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SENTENCING - Criminal Code offences - Sexual assault - Particular sanctions

Thursday, August 26, 2021 @ 5:45 AM  


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Appeal by the accused from a sentence of 30 months’ imprisonment for sexual assault. The complainant and appellant consumed alcohol together. The complainant fell asleep. She awoke to find the accused having intercourse with her. The appellant argued the sentencing judge erred by failing to consider the collateral consequences caused by COVID-19, by misapplying the Gladue factors, in determining that a purpose of sentencing was to repair the perception that the court minimized sexual violence, and by not properly considering relevant case law necessary to address parity.

HELD: Appeal dismissed. It was within the sentencing judge’s discretion to consider the current pandemic as part of the sentencing process. While the judge erred in considering that he was unable to do so, that error did not have an impact on sentence. The sentence ultimately imposed by the sentencing judge was one he viewed as being lenient and below the range of acceptable sentences. The sentencing judge was aware of the appellant’s circumstances from a Pre-Sentence Report and having heard from defence counsel about his upbringing, family history, education and employment history, and current relationship. The sentencing judge was aware of the challenges that the appellant faced, including his criminal history, history of substance abuse, and intimate partner violence. The sentencing judge did not err by seeking to emphasize the nature, severity, and impact of sexual violence on women in Nunavut. The prevalence of sexual violence against women in Nunavut was known for many years, and trial judges were in the best position to assess and observe the magnitude of the problem in their jurisdiction. It was open to him to consider whether the sentence would appropriately communicate the courts’ view of the gravity of sexual violence. The precedents provided by defence counsel at the sentencing hearing were either distinguishable on the facts or dated precedent. Sentence: 30 months’ imprisonment.

R. v. Kolola, [2021] Nu.J. No. 36, Nunavut Court of Appeal, S.H. Smallwood, J. Antonio and K. Feehan JJ.A., July 26, 2021. Digest No. TLD-August232021008