R. v. McDonnell

R. v. McDonnell
Collection
Supreme Court Judgments
Date
1997-04-24
Report
[1997] 1 SCR 948
Case number
24814
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 24814
Decision Content
R. v. McDonnell, [1997] 1 S.C.R. 948
Terry McDonnell Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. McDonnell
File No.: 24814.
1996: December 6; 1997: April 24.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Sentencing ‑‑ Appeals ‑‑ Sexual assault ‑‑ Accused pleading guilty to two counts of sexual assault ‑‑ Trial judge sentencing accused to 12 months’ incarceration for first offence and to six months for second offence, to be served concurrently ‑‑ Court of Appeal finding assaults to be major sexual assaults and raising sentence for first offence to four years’ incarceration and sentence for second offence to one year, to be served consecutively ‑‑ Whether Court of Appeal erred in overturning sentences imposed by trial judge.
Criminal law ‑‑ Sentencing ‑‑ Appeals ‑‑ Applicable standard of review of sentencing decisions.
Criminal law ‑‑ Sentencing ‑‑ Sexual assault ‑‑ Starting‑point approach.
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 accused's 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 "You're 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 accused's 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 Crown's 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, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The Court of Appeal’s decision is inconsistent with the deference that is owed to sentencing judges by appellate courts. In the absence of an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, a sentence should only be overturned if it is demonstrably unfit. Here, the Court of Appeal failed to point to a relevant factor not considered by the sentencing judge that would give rise to appellate review of the sentence. With respect to the first offence, the sentencing judge clearly considered penetration and psychological trauma as factors in reaching a sentence and did not treat the other personal problems the first complainant had been having around the time of the assault as a mitigating factor. After taking into account all relevant mitigating and aggravating circumstances, the sentencing judge arrived at what she considered was an appropriate sentence. With respect to the second offence, the same conclusion applies: the sentencing judge did not fail to consider relevant factors.
The mischaracterization of an offence according to judicially created categories is not an error in principle, and is an inappropriate ground to set aside the lower court’s sentence. First, deference should be shown to a lower court’s sentencing decision. Second, there is no legal basis for the judicial creation of a category of offence within a statutory offence for the purposes of sentencing. It is not for judges to create criminal offences, but rather for the legislature to enact them. By creating a species of sexual assault known as a “major sexual assault”, and by basing sentencing decisions on such a categorization, the Alberta Court of Appeal has effectively created an offence, at least for the purposes of sentencing. Given Parliament’s intention to treat sexual assaults causing bodily harm ‑‑ which includes psychological harm ‑‑ under s. 272 (c) of the Criminal Code , it is inappropriate to create a “major sexual assault”, which is based at least in part on the existence of harm to the victim pursuant to s. 271 . If the prosecution is to be based on the harm to the victim, the accused should be charged under s. 272 (c). It is not for the courts to establish a subset of offence within s. 271 that is based on harm. Moreover, to the extent that the Court of Appeal held that the Crown need not prove psychological harm in some instances, but rather such harm may be presumed, it was in error. If the Crown wishes to rely upon the existence of psychological harm, it should charge under s. 272 (c), and prove the offence. If harm is accepted as an aggravating factor under s. 271 and psychological harm may be presumed, the burden of proving harm as an aggravating factor is improperly lifted from the Crown and a burden of disproving harm shifts to the accused. In this case, the Court of Appeal’s discussion of the presumption of harm was both erroneous and unnecessary; harm existed and was considered in setting the sentence.
The first sentence’s departure from the Court of Appeal’s view of the appropriate starting point of three years does not in itself imply that the sentence was demonstrably unfit. Nor was there any reason given by the Crown or the Court of Appeal to conclude that a six‑month sentence for the second offence was demonstrably unfit. An appellate court may set out starting‑point sentences as guides to lower courts and this starting point may well be a factor to consider in determining whether a sentence is demonstrably unfit. If there is a wide disparity between the starting point for the offence and the sentence imposed, then, assuming that the Court of Appeal has set a reasonable starting point, the starting point certainly suggests, but is not determinative of, unfitness. Unless there otherwise is a proper reason to interfere with the sentence, a sentence cannot be altered on appeal, notwithstanding deviation from a starting point.
The decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The Court of Appeal failed to raise a legitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result of the sentencing judge’s exercise of discretion, which is an insufficient reason for interfering.
Per La Forest, L’Heureux‑Dubé, 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. Appellate courts in a number of provinces have responded to the need to accommodate these dual goals and resolve the tension which may arise between them by introducing the concept of “starting‑point” sentences. 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 sentencing principle the values of uniformity and 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 understood and applied, does not violate s. 7 of the Canadian Charter of Rights and Freedoms . This approach does not relieve the Crown of its burden of establishing the appropriateness of severe punishments. Once the Crown has established that the accused is guilty of the offence charged, it must then establish that the offence, in all the circumstances, falls within a particular range. This fixes the starting point. In order to obtain a harsher sentence, the Crown must also establish aggravating circumstances. On the other hand, if mitigating factors are revealed, the sentence will be reduced from the starting point. Further, the starting‑point approach in sexual assault cases does not create a vague law which fails to delineate the area of risk as required by s. 7 of the Charter . The principle against vagueness applies to the question of what conduct is criminalized and not to sentencing ranges. The principle is satisfied if the law specifies the conduct prohibited and indicates a range of punishment. Even if the principle against vagueness did apply to sentencing ranges, the starting point here at issue would satisfy it. If anything, the starting‑point approach increases the knowledge of the risk faced by a prospective or convicted accused. The possibility that judges may differ on whether to consider a particular assault major does not attract the vagueness principle. Vagueness does not arise simply because the law is open to varying interpretations by the courts.
The Criminal Code creates a single offence of sexual assault which embraces a wide range of conduct. The subdivision by the Alberta Court of Appeal of this vast offence into minor or major sexual assault for the purpose of sentencing, with a starting point of three years for major sexual assaults, does not amount to judicial legislation of a new offence. The starting‑point approach is merely a variation on the traditional concept of ranges of sentence for particular types of criminal acts. To recognize a certain type of act as being serious or major, and hence, in the typical case, attracting a sentence in a particular range, is not to create a new crime.
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 victim’s integrity was “such that a reasonable person would know beforehand that the victim likely would suffer lasting emotional or psychological injury, whether or not physical injury occurs”. The inquiry at that stage is 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 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.
Courts of appeal may intervene where the sentence discloses error of principle or is demonstrably unfit. The starting‑point approach does not provide a new judge‑made legal principle, enabling courts of appeal to interfere with the proper exercise of the sentencing judge’s decision. The starting point is not a principle of law, but rather a tool to determine the proper range of sentence for a certain type of offence. Failure to allude to the appropriate starting point or range is not an error of principle. When a court of appeal interferes on the ground that the judge ignored the correct starting point, it is simply saying that the sentence is demonstrably unfit because it falls outside the acceptable range of sentence for that sort of offence.
Here, the sentence imposed at trial was “demonstrably unfit”. A review of many cases from Alberta reveals that a sentence of less than two years in circumstances similar to the case at bar constitutes a marked departure from the norm. The unfit nature of the sentence resulted from the sentencing judge’s failure to place appropriate weight on the appropriate factors, thus depreciating the seriousness of the offence. Most significantly, she placed great emphasis on the physical acts but did not ask herself whether this was the sort of offence which would likely result in lasting psychological or emotional harm ‑‑ the hallmark of a major sexual assault. 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 concurrent 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.
Cases Cited
By Sopinka J.
Applied: R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; distinguished: R. v. S.G.O.R. (1991), 113 A.R. 36; R. v. S. (W.B.); R. v. P. (M.) (1992), 73 C.C.C. (3d) 530; R. v. Spence (1992), 78 C.C.C. (3d) 451; R. v. Nicholson (1993), 145 A.R. 262; R. v. Lapatak (1995), 169 A.R. 385; referred to: R. v. Sandercock (1985), 22 C.C.C. (3d) 79; R. v. A.B.C. (1991), 120 A.R. 106; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. R.P.T. (1983), 7 C.C.C. (3d) 109.
By McLachlin J. (dissenting)
R. v. Hessam (1983), 43 A.R. 247; R. v. Sandercock (1985), 22 C.C.C. (3d) 79; R. v. Natanson (1927), 49 C.C.C. 89; R. v. Connor and Hall (1957), 118 C.C.C. 237; R. v. Baldhead, [1966] 4 C.C.C. 183; R. v. Jourdain and Kudyba (1958), 121 C.C.C. 82; R. v. Zong (1986), 173 A.P.R. 432; R. v. Muswagon (1993), 88 Man. R. (2d) 319; R. v. Post (1996), 72 B.C.A.C. 312; R. v. Jackson (1993), 87 C.C.C. (3d) 56; R. v. Glassford (1988), 27 O.A.C. 194; R. v. Cunningham (1996), 104 C.C.C. (3d) 542; R. v. Edwards; R. v. Brandy, The Times, July 1, 1996; R. v. Jabaltjari (1989), 46 A. Crim. R. 47; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Muise (1994), 94 C.C.C. (3d) 119; R. v. S.G.O.R. (1991), 113 A.R. 36; R. v. Sand (1991), 120 A.R. 397; R. v. S. (W.B.); R. v. P. (M.) (1992), 73 C.C.C. (3d) 530; R. v. R.S.B. (1992), 135 A.R. 23; R. v. Spence; R. v. F. (D.L.) (1992), 78 C.C.C. (3d) 451; R. v. R.E.C., [1993] A.J. No. 303 (QL); R. v. D.M.B. (1993), 141 A.R. 307; R. v. Nicholson (1993), 145 A.R. 262; R. v. Dionne, [1993] A.J. No. 939 (QL); R. v. D.K. (1994), 155 A.R. 269; R. v. Watson (1994), 157 A.R. 80; R. v. Wagar (1995), 174 A.R. 317; R. v. Lapatak (1995), 169 A.R. 385; R. v. Lakotos (1996), 187 A.R. 45; R. v. A.B.C. (1991), 120 A.R. 106.
Statutes and Regulations Cited
Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6.
Canadian Charter of Rights and Freedoms, s. 7 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 271 [am. c. 19 (3rd Supp.), s. 10 ], 272, 724(3)(e) [repl. 1995, c. 22, s. 6].
Authors Cited
Canada. Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: The Commission, 1987.
Cross, Rupert, Sir. The English Sentencing System, 2nd ed. London: Butterworths, 1975.
Linden, Allen M. “A Fresh Approach to Sentencing in Canada”. In Hélène Dumont, ed., Sentencing. Cowansville, Que.: Canadian Institute for the Administration of Justice, 1987, 53.
Marshall, Patricia. “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216.
Ruby, Clayton C. Sentencing, 4th ed. Toronto: Butterworths, 1994.
Stuart, Don. Charter Justice in Canadian Criminal Law. Scarborough, Ont.: Carswell, 1991.
Young, Alan. The Role of an Appellate Court in Developing Sentencing Guidelines. Ottawa: Minister of Supply and Services Canada, 1988.
APPEAL from a judgment of the Alberta Court of Appeal (1995), 169 A.R. 170, 97 W.A.C. 170, allowing the Crown’s appeal against sentence. Appeal allowed, La Forest, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Marvin R. Bloos, for the appellant.
Paul L. Moreau, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
1 Sopinka J. -- This appeal concerns the decision of the Court of Appeal to overturn the sentences imposed by the sentencing judge for two counts of sexual assault simpliciter to which the appellant had pleaded guilty. The Court of Appeal, concluding that the first assault complained of was a “major sexual assault” as that court had defined it in past cases, set aside the global sentence of one year, and instead imposed a global sentence of five years.
2 In my view, the decision of the Court of Appeal was inconsistent with the deference that is owed to sentencing judges by appellate courts. A disagreement over the categorization of the assault as the appellate court has defined the category is an inappropriate ground to set aside the lower court’s sentence. In the present case, the sentencing judge did not commit an error in principle, did not ignore relevant factors and did not impose a demonstrably unfit sentence. Accordingly, I would allow the appeal and reinstate the sentence imposed initially by the sentencing judge.
I. Facts
3 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 appellant's home by Social Services. Approximately two weeks after her arrival in the appellant's home, the complainant was asleep on the living room couch, lying on her back. The appellant came home intoxicated. He undid the complainant’s pants, at which point the complainant turned over on her stomach and tried to press herself into the couch. She testified that she did so in the hope that perhaps he would go away if he thought she were sleeping. He did not. Instead, he took off her jeans and started to kiss her buttock area. She was trying to pretend that she was sleeping. Then he penetrated her vagina with his penis. She described the degree of penetration as being "a little bit" since she had her legs pressed together and he was trying to get them apart. Finally, he said "You're too difficult" and rolled onto the floor. He tried to put the complainant's jeans back on. The complainant waited until she was sure that the appellant was asleep on the floor and then she went downstairs to her room. At no time did the complainant consent to the appellant's actions.
4 The second offence occurred in 1993 when the appellant was 36 years of age. The complainant was a 14-year-old babysitter for the appellant's family. She had fallen asleep on her stomach on a hide-a-bed while babysitting. She testified that when she had gone to bed, she had been wearing a T-shirt, underwear and had a sleeping bag wrapped around her. When she awoke at 3:30 a.m., her underwear was pulled down and the sleeping bag was around her feet. The appellant was on top of her, rubbing her back under her T-shirt with one hand and rubbing her buttocks with the other. He then reached under her stomach touching her pelvis and vaginal areas. The appellant was trying to turn her over onto her stomach. He did not touch her breasts. She screamed and fled from the residence.
5 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 Crown's 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 Appeal’s decision.
II. Relevant Statutory Provisions
6 Criminal Code, R.S.C., 1985, c. C-46
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
272. Every one who, in committing a sexual assault,
...
(c) causes bodily harm to the complainant ...
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
III. Prior Judgments
A. Provincial Court of Alberta
7 Given the importance of the specific findings of the sentencing judge to the issues in the present appeal, I set out here the reasons of Burch Prov. Ct. J. pertaining to sentence in their entirety:
I have reviewed the facts as provided to me by the Crown today and confirmed by Mr. Tatarchuk and as heard by me at the preliminary inquiry with respect to the charges laid by [the first complainant]. I find that neither the assault on [the first complainant] nor on [the second complainant] were major sexual assaults as described in Regina v. Sandercock, or even as later refined since that case.
The assault in 1986 against [the first complainant] occurred on a 16-year-old girl who was placed in Mr. McDonnell's home by Social Services to help her resolve problems in her own home. She liked and trusted the McDonnells and had nowhere else to go.
The assault, while reprehensible, was an isolated one, and it was a situation of far more than fondling as the accused attempted penetration. However, in that case, there was no involvement of violence nor of threats. It did not involve oral sex nor anal intercourse, and there was only partial penetration. The event was spontaneous due to Mr. McDonnell's drunkenness on the night in question. It was a traumatic experience for the victim, but she was already 16 years old and was having other problems which may have contributed to her subsequent state of mind.
She cared for the defendant and she cared for his wife, and thus she didn't report the incident, unfortunately so, or Mr. McDonnell might have subsequently quit drinking, thus avoiding the later repetition of the offence in circumstances of a similar nature.
In sentencing Mr. McDonnell regarding this first charge, I am cognizant of the decision in R. v. R.P.T. [(1983), 7 C.C.C. (3d) 109 (Alta. C.A.)], but this is not a case where simple rehabilitation will suffice. Mr. McDonnell needs to commit to never drinking again, thus satisfying the concern that he may never re-offend if he does so only when drinking, but there must be some element of denunciation and general deterrence in this matter as well.
Thus, as stated in Regina v. R.P.T. at page 114, the only solution, however imperfect, is to graft a rehabilitative sentence to a denunciatory sentence.
In sentencing Terry McDonnell, I take into account his strong family support, the strong community support, his remorse and his desire to quit drinking, but also the trauma suffered by the victim at a time when she was already troubled, and the fact that F.A.C.S. doesn't see counselling as being of any use to prevent re-offending, for Mr. McDonnell might simply re-offend if drunk again.
Lastly, I recognize that the time elapsed since the offence has relevance in relation to the relative effect of this on both the accused and the victim.
I believe that a fit sentence is 12 months in custody followed by two years probation.
Regarding the charges of assault against [the second complainant], the victim in this case has been traumatized, but the acts of the accused were very much in the ‘less grave’ category. Mr. McDonnell is a man of otherwise good character and is a strong member of his community. He has always maintained employment and supported his family. An additional lengthy consecutive custodial sentence to the custodial sentence imposed on the first charge would only seek to destroy the accused and his family and is not necessary to deter others from committing such an offence.
I will thus sentence him to six months in gaol concurrent to the first sentence, plus probation for the same period of time.
B. Court of Appeal for Alberta (The Court)
8 The Court of Appeal held that the sentencing judge erred in concluding that the first assault was not a major sexual assault. R. v. Sandercock (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), held (at p. 84) that the key to a major sexual assault is the “evident blameworthiness of the offender”, as reflected in the extent to which the offender’s actions demonstrated “contemptuous disregard for the feelings and personal integrity of the victim”. In the present case, the court held that the appellant breached the trust reposed in him as a foster parent and did so in a manner which involved a serious violation of the complainant’s sexual and personal integrity and demonstrated a complete lack of concern for the feelings of the young girl. There was partial penile penetration of the vagina.
9 With respect to the defence argument that the Crown had failed to prove the psychological harm aspect of a major sexual assault, the court stated (at p. 173):
The first point we wish to make is that we cannot envision a situation where nonconsensual intercourse __ vaginal, anal or oral __ would not fall into the major sexual assault category. These acts, by their very nature, constitute the ultimate violation of a woman's sexual integrity. And where one is dealing with assaults falling into the major category because of their very nature __ and here we include rape, attempted rape, fellatio, cunnilingus, and buggery __ the violence, force and intensity of the act are a given: R. v. McCraw.... In addition, in each case, there also exists a very real likelihood of psychological harm. Therefore, what must be understood is that it is not necessary that the Crown prove the existence of this kind of harm as a condition precedent to the courts classifying a sexual assault as a major one. Psychological harm is presumed in the absence of evidence to the contrary. That is what this court said in Sandercock.
The court elaborated (at pp. 174-75):
To put the matter another way, the offender is being sentenced on the basis of a major sexual assault, not because any specific psychological consequences have flowed from the attack but rather because of the nature of the attack and the fact that it poses the very real likelihood of long-term emotional or psychological harm. The fact that no such harm may materialize, a fact one could not possibly know until the victim's life had been lived in its entirety, is not a mitigating factor. However, that said, this does not mean that the consequences of the sexual assault are irrelevant. The degree of seriousness of the actions may be measured against the likely long-term consequences of the prohibited act. In other words, where the psychological harm has been severe, that may well be an aggravating factor. Of course, where harm beyond that which would be normally presumed is claimed in a case, the Crown must lead evidence to substantiate it.
For these reasons, therefore, to bring into question what is presumed to be the psychological harm flowing from a major sexual assault, it is not enough that the defence simply denies that it exists. Bringing the presumed harm into question in this context means pointing to cogent evidence to the contrary. No such evidence existed in this case. [Emphasis in original.]
10 The court rejected the argument that the first victim did not suffer trauma because she already had other problems as both incorrect at law and perverse; her problems made her even more vulnerable. In any event, the victim testified at trial that the assault caused her psychological harm and the victim impact statement, which was before the sentencing judge by consent, also indicated such harm.
11 The court also held that the second sexual assault was serious, not minor. Given the nature of the attack, psychological harm is rightly presumed. The sentencing judge found that the victim was traumatized, although the judge acknowledged that the assault was in the “less grave” category.
12 The court held that the gap in time between the two incidents was not a mitigating factor, nor was this a case where concurrent sentences were appropriate.
13 The court held that it was satisfied that a fit and proper sentence was four years for the first sexual assault and, considering the global effect of the sentences, one year consecutive for the second assault. The court recommended consideration for early parole.
IV. Analysis
A. Deference to Sentencing Decisions
14 This appeal concerns the sentencing of the appellant who had pleaded guilty to two counts of sexual assault simpliciter. The sentencing judge held that an appropriate sentence for the offence that occurred in 1986 was 12 months in custody with two years’ probation, while the second offence brought a sentence of six months in jail, concurrent with the one-year sentence, plus probation for the same period. The Court of Appeal raised the custodial sentences for each offence to four years and one year respectively, the second sentence to be served consecutively. To assess the validity of the Court of Appeal’s judgment, it is first necessary to establish the standard of appellate review of sentencing decisions.
15 Two recent cases, R. v. Shropshire, [1995] 4 S.C.R. 227, and R. v. M. (C.A.), [1996] 1 S.C.R. 500, set out the applicable standard of review of sentencing decisions. Iacobucci J., writing for the Court, stated in Shropshire at paras. 45-50:
Section 687(1) reads as follows:
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal.
The question, then, is whether a consideration of the "fitness" of a sentence incorporates the very interventionist appellate review propounded by Lambert J.A. With respect, I find that it does not. An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), 98 N.S.R. (2d) 238, and R. v. Muise (1994), 94 C.C.C. (3d) 119. In Pepin, at p. 251, it was held that:
... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or (if) the sentence is clearly or manifestly excessive.
Further, in Muise it was held at pp. 123‑24 that:
In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless the sentence imposed is clearly excessive or inadequate....
. . .
The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts.... My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive.
...
Unreasonableness in the sentencing process involves the sentencing order falling outside the "acceptable range" of orders; this clearly does not arise in the present appeal. An error of law involves a situation such as that found in R. v. Chaisson, [1995] 2 S.C.R. 1118, in which a sentencing judge, while calculating the total time period of incarceration for the purposes of a "half‑time" parole ineligibility order under s. 741.2 of the Code, erroneously included two offences in the calculations notwithstanding the fact that these specific offences were not listed in the schedule of offences to which the s. 741.2 orders apply. [Emphasis in original.]
16 The deferential approach set out in Shropshire was confirmed and refined in M. (C.A.). In that case, Lamer C.J., on behalf of the Court, stated at paras. 90-92:
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . As s. 717(1) reads:
717. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence.
This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.... But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [Emphasis in original.]
17 I have included extensive references to these cases because in my view they are highly significant to the case at bar. M. (C.A.) set out that, in the absence of an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, a sentence should only be overturned if the sentence is demonstrably unfit. The respondent submitted that the sentencing judge in the present case failed to consider relevant factors and that the sentence was demonstrably unfit. Moreover, both the respondent and the Court of Appeal appear to have treated the failure of the sentencing judge to characterize the offence as a major sexual assault as an error in principle. I will discuss these contentions in turn.
B. Relevant Factors and Demonstrable Unfitness
18 Sandercock, supra, established in Alberta the notion of a “major sexual assault”, which carried with it a presumptive sentence (“starting point”) of three years. Sandercock stated at p. 84 that the key to a major sexual assault is the “evi