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ONTARIO COURT OF JUSTICE

BETWEEN:
HER MAJESTY THE QUEEN
AND
MUSTAFA URURYAR

Before Justice MA. Zuker


Reasons on Sentence released on September 14, 2016
Ms. J. Loift
Ms. E. Bristow

counsel for the Crown


counsel for Mustafa Ururyar

ZUKER J.:
THE CRIME (See Reasons for Judgment dated July 21, 2016)
Mandi Gray has been a student at York University, a graduate student.
[1]
She began her masters degree in the Fall of 2013 and then in the Fall 2014
started her PhD. She was teaching in the Department of Social Science, a
Criminology class, but is a graduate student in sociology. She first knew the
accused or first met him in mid-January, on or about January 16, 2015. Mr.
Ururyar was also a graduate student from a different department, but also a first
year PhD student. His area was the Department of Political Science, also at York
University.
Some friends, also from York University, were going out to Victory Caf
[2]
and so she decided to meet up with them there. It is a small bar/caf near
Bathurst and Bloor in Toronto. There was some people from CUPE. They had
won the strike vote that day that would allow them to go on to strike. It was kind
of a mixture between a union get-together but also people just from class
socializing. She went to the Victory Caf and had a couple drinks with her
colleagues. And then she texted and asked Mr. Ururyar if he wanted to come

2
out. She did not provide those texts, but she knew she asked him to come out.
He was sick but eventually, he did show up at the Victory Caf, along with
everybody else that was there, probably 10 15 people. The meeting time was
probably around 8:00 or 8:30 p.m. A lot of mutual friends were present at Victory
that evening.
-

They left and were going to get something to eat but nothing was open.
[3]
They continued walking up to Bathurst and Bloor, outside of Honest Eds. Mr.
Ururyar kept asking Lacey to come home with them. He kept pushing her to
keep drinking. He was adamant that she come back and drink. This was
strange because he wasnt drinking all night, he was sick, he wasnt feeling well.
She thought she must have done something terrible. She was conflicted
[4]
and confused. There wasnt a lot of dialogue. It was mostly him talking to her.
She was confused and mostly quiet. She does not believe she challenged any of
it. He kept going. It just kept getting harsher both in terms of his tone of voice but
also the things he was saying about her. They didnt have a conversation about
it, yet it was like an expectation that wasnt being communicated, with her or
Lacey. No conversation. She didnt talk to him the entire night, so she wasnt
sure where this person who was needy was coming from and it was all very
confusing to her.
I go inwards, right and I dont
Im a person that once
express when Im feeling hurt or sad or angry. Im more of an
introvert in that way, so I just internalized it all and I just took it.
I dont remember responding.

It was just like, oh, youre just like all the other women, in
reference to another. particular women (sic) that he had a
sexual relationship with. Youre just a slut, youre just like, all
these derogatory terms.

At Mr. Ururyars residence, you go up a set of stairs, a house converted


[5]
into an apartment building. You walk up the stairs and then theres a kitchen, a
washroom and the bedrooms. She assumed it was three bedrooms. She did not
recall seeing or talking to anybody else when she was there, the early morning
hours of January 31, 2015.
A. From what I remember, I ended up in his room. I was
sitting on his bed and again, that verbal aggression began to
escalate. I remember feeling really scared because this is
somebody that I had never seen. I had never seen that kind of
anger. I hadnt it was like, I thought I must, I must have done
and I began
something like really badly to deserve this
getting scared. I dont know like, if it like, I just felt like a very

3
real threat of potential physical violence in that moment and I
remember being scared and I remember just completely like,
just sitting there and taking it because I was like, I just hated
myself so much in that moment. Like, he had destroyed any
self-esteem I had, I was like, I dont care, I just want to die right
now because this hurts so bad.
I thought that was a friend or like a decent human would say
all these horrible things about me and they must be true and I, I
he just continued and he
just, I hated myself, so I just
continued the verbal aggression and that, yeah.
-

I remember the last thing he said to me was this is the last


time Im ever going to fuck you and youre going to like it and
And
that has stuck with me every day for the last year.
thats the last verbal conversation that I remember between the
two of us.
[6]

They went right to his room. His aggression continued.


I dont think I could even describe it if I wanted to of (sic) terms
of like how his entire physical body just changed and his tone
of voice, It was like a person I didnt even recognize, like I
he wasnt that
he wasnt the person that I knew. He wasnt
person. It was like, it was like someone I had never met before
and it was just totally confusing to me because I just didnt
know what to make of any of it.

But no, it was just yeah, it was just a continuation of what was
happening on our walk, in terms of youre a drunk slut, I dont
like you, I dont want anything to do with you, youre needy.
Yeah, my girlfriends going to find out, you are
yeah, just
continuing the same few lines about me.

Q. Okay. And then what happened?


A. Okay, so then he said what I had said earlier. And the next
thing I remember is, okay, I was sitting on the corner edge of
his bed and he was standing up looking down on me when he
was talking down to me, like literally talking down to me. And I
dont remember him taking off his clothes or how that
happened, I was not an active participant in that. He grabbed
me by the back of the head and pushed his penis into my
mouth.
Q. Okay. And what

and then what?

4--A. It just continued and you know at that moment, Im like first
of all, I hate myself. I just, Im intoxicated, I have no ability to
fight back and I, like I said, that threat of physical violence was
very present and I was like, I would rather take this than the
risk of physical violence because I dont know what this person
is capable of.
And I know if I comply with this, I know how this is going to go
or I thought I knew how it would go. It was just like, I just like, I
just stopped caring and I just let it go the way whatever, I was
just, I just didnt care anymore.

Q. Did you consent to that?


A. No.
Q. So, you said he grabbed you by the back of the head?
like he pushed and like the
A Yeah, and he pushed my
back and like, then he just like pushed his, himself into my
mouth and I was like whatever, Ill just, Ill just comply because I
dont know what the repercussions of me saying no will be.

Q. Okay. And then did he ejaculate?


A. Atthattime,no.
Q. Okay, so what happened next?
A. I dont know when that ended or how long that lasted for. I
kind of checked out of my physical being. I just, I just went with
the motions just to get it over with quick as possible. And then
I, I dont know, I think he pushed me onto the bed. Im pretty
and then he
sure that must have happened because I
started having sex with me and I just laid there.

Right before he grabbed my head. Thats what he said to me


and I remember like him saying that and I was like: Like, were
having sex now. Like, what this isnt how you have sex with
somebody, but I was so scared, I was like, yeah, I didnt know
what else to do, so I just went along with it.

I guess it stopped whenever he was ready to finish. 1 dont


know how long it lasted. Like I said, I kind of just completely
checked out of my physical being, just cause I just, I couldnt
be present in that.

,1

5I just like was in the fetal position, like crying so much. And
like, I dont cry often, like I dont cry very often so when I cry
like, you know you did something really bad.
And he just like totally blew it off and just like went to sleep, no
big deal. Like, it was yeah. And I

Q. Do you remember whether he said anything to you?


A. I think he told me to like be quiet, or something along those
lines. And I just passed out, I was just so exhausted and tired
and like, I just like like I said, I just like wanted to die in that
moment. I just didnt want to live like that. I didnt want to feel
that way and I just didnt care about myself anymore and I just
passed out.
-

Q What is the next thing you remember?


A. Oh, I woke up because I could feel him masturbating next
to me and I was so mad. I was so mad because he knew I
went to bed crying last night, the night before, sorry. He knew I
went to bed crying the night before and I was just so confused,
like what about this situation is like good for you. And he
noticed that I was awake and he went and again, put his hand
on the back of my head and tried to like push my head back
onto his penis. But I was feeling a little bit, I was much more
sober at that point, I had slept for a few, for a bit and I just said:
No, like Im not doing this.
The rape, the sleep, and the waking up. Enough was not enough for Mr.
[7]
Ururyar. Ms. Gray sees him masturbating, his wanting sex again. This time,
sober, less tired, Ms. Gray left his apartment. Not again. To quote Ms. Gray jsee
page 8 of her statement):
said no, Im not doing this again. And urn 1,1, I got up and I put
on my clothes, and he like didnt say anything to me, urn, and I
didnt say anything to him, and I, I just I left his apartment.
And like I was talking to the officer that came to my, my
apartment and I looked through my text messages because I
texted my friend as soon as I left, who was waiting here, and I
texted her at 9:45 in the morning. So I think that was like as
soon as I got on the street car, so I left around like 9:40 uh, in
the morning form his place and went home, so yeah.

Uh, in the morning, I remember I woke up because like 1,1, I


could feel him like masturbating and Im like, like fuck, like I

6
dont like I didnt know like why he would do that. I didnt
know like I didnt have a good time, like I didnt enjoy that. I, I
went to sleep crying, like why. And then he noticed that I was
awake, and then he looked at me, and then he took my hand
and pushed me unto the penis and I just and thats when I
said no, Im not doing this. Urn, I felt like I had like when I was
really drunk like before, I felt like I had no control over my body.
Like I just like felt like, like I would just like I couldnt urn
dont even know the right word is. Like I just I felt like I had
no power like to move. Like I could just lie there and thats all I
could do within that moment. And Im like no, Im sober, I can
get up and I can leave now because .1 its daylight, I can go
home. So I just said now Im, Im leave Im ready to leave
there. I was leaving and I talk 0 I didnt say anything to him.
He didnt say anything to me, which like I dont I dont know. I
and just got up and I left and I, I took the TTC home.
(Pages 17 & 18, Statement of Mandi Gray, February 2, 2015)

There is a context for Ms. Grays behaviour. The myths of rape should be
[8]
dispelled once and for all. We cannot perpetuate the belief that niceness cannot
coexist with violence, evil or deviance, and consequently the nice guy must not
be guilty of the alleged offense. Nice people supposedly dont rape. This is not
societys image. The accused knew Ms. Gray. And if you dont remember and
when you know you dont remember, he, Mr. Ururyar, is going to get to write the
script. Ms. Gray did remember. Everything, of course not. What happened to
her, yes.
The Crown has proven its case beyond a reasonable doubt. See R. v.
[9]
Ururyar, 2016 ONCJ 448 (CanLIl).
From the above excerpts from written reasons dated July 21, 2016, the
[10]
rape occurred in the offenders home, in the offenders bedroom. There was
violence and vulnerability. There was degradation and humiliation. This was the
offending behaviour, in summary.
[11]
This was a rape committed in a place where Mandi Gray would expect to
be safe in the offenders home. In cases of rape there is little room in the
sentencing process for mercy. Rapes and sex assaults are pitiless wicked
crimes.

7
PART ITHE LAW

The determination of a just and appropriate sentence is a highly


[12]
individualized exercise that goes beyond a purely mathematical calculation. A
judge can order a sentence outside any established range as long as it is in
accordance with the principles and objectives of sentencing. Conversely, the
mere fact that a sentence falls within the range applicable to a certain type of
crime does not necessarily make it fit. See R. v. Lacasse, 2015 S.C.C. 64.
The sentence for a crime should be proportionate in its severity to the
[13]
seriousness of the crime committed, which may be measured by the gravity of
the offence and the offenders degree of responsibility. Sentencing is part of a
fact finding, decision making process of our criminal law. See R. v. Gardiner,
[1 982] 2 S.C.R. 368, at p. 413.

[14]
The Supreme Court has affirmed the legitimacy, if not utility of a starting
point sentencing for consistency of reasoning and approach. See R. v.
McDonnell, [1997] 1 S.C.R. 948 at para. 61 and R. v. Stone, [1999] 2 S.C.R. 290.
Provided that the impugned conduct relates to the individual offender and
[15]
the circumstances of his or her offence, the sentencing process includes
consideration of societys collective interest in ensuring that law enforcement
agents respect the rule of law and the shared values of our society. Justice
Lebel. See R. v. Nasogaluak, 2010 S.C.C. 6, at para. 49.
[16]
[T]he collateral consequences of a sentence are any consequences as to
the impact of the sentence on the particular offender. See Angelilo, below, at
para. 18.
They may be taken into account in sentencing as personal
circumstances of the offender.
However, they are not, strictly speaking,
aggravating or mitigating factors, since such factors are by definition related only
to the gravity of the offence or to the degree of responsibility of the offender
Their relevance flows from the application of the principles of individualization
and parity. Justice Wagner, R. v. Pham, 2013 S.C.C. 15 at para. 11.
[17]
It is no surprise, in view of the constraints on sentencing that imposing a
proportionate sentence is a highly individualized exercise, tailored to the gravity
of the offence, the blameworthiness of the offender, and the harm caused by the
crime
Chief Justice McLachlin in R. V. Nur, 2015 S.C.C. 15.
...

[18]
Sentencing again, to be repeated, is part of a fact finding, decisionmaking process of the criminal law. See R. v. Gardiner, [1982] 2 S.C.R. 368 at
p. 413. It is an individualized process. See R. v. Angelillo, [2006] 2 S.C.R. 728,
atpara. 18.
Judges enjoy a broad discretion to craft a sentence tailored to the nature
[19]
of the offence and the circumstances of the offender. See R. v. Nasogaluak,

8
supra, [2010] 1 S.C.R. 206, at para. 43 and R. v. Wust, [2000] 1 S.C.R. 455, at
para 44.
Every offender [has] his or her own unique history. See R. v. McDonnell,
[20]
supra [1997] 1 S.C.R. 948, at para. 61 and accordingly:
the objectives of sentencing cannot be fully achieved unless
the information needed to assess the circumstances, character
and reputation of the accused is before the court. See
Angelillo, supra, at para. 22.
The importance of proportionality as a guiding principle for just and
[21]
appropriate sentencing has both a long history and a constitutional dimension
reflected in section 12 of the Charter. The principle of proportionality has two
functions. First, it has a limiting or restraining dimension that the offender is
punished no more than is necessary. Second, it has a balancing dimension that
is concerned with judicial and social censure. Attentiveness to proportionality
means that judges will craft sentences that adequately reflect and condemn
offenders role in the offence and the harm they caused. See R. v. Nasogaluak,
supra, [2010] S.C.J. No. 6, [2010] 1 S.C.R. 266 (S.C.C.) at para. 42.
Sentencing is, at its heart, an individualized process. The question is
[22]
always what is fit and appropriate. What is a proportionate sentence, given the
particular circumstances of the offence and the offender. Those individualized
circumstances are what guide a judge in selecting sentencing objectives. See R.
v. Ipeelee, [2012] S.C.R. 433 (S.C.C.) at para. 37.
Sentencing, is about communicating societys legitimate shared values
[23]
and concerns. Id. at para.49.
The crime I have described is one of gratuitous violence, and, and,
[24]
committed in the very home of the offender.
The measurement of a just sanction is a highly individualized process.
[25]
See Ipeelee, supra, at para. 38 in the context of a Glaude report. See also R. v.
Gladue, [1999] 1 S.C.R. 688 at paras. 33-44, 66-75, 81-84 and R. v. Ladue
(2012), 280 C.C.C. 265 (S.C.C.) at paras. 56-87.
Section 718.2(a) of the Criminal Code entrenches the common law by
[26]
requiring judges to increase or reduce a sentence by taking into account
aggravating or mitigating circumstances. The Criminal Code includes a nonexhaustive list of aggravating circumstances. It does not set out mitigating
factors. The common law has recognized many factors which may have a
mitigating or aggravating effect.

[27]
A mitigating factor recognized in the common law, would be, e.g. a first
time offender or that no prior criminal record has been advanced.
[28]
The absence of an aggravating factor is not equal to a mitigating factor
(e.g. the absence of physical injuries caused by a sexual assault is not a
mitigating factor).
The absence of a mitigating factor is not equal to an aggravating factor
[29]
(e.g. the absence of a guilty plea is not an aggravating factor.)
[30]
To treat the absence of gratuitous violence (for example) as a mitigating
constitutes an error in principle. See R. v. M.(B.) 2008 ONCA 645,
factor
paras. 5-7.
...

Section 718.2 of the Criminal Code of Canada addresses in part evidence


[31]
that the offender
in committing the offence, abused a position of trust or
authority in relation to the victim, evidence that the offender or the offence had a
significant impact on the victim, considering age and other personal
circumstances, including health and financial situation, the crime was committed
while the offender was subject to a conditional sentence order made under
section 742.1 or released on parole, statutory release or unescorted temporary
absence.
Aggravating factors recognized in the common law include cruelty,
[32]
degradation and humiliation, duration of assault, and the vulnerability of the
victim.
[33]
A not guilty plea and the conduct of the defence at trial are not
aggravating factors.
[34]
With respect to good character and sexual offences, the Supreme Court
has recognized that these offences are usually perpetrated in private. Good
community reputation therefore has little probative value. See R. v. Profit, [1993]
3 S.C.R. 637.
The Court must consider a victim impact statement(s) in considering the
[35]
sentence to be imposed or whether to discharge the offender. It is only those
portions relevant to the physical and emotional harm, property damage or
economic loss suffered by the victim in connection with the offence and the
impact of the offence on the victim. See Sections 722(1), 722(4) and 722(8).
[36]
The Court must permit the victim to present the victim impact statement,
Sections 722(5) and 722(7).

10

Even if no victim impact statement is prepared and filed, the Court may
[37]
consider any other evidence concerning the victim in determining the sentence to
be imposed, Section 722(9).
The Court must consider community impact statement in determining the
[38]
sentence to be imposed or whether to discharge the offender, Sections 722.2(1)
and 722.2(2).
Arguably jail is a last resort. An offender should not be deprived of
[39]
liberty, if less restrictive sanctions may be appropriate in the circumstances. See
Section 718.2(d)) and all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm done to victims or
to the community should be considered for all offenders, with particular attention
to the circumstances of Aboriginal offenders, Section 718.2(e).
Other dispositions under the Criminal Code include absolute and
[40]
conditional discharges, see Section 730, Probation, inter alia, Suspended
sentence, see Section 731(1)(a), a Probation order combined with a fine or
imprisonment of 2 years or less, see Section 731(1)(b), a Probation order
combined with a discharge, see Section 731(2), an Intermittent sentence, see
Section 732; Compulsory conditions of probation order, see Section 732.1(2);
Fines and
Optional conditions of probation order, Section 732.1(3).
forfeiture/Victim surcharge, see Sections 734-736 and 737; Restitution, see
741.2, a conditional sentence, see Sections 742-742.7;
Sections 737.1
Imprisonment 743-743.5.

There is also of course, possible the credit for pre-sentence custody (1:1
[41]
or 1.5:1), see Sections 719(3)-(3.4).
The fundamental purpose of sentencing is to protect society and to
[42]
contribute, along with crime prevention initiatives, respect for the law and the
maintenance of a just, peaceful and safe society by imposing just sanctions that
have one or more of the following objectives: (a) denounce unlawful conduct and
the harm done to victims or to the community that is caused by unlawful conduct;
(b) deter the offender and other persons from committing offences; (c) separate
offenders from society, where necessary; (d) assist in rehabilitating offenders; (e)
provide reparations for harm done to victims or to the community; and (f) promote
a sense of responsibility in offenders, and acknowledgment of the harm done to
victims or to the community. See Section 718.
Again the absence of an aggravating factor does not constitute a
[43]
mitigating factor, and that the absence of a mitigating factor does not constitute
an aggravating factor. See Section 718.2(a).

11

Mandatory orders: Firearms, see Section 109; DNA primary designated


[44]
offences
primary designated offences are defined at 487.04, see Sections
487.051(1)-(2); Sex offender information registration act designated offence[sl
relevant to the SOIRA are defined at 490.011(1), see Section 490.012; Victim
surcharge, see Section 737.

[45]
Discretionary orders:
Firearms
communication order, see Section 743.21.

order,

see

Section

110;

Non-

[46]
The Court must confirm receipt and accuracy of a pre-sentence report
and file same as an exhibit. The Court should also confirm receipt of the victim
impact statement also to be filed as an exhibit and also inquire whether the victim
or someone acting on the victims behalf wishes to read it. See Sections 722722.1.
V

[47]
The Court must further confirm receipt of community impact statement to
be filed as an exhibit at the sentencing hearing. See Section 722.2
[48]
The Court may accept as proved any information disclosed at trial or at
sentencing proceedings, as well as any facts agreed by the Crown and the
defence. See Sections 724(1).
[49]
The Court may find any other relevant fact disclosed by evidence at trial
to be proved or hear evidence presented by either party with respect to that fact.
See Section 724(2).
V

[50]
The Crown must prove aggravating factors beyond a reasonable doubt,
the defence must prove mitigating factors on a balance of probabilities. See
SectiOn 724(3).
[51]
If the offender is present, the Court must inquire whether they have
anything to say before determining the sentence to be imposed, the offenders
allocution right. See Section 726.
[52]
In this case the accused was found guilty after trial.
proceeded by way of summary conviction.

The Crown

[53]
Amendments to s. 722 (Bill C-32, An Act to enact the Canadian Victims
Bill of Rights and to amend certain Acts, SC 2015, c. 13) came into force on July
23, 2015.
V

[54]
Section 722 of the Criminal Code allows a victim of a crime to present a
victim impact statement to the court describing the physical or emotional harm,
property damage or economic loss suffered by the victim as a result of the

12

commission of the offence and the impact of the offence on the victim. A victims
perspective of the impact of the crime is not expressly contemplated in s. 721(3)
of the Code. See R. V. Revet, 2010 SKCA71, at para.8.
The applicable definition of victim in s.2 now extends to any person
[55]
against whom an offence is alleged to have been committed, who is alleged to
have suffered physical or emotional harm, property damage or economic loss as
the result of the alleged commission of the offence, and includes for the purposes
of s. 722 a person who has suffered physical or emotional harm, property
damage or economic loss as the result of the commission of an offence against
any other person. Further, s. 2.2 of the Criminal Code allows various individuals
to act on behalf of a deceased or incapable victim.
S. 722(8) provides that the court shall take into account portions of the
[56].
statement it considers relevant and disregard any other portion. Further, the new
form allows the victim, with the courts approval, to express an opinion or
recommendation about the sentence. Section 722(6) provides that victims may
present photographs of themselves taken before the offence if, in the opinion of
the court, it would not disrupt the proceedings.
The victim may ask the court to consider making a restitution order
[57]
against the offender, and the court is required to consider making such an order
to ensure that victims are provided the opportunity to seek restitution (Canadian
Wctims Bill of Rights, ss. 16 and 17, Criminal Code, s. 737.1).

Conditional Sentence
A conditional sentence is not imprisonment as that word is used in all
[58]
sections of the Criminal Code, R.S.C. 1985, c. C-46 and Corrections and
Conditional Release Act, S.C. 1992, c. 20. See R. v. Middleton, [2009] 1 S.C.R.
674, at para. 14(S.C.C.):
imprisonment in the phrases sentence of imprisonment
and term of imprisonment does not bear a uniform meaning
for all purposes of the Criminal Code. In several instances,
these terms necessarily contemplate incarceration. Section
718.2(e), mentioned by the parties, is hardly the sole example.
Section 732(1) must itself be taken as another since, as we
have already seen, s. 732(1) refers explicitly to confinement
during the period the sentence is being served and release
from prison after completing the intermittent sentence.
In five cases released simultaneously in 2000, the Supreme Court defined
[59]
the basic principles underlying conditional sentences and the process through

13

which they are to be considered and determined. See R. v. Prnulx, [2000] S.C.J.
No. 6, 140 C.C.C. (3d) 449 (S.C.C.); R. v. Bunn, [2000] S.C.J. No. 10, 140 C.C.C.
(3d) 505 (S.C.C.); R. v. R.(R.A.), [2000] S.C.J. No. 9, 140 C.C.C. (3d) 523
(S.C.C.); R. V. W(L.F), [2000] S.C.J. No. 7, 140 C.C.C. (3d) 539 (S.C.C.); R. v.
S.(R.N), [2000]S.C.J. No. 8, 140 C.C.C. (3d) 553 (S.C.C.).
[60]

Section 742.1 now reads (key changes are underlined):

If a person is convicted of an offence and the court imposes a sentence of


imprisonment of less than twa years, the court may, for the purpose of
supervising the offenders behaviour in the community, order that the offender
serve the sentence in the community, subject to the conditions imposed under
section 742.3, if
(a) the court is satisfied that the service of the sentence in the
community would not endanger the safety of the community
and would be consistent with the fundamental purpose and
principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term
of imprisonment;
(c) the offence is not an offence, prosecuted by way of
indictment, for which the maximum term of imprisonment is 14
years or life;
(d) the offence is not a terrorism offence, or a criminal
organization offence, prosecuted by way of indictment, for
which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of
indictment, for which the maximum term of imprisonment is 10
years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production
of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of
indictment, under any of the following provisions:
(I) section 144 (prison breach),
(ii) section 264 (criminal harassment),

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(iii) section 271 (sexual assault),


(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons
benefit),

material

(vi) section 281 (abduction of person under fourteen),


(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1 )(e) (breaking and entering a place
other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house),
and
(xi) section 435 (arson for fraudulent purpose).

The key changes eliminated the serious personal injury offence criteria
[61]
as well as the addition of numerous categories of offences for which conditional
sentences are no longer available.
The efficacy of such a sentence depends in part on the offenders
[62]
amenability to supervision, and the court must be satisfied that the offender will
be amenable to supervision.
In Proulx, supra, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at pp. 484-88
[63]
(S.C.C.), the Supreme Court recognized that serious consideration should be
given to the imposition of a conditional sentence in all cases where the statutory
preconditions have been met and it would be an error in principle not to consider
the possibility of a conditional sentence in those circumstances.
Judges must consider the individual circumstances of each case and give
[64]
serious consideration to conditional sentences as mandated by Proulx, supra. I
have done so.
A wide range of conditions may be imposed in a conditional sentence
[65]
order. Section 742.3 enumerates both compulsory and optional conditions:

15

742.3 (1) The court shall prescribe, as conditions of a conditional sentence


order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the
court directs, after the making of the conditional
sentence order, and

(ii) thereafter, when required by the supervisor and in the


manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written
permission to go outside that jurisdiction is obtained from the
court or the supervisor; and
(e) notify the court or the supervisor in advance of any change
of name or address, and promptly notify the court or the
supervisor of any change of employment or occupation.
(2) The court may prescribe, as additional conditions of a conditional
sentence order, that the offender do one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating
substances, or
(ii) the consumption of drugs except in accordance with
a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period
not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court
considers desirable, subject to any regulations made under
subsection 738(2), for securing the good conduct of the

16

offender and for preventing a repetition by the offender of the


same offence or the commission of other offences.
The terms available for conditional sentences parallel those used in
[66]
probation orders, but there are differences. The condition to remain in the
jurisdiction of the court unless written permission to leave, is obtained is
compulsory for conditional sentences but option for probation orders. An
offender subject to a conditional sentence order can be required to follow a
treatment programme without his consent, whereas this term can be included in
a probation requires the offenders consent. See Proulx, supra, [2000] S.C.J. No.
6, 140 C.C.C. (3d) 449, at pp.468-69 (S.C.C.). The compulsory and optional
conditions of probation orders are enumerated in section 732.1.
The purpose of a
In Proulx, probation addresses rehabilitation.
[67]
conditional sentence while ultimately aimed at rehabilitation may arguably, be
punishment. Is a conditional sentence a form of imprisonment? The distinction
between probation and a conditional sentence was expressed by the Supreme
Court in Wu, [2003] S.C.R. 530, 180 C.C.C. (3d) 97 (S.C.C.).
It may be argued that Section 742.3(2)(f) expressly allows for the creative
[68]
use of personalized conditions to secure good conduct and to prevent recidivism.
The court may craft conditions that allows a conditional sentence to be
sufficiently punitive to allow it to replace incarceration, allowing relatively onerous
terms like electronic monitoring, curfews and house arrest. See Proulx, 140
C.C.C. (3d) 449 at pp. 467-68 and pp. 491-95.
Sentencing has numerous goals including punishment, rehabilitation, and
[69]
deterrence. But sentences should jigs be based on revenge. See Furman v.
Georgia, 408 U.S. 238, 343 (1972), (Marshall, J., concurring), and Ex parte
United States, 242 U.S. 27, 38 (1916).
[70]

Some disparities in sentences are unavoidable.

Those who commit the crime of rape must understand they do so at their
[71]
peril. It must be equally clear, both to those who are apprehended and to those
who might be tempted to behave in this way that the court will have no hesitation
in marking the seriousness of what has occurred and it will act in such a way as
in the present case to send out a clear and unambiguous message as to the
consequences to the offender.
The desire for, revenge is a very personal one, much more so than the
[72]
desire for retribution or punishment. Vengefulness is a retaliatory instinct
triggered when one feels wrongfully harmed and further seeks to restore balance
through returning injury for injury.

17

The unconstructive nature of vengeance as a response to crime,


[73]
however, inevitably limits its utility.
[74]
Victims of crime can suffer immensely. They can be harmed in obvious
ways through physical injuries and financial losses, and perhaps, perhaps, in less
obvious ways through the infliction of stress and physiological trauma.
[75]
There is arguably a mistaken belief that increasing the severity of a given
criminal sanction will produce matching increases in general deterrence. In this
case before me it is about the being fact specific.
[76]
One of the earliest Canadian cases to explicitly name general deterrence
as a sentencing purpose that must be given some degree of consideration in all
criminal cases was R. v. WiiIaert, [1953] O.R. 282, 16 C.R. 138:
The governing principle of deterrence is, within reason and
common sense, that the emotion of fear should be brought into
play so that the offender may be made afraid to offend against
and also so that others who may have contemplated offending
will be restrained by the same controlling emotion.
...

Society must be reasonably assured that the punishment


meted out to one will not actually encourage others, and when
some form of crime has become wide-spread the element of
deterrence must look more to the restraining of others than to
the actual offender before the court.
The sentencing purpose of retribution, typically considered to
play an important role in achieving a general effect, is also
discussed:
the community is anxious to express its repudiation of
the crime committed and to establish and assert the
welfare of the community against the evil in its midst.
Thus, the infliction of punishment become a source of
security to all
..

Several decisions that eventually followed WiIIaert reiterated general


[77]
deterrence and retribution as among key sentencing purposes to be considered
in criminal cases, others including protection of the public and rehabilitation R. v.
Goltz, [1991] 3 S.C.R. 485; R. v. L. (1986), ABCA 83 (CanLll); R. v. Luxton,
[1990] 2 S.C.R. 711, 58 C.C.C. (3d) 449; R. V. Lyons, [1987] 2 S.C.R. 309; R. v.
Sargeant (1974), 60 Cr. App. R. 74 and R. v. Shropshire, [1995] 4 S.C.R. 227
(SCC). These cases do not provide specific guidance as to where and when

18

each of these principles are to be given precedence when sentencing any given
offender. Rather, they affirmed the case-by-case approach:
In a rational system of sentencing, the respective importance
of prevention, deterrence, retribution and rehabHitation will vary
according to the nature of the crime and the circumstances of
the offence (R. V. Lyons, supra, at para. 329).
R. v. Preston (1990), 79 C.R. (3d) 61 (BCCA) is one of the earliest
[78]
decisions to address in detail the deterrence/rehabilitation paradox. Citing as
crucial the finding that incarceration is both costly and demonstrably ineffective in
deterring certain type of criminal activity, Preston concluded that sentencing
judges must seriously consider a non-custodial form of disposition anytime the
successful rehabilitation of an offender remains a likely possibility.
Could a conditional sentence order fulfill the principles of deterrence and
[79]
denunciation as effectively as a period of incarceration? Would the public
sentencing process itself deter individuals just as much, if not more, than the
threat of incarceration, and thus the general public be deterred simply through
witnessing the arrests and convictions of those convicted of rape? Denunciation
could also be assumed to have been met through the same means. Is
incarceration necessary in those cases where the accused is a relatively young,
first time offender? By convicting Mr. Ururyar, has society already stigmatized
him as a person who has committed a serious crime, and therefore denounced
his offence? The Supreme Court has expressed the importance of stigma as a
consequence of criminal proceedings. A public charge, trial and conviction for a
serious offence brands a person for life, constitutes serious punishment, and is
an important part of the way society brings offenders to account for their
misconduct.
The reality of the permanent effects of a virtual jail are exacerbated by
[80]
the advent of portable devices that allow one to take photos and/or record video
footage.
[81]

In R. v. Kemper, 2004 ABCA 348:


The respondent, Gordon Craig Kemper, pled guilty to sexual
touching of a child under 14 years. He received a 23-month
conditional sentence and a ten-year firearms prohibition. The
Crown appeals the sentence, arguing it lacks proportionality to
the gravity of the offence and culpability of the offender, fails to
adequately address the need for deterrence and denunciation
and is a demonstrably unfit.

19
The complainant suffered, and continues to suffer, serious and
lasting emotional harm as a result of the assaults. In her victim
impact statement, she indicates she feels she has been
irrefutably changed and expresses profound despair. She
states she has trouble sleeping, suffers from nightmares, has
no appetite and feels unwell much of the time.
The
complainants mother states the complainant has changed from
the effervescent, happy pre-teen to a withdrawn individual who
trusts no one.
Suicide is a pressing concern and the
complainants parents have taken turns watching over her to
ensure she does not harm herself.
We are of the view the sentence is demonstrably unfit. The
assaults committed by Kemper warranted a term of
incarceration in gaol. The conditional sentence appears to
have been based on incorrect assumptions about the
availability and effect of treatment. As well, the sentencing
judge misapprehended evidence about Kempers acceptance
of responsibility for the crime and the impact the assaults had
on the complainant.
R. v. Proux, supra, [2000] 1 S.C.R. 61, 2000 SCC 5 sets out a
template for imposing conditional sentence orders.
In a
preliminary determination, a sentencing judge must consider
the fundamental purpose and principles of sentencing to
narrow the range of sentence for the offender: at paras. 58-59.
The Crown argues a conditional sentence would not meet the
paramount sentencing objectives and asked for a two-to threeyear gaol term. The sentence range may have led the
sentencing judge into bypassing the preliminary determination
mandated by Proulx, supra. Instead, she focused on two
specific sentencing objectives: rehabilitation and providing
reparations for harm done to victims. She stated that the main
way to achieve both was to take steps to order the offender
into treatment so that this offender never victimizes another
young woman or girl. That powers is only available to me in a
conditional sentence order: S .A. B. 35/33-37.
Ordering Kemper into treatment was the primary motivation for
the conditional sentence. It is true that when counseling or
psychological therapy are administered in prison or as part of a
probation order, the offender consent is required, whereas an
offender can be ordered to undergo treatment without his

20

agreement as part of a conditional sentence order. However,


this distinction does not justify a conditional sentence. Therapy
does not automatically result in rehabilitation. Considerable
effort, willingness and cooperation are required on the part of a
sexual offender for treatment to be valuable. It follows that if an
offender must be ordered to take treatment, he is less likely to
be rehabilitated.
In Proux at para. 25, the Supreme Court noted that the
distinction between ordered and consensual treatment is,
actually insignificant because most offenders, faced with a
choice between prison or a community sentence, will agree to
treatment.
The sentencing judges confidence in Kempers future
rehabilitation and her decision to order a conditional sentence
were influenced by a statement in the pre-sentence report that
Kemper [aJccepts responsibility for this behaviour without
question, rationalization, or minimization, which the judge
quoted at S.A.B. 34/18-20.
The sentencing judge also misapprehended the harm to the
complainant and her progress in overcoming the effect of the
sexual assault. To the contrary, the complainants victim impact
statement demonstrates the distress she continues to suffer,
with no wake-up call in sight, and her mother reports as I see
her retreating further and further from life Im frightened that
she will be lost forever: S.A.B. E2, Sentence Exhibit 2.
Moreover, the pre-sentence report indicated that the
complainants lack of progress resulted in her being
marginalized by her peers, as they expected her to move past
this event.
In our view, the sentence is not proportionate to the gravity of
the offence and the culpability of the offender and does not
The
sufficiently address denunciation and deterrence.
sentencing judges heartfelt desire to rehabilitate Kemper by
ordering him into treatment appears to have prevailed over a fit
and proper sentence. While rehabilitation is an important
sentencing objective, the evidence at the sentence hearing
indicated that it can be addressed effectively through programs
delivered in prison.

21

A conditional sentence is theoretically available for any crime.


However, when denunciation and deterrence are particularly
pressing, incarceration will generally be the preferable
sanction, even though restorative goals might be achieved by a
conditional sentence: Proulx at para. 114. In this case,
deterrence and denunciation are the paramount sentencing
objectives and incarceration is the only appropriate sanction.
[82]

In R. v. McDonnell, supra, [1997] I S.C.R. 948:


The accused pleaded guilty to two counts of sexual assault,
contrary to s. 271 of the Criminal Code. The first offence
occurred in 1986 when the accused was 29. The complainant,
a 16-year-old girl, had been placed in the accuseds home by
Social Services. She was asleep on the living room couch
when the accused came home intoxicated. He undid her
pants. The complainant turned over on her stomach and tried
to press herself into the couch, pretending to be sleeping. He
took off her jeans, started to kiss her buttock area and partially
penetrated her vagina with his penis. She had her legs
pressed together and he was trying to get them apart. Finally,
he said Youre too difficult and rolled onto the floor where he
fell asleep. The second offence occurred in 1993 when the
accused was 36.
The complainant was a 14-year-old
babysitter for the accuseds family. She had fallen asleep on
her stomach on a hide-a-bed. She woke up in the middle of
the night; her underwear was pulled down and the accused
was on top of her, rubbing her back with one hand and her
buttocks with the other. He also touched her pelvis and vaginal
areas. She screamed and fled the house. The sentencing
judge found that neither of the two assaults was a major sexual
assault, as defined in past cases by the Court of Appeal of the
province, with a starting-point sentence of three years, and
imposed a sentence of 12 months in custody for the first
offence and six months for the second, to be served
concurrently. The Court of Appeal allowed the Crowns appeal.
The court found that the sexual assaults were major ones and
sentenced the accused to four years in custody for the first
offence and, considering the global effect of the sentences, to
one year for the second, to be served consecutively.
Held (La Forest, LHeureux-Dub, Gonthier and McLachlin JJ.
dissenting): The appeal should be allowed.

[83]

22

Per La Forest, LHeureux-Dub, Gonthier and McLachlin JJ. (dissenting):


A just sentence is one which reflects the seriousness of the
crime and fits the individual circumstances of the accused.
The starting-point approach to sentencing involves two steps.
The first step consists of determining the appropriate range of
sentence for an offence of this type in a typical case. At this
stage, the inquiry is objective. The appropriate range is based
on the general characteristics of the typical offence and on the
assumption that the accused is a person of good character with
no criminal record. Using that range as a starting point, the
second step involves adjusting the sentence upward or
downward on the basis of aggravating or mitigating factors.
The judge must consider factors personal to the accused and
the victim, and the actual consequences of the offence. In
short, the sentence must be individualized to the particular
crime and the particular accused before the court. This
approach thus represents an attempt to marry in one
principle the values of uniformity and
sentencing
individualization. With the starting-point approach, in all cases
the final sentence will be the least that is appropriate in the
circumstances.
The starting-point approach, properly conceived, does not
involve a presumption of harm in sexual assault cases. When
determining the starting point, the judge must consider whether
the violation of the victims integrity was such that a
reasonable person would know beforehand that the victim likely
would suffer lasting emotional or psychological injury, whether
The inquiry at that stage is
or not physical injury occurs.
concerned not with the actual facts of the case but with the sort
of harm this type of assault would be likely to cause. Actual
harm becomes an issue only at the stage of the
individualization of the sentence where the judge must
determine whether in fact the crime caused lasting emotional or
psychological harm to the victim. At both stages, there is no
presumption of harm. Because the starting-point approach
does not presume actual harm to the victim, it does not violate
the rule that the Crown bears the burden of proving

23

exacerbating circumstances, nor does it conflict with the logic


underlying s. 272 of the Criminal Code, which requires proof of
actual harm in the particular case.
The Court of Appeal correctly identified the first offence as a
major sexual assault. While it involved no violence or threats,
the result of such an assault on a typical victim would likely
have been lasting emotional and psychological harm. The
case exhibited few mitigating factors but a number of
aggravating ones, including abuse of trust and lasting
emotional and psychological harm. By adding a year to the
starting-point sentence, the Court of Appeal imposed a
sentence which reflected the seriousness of the offence as well
as the particular circumstances of the accused. The second
offence, viewed in isolation, also qualifies as a major sexual
assault.
The Court of Appeal correctly concluded that
poncurrent sentences were not appropriate in this case, which
involved two separate offences on two different victims,
separated by a period of seven years. Nevertheless, the global
effect of the sentences must be considered and the Court of
Appeal correctly imposed a sentence of one year for the
second offence, to be served consecutively.
Following a preliminary inquiry, the appellant pleaded guilty to
two counts of sexual assault, contrary to s. 271 of the Criminal
Code, R.S.C., 1985, c. C-46. The first offence occurred in 1986
when the appellant was 29 years of age. The complainant was
then a 16-year-old ward of the Alberta government and had
been placed in the appellants home by Social Services.
The appellant pleaded guilty to the two offences.
The
sentencing judge found that neither of the two sexual assaults
was a major one. She imposed a sentence of 12 months in
custody followed by two years probation. The Court of Appeal
allowed the Crowns appeal, finding that the sexual assaults
were major ones and sentenced the appellant to five years
imprisonment: (1995), 169 A.R. 170, 97 W.A.C. 170. The
appellant appeals the Court of Appeals decision.
Sopinka, J.:
Accepting that harm may be an aggravating factor under s.
271, R. v. Gardiner, 1982 CanLil 30 (SCC), [1982] 2 S.C.R.
368, held that each aggravating factor in a sentencing hearing

24

Such an
must be proved beyond a reasonable doubt.
approach is confirmed by Parliament in s. 724(3)(e) of the
Criminal Code (as amended by S.C. 1995, c. 22, s. 6). If
pychological harm may be presumed, the burden of proving
harm as an aggravating factor is improperly lifted from the
Crown and shifted to the accused to disprove harm.
In the present case, a presumption of harm is unnecessary.
The sentencing.judge found as a fact that each complainant in
the present case was traumatized.
Victim Impact Statements

The purpose of Victim Impact Statements is to allow victims a more


[84]
structured opportunity to explain how they have been affected by the crime or
crimes of which they were victims. They provide a practical way of ensuring that
any harm which the offence caused,
the sentencing court will, consider,
reflecting on the evidence of the victim about the specific and personal impact of
the offence or offences... The statements may, albeit incidental to the purposes
of the sentencing court, identify a need for additional or specific support or
protections for the victims of the crime, and to be considered at the end of the
sentencing process. At the same time, the process does not create or constitute
an opportunity for the victim to suggest or discuss the type or level of sentence to
be imposed. R. V. Perkins eta!, [2013] EWCA Crim. 323 at para 2, [2013] All ER
(D) 313.
...

[85]

Victim impact statements may:


1. provide relevant evidence about the effect or impact of the
crime, [the gravity of the offence];
2. they promote the objectives in ss. 718(e)and (f) of the
Code [promote a sense of responsibility in offenders, and
acknowledgement of harm done to the victims and to the
community]; R. v. Bremner, 2000 BCCA 345.
3. they provide victims with the opportunity to be heard and
participate; and
4. they reveal the individuality of the victim, providing a
balance in understanding the consequences of the crime
in the context of a victims personal circumstances.

25

See e.g. R. v. Gabriel (1999), 137 C.C.C. (3d) 1 at 11-12 (SCJ) per Hill J. and R.
v. Roberts, 2001 ABQB 520 at [49].
[86]
The impact on the victim is just one factor, and must be considered
alongside the principles and purposes of sentencing. Sentences should not be
increased or decreased depending on whether a victim impact statement has
been filed. But these additional facts may influence the calculation of a fit
sentence.
[87]
Section 722(1) of the Criminal Code provides that a sentencing judge
shall consider any statement prepared by a victim of the offence. Victim is
defined in s. 722(4)(a) as a person to whom harm was done or who suffered
physical or emotional loss a s a result of the commission of the offence. This
definition includes the victim or victims directly or closely affected by the
commission of the offence.

[88]
The impact on the community may be admissible under s. 724(1) as local
concerns about particular types of offences are an appropriate consideration for
a sentencing judge. See R. v. Bell, 2013 BCCA 463 at paras. 31-36.
[89]
Section 722(1) simply states that the victim impact statement should
describe the harm done to, or. loss suffered by, the victim arising from the
commission of the offence; subsection (4) describes a victim as a person who
suffered physical and emotional loss as a result of the commission of the
offence.
[90]
A victim impact statement should not recommend a particular length or
kind of sentence, and certainly not suggest retribution for the crime that was
committed.
[91]
Once a written victim impact statement is admitted, s. 722(2.1) states that
the court shall, on the request of the victim, permit the victim to read the
statement in court, or to present the statement in any other appropriate manner.
[92]
Section 722(3) states that whether or not a statement has been prepared
and filed in accordance with s. 722(2), the court may consider any other evidence
concerning any victim of the offence for the purpose of determining a fit
sentence. This provision has been interpreted to permit sentencing judges to
admit victim impact statements, even when they are not in accordance with the
form and procedures contemplated by s. 722(2).
The court has the discretion under s. 722(3) of the Criminal Code to allow
[93]
the victim to present photographs or videos. However, this type of evidence may
be unacceptable where it amounts to a tribute to the victim, or where it creates
the risk that the sentence will be based on the value of the victim. In R. v. Berner,
2013 BCCA 188, the B.C. Court of Appeal held:

26

But it is the heightening of those emotions, in a courtroom, which


[24]
carries the risk of unjust consequences. One of the harms which could
result from permitting victims to pay tribute to their loved ones in the
public forum of the courtroom is that their expectations may be raised and
their belief that the tribute will influence the length of a sentence may be
encouraged.
...

In emotionally charged cases such as


[25] There are other dangers.
this, a sentencing judge must keep in mind his or her position of impartial
decision maker. The sentencing judge must be wary of the risk of valuing
victims, based on the strength of feelings expressed in the victim impact
statement.
...

[94]. If the Crown seeks to rely on facts asserted in the victim impact statement
as an aggravating factor at sentencing, as already indicated, it must prove those
facts beyond a reasonable doubt: See R. v. Gardiner, supra, 1982 CanLil 30
(SCC), [1982] 2 S.C.R. 368.
Victim impact legislation was introduced into the Criminal Code in 1989
[95]
and was initially included with the provisions dealing with pre-sentence report by
th
4
(
Supp.), s.7. In 1996, the
a probation officer. See R.S.C. 1985, c.23
provisions were given their own section number (s.722) and the court was
required to consider a statement that had been prepared in compliance with the
legislation. See S.C. 1995, c.22, s.6. In 1999, several substantive amendments
were made.

Section 722

[96]

Victim impact statement


722. (1) For the purpose of determining the sentence to be imposed on an
offender or whether the offender should be discharged pursuant to section
730 in respect of any offence, the court shall consider any statement that
may have been prepared in accordance with subsection (2) of a victim of
the offence describing the harm done to, or loss suffered by, the victim
arising from the commission of the offence.
Procedure for victim impact statement
(2) A statement referred to in subsection (1) must be
(a) prepared in writing in the form and in
accordance with the procedures established by a
program designated for that purpose by the

27

lieutenant governor in council of the province in


which the court is exercising its jurisdiction; and
(b) filed with the court.
Presentation of statement
(2.1) The court shall, on the request of a victim, permit the
victim to read a statement prepared and filed in accordance
with subsection (2), or to present the statement in any other
manner that the court considers appropriate.
Evidence concerning victim admissible
(3) Whether or not a statement has been prepared and filed in
accordance with subsection (2), the court may consider any
other evidence concerning any victim of the offence for the
purpose of determining the sentence to be imposed on the
offender or whether the offender should be discharged under
section 730.
Definition of victim
(4) For the purposes of this section and section 722.2, victim,
in relation to an offence,
(a) means a person to whom harm was done or who
suffered physical or emotional loss as a result of the
commission of the offence; and
(b) where the person described in paragraph (a) is dead,
ill or otherwise incapable of making a statement referred
to in subsection (1), includes the spouse or common law
partner or any relative of that person, anyone who has in
law or fact the custody of that person or is responsible
for the care or support of that person or any dependant
of that person.
Copy of statement
722.1 The clerk of the court shall provide a copy of a statement
referred to in subsection 722(1), as soon as practicable after
finding of guilt, to the offender or counsel for the offender, and
to the prosecutor.

28

Inquiry by court

722.2 (1) As soon as practicable after a finding of guilt and in


any event before imposing a sentence, the court shall inquire of
the prosecutor or a victim of the offence, or any person
representing a victim of the offence, whether the victim or
victims have been advised of the opportunity to prepare a
statement referred to in subsection 722(1).
Adjournment
(2) On application of the prosecutor or a victim or on its own
motion, the court may adjourn the proceedings to permit the
victim to prepare a statement referred to in subsection 722(1)
or to present evidence in accordance with subsection 722(3), if
the court is satisfied that the adjournment would not interfere
with the proper administration of justice.
R.S.C. 1985, C. 23 (4th Supp.), s. 7.; S.C. 1995, c. 22, s. 6.; S.C. 1999, c.25, s.
17; S.C. 2000, c.12, s.95(d).

Pre-Sentence Report
Subsections 721(1) and (2) of the Criminal Code confer authority upon a
[97]
sentencing court to order a pre-sentence report (PSR) in criminal proceedings
against an adult:
721. REPORT BY PROBATION OFFICER (1) Subject to
regulations made under subsection (2), where an accused,
other than an organization, pleads guilty to or is found guilty of
an offence, a probation officer shall if required to do so by a
court, prepare and file with the court a report in writing relating
to the accused for the purpose of assisting the court in
imposing a sentence or in determining whether the accused
should be discharged under section 730.
(2) PROVINCIAL REGULATIONS The lieutenant governor in
council of a province may make regulations respecting he types
of offences for which a court may require a report, and
respecting the content and form of the report.

The PSR is to assist the court in imposing a sentence (s. 721(1) and just
[98]
and individualized to the circumstances of a particular offender. It is intended to

29

give a sentencer information as to an offenders background and. his prospects


for the future. See R. v. Junkert (2010), 259 C.C.C. (3d) 14 (Ont. C.A.), at para.
59.
[99]

Although provincial legislation in Ontario states that a probation officer


may make recommendations as the court may require for the purpose of making
a disposition of the case. See Ministiy of Correctional Services Act, R.S.O.
1990, G.m. 22, s. 44(1)(b). The sentencing court is not bound by the
recommendation of the probation officer. See e.g. R. v. G.I., 2012 ONCA 188, at
para. 3; R. v. Voutier, 2014 ABCA 210, at para. 2 and R. v. Dyck, 2014 MBCA51,
at para. 8.
[100] The purpose if not the sole purpose of a typical pre-sentence report at
least what we are used to, is to provide the court with a social and psychological
profile of the accused.
[101] Where a party wishes to rely on a disputed fact in a PSR, that party has
the onus of proving the fact.
[102]

Criminal Code S. 724(3) reads:


Disputed facts
(3) Where there is a dispute with respect to any fact that is
relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to


the existence of the fact unless the court is satisfied that
sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact,
including a fact contained in a presentence report, has
the burden of proving it;
(c) either party may cross-examine any witness called by
the other party;
(d) subject to paragraph (e), the court must be satisfied on
a balance of probabilities of the existence of the disputed
fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a
reasonable doubt, the existence of any aggravating fact or
any previous conviction by the offender.

30

[103] In R. v. Donovan (2004), 188 C.C.C. (3d) 193 (N.B.C.A.), at para. 31, the
court stated:

The pursuit of pre-sentence report information about an offence


has been declared off limited by trial and appeal court in
Canada for over a quarter century. See R. v. Martell (1984), 48
Nfld. & P.E.I.R. 79 (P.E.I.C.A.) where MacDonald J. agreed with
the Nova Scotia Court of appeal in R. v. Craig (1975), 11 N.S.R.
(2d) 695 that it is unwise to rely on statements in a report that
deal with the details of the commission of an offence.
R. v. Rudyk (1975), 1 C.R. (3d)S. 26 (N.S.C.A.), at para. 16, the court stated:
I would here urge that a pre-sentence report be confined to its
very necessary and salutary role of portraying the background,
character and circumstances of the person convicted. It should
not, however, contain the investigators impressions of the facts
relating to the offence charged, whether based on information
received form the accused the police, or other witnesses, and
whether favourable or unfavourable to the accused. And if the
report contains such information the trial judge should
disregard it in considering sentence.
[104] S. 721(3)(a) provides that a PSR include a probation officers assessment
of an offenders attitude and willingness to make amends includes evaluation of
whether the offender is remorseful.
[105] A sentencing court may take into account in the exercise of its sentencing
discretion, not as an aggravating feature of sentencing, but as the absence of a
factor entitling sentence reduction; and as relevant to whether restorative
objectives can be satisfied in a particular case, an offenders lack of remorse and
acceptance of responsibility for his or her crime: R. v. Proulx, [2000] 1 S.C.R.
A.(K.) (1999), 137 C.C.C. (3d) 554 (Ont. C.A.), at p. 570. But in R. v. Valentini
(1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 81-83, care must be exercised
in addressing the issue of remorse:
In my view, the trial judge erred n principle in considering lack
of demonstration of remorse as an aggravating circumstance.
In R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A) at 53536, Taylor J.A. explained the role of remorse in sentencing:
The factor of remorse is often important. In so far as it
might be suggested that the court should regard those
who come before it in a submissive or contrite manner as
deserving of more lenient treatment than those who

31

accept their predicament with whatever fortitude they are


able to summon, there would be little in this factor which
could assist the sentencing judge. But to the extent that
an accused person is able to demonstrate that he or she
has, since the commission of a crime come to realize the
gravity of the conduct, and as a result has achieved a
change in attitude or imposed some self-discipline which
significantly reduces the likelihood of further offending the
existence of remorse in this sense of obviously has much
importance.
The capacity of human beings who have erred to
recognize the magnitude of their wrongdoing and to
redeem themselves, offers the only possibility that those
who have committed crimes may gain become
contributing members of the community, rather than its
burden for the rest of their lives. [Emphasis added.]
In my view, a court must be very careful in treating lack of
remorse as an aggravating circumstance. A sincere expression
of remorse can be an important mitigating factor and can
reduce the sentence that might otherwise be imposed. Lack of
remorse is not, ordinarily, an aggravating circumstance. It
should only be considered aggravating in very unusual
circumstances such as where the accuseds attitude toward the
crime demonstrates a substantial likelihood of future
dangerousness. Even then the trial judge must be careful not
to increase the sentence beyond what is proportionate having
regard. to the circumstances of the particular offence.
The problem with treating lack of remorse as an aggravating
factor is similar to treating the conduct of the defence as an
aggravating circumstance. In this case, the lack of remorse
appeared to rest on nothing more than the continued assertion
of innocence in the face of a guilty verdict following a trial. To
treat lack of remorse as an aggravating factor in those
circumstances comes perilously close to increasing the
sentence because the accused exercise his right to make full
answer and defence.
[106] Hope is a stubborn thing. And at some point it is too rosy a word for
reality, for denial, and for delusion. Having insight into the suffering of those who
have been raped on any level gives some level of empathy towards those who
may walk through our doors.

32

[107] Excerpts from Mustafa Ururyar Pre-Sentence Report prepared by


Probation Officer, Mike Yau on September 7, 2016:
Behavior, Emotional Status:
The subject was made aware of the Sex Offender Treatment
Program offered by The Forensic Outpatient Clinic where he
an address his offence. The subject reports that he plans to
appeal his conviction. He is not interested in attending any
counselling or treatment at this time.
Substance Misuse:
However, it is the opinion of this writer that the subject should
not be with any female person alone while she is intoxicated.
Court History and Interventions:
The subject was made aware of the seriousness of the
offence and that a custodial sentence will most likely be
imposed upon him.
Court History Assessment:
However, the matter before the court is very serious and a
custodial sentence will most likely be imposed.
Attitude and Understanding Regarding the Offence:
The subject was found guilty of the offence. The subject
reports that he is not interested in taking part in the Sex
Offender Treatment Program and his lawyer is appealing his
conviction. Given his non-complying attitude at this time, the
subject is not suitable for any community programing at this
time.
Summary and Proposed Interventions:
The subject was found guilty of the offence. The subject
reports that he is not interested in taking part in the Sex
Offender Treatment Program and his lawyer is appealing his
conviction.
If sentenced to a term of community supervision, the subject
will be mandated to be referred to the 15 week Forensi Sex
Offender Treatment Program, followed by a mandatory
referral to the Sex Offender Maintenance Program: a bi

33

weekly session located at the community corrections office


where the subject will be reporting.
Should the court be considering community supervision, alternatively, or in
addition to a period of incarceration, the following conditions are
respectfully recommended:
1. Report in person forthwith (or within 48 hours upon
release from custody) to a Probation Officer at
Vancouver West Probation, #202-1855 Burrard Street,
Vancouver BC, and thereafter at least once per month
in person, or more frequently as directed by a
Probation Officer..
.

2. Must participate and cooperate in a Sex Offender


Treatment Program and the Sex Offender Maintenance
Program, operated by or for the BC Corrections
Branch, at the direction of and to the satisfaction of a
Probation Officer.
3. Must not change your telephone number, address,
employment or occupation without prior written
permission of your Probation Officer.
4. You are to reside in a residence approved of by your.
Probation Officer.
5. Attend and accept psychiatric and psychological
counselling as directed by your supervising Probation
Officer, and continue to accept psychiatric and
psychological counselling until the psychiatrist and/or
psychologist recommends that it is no longer
necessary or effective.
6. Do not leave the Province of British Columbia without
the expressed written consent of your Probation
Officer.
7. Have no contact, direct or indirect, with Mandi Gray.
8. Not to attend within 100 metres of any residence or
workplace of Mandi Gray.
9. You are not to possess any weapons as defined by the
Criminal Code of Canada.

34

10. Must not be alone with any female person while she is
intoxicated or under any substance influence.

Beyond the Record


th
7
(
Cir. 2015) Judge Richard Posner
[108] In Rowe v. Gibson, 798 F.3d 622
argued that we should not fetishize the adversary procedure by refusing to look
at facts beyond the record. Judge Posner contends that a judicial realist is
generally defined as someone who understands the limits of the adversary
system and that judges should do all they can to understand the arguments and
subject matter before them.

[109]

Reference to academic authorities is not without precedent.

[110] At issue in M.(K.) V. M.(H.), [1992] 3 S.C.R. 6 was (1) whether incest is a
separate distinct tort not subject to any limitation period; (2) whether incest
constitutes a breach of fiduciary duty by a parent not subject to any limitation
period; and (3) if a limitation period applies, whether it is postponed by the
reasonable discoverability principle. The Supreme Court focussed on the victims
feelings of guilt, helplessness, isolation and betrayal are reinforced when her
attempts at disclosure to persons in authority are met with scepticism, incredulity
and anger; see Summit, supra, at p. 178, and Finkeihor and Browne, supra, at p.
532. With respect to the long-term damages that can normally be expected, the
most commonly observed effects are thus summarized by Handler in Civil
Claims of Adults Molested as Children: Maturation of Harm and the Statute of
Limitations Hurdle (1987), 15 Fordham Urb. L.J. 709, at pp. 716-17:
The most commonly. reported long-term effects suffered by
adult victims of incest abuse include depression, self-mutilation
and suicidal behavior, eating disorders and sleep disturbances,
drug or alcohol abuse, sexual dysfunction, inability to form
intimate relationships, tendencies towards promiscuity and
prostitution and a vulnerability towards revictimization.
Dr. Langevin, the psychiatrist called by the respondent,
conceded that the appellants clinical pathology might be
attributable to incestuous abuse. Her symptoms included
anxiety,
disturbance,
family
hysterical
depression,
other
from
people. In
suspiciousness, confusion and withdrawal
short, there is ample evidence that the psychological sequelae
from incestuous abuse can be, and in the present case have
See DeRose, Adult Incest
been, extremely debilitating.
of
Limitations: The Delayed
Survivors and the Statute

35

Discovery Rule and Long-Term Damages (1985), 25 Santa


Clara L. Rev. 191, at p. 196. This Court has already taken
cognizance of the role that the perpetrator plays in delaying the
reporting of incest; see R. v. L. (WK.), 1991 CanLil 54 (SCC),
[1991] 1 S.C.R. 1091. That case concerned a stay of criminal
proceedings, arising out of alleged childhood sexual abuse,
commenced after a lengthy delay. See Summit, The Child
Sexual Abuse Accommodation Syndrome, supra. The
academic findings are well summarized by Lamm in Easing
Access to the Courts for Incest Victims: Toward an Equitable
Application of the Delayed Discovery Rule (1991), 100 Yale
L.J. 2189, at pp. 2194-95. The nexus between fault and
damage is the subject of recurring comment in the literature.
The Supreme Court referred to some 27 academic journals in
its ultimate findings. It is clear from the evidence and the
scientific literature that a misapplied sense of responsibility is
instrumental in conditioning the child victim to submit silently to
the abuse, while at the same time serving as the catalyst for
much of the consequential psychological and emotional
damages that emerge over time.
[Ill] What is not a myth in this case are the facts. What must be remembered
is the victimization of Mandi Gray.
[112]

The gravity of the rape cannot be diminished. Rape is not an accident.

[113] Mr. Ururyar made Mandi Gray a victim. More importantly he has also
made Mandi Gray a survivor. With respect, a victim impact statement may be,
may be a misnomer and may do a disservice. It is a survivor impact statement.

[114] Any attempt to dilute this rape is repugnant. It is about deterring other
perpetrators of sexual violence and maybe, maybe more victims will be more
willing to report their attacks. It is about the seriousness of the offence.
[115] Given Mr. Ururyars complete, complete lack of credibility and self-serving
continue to be of danger to
version of events, I would not assume that he will
management
of
risk. There must be no
the
future
others. I have considered
repetitions. There is a canyon of difference between bad decisions and rape,
between evidence of goodness or, perhaps redemption.

36

Probation Orders
[116] This Court has the jurisdiction to make a probation order in addition to a
fine or imprisonment, but not in addition to both, where no minimum punishment
is prescribed (s. 731). See R. V. Blaquiere (1975), 24 C.C.C. (2d) 168 (OntCA)
and R. v. Kelly (1995), 104 C.C.C. (3d) 95 (Nfld CA).
[117] Probation conditions should be rationally connected to the offence and
the offender. A probation condition attached as a purely or primarily punitive
measure in unreasonable.
[118] Optional conditions in probation orders are intended in part to facilitate an
offenders successful reintegration into the community (s.732.1(3)(h)).
Conditions of conditional sentences may not focus principally on the rehabilitation
and reintegration of the offender and therefore the court may impose punitive
conditions such as house arrest electronic supervision and strict curfews (s.
742.3(2)(f)). The punishment for breaching a condition of a conditional sentence
range from the court taking no action to the offender being required to serve the
remainder of his or her sentence in custody. Breach of a probation order is made
Breaches of
its own offence, with imprisonment a possible punishment.
conditional sentence orders need to be proved only on balance of probabilities
while breaches of probation orders, since they may constitute a new offence,
must be proved beyond a reasonable doubt.

Weapons Prohibition
[119] Under s. 109, a court sentencing an offender for certain offences is
required to make an order prohibiting the person from possessing any firearm
and other enumerated weapons.
[120] Under 5. 110, the court has discretion to impose a prohibition order where
the offender was convicted of certain other offences. Section 111 permits a court
to make a prohibition order even where the person was not convicted of an
offencewhere, following a hearing, a judge is satisfied that it is not desirable in
the interests of safety for the person to have possession of firearms.

DNA Order
[121] Under s. 487.051 of the Code, there are four categories of offences in
mandatory primary (no discretion);
relation to DNA databank orders:
presumptive primary (offender must convince the Court not to make the order);
listed secondary. Primary and secondary offences designated in s. 487.04

37

Sex Offender Registry Order


[122] Amendments to the Criminal Code provisions concerning the sex offender
registry were proclaimed in force on April 15, 2011. Section 490.012(1) now
provides that when a court imposes a sentence for a designated offence under s.
490.011(1)(a), (c), (c.1), (d) or (e), it shall make an order requiring a person to
comply with the Sex Offender information Registration Act (SOIRA).
[123] Section 490.012(2) provides that when a court imposes a sentence for a
designated offence under s. 490.011(1)(b) or (f) it shall, on application of the
prosecutor, make a SOIRA order if the Crown establishes beyond a reasonable
doubt that the offence was committed with the intent to commit an offence under
s. 490.011(1)(a), (c), (c.1), (d) or (e).
[124] Section 490.013 specifies the applicable durations for SOIRA orders. The
court has no discretion to order a shorter duration. See R. v. Abel, 2013 NLCA 6.
[125] The weight of authority supports the view that a registry order is not a
punitive provision within the scope of s. 11(i) of the Charter. See R. v. Cross
(2006), 205 C.C.C. (3d) 289 (NSCA), leave denied: [2006] SCCA No. 161; R. v.
Owusu, 2007 ABCA 95; and R. v. Asselin, 2009 QCCA 188.

PART Il-OBSERVATIONS
[126] We are all planks in a bridge. It is not like running a race. We dont take
a baton and pass it off with the victim. We must all work together to get the
victim from where they are to where they need to be.
[127] Everybody has a basic human right to live a life free of violence and
abuse. Violence impairs some of the most fundament liberties of our life.
[128] The perfect victim is a deceptive myth that while perpetuated by the
media and society at large serves no use in the real world for helping victims and
holding offenders accountable. We must treat victims the way we would want to
be treated. We are all human. So the bottom line is that we should want the
best for each other.
[129] The unfortunate reality is that sometimes we do fail and sometimes the
victim disengages, because it is not safe for her to face her abuser in court, or
because the justice process can feel as traumatic as the violence itself, or for
other reasons. For victims of sexual assault the notion of justice is far more
complex than who goes to jail and for how long. For victims their idea of justice
may well be different from what ours is.

38
[130] We must no longer say We dont have enough to move forward with your
case, and hand up the phone.
[131] Sexual assault is a complex crime that affects every sector of our society.
Children, girls and boys, are molested by family members, college students are
date raped, and the elderly are attacked in their homes. Sexual assault knows
no gender, geographic location, race, ethnicity, or sexual orientation. None of us
is immune, but all of us are responsible to end it.
[132] Myths and misconceptions abound, not the least of which is that real rape
is committed by strangers wielding weapons in dark alleys. To the contrary, as
we have seen here, most victims know their attackers, no weapons are used,
and alcohol and, or drugs are involved.
[133] Our terminology is confusing. Sometime we talk about rape, sometime
sexual assault, other times sexual violence. The subject of sex is talked about a
lot, but the concept of sexual violence is not discussed. People have a hard time
understanding the nature of sexual violence, and we have a tendency when we
talk about it to blame the victim for having caused it.
[1341 We tend to look at victims and hold them responsible. We do not look at
what the perpetrator did.
[135] Rape is a heinous crime, perhaps second only to murder in severity in
terms of moral depravity, severity, and irrevocability. We must all be advocates
for anyone who has been impacted by this kind of violence.
[1361 Less than 10 years ago the Supreme Court of the U.S. held that the
Eighth Amendment forbade the death penalty for rape. Justice Alitos dissent
Kennedy v. Louisiana, 554 U.S. 407 (2008), (U.S. Supreme Court splitting 5-4),
supported the continuation of the death penalty for the rape of a child.
[137] The entire system and, indeed, the entire culture in which our system
operates will take rape less seriously when sentences do not reflect the true
gravity of the offence. Anything less would be profoundly disturbing.
[138] We need to look at the neurobiology of trauma. More focus must be on
offender data, not solely on the characteristics and behaviours of the victim which
takes scrutiny off the offenders.
[139] Think of visiting a funeral home upon the death of a friend or family
member. Some guests will cry; other will laugh and tell jokes. Remember the
good times. Others will simply smile and embrace friends in a gesture of
support? Others will shut their eyes and hold their feeling close. Despite how
vastly different these reactions are, no one leaves the funeral home doubting that
someone died.

39

[140] I have seen complainants breakdown in the witness box under


questioning and I have witnessed those that seem more in control than those
reading out the evidence. Should we punish complainants for being strong
willed? Control is vital for some complainants to ensure that they get through
their court case. The danger is that if a complainant is in control, for whatever
reason, and is not visibly upset, human nature suggests less empathy is given.
Clearly this clouds judgment and objectivity may be lost.

[141] A brief look at peritraumatic responses (during an attack) may indicate


how a complainant reacts during court. Some are active during an attack. For
example, they may kick, spit, and swear at the perpetrator, while others may
demonstrate a non-active behavioural response which is thought of as consent
but is in fact what is commonly referred to as rape induced paralysis. These
characteristics could well be evidence in the courtroom and would appear prima
fade, that the complainant appears almost unnerved by court procedures but
may, may in fact be numb to them. Perhaps more needs to be considered for
such complainants during a rape case. We are, as a society, told to express our
feelings as it makes us feel better. In this context, that of being raped, those that
control their inner feelings are potentially at more risk of bias.

PART Ill FINDINGS


-

[142]

It is NOT about being pro anyone. Male rape is real rape.

[1431

It is about being anti-rape.

[144] Rape is the ultimate violation of self, short of murder except it can be
murder of the soul.
[145] Rape is a violent act because it involves force or the threat of force or
intimidation with the intention to overcome the will and capacity of the victim to
resist. The rape was not violent, it may be suggested. Mr. Ururyar did not cause
any bodily harm to Ms. Gray. Any such suggestion is reprehensible.
[146] Rape undermines our sense of security and because of this with rape I
would suggest there is a public injury as well each and every time a rape takes
place.
[147] Rape is the desecration of the victims person, a vital part of her sanity
and dignity as a human being. See Reference Assisted Human Reproduction
Act, 2010 S.C.C. 61 at paras 55-56, [2016] 3 S.C.R. 459. There seems to be a
basic lack of understanding of what rape is about. Rape involves such a
horrendous invasion not only of the victims privacy but of their body and their
mind, that even rape without any other physical violence (because let us not

40

forget that rape itself is a violent act) is a heinous crime and worthy of a severe
sentence. We should never lose sight of the basic point, simply that rape is a
rape is a rape.
[148] There is a clear, very clear, a iender dimension to the crime of rape and
sexual assault. Statistics are not biased. See Statistics Canada, Criminal
Wctirnization in Canada, 2014, Samuel Perreault, Catalogue No. 85-002-X
(Ottawa: Statistics Canada) at 33, victims of sexual assault are virtually seven
times more likely to be female.
We view our job functions through the lens of our experiences,
and all of us are impacted by biases and stereotypes and other
cognitive functions that enable us to take shortcuts in what we.
do. Bias is a natural human tendency and useful because we
need shortcuts in dealing with so much in life; unconscious
biases often are in conflict with our egalitarian values; and yet
they predict and determine our actions and decisions more
th
6
U.S. Circuit Court of Appeals
than our explicit values.
Judge Bernice B. Donald. See also Committee for Justice and
Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369.

[149] Why do we seem as a society to have an irrational readiness to excuse


rape, to excuse sexual brutalization? Predatory behaviour undermines are
societal values.
[150] To quote Justice Abella in part as to the effect of cyberbullying on children
in A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 575:
The amicus curiae pointed to the absence of evidence of harm
from the girl about her own emotional vulnerability. But, while
evidence of a direct, harmful consequence to an individual
applicant is relevant, courts may also conclude that there is
objectively discernable harm.
Recognition of the inherent vulnerability of children has
consistent and deep roots in Canadian law. This results in
protection for young peoples privacy under the Criminal Code,
R.S.C. 1985, C. C-46 (s. 486), the YoUth Criminal Justice Act,
S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to
mention international protections such as the Convention on
the Rights of the Child, Can. T.S. 1992 No. 3, all based on age,
not the sensitivity of the particular child.. As a result, in an
application involving sexualized cyberbullying, there is no need
for a particular child to demonstrate that she personally

41

conforms to this legal paradigm. The law attributes the


chronology,
not
on
based
vulnerability
heightened
temperament: See R. v. D.B., 2008 SCC 25 (CanLil), [2008] 2
S.C.R. 3, at paras. 41,61 and 84-87; R. v. Sharpe, 2001 SCC 2
(CanLil), [2001] 1 S.C.R. 45, at paras. 170-74.
It is logical to infer that children may suffer harm through
Such a conclusion is consistent with the
cyberbullying.
psychological toxicity of the phenomenon described in the
Report of the Nova Scotia Task Force on Bullying and
Cyberbullying, chaired by Prof. A. Wayne Mackay, the first
provincial task force focussed on online bullying: (Respectful
and Responsible Relationships: Theres No App for That: The
Report of the Nova Scotia Task Force on Bullying and
Cyberbullying (2012)). The Task Force was created as a result
of [a] tragic series of youth suicides (p. 4).
The Report defined bullying as,
behaviour that is intended to cause, or should be
known to cause, fear, intimidation, humiliation, distress
or other forms of harm to another persons body,
feelings, self-esteem, reputation or property. Bullying
can be direct or indirect, and can take place by written,
verbal, physical or electronic means, or any other form
of expression. [pp. 42-43]

Its harmful consequences were described as extensive,


including loss of self-esteem, anxiety, fear and school drop-outs
(p. 4). Moreover, victims of bullying were almost twice as likely
to report that they attempted suicide compared to young people
who had not been bullied (p. 86): See also R. v. R.(W), 2010
ONCJ 526 (CanLll), at paras. 11 and 16, and Cyberbullying: A
Growing Problem, Science Daily (February 22, 2010, online).
Justice Abellas decision is also of interest with respect to her references. In R.
V. McCraw, [1991] 3 S.C.R. 72, issues unrelated to sentencing, Cory J.,
delivering the judgment of the court, stated [at pp. 526-7]:
Violence and the threat of serious bodily harm are indeed the
hallmarks of rape. While the bruises and physical results of the
violent act will often disappear over time, the devastating

42

psychological effects may last a lifetime, It seems to me that


grave psychological harm could certainly result from an act of
rape.
The psychological trauma suffered by rape victims has been
well documented. It involves symptoms of depression,
sleeplessness, a sense of defilement, the loss of sexual desire,
fear and distrust of others, strong feelings of guilt, shame and
loss of self-esteem. It is a crime committed against women
which has a dramatic, traumatic impact: see D:J. Giacopassi
and K.R. Wilkinson, Rape and the Devalued Victim, 9 Law
and Human Behaviour 367 (1985); R. v. BilIam (1986), 8 Cr.
App. R.(S.)48 at pp. 49-50 (C.A.);.P.Marshall, Sexual Assault,
the Charter and Sentencing Reform (1988), 63 C.R. (3d) 216
at p. 221; A.W. Burgess, Rape Trauma Syndrome, 1:3
Behavioral Sciences and the Law 97 (1983); C.H. Herd,
Criminal Law: Kansas Recognizes Rape Trauma Syndrome,
24 Washburn L.J. 653 (1985). To ignore the fact that rape
frequently results in serious psychological harm to the victim
would be a retrograde Step,- contrary to any concept of
sensitivity in the application of the law.
[151] Talking about what consent is or is not, is not very helpful. That suggests
victims have to resist.
[152] The further suggestion that a court should consider the nature, if not
length of a relationship reintroduces the notion of a willing participant.

[153]

Violence in any form increases moral culpability.

[154] Sexual assault is a crime. Our government has said so. It is because of
the harm it causes our society, but perhaps more importantly to the individual
complainant.
[155] The historical characteristics of crime are: conduct, circumstances and
consequences. Conduct goes to the unlawful act over which the offender has
control Circumstances go to the context in which the unlawful act is perpetrated.
Consequences go to the result of the unlawful act. Courts have used all three
bases, whether individually or in combination, for classification purposes.
[156] Lacasse at para. 5, supra, describes starting points and sentencing
ranges as two similar sentencing tools used to ensure that offenders who have
committed similar crimes in similar circumstances are given similar sentences:

43

57.
Ultimately, whatever mechanism or terminology is
used, the principle on which it is based remains the same.
Where sentencing ranges are concerned, although they are
used mainly to ensure the parity of sentences, they reflect all
the principles and objectives of sentencing. Sentencing ranges
are nothing more than summaries of the minimum and
maximum sentences imposed in the past, which serve in any
given case as guides for the application of all the relevant
principles and objectives. However, they should not be
considered averages, let alone straitjackets, but should
instead be seen as historical portraits for the use of sentencing
judges, who must still exercise their discretion in each case...
.

Once again, everything depends on the gravity of the offence,


the offenders degree of responsibility and the specific
circumstances of each case.
Lacasse at para. 58.
.

[157] Section 718.1 of the Criminal Code states that any sentence imposed
must be proportionate to the gravity of the offences and the degree of
responsibility of the offender. In R. v. Nasogaluak, supra, 2010 1 S.C.R. 206, at
paragraphs 40 to 42, the Court considered section 718.1 of the Criminal Code
and indicated that the principle of proportionality is central to the sentencing
process. In R. v. Ipeelee, supra, 2012 SCC 13, the Supreme Court of Canada
indicated that the Criminal Code lists a number of principles to guide sentencing
judges and that the fundamental principle of sentencing is that the sentence
must be proportionate to both the gravity of the offence and the degree of
responsibility of the offender. The Court further indicated in Ipeelee that the
sentencing principle of proportionality is ultimately tied to the fundamental
purpose of sentencing the maintenance of a just, peaceful and safe society
through the imposition of just sanctions.

[158] Comparator case analysis is ubiquitous. See e.g. R. v. Shropshire, supra,


[1995] 4 S.C.R. 227 at para 50, R. v. Heatley, 2015 BCCA453 at paras 21-28, R.
v. Tuglavina, 2011 NLCA 20 at paras 122-126, 289 C.C. (3d) 429 (sexual assault
ranges).
[159] Rape and other major sexual assaults are grave and serious acts of
violence: see e.g. R. v. McCraw, supra, [1991] 3 S.C.R. 72 at 83-85. And yet
there are those who think that unless overt force is used to compel submission, a
fist in the face, hit to the head or blows to the body, supra, there is no violence.
[160] In the end, the sentence imposed on an offender, after taking into account
all relevant sentencing principles, objectives, factors and circumstances must be
proportionate to the gravity of the offence and the degree of responsibility of the
offender. Individualization and parity principles may inform but, but do not

44

temper, much less trump, proportionality: see Lacasse, supra at paras 53-54.
Even with its elevated stature as the paramount principle of sentencing (which
Parliament was entitled to designate), proportionality is not a principle of
fundamental justice: See R. v. Safarzadeh-Markhali, 2016 S.C.C. 14 at paras 6773. The Supreme Court specifically noted at para 71 that: The principles and
purposes for determining a fit sentence, enumerated in s. 718 of the Criminal
including the fundamental principle of
Code and provisions that follow
proportionality in S. 718.1 do not have constitutional status. Seen in that light,
individualization is not atop a hierarchy of principles. Rather, it and other
principles are to be considered in the reasoning path towards a proportional
sentence.

[161] At issue in R. v. Seaboyer and R. v. Gayme, [1991] 2 S.C.R. 577 was


whether the Criminal Codes rape-shield provisions (R.S.C., 1985, c. C-46, ss.
276 and 277) infringe the principles of fundamental justice or the right to a fair
trial found in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
The rape-shield provisions restricted the right of the defence on a trial for a
sexual offence to cross-examine and lead evidence of a complainants sexual
conduct on other occasions.

Held (LHeureux-Dub and Gonthier JJ. dissenting in part): The


appeals should be dismissed; however, s. 276 of the Criminal
Code is inconsistent with ss. 7 and 11(d) of the Charter and that
inconsistency is not justified under s. I of the Charter. Section
277 is not inconsistent with the Charter.
Sections 7 and 11(d) of the Charter protect not only the accused
but other interests as well. The exact nature of the other interests
involved depends upon the nature and aspect of the right
considered. The complainant, and indeed the community at large,
have an interest in the reporting and prosecution of sexual
offences. They also have a legitimate interest in ensuring that
trials of such matters are conducted in a fashion that does not
subordinate the fact-finding process to myth and stereotype.
However, a discussion of the community or group interests
involved is not strictly necessary as the competing interest in this
case, that of ensuring that trials and thus verdicts are based on
fact and not on stereotype and myth, is not one belonging solely to
any group or community but rather is an interest which adheres to
the system itself; it maintains the integrity and legitimacy of the
trial process. This interest is so closely intertwined with the
interests of complainants and of the community that the distinction
may be unimportant in reality.

45

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Canadian and American Rape Law (1983), 6 Can.-U.S. L.J. 48.
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Courtroom (1977), 77 Colum. L. Rev. 1.
Borgida, Eugene and Phyllis White. Social Perception of Rape
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339.
Boyle, Christine. Section 142 of the Criminal Code: A Trojan Horse?
(1981), 23 Crim. L.Q. 253.
Boyle, Christine, L. M. SexualAssault. Toronto: Carswells, 1984.
Brickman, Julie and John Briere, Incidence of Rape and Sexual Assault
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and Services, 1984.
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1982.
Canada. Law Reform Commission. Corroboration: A Study Paper
Prepared by the Law of Evidence Project. Ottawa, 1975.
Canada.
Solicitor
General.
Canadian
Survey: Female Victims of Crime, 1985.

Urban

Victimization

Canada.
Solicitor
General.
Canadian
Survey: Reported and Unreported Crimes, 1984.

Urban

Victimization

Catton, Katherine. Evidence Regarding the Prior Sexual History of an


Alleged Rape Victim Its Effect on the Perceived Guilt of the Accused
(1975), 33 U..T. Fac. L. Rev. 165.
--

Check, James V. P. and Neil M. Malamuth. Sex Role Stereotyping and


Reactions to Depictions of Stranger Versus Acquaintance Rape (1983),
45 J. of Pers. and Soc. Psych. 344.

46

Clark, Lorenne M. C. and Debra J. Lewis. Rape: The Price of Coercive


Sexuality. Toronto: Womens Press, 1977.
Clark, Lorenne M. G. and Debra J. Lewis. A Study of Rape in
Canada: Phases C and D: Report to the Donner Foundation of
Canada, 1976 (unpublished).
Cross, Rupert, Sir and Cohn Tapper.
ed. London: Butterworths, 1990.

Cross on Evidence, 7th

Dawson, T. Brettel. Sexual Assault Law and Past Sexual Conduct of the
Primary Witness: The Construction of Relevance (1988), 2 C.J. WL. 310.
Doherty, David H. Sparing the Complainant Spoils the Trial (1984),
40 C.R. (3d) 55.
Elliott, D. W. Rape Complainants Sexual Experience with Third Parties,
[1984] Crim. L. Rev. 4.
Federal/Provincial Task Force on Uniform Rules of Evidence. Report of
the Federal Provincial Task Force on the Uniform Rules of
Evidence. Toronto: Carswells, 1982.
Feild, Hubert S. and Leigh B. Bienen. Jurors and Rape. Lexington,
Mass.: Lexington Books,1980.
Galvin, Harriett R. Shielding Rape Victims in the State and Federal
Courts: A Proposal for the Second Decade (1986), 70 Minn. L. Rev. 763.
Gordon, Margaret T. and Stephanie Riger.
York: The Free Press, 1989.

The Female Fear. New

Grant, Yola Althea. The Penetration of the Rape Shield: R. v. Seaboyer


and R. v. Gayme in the Ontario Court of Appeal (1989-1 990), 3 C.J.WL.
592.
Rape Shield Statutes: Constitutional Despite
Haxton, David.
Unconstitutional Exclusions of Evidence, [1985] Wis. L. Rev. 1219.
Holmstrom, Lynda Lytle and Ann Woibert Burgess. The Victim of Rape:
Institutional Reactions. New Brunswick, N.J.: Transaction Books, 1983.
Hoskins, Jeffrey C. The Rise and Fall of the Corroboration Rule in
Sexual Offence Cases (1983), 4 Can. J. Fam. L. 173.
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House of Commons Debates, 1st sess., 32nd Pan.

47

Howard, Cohn. Criminal Law, 3rd ed. Sydney: The Law Book Co., 1977.
Informa Inc. Sexual Assault: Measuring the Impact of the Launch
Campaign. Report prepared for the Ontario Womens Directorate,
August 1988.
La Free, Gary D. Variables Affecting Guilty Pleas and Convictions in
Rape Cases: Toward a Social Theory of Rape Processing (1980), 58
Soc. Forces 833.
La Free, Gary D., Barbara F. Reskin and Christy A. Visher. Jurors
Responses to Victims Behavior and Legal Issues in Sexual Assault
Trials (1985), 32 Soc. Prob. 389.
LeGrand, Camille E. Rape and Rape Laws: Sexism in Society and Law
(1973), 61 Calif L. Rev. 919.
MacKinnon, Catharine A.
Toward a Feminist Theo,y
State. Cambridge, Mass.: Harvard University Press, 1989.

of the

Marshall, Patricia. Sexual Assault, The Charter and Sentencing Reform


(1988), 63 C.R. (3d) 216.
McCormick, Charles Tilford. McCormick on Evidence, 3rd ed.
Kenneth S. Brown et al. St. Paul, Minn.: West Pub. Co., 1984.

By

McCormick, Charles Tilford. McCormicks Handbook of the Law of


Evidence, 2nd ed. By E. W. Cleary. St. Paul: West Pub. Co., 1972.
McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora,
Ont.: Canada Law Book, 1990.
Ordover, Abraham P. Admissibility of Patterns of Similar Sexual
Conduct: The Unlamented Death of Character for Chastity (1977), 63
ComeliL. Rev. 90.
Paciocco, David M. The Charter and the Rape Shield Provisions of the
Criminal Code: More About Relevance and the Constitutional
Exemptions Doctrine (1989), 21 Ottawa L. Rev. 119.
Renner, K. Edward and Suresh Sahjpaul, The New Sexual Assault
Law: What Has been Its Effect (1986), 28 Can. J. Crim. 407.
Schiff, S. Evidence in the Litigation Process,
Toronto: Carswells, 1988.

3rd ed., vol. 2.

48

Sheehy, Elizabeth A. Canadian Judges and the Law of Rape: Should


the Charter Insulate Bias? (1989), 21 Ottawa L. Rev. 741.
Stanley, Marilyn C. The Experience of the Rape Victim with the Criminal
Justfce System Priorto Bill C-127. Ottawa: Department of Justice, 1985.
Stephen, James Fitzjames,. Sir. A Digest of the Law of Evidence, 12th
By Sir Harry Lushington Stephen and Lewis Frederick
ed.
Sturge. London: MacMillan and Co., 1946.
Tanford, J. Alexander and Anthony J. Bocchino. Rape Victim Shield
Laws and the Sixth Amendment (1980), 128 U. Pa. L. Rev. 544.
United States Constitution, Fifth, Sixth, Fourteenth Amendments.
Vandervort, Lucinda. Mistake of Law and Sexual Assault: Consent and
Mens Rea (1987), 2 C.J.WL. 233.
Wigmore, John Henry. Evidence in Trials at Common Law, vol.
3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co.,
1970.
The
of
Sexual
M.
Prosecution
Kristen
Williams,
Assaults. Washington: Institute for Law and Social Research, 1978. R.
v. Seaboyer, supra
LHEUREUX-DUBE J. (dissenting in part):
Sexual assault is not like any other crime. In the vast majority of
cases the target is a woman and the perpetrator is a man (98.7
percent of those charged with sexual assault are men: Crime
Statistics 1986, quoted in T. Dawson, Sexual Assault Law and
Past Sexual Conduct of the Primary Witness: The Construction of
Relevance (1988), 2 C.J.W.L. 310, at note 72, p. 326). Unlike
other crimes of a violent nature, it is for the most part unreported.
Yet, by all accounts, women are victimized at an alarming rate and
there is some evidence that an already frighteningly high rate of
sexual assault is on the increase. The prosecution and conviction
rates for sexual assault are among the lowest for all violent
crimes. Perhaps more than any other crime, the fear and constant
reality of sexual assault affects how women conduct their lives and
how they define their relationship with the larger society. Sexual
assault is not like any other crime.
Conservative estimates inform us that, in Canada, at least one
woman in five will be sexually assaulted during her lifetime (see J.

49

Brickman and J. Briere, Incidence of Rape and Sexual Assault in


an Urban Canadian Population (1985), 7 Intl J. of Womens Stud.
195). The Report of the Committee on Sexual Offences Against
Children and Youths warns that one in two females will be the
victim of unwanted sexual acts (Sexual Offences Against Children
(1984)). While social scientists agree that the incidence of sexual
assault is great, they also agree that it is impossible, for a variety
of reasons, to measure accurately the actual rate of victimization.
However, Brickman and Briere, supra, report that police figures
may be multiplied anywhere from five to twenty times to correct
for victim under-reporting. (See also LeGrand, Rape and Rape
Laws: Sexism in Society and LaW (1973), 61 Calif. L. Rev. 919, at
p. 939, and L. Clark and D. Lewis, Rape: The Price of Coercive
Sexuality (1977), at p. 57.) While there is a large gap between
reported incidents and actual victimization, there is a further gap
between what researchers tell us are the actual numbers and
what the actual numbers are.
There are a number of reasons why women may not report their
victimization: fear of reprisal, fear of a continuation of their trauma
at the hands of the police and the criminal justice system, fear of a
perceived loss of status and lack of desire to report due to the
typical effects of sexual assault such as depression, self-blame or
loss of self-esteem. Although all of the reasons for failing to report
are significant and important, more relevant to the present inquiry
are the numbers of victims who choose not to bring their
victimization to the attention of the authorities due to their
perception that the institutions with which they would have to
become involved will view their victimization in a stereotypical and
biased fashion. In the report of the Solicitor General of Canada,
Canadian Urban Victimization Survey: Reported and Unreported
Crimes (1984), the statistics in this regard are noted at p. 10:
Analysis of reasons for failure to report incidents confirms
many of the concerns which have already been noted by
rape crisis workers
that women fear revenge from the
offender (a factor in 33% of the unreported incidents) and,
even more disturbingly, that they often fail to report
because of their concern about the attitude of police or
courts to this type of offence (43% of unreported incidents).
--

(See also L. Holmstrom and A. Burgess, The Victim of Rape:


Institutional Reactions (1983), at p. 58, and P. Marshall, Sexual

50

Assault, The Charter and Sentencing Reform (1988), 63 C.R.


(3d) 216, at p. 217.)
The woman who comes to the attention of the authorities has her
victimization measured against the current rape mythologies, i.e.
who she should be in order to be recognized as having been, in
the eyes of the law, raped; who her attacker must be in order to be
recognized, in the eyes of the law, as a potential rapist; and how
injured she must be in order to be believed. If her victimization
does not fit the myths, it is unlikely that an arrest will be made or a
conviction obtained. As prosecutors and police often suggest, in
an attempt to excuse their application of stereotype, there is no
point in directing cases toward the justice system if juries and
judges will acquit on the basis of their stereotypical perceptions of
K.
the supposed victim and her supposed victimization.
(1978),
discusses,
Assaults
Sexual
Prosecution
of
The
Williams,
at p. 42, the attrition rate for sexual assault cases as they
progress through the system.
This Court has previously examined the application of myth and
stereotype to women in the realm of the criminal Law. In R. v.
Lavallee, 1990 CanLIl 95 (SCC), [1990] 1 S.C.R. 852, this Court
considered the negative impact of stereotypes about battered
women and held at p. 890 that [e]xpert evidence can assist the
jury in dispelling these myths. L. Vandervort, Mistake of Law and
Sexual Assault: Consent and Mens Rea (1987), 2 C.J.W.L. 233,
at p. 258, note43, suggests that, [t]he criminal justice system can
play a major role in the process of replacing mythical views of
sexual assault, and the social definitions of sexual assault based
on these myths, with views based on fact and the results of
empirical studies.
The fact is that many, if not most women live in fear of
victimization. The fear can become such a constant companion
that its effect remains largely unnoticed and, sadly, unremarkable.
In their study of this phenomenon, M. Gordon and S. Riger, The
women restrict their
Female Fear (1989), conclude that,
order
to avoid being
in
even
isolate
themselves
behavior
harmed. The point is made dramatically at pp. 1-2 of the
Canadian Urban Victimization Survey: Female Victims of Crime,
supra:
.

--

--

We now know from recent research on fear of crime that


first-hand experience with victimization is only one

51

dimension of fear..
Particularly relevant in understanding
womens fear is an appreciation of the kinds of violence
women are most vulnerable to, especially the experience
and the impact of domestic and sexual violence. Some
women live with the imminent threat of assault from
someone in their own households, and many women live
with the more general fear of sexual assault, concerns
which rarely intrude into the lives of men.
.

Defence counsel in rape cases have also used victim history


evidence in an effort to suggest that the rape victim got what she
deserved. The truth of what happened becomes concealed by
antipathy towards the victim, and belief systems which locate the
fault in the victim, regardless of the manner in which the offence
occurred. The fact that such evidence has a powerful emotional
impact upon triers of fact and can result in erroneous verdicts has
been well-documented and acknowledged even by judges.
[Footnotes omitted.][Emphasis added.]
The myth is that a bad woman is incapable of being raped.
We have to deal with the myth that the credibility of a bad
woman is immediately in question. I was never sure what that
phrase meant. As a lawyer, all I knew was that it was of benefit to
hurl as much dirt as possible in the direction of such a woman,
hoping that some of it would stick and that the jury would
disbelieve what she said. [Emphasis added.]
[162] As pointed out by the Ontario Court of Appeal in R. v. Bush, 2012 ONCA
743, a sentencing judge represents and speaks for the community that suffers
the consequences of the crime... He or she must choose from the range of
reasonable options, a sentence that best fits the offender and the offence. In R.
v. Keough, 2012 ABCA 14, at paragraph 57, the Alberta Court of Appeal indicated
that while discussion between the court and counsel is to be encouraged, a
sentencing is not a three way dialogue, a negotiated settlement or a JDR.
[163] In this courts view, the longest available conditional sentence, even with
the most onerous conditions, would clearly be demonstrability unfit. A non
custodial option is not appropriate. A conditional sentence would simply be in
compatible with the welfare of our society and would so deprecate the
seriousness of this crime as to fundamentally undermine respect for the law.
[164] The formerly narrow view of consent has been replaced by a view that
respects each sexual partner as an autonomous, equal and free person. See
e.g. R. V. Mabior, 2012 S.C.C. 47 at para 45, [2012] 2 S.C.R. 584.

&

52
[165] Rape is a violation of a victims body, a violation of sexual integrity. You
harm the complainant, you harm society.
[166] Rape legitimizes the appropriation of a womans body for individual
gratification. Rape is about humanity. It is about what we are capable of doing to
one another. It is about everyone.
[167] A conditional sentence is also inappropriate in this case because the
precondition that the offender not endanger the safety of the community has not
been satisfied. The PSR is of no help.
[168] In assessing whether an offender is a danger to the community, the court
must consider such factors: (1) the risk of the offender re-offending; and (2) the
gravity of the damage that could ensue in the event of re-offence. Even if I were
to accept that the risk to re-offend is minimal, the gravity of the potential harm
that would ensue if Mr. Ururyar was to re-offend precludes a conditional sentence
in and of itself.
V

[169] Community in s. 742.1 of the Code must be interpreted as including the


general public. The community consist of all persons who could be at risk of
being harmed by the offender. If there is a danger to any person by the offender
serving the sentence in the community, then a conditional sentence should not,
with respect, be imposed.
[170] While a conditional sentence may incorporate restrictive conditions as
indicated such as house arrest and curfews with non-custodial measures,
offenders serving a conditional sentence are not confined to an institution but are
meant to continue working, attending school and participating in treatment
programs.
V

One is Too Many


[171] Tolerance for rape is a very old but freshly infuriating story. Victims
deserve a new solution, not a stale policy. Shattered lives can be rebuilt, but the
scars will always remain. Let us not forget that rape is perpetrated as a weapon
of war. Many women are raped in this city, in this province, in this country every
day and many of them are themselves raped every day of every week.
[172] I am imposing a periOd of 18 months imprisonment to be followed by a
period of probation of three years with the appropriate terms and conditions:
There will also be ancillary orders pursuant to sections 109, 100, 487.051 and
490.012 of the Criminal Code of Canada.

[173]

53

Probation Conditions in part:


Statutory Conditions:
1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so.


3. Notify the court or probation officer in advance of any
change of name of address and promptly notify the court
or probation officer of any change in employment or
occupation.
Reporting:
Report within three working days of your release from custody
and after that, at all times and places as directed by the
probation officer or any person authorized by a probation officer
to assist in your supervision.
Residence:
Live at a place approved of by the probation officer and not
change that address without obtaining the consent of the
probation officer in advance.
Travel Restriction:
Remain in British Columbia unless you have prior written
permission from the court or probation officer to leave the
province.

Curfew:
1. Obey a curfew as set by your probation officer. Except
for any medical emergency involving you or any member
of your immediate family.
2. You must provide written justification to the probation
officer within 72 hours of any such absence during
curfew hours for any hospital visit or funeral attendance.

t4

54

You must provide written justification to the probation


officer prior to any such absence during your curfew
hours.

No contact/communication/attendance:
Do not contact or communicate in any way, directly or indirectly,
by any physical, electronic or other means, with Mandi Gray.
Weapons and Permits:
1. Do not possess any weapon(s) as defined by the Criminal
Code.
2. All licences and registration certificates pertaining to these
things referred to above, shall be surrendered and do not
apply for any such licences and registration certificates.
Alcohol, Drugs, Other: (PSR recommendations as determined)
Counselling and Treatment: (PRS recommendations as determined)
1. Attend and actively participate in all assessment,
counselling or rehabilitative programs as directed by the
probation officer and complete them to the satisfaction of
the probation officer.
2. You shall sign any release of information forms as will
enable your probation officer to monitor your attendance
and completion of any assessments, counselling or
rehabilitative programs as directed.
3. You shall provide proof of your attendance and
completion of any assessments, counselling or
rehabilitative programs as directed.

55

Community Service:
Perform 240 hours of community service work on a rate and
schedule to be directed by the probation officer but must
completed within 18 months of the start date to this Order.
Released: September 14, 2016
Sign

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