriding error or an error in principle. We give
deference to his critical conclusion on credibility and reliability, upon which this portion of his
decision squarely rests.

[42] We do not conclude that the trial judge applied different standards of scrutiny to the
evidence of Mr Parr and Crown witnesses resulting in unfairness in the way the trial judge carried
out his assessment of credibility and reliability. It cannot be said that he uncritically presumed the
Crown’s evidence to be true or that he failed to consider testimony in the context of all the
evidence: R v Gostick (1999), 121 OAC 355, paras 12-19, 137 CCC (3d) 53; R v C(J) (2000), 131
OAC 230, paras 8-13, 145 CCC (3d) 197; R v PN, 2013 NLCA 16, paras 36-48, 333 Nfld & PEIR
206; R v Rhayel, 2015 ONCA 377, paras 83, 93-107, 324 CCC (3d) 362. As this Court said in R
v Wanihadie, 2019 ABCA 402, para 43:

“[t]he fundamental rule, for purposes of appellate review, is that, if a trial judge’s
credibility assessment can be reasonably supported by the record, it cannot be
interfered with on appeal”: CAM at para 37, [R v CAM, 2017 MBCA 70, 354 CCC
 Page: 8

(3d) 100] quoted in Quartey at para 42 [R v Quartey, 2018 ABCA 12, 430 DLR
(4th) 381, aff’d 2018 SCC 59, [2018] 3 SCR 687]. Because questions of credibility
are owed great deference on appeal, the concept of “uneven scrutiny” must never
be allowed to devolve into mere disagreements about credibility.

[43] We conclude that the trial judge did not apply a more exacting standard of scrutiny to the
evidence of Mr Parr than to the evidence of Crown witnesses. He may have misstated some of the
details, but this does not mean that he misapprehended it in the overall context of the evidence
such as to amount to a palpable and overriding error or error in principle. He did make firm
decisions about credibility and reliability on which he is entitled to deference. For these reasons,
we dismiss the appeal on conviction.

b) The sentencing decision

[44] The standard of review on sentence appeals is deferential and an appellate court may not
interfere with the sentence unless it is demonstrably unfit or based on an error of principle, failure
to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor, and
such an error has an impact on the sentence imposed: R v LM, 2008 SCC 31, paras 14-15, [2008]
2 SCR 163; R v Ganesan, 2017 NUCA 7, para 5; R v Godfrey, 2018 ABCA 369, para 3, 77 Alta
LR (6th) 213; R v DPH, 2019 ABCA 448, para 18; R v Kippomee, 2019 NUCA 3, paras 24-26.

[45] The Supreme Court of Canada in R v Lacasse, 2015 SCC 64, paras 11, 43-44, 48, 49, 51-
52 and 78, [2015] 3 SCR 1089, said the mere fact that a judge deviates from the proper sentencing
range does not on its own justify appellate intervention and a sentence outside of appropriate range
may only be overturned if it is demonstrably unfit or clearly unreasonable. A sentencing judge’s
decision to weigh aggravating and mitigating factors in a particular way does not, in itself, mean
that weighing is unreasonable.

[46] With respect to the failure of the trial judge to alert counsel that he was considering
sentencing in excess of the recommendation of the Crown, Mr Parr says the trial judge “has a duty
to signal to counsel that [he] was having some difficulties with what was being proposed” and his
failure to do so resulted in inherent unfairness: R v Vegso, 2012 NWTSC 77, para 19; R v Burback,
2012 ABCA 30, paras 12-15, 68 Alta (5th) 72; and R v Williah, 2012 NWTSC 53, paras 29-36.

[47] By privileging his own “range” over any other consideration, Mr Parr says the trial judge
failed to place primary emphasis on the fundamental principle of proportionality: s 718.1 Criminal
Code; Lacasse, para 54. This is especially true where removal of a resident of Nunavut on
sentencing is “an overwhelming” Gladue consideration, as a collateral consequence: R v Suter,
2018 SCC 34, para 47-49, [2018] 2 SCR 496; R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385.

[48] The Crown concedes that the sentence imposed was high for like sentences in Nunavut,
but reminds us that even if a sentence falls outside an established category of sentencing range,
that does not mean it is manifestly unjust, even if the appellate court finds it “indeed severe”:
 Page: 9

Lacasse, paras 70 and 72. The Crown says it does not resile from the position of trial Crown, and
the recommended four-year sentence would not be a demonstrably unfit sentence, but the trial
judge made no error in principle, and the five-year, four-month sentence imposed was also not
demonstrably unfit. The Crown says the trial judge did not misunderstand the concept of
sentencing ranges, did not breach any rules of procedural fairness, delivered adequate reasons, and
did not ignore the fundamental importance of proportionality. Further, even if the trial judge made
an error in principle, it did not have an impact on the sentence he imposed.

[49] The Crown further concedes it is “recommended practice to follow in a sentencing hearing”
that the trial judge should give clear notice of an intention to sentence outside the range
recommended by counsel, but submits this recommended practice can differ depending on the
court and the circumstances of the sentencing hearing: R v Mathewsie, 2016 NUCA 5, para 45.

[50] The Crown says the trial judge did take into account the sentencing factors of denunciation,
deterrence, and rehabilitation and was also alive to the need to treat similar offenders alike. The
trial judge made his decision based upon significant aggravating circumstances: the appellant was
on probation at the time of the offence, he had been released on bail only two days before the
offence, the complainant was a sleeping, vulnerable and intoxicated victim, the appellant continued
to assault the complainant by overpowering her resistance, the complainant was a minor, and the
sexual assault had a significant impact upon her. In addition, the accused had a troubling record
including convictions for robbery, sexual interference, assaults, forcible confinement, careless use
of a firearm, uttering threats, resisting arrest, and failures to comply with court orders. In all, the
Crown says while the sentence was on the high side, it was not demonstrably unfit.

[51] The Crown finally concedes that if the trial judge relied on the breaches of recognizance
as aggravating, and therefore a contributing factor to the five-year sentence on the sexual assault
charge, those sentences can be made concurrent rather than consecutive.

[52] We conclude that the trial judge made errors in principle arriving at his overall sentence of
five years and four months and that it impacted the sentence he imposed. Despite both Crown and
defence counsel having presented briefs of law to the trial judge on ranges of sentencing in
Nunavut, the trial judge without reference to any law at all determined by himself that the cases
reported in Nunavut did “not…[reflect]…the emerging case law.” He never told the parties he was
considering “jumping” the position of the Crown, and he in fact led the parties to believe he was
sympathetic to imposing a sentence that would keep Mr Parr in Nunavut for the remainder of his
sentence. A trial judge cannot develop a sentencing range based entirely on his or her own personal
experience, without any reference to cases, outside the ranges recommended by the Crown and
defence, and after saying he was unhappy with the prospect of granting federal time “in the south.”
He did not advise counsel that he did not accept the ranges of sentence they proposed, based upon
submitted Nunavut sentencing decisions, or that he was contemplating a sentence well over the
sentence sought by the Crown. Neither counsel had time to consider that possibility and respond
to it. This practice is to be highly discouraged.
 Page: 10

[53] Additionally, by his comments about the injustice and unfairness of sending offenders from
Nunavut to serve federal time in the south, he clearly signaled to counsel that he might have been
considering fashioning a sentence involving territorial jail time with probation. That was
potentially misleading to counsel and unfair.

[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
Crown’s 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.

[55] The trial judge did not offer any case law to support his proposed range or his ultimate
sentence, appeared to dismiss all of the reported Nunavut sentencing decisions put to him by both
counsel, and perhaps was referencing his own unreported sentences as establishing an appropriate
range of sentence. This constitutes inadequate reasons for sentencing as required in s 726.2 of the
Criminal Code. A trial judge must provide reasons sufficiently intelligible, transparent and
assessable to allow meaningful appellate review: R v Sheppard, 2002 SCC 26, paras 15, 23, 28
and 35, [2002] 1 SCR 869.

[56] Finally, the trial judge did rely upon the breaches of recognizance in arriving at his sentence
on the sexual assault offence and then imposed sentence for the latter offences consecutively,
rather than concurrently to the former.

[57] Taken as a whole, these compounded errors constitute an error in principle, and we find
they did have an impact on the sentence imposed such that it was, in context, demonstrably unfit.

[58] Having found the sentence imposed by the trial judge unfit, we must now determine a fit
sentence: s 687, Criminal Code. We acknowledge the Crown’s position that four years would not
be an unfit sentence. We acknowledge that the Nunavut decisions R v LT, 2000 NUCJ 11, [2000]
NuJ No 8, 2000 CarswellNun 10, 48 months, and R v AS, 1999 NUCJ 5, [1999] NuJ No 8, 1999
CarswellNun 6, 30 months, are indicative of the range of sentences imposed in Nunavut for like
offences and in like circumstances. Both sentences were imposed after jury trials for offenders
with a prior criminal record, and involved penetration. LT involved an historical incident where
the accused forced intercourse on his 12-year-old niece three times, and the complainant was
significantly traumatized. In AS, the accused was sentenced for several offences including
abduction and forced intercourse. He showed no remorse and the complainant was clearly
traumatized. While the sentence was a total of 41 months, 30 months was allocated to the sexual
assault conviction.
 Page: 11

[59] We conclude that a fit and reasonable sentence for Mr Parr, in the context of all of the
evidence, is 48 months for the sexual assault of the complainant and 45 days each for the two
breaches of recognizance, as recommended by trial Crown and not resiled from by appellate Crown
counsel, all to be served concurrently. We do not intend for this sentence in this case to act as a
cap or establish a range for sentences of this sort. We find the maximum sentence proposed by
the trial Crown to be a fit sentence on these facts.

[60] We have reviewed the recent decision of the Supreme Court of Canada on sentencing: R v
Friesen, 2020 SCC 9. This appeal does not raise the issues on sentencing ranges discussed in
Friesen. Our decision turns on the failure of the trial judge to alert counsel that he was considering
sentencing in excess of their recommendations, his inadequate reasons respecting the case law in
support of what he said was the higher “present day range of sentencing” in Nunavut, the Crown’s
concession on appeal that its position on sentencing at trial was not unfit, and that the breaches of
recognizance should have resulted in concurrent, rather than consecutive sentences.

VI. Conclusion

[61] The conviction appeal is dismissed. The sentence appeal is allowed and the original
sentence imposed is substituted by a global sentence of four years: 48 months for the sexual assault
of the complainant and 45 days each for the two breaches of recognizance, all to be served
concurrently, less the pre-trial custody credit of 649 days.

Appeal heard on February 11, 2020

Memorandum filed at Iqaluit, Nunavut

this 9th day of April, 2020

Slatter J.A.

Feehan J.A.
 Page: 12

Antonio, J.A. (dissenting in part):

[62] I concur with the majority on the appeal from conviction. I would have allowed the appeal
from sentence with a different result and for different reasons, as explained below.

The sentencing below

[63] After the appellant was found guilty, counsel submitted written materials and made brief
sentencing submissions. The trial judge adjourned briefly, then received a victim impact statement,
heard from a community elder, and delivered oral reasons. His reasons did not include citations or
case names. He suggested that in Nunavut, sentences for sexual assaults are changing: “Judging
by the cases which the lawyers submitted to the Court this morning, it is clear to me that the
reported case law in Nunavut does not reflect the present day range of sentencing for this offence
in these circumstances with this repeat offender in Nunavut.” Later in his reasons, he said, “in
Nunavut the sentencing range for this offence has not been reflected to date in the emerging case
law.” By “case law”, the trial judge explained, he meant “written reports that tell us what other
judges have done with similar offenders in similar circumstances.”

[64] In his reasons, the trial judge focused on the circumstances of the offence and offender. He
was alive to the impact of placement in a southern penitentiary, section 718.2(e) of the Criminal
Code and the duty to impose the least restrictive sentence.

[65] He found no true mitigating factors. He identified various aggravating factors: the appellant
was on probation when the offence occurred; he had been released on bail only two days before;
he was an adult who assaulted a sleeping, vulnerable, intoxicated victim; he overcame her
resistance and continued to assault her; the victim was under 18 years old; the assault had a
profound, traumatic effect on her. The trial judge tailored his sentence to the appellant as a “repeat
offender”, in reference to his criminal record which included several convictions for violence, as
well as threats, firearms, unlawful confinement, and sexual interference. The trial judge also noted
that the victim had been hassled and bullied by some members in the community as though she
were at fault.

[66] The trial judge commented:

In the circumstances of this case, by a similar repeat offender with the aggravating
factors I have just outlined, the Nunavut sentencing range for this repeat offender
for sexual assault after trial is four to seven years in a federal penitentiary.

[67] He sentenced the appellant to five years for the sexual assault, plus 120 days consecutive
for two breaches of recognizance.

The adequacy of the reasons

 Page: 13

[68] The appellant submits the trial judge erred in constructing a range of sentence and treating
it as binding, without identifying any authorities that establish his range.

[69] The submission that the trial judge failed to cite authority is essentially a complaint about
the reasons for sentence. As stated by the Supreme Court of Canada in R v Sheppard, 2002 SCC
26 at para 28, “The mandate of the appellate court is to determine the correctness of the trial
decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose.”
Reasons are not to be judged against “some abstract standard of perfection”; they are to be assessed
with an understanding of the context in which they were given, having regard to “the time
constraints and general press of business in the criminal courts”: Sheppard at para 55.

[70] The trial judge delivered reasons orally, immediately after receiving all submissions and
materials. He was not required to repeat all that had just been said. Nor was he required to cite the
authorities he had just received. The trial judge’s reasons permit meaningful review; the omission
of citations is not, in itself, a reviewable error.

Understanding precedents and “the range”

[71] Apart from any concern about the adequacy of the reasons, the appellant submits that the
trial judge misunderstood the concept of sentencing ranges, erred in framing a range of four to
seven years, and deviated from the true range for this offence. He further submits that the trial
judge allowed his range to trump any individualized considerations, including the effect of
Criminal Code section 718.2(e) and the disproportionate effect of a penitentiary sentence on him
as a member of a northern indigenous community.

[72] The appellant’s argument regarding “the range” is essentially the same as that made on
appeal in R v Ipeelie, 2015 NUCA 3. There, the sentencing judge opined that a proper sentence for
the offence would be in the range of six to 10 years, but imposed four years in recognition of
significant mitigating factors. This court’s comments at paras 13-16 apply to the case at bar:

… [C]ounsel argued that the sentencing judge erred in concluding that the starting
point in his analysis of sentence was at the six to 10 year range. She maintained that
the proper range for sentencing for sexual assault in Nunavut is between two years
less a day and four years, set through reference to a variety of cases from the
territory. R v Mucpa (8 October 2013), Pond Inlet, Nunavut 11-13-70, (NUCJ)
[unpublished judgment] [Mucpa], is an example of a four-year sentence imposed
on receipt of a guilty plea to a charge of sexual assault after a street abduction in
circumstances similar to those here.

She argued that the sentencing judge erred through failing to consider four years as
the upper end of the range, to which the mitigating effects of the guilty plea and
rehabilitation prospects should then have been applied to reduce the sentence to two
 Page: 14

years less a day, with the result that Mr. Ipeelie would serve this sentence within
Nunavut rather than in a southern penitentiary.

The flaw in this argument is that it treats four years as the maximum sentence which
could be imposed, whereas Parliament has imposed an upper limit of 10-years’
imprisonment for sexual assault in s 271(a) of the Criminal Code. The four-year
sentence imposed in Mucpa was not determined because it was the upper limit of
any fit sentence, but was the end result of applying both the aggravating and
mitigating factors existing in that case. And here, the sentencing judge must also
have applied both the aggravating and mitigating factors to the sentencing range he
articulated of six to 10 years, given that his ultimate conclusion was that a four year
sentence was fit.

Finally, even if a proper sentencing range can be established through reference to

reported cases, Mr. Ipeelie’s four-year sentence obviously falls within this range.
We otherwise reject the suggestion that a sentence of more than four-years’
imprisonment is presumptively unfit.

[73] The question on this appeal is not what the range is or whether the trial judge departed
from it. “Sentencing ranges are nothing more than summaries of the minimum and maximum
sentences imposed in the past”: R v Lacasse, 2015 SCC 64 at para 57. They do not establish
minimum or maximum sentences to be applied in future cases. Each sentence must be
proportionate to the gravity of the offence and the blameworthiness of the offender, taking into
account all aggravating and mitigating circumstances. Deviation from the range is not in itself a
reviewable error unless it is significant and unjustifiable; appellate intervention is possible only if
the sentence is demonstrably unfit: Lacasse at paras 51, 67.

[74] On appeal, appellant’s counsel provided a chart of 28 reported cases, dating from 1999 to
2017, on sentencing for sexual offences in Nunavut other than cases of extremely low and high
gravity and youth court cases. Appellant’s counsel asserted a range of two to four years for
offences of this kind, meaning sexual violence without more extreme features such as injury or
multiple victims, committed by offenders with or without related records, with or without a guilty
plea. She submitted that “There are two reported decisions involving an offender with a prior
related record convicted after trial of sexual assault involving penetration of a single victim”; they
resulted in sentences of 48 months [R v T(L), 2000 NUCJ 11] and 30 months [R v S(A), 1999
NUCJ 5]. Therefore, she submitted, the 36- to 48-month range proposed by the parties was
squarely within the range, and the range asserted by the trial judge had no basis in the reported
case law.

[75] While sentencing precedents can be useful as checks on parity, care must be taken in using
them: R v Arcand, 2010 ABCA 363 at para 121. For instance, where sentences for multiple
offences have been adjusted for totality, it can be difficult to discern what a stand-alone sentence
would have been: examples among the submitted precedents include R v S(A); R v B(A), 2013
 Page: 15

NUCJ 15. Where the sentencing court was constrained by the positions of the parties, the result is
not truly adjudicated and is of reduced precedential value: examples among the submitted
precedents include R v Caza, 2000 NUCA 9; R v Keenainak, 2011 NUCA 5; R v Pudlat, 2005
NUCA 3; R v N(J), 2005 NUCA 1.

[76] In short, there are dangers in “finding a case that seems alike and working from it”: R v
Gibson, 2015 ABCA 41 at para 15, citing Arcand. Similarly, there are dangers in constructing a
range “by isolating one or two oversimplified factors”: R v Nickel, 2012 ABCA 158 at para 30.
“[T]he value of a range is directly linked to the degree to which the required sentencing rigour has
been applied to defining the range and to the reasoning in the cases making up the range”: Arcand
at para 121, also para 123.

[77] Ranges reflect past sentences. Sentences depend on circumstances of the offence and the
offender, and can be heavily influenced by factors other than the offence itself. Even if two
offences were identical, the sentences imposed should not be identical if, for example, significant
mitigating factors were present in once case but absent in the other. Parity is one of the aims of
sentencing, but parity is reached only when all aggravating and mitigating circumstances are
accounted for and sentences are adjusted as necessary: R v Felix, 2019 ABCA 458 at para 67; R v
Gosselin, 2009 NWTSC 13 at para 40.

[78] One of the most significant mitigating influences is a guilty plea, which can indicate an
offender’s remorse, spare victims and witnesses the stress of a trial, and facilitate the restorative
aims of justice. In R v B(A), 2011 NUCJ 15, the court recognized the particular significance of
guilty pleas in northern communities. As explained at paras 23, 25:

Nunavut has a small population. Even our largest communities are small. When an
offender is released from jail they most often return to their home community – the
place where the offence occurred. Unlike big cities in the South, anonymity is not
an option. Cultural ties, family bonds, and personal circumstances make moving to
the South an unrealistic option for many. There is a tremendous shortage of housing
so when offences are perpetrated by one family member on another, and the two of
them share a home, the offender and the victim frequently continue to reside in the
same home upon the offender's release from jail.

Restoring harmony in the community … is of the upmost importance and the court
must do what it can to facilitate that process. A guilty plea, as it is an
acknowledgement of wrongdoing and an acceptance of responsibility, is a first step
in that process.

Of course, sentencing is not an arithmetic process, but some courts have observed that a guilty plea
can reduce a sentence by as much as one third: R v Tkachuk, 2017 NWTTC 18 at para 10; R v
Payne, 2005 NWTSC 42 at para 24.
 Page: 16

[79] The majority of the cases relied on by the appellant for range of two to four years involved
guilty pleas. For example, in Ipeelie, the intoxicated offender forced the complainant, whom he
did not know, behind a house, pushed her down and had unprotected, non-consensual intercourse.
He was subject to two probation orders at the time of the offence, had a predilection for crime and
violence when drinking, and continued to drink. The offender pleaded guilty and took steps toward
rehabilitation while on bail. He was sentenced to four years.

[80] In R v Sherrard, 2012 NUCJ 4, the offender forced intercourse on a 20-year-old victim
while she was unconscious from drinking too much during a party at his residence. Two other
guests saw him force his hand inside her vagina and anus with sufficient force to cause significant
injury. The next morning, the offender went to the police station to get help for the victim,
confessed and fully co-operated with authorities. He entered a prompt guilty plea. After accounting
for pre-sentence custody, the sentence was four and a half years.

[81] In R v T(J), 2000 NUCJ 2, the offender sexually assaulted a sleeping family member in her
home. He had a significant related record. He pleaded guilty at the first opportunity and expressed
remorse. He was sentenced to 40 months.

[82] In each of these cases, the offenders pleaded guilty and were found to be remorseful or to
have taken significant rehabilitative steps. These cases can be seen as supporting sentences above
four years for cases of similar gravity but in the absence of these factors.

[83] Of course, comparison to other precedents could point to a lower sentence. For example,
in R v Akpaliakluk, 2016 NUCJ 24, the offender pleaded guilty to sexually assaulting the sleeping
complainant and was sentenced to two years less a day. In R v Newkingnak, 2015 NUCJ 22, the
offender pleaded guilty to sexually assaulting two 10-year-old girls and was sentenced to three
years, decreased from an otherwise-fit four years for totality. In R v A(J), 2009 NUCJ 3, the
offender, while serving a sentence at a halfway house for violence against the same victim, forced
oral and vaginal intercourse on his former spouse while she was visiting their child in the hospital;
he did not plead guilty and was sentenced to four years for the sexual assault with some consecutive
time for breaches.

[84] I reiterate that the issue on appeal is not whether a different sentence might have been fit,
nor whether the sentence imposed is in parity with all available precedents. The issue is whether
the sentence imposed was unfit, in the sense that it was not proportionate to the gravity of the
offence and the degree of responsibility of the offender: Criminal Code section 718.1. It is clear
from his exchanges with counsel that the trial judge understood the need to adjust the effect of
precedents to account for different circumstances.

Fitness of sentence

[85] “All forms of sexual violence … are morally blameworthy precisely because they involve
the wrongful exploitation of the victim by the offender — the offender is treating the victim as an
 Page: 17

object and disregarding the victim’s human dignity”: R v Friesen, 2020 SCC 9, at para 89. Forced
sexual intercourse is an inherently violent act that “constitutes a serious violation of a person's
body and an equally serious violation of their sexual autonomy and freedom of choice”: Arcand at
paras 174-175. Sexual assaults harm society, too, since “[h]arm to one member of the community
affects the rights and security of others. This is particularly striking in cases involving violence
against women:” Arcand at para 179.

[86] As the trial judge recognized, this offence was aggravated in a number of ways. The
appellant has a related criminal record and was on probation when the offence occurred. The victim
was under 18 years old and was profoundly traumatized, both of which are statutory aggravating
factors: Criminal Code section 718.2(a)(ii.1) and (iii.1). The former requires that primary
consideration be given to denunciation and deterrence: section 718.01. The appellant commenced
his assault on a sleeping or unconscious victim, and persisted after she awoke and as she tried to
fight him off.

[87] In Arcand at paras 283 and 284, the Alberta Court of Appeal expressed the “unequivocal”
need to “send a strong message” that sexually assaulting a sleeping or unconscious person must be
condemned:

Sexually assaulting an unconscious victim elevates an offender’s degree of

responsibility for the crime beyond the norm contemplated by the three year starting
point. An offender who sexually assaults a person who is asleep or passed out is
treating that person as if the person were an object to be used – and abused – at will.
Since the offender knows full well that the person is not consenting, this reveals an
enhanced degree of calculation and deliberateness by the offender. Further, at that
point, the person is at their most vulnerable, unable to defend themselves in any
way and unable to call for help from others. The offender knows this too, adding
further to the high level of moral blameworthiness for the illegal conduct. …

… [W]e are also bound to say that there is considerable experience of the judges of
this Court in Alberta, the Northwest Territories and Nunavut with offences similar
to this one. The victim, after partying with friends, awakens in her home to find
herself being violated by a “guest” who has taken advantage of the victim’s deep
sleep or unconsciousness to sexually assault her. Hence the need for this Court to
unequivocally condemn this behaviour and send a strong message that sexually
assaulting someone in these circumstances constitutes an aggravating factor in
sentencing.

There is also considerable judicial experience with offences of this kind occurring outside the
victim’s own home: e.g., R v Dippel, 2011 ABCA 129; R v Osvath (1996), 87 OAC 274 (CA); R
v Lennie, 2013 NWTCA 7; R v Alainga, 2014 NUCJ 34; R v Gargan, 2018 NWTSC 70; R v
Kakfwi, 2018 NWTSC 62; R v Dick, 2018 NWTSC 15; R v Milosevic, 2019 ABQB 199; R v
Krueger, 2017 ABQB 459.
 Page: 18

[88] The trial judge explained that denunciation is an important principle of sentencing for
sexual assault. He said deterrence was necessary for the appellant, as a repeat offender, and for the
community at large:

… too much of this is going on in Nunavut. Too many people in our homes and in
our communities are being hurt. … Judges have no magic wands, but at least we
can stand up and speak for the community and say “Stop”. And if you do this and
if you are convicted, serious consequences will follow.

[89] It was open to the trial judge to include “the needs and current conditions of the
community” in his balancing of sentencing factors: R v M(CA), [1996] 1 SCR 500 at para 91.
Though the Criminal Code applies everywhere in the country, and caution should be taken in
creating idiosyncratic local ranges, the needs or characteristics of a given region may validly
explain certain apparent disparities in sentences: Lacasse at para 89, Nickel at para 30. Local judges
are “aware of the frequency of various offences in their communities, and for that reason in
particular, they are in the best position to determine what weight to attach to this and [translation]
‘to properly assess the particular combination of sentencing objectives that is just and appropriate
for the protection of [the] community’”: Lacasse at para 102, citing R v Pelletier, 2008 QCCA
1616 at para 3; R v Friesen, 2020 SCC 9 at para 25.

[90] In the trial judge’s view, “Domestic violence, family violence, alcohol related sexual
violence is a crisis in our society. So judges of the Nunavut Court of Justice had to condemn this
violence.” The trial judge’s observation is not a new one.

[91] In R v Newkingnak, the Nunavut Court of Justice observed at para 55:

Nunavut leads the country in the per capita rate of commission of sexual offences.
This is also true of sexual offences committed by adults on children. This type of
crime remains a persistent and pressing problem in all of Nunavut's communities.

Included were graphs showing the “alarming incidence” of sexual violence generally and sexual
violence against children in Nunavut from 2009 to 2013, with sexual offences occurring at a much
greater per capita rate in comparison to Canada as a whole. The court concluded at para 56:

The high incidence of sexual offences generally and crimes against children in
particular requires a firm response by a sentencing court in Nunavut. The need to
emphasize general deterrence through an exemplary sentence is enhanced under
these circumstances.

[92] Similarly in R v P(O), 2012 NUCJ 23 at para 20, the trial judge remarked that “[t]he
Nunavut Territory has one of the highest per capita rates of sexual offences in Canada” and
included a graph showing the per capita rates for sexual assault in 2010 which depicted almost 600
in Nunavut compared to 100 or fewer in the southern provinces. He stated at para 28:
 Page: 19

Deterrence, denunciation, and protection of the public must be the Court’s foremost
considerations on the sentence to be imposed on this offender for these offences.
Without the mitigating effect of the guilty pleas, the sentence today would have
been longer. Rehabilitation is not unimportant, but the seriousness, number, and
circumstances of these offences demand that rehabilitation now take a back seat to
other sentencing considerations.

[93] In R v LP, 2011 NUCJ 8, the court stated at paras 13-15:

Sexual offences involving sleeping victims are unfortunately a common occurrence

in Nunavut and particularly in the community of Iqaluit. These offences tend to be
alcohol related. Alcohol is readily available in the community of Iqaluit. The
therapeutic intervention necessary to properly address the harm caused by sexual
offences is not readily available in Nunavut.

In July 2009, Statistics Canada published a report entitled “Police Reported Crime
Statistics in Canada.” For the year 2008, Canada as a whole averaged 64.5 reported
sexual assaults per 100,000 citizens. Nunavut reported a rate of 667.8 sexual
assaults per 100,000 citizens. This is approximately ten times the national average.
The sad reality is that both children and youth are also victims of violent crime at
much higher rates in Nunavut than in the rest of Canada.

The Court must firmly address the sexual abuse of the young through a
denunciatory sentence.

[94] I defer to the trial judge’s sense of the frequency of sexual violence in Nunavut, particularly
as it finds support in the existing authorities. His appreciation of need to denounce and deter is to
be respected. It is also illustrated by the facts: the offence was committed in a living room during
a party, yet the appellant was not deterred by the possibility that others might see him.

[95] There were no true mitigating factors. The appellant did not express remorse, either directly
or through a guilty plea. As noted, the sentencing judge was aware of the appellant’s indigeneity
and his own obligations under Criminal Code section 718.2(e).

[96] With one exception that I will explain below, I conclude that the sentence imposed is fit,
having regard to existing precedents, significant aggravation, no meaningful mitigation, and the
needs of the community.

[97] The trial judge’s comment that “the Nunavut sentencing range for this repeat offender for
sexual assault after trial is four to seven years” is not binding and is not under appeal. This court
need not resolve whether the comment was meant to be expositive or aspirational, based on his
reference to ongoing developments in the range of sentence for sexual assault. As individual
sentences are crafted to respond in part to a community’s needs, ranges may evolve, as has recently
 Page: 20

been the case with sentences for impaired driving causing death: R v Junkert, 2010 ONCA 549 at
paras 46-47; R v York, 2015 ABCA 129 at para 13.

[98] The above conclusions are supported by the Supreme Court’s unanimous judgment in R v
Friesen, 2020 SCC 9, issued after the appeal was argued but before these reasons were released.
There, the Court considered the proper approach to sentencing ranges, particularly for sexual
offences committed against children. Much of its reasoning is germane here, given the victim’s
age, the heightened vulnerability she experienced as a result of being unconscious, the effect on
her of this offence being committed in a house occupied by her friends and peers, and the blame
she experienced in the community.

[99] The Supreme Court observed that girls and young women are disproportionately the
victims of sexual offences, triggering a need to ensure equality and equal protection of the law: at
paras 54, 68. A proper, contemporary understanding of the harm caused to victims of sexual
violence is critical to understanding the gravity of the offence: at para 50. The focus should be on
wrongful interference with sexual integrity, including the traumatization of violation of trust,
humiliation, objectification, exploitation, shame and loss of self-esteem: at para 55. Victims can
be further traumatized by rejection and blame from others around them: at paras 60-61. Sentences
must recognize and reflect the harm and the wrongfulness of sexual violence, and courts should
“weigh these harms in a manner that reflects society’s deepening and evolving understanding of
their severity”: at para 74. Thus, as stated at para 108,

Courts can and sometimes need to depart from prior precedents and sentencing ranges in
order to impose a proportionate sentence. Sentencing ranges are not “straitjackets” but are
instead “historical portraits” (Lacasse, at para 57). Accordingly, as this Court recognized
in Lacasse, sentences can and should depart from prior sentencing ranges when Parliament
raises the maximum sentence for an offence and when society’s understanding of the
severity of the harm arising from that offence increases (paras 62-64 and 74).

The Supreme Court stressed the need to use caution in applying precedents, dated or otherwise,
that were based on a less developed understanding of the harm caused by an offence: at para 110.
It discouraged the view that ranges based on past precedents establish an effective maximum,
potentially to be exceeded only in rare or special circumstances: at paras 111-112.

Error regarding the breaches of recognizance

[100] The appellant admitted to and was sentenced for two counts of breaching a recognizance:
one for consuming alcohol and one for failing to keep the peace and be of good behaviour. The
trial judge imposed consecutive sentences for the breach counts, but also treated the breaches as
aggravating the section 271 sentence.

[101] This treatment of the breaches violates section 725 of the Criminal Code, which essentially
provides that when imposing sentence for an offence, the court may consider other criminal
 Page: 21

conduct as an aggravating offence, or may enter convictions for that conduct and impose sentence,
but not both.

[102] Here, given that they were separate convictions, it was not open to the trial judge to treat
the breaches as aggravating on the section 271 sentence. Of course, the trial judge did not quantify
the effect on sentence, but his reasons indicate he found it significant.

Jumping the parties’ positions without notice

[103] The appellant submits the trial judge committed a procedural error in not advising counsel
that he was considering imposing a sentence more severe than that sought by the Crown.

[104] When a sentencing judge contemplates a sentence outside the positions taken by counsel,
the judge must inform the parties of his or her intention and give them an opportunity to respond:
R v Mathewsie, 2016 NUCJ 5 at para 55; see also, R v Hood, 2011 ABCA 169 at para 15; R v Beal,
2011 ABCA 35 at paras 15, 18; R v Abel, 2011 NWTCA 4 at para 23; R v Hagen, 2011 ONCA
749 at para 5; R v Beardy, 2014 MBCA 23 at para 5.

[105] However, despite being an error in principle, the failure to give notice does not
automatically ground an appellate remedy and the sentence imposed is not automatically unfit: R
v Keough, 2012 ABCA 14 at para 20; also, R v Burback, 2012 ABCA 30 at para 15.

[106] The risk in not hearing further submissions from counsel is that the trial judge will overlook
something because there was no opportunity for counsel to identify relevant considerations or to
address the judge’s concerns. The risk is likely reduced when counsel take different positions, and
further reduced post-trial, when it is unlikely that there were any invisible motivators for positions
taken, such as weaknesses in the Crown’s case. In any event, these risks can be cured on appeal
if all submissions have been made and the court has the factual foundations to impose an
appropriate sentence: R v GWC, 2000 ABCA 333 at paras 26, 28. As stated in Burback at para 15:

Any procedural unfairness arising from a failure to give notice can be cured on
appeal by giving the parties the opportunity to make the full argument they were
denied in the court below. This will not result, automatically, in a change of
sentence, but there may be times where, as a result of the argument, variation will
be required.

[107] The parties in this case were given the opportunity to make full argument. This court,
therefore, is in a position to conduct an analysis for the fitness of the sentence as outlined in
Lacasse: if the error in principle did not render the sentence unfit, this court may not intervene.

[108] The procedure followed by the trial judge was flawed, and these reasons ought not to be
taken as encouraging any repetition. However, for the reasons given above, the procedural error
did not result in an unfit sentence. Therefore, the standard for appellate intervention is not met.
 Page: 22

Result

[109] I would have allowed the sentence appeal only to the extent of reducing the sexual assault
sentence by four months to account for the error in using the breaches in aggravation. I would have
imposed a sentence of 4 years and 8 months, from which pre-sentence custody would have been
deducted according to the trial judge’s calculation.

Appeal heard on February 11, 2020

Memorandum filed at Iqaluit, Nunavut

this 9th day of April, 2020

Authorized to sign for: Antonio J.A.

 Page: 23

Appearances:

J Marshall
for the Respondent

E Tache-Green
for the Appellant