Digest: R v Lemaigre, 2018 SKCA 47

• Date: April 18, 2018

Reported as: 2018 SKCA 47

Docket Number: CACR 3020 , CA17158

Court: Court of Appeal

Date: 2018-04-18

Judges:

• Jackson
• Heraug
• Whitmore

Subjects:

• Criminal Law � Assault � Sexual Assault � Sentence � Appeal
• Criminal Law � Sentencing � Aboriginal Offender

Digest: The Crown appealed the decision of a Queen�s Bench judge to sentence the respondent to two years less a day plus 24 months� probation after finding him guilty of sexual assault contrary to s. 271 of the Criminal Code. The sentencing judge subtracted 282 days from the custodial sentence in order to give enhanced credit for 188 days spent in pre-sentence custody to arrive at an effective sentence of one year and 82 days. The complainant, the mother of two young children who was expecting her third child at the time of the assault in 2012, had been sleeping when the respondent, the brother of her former spouse, entered her home while intoxicated. He forced himself upon her while she resisted. The police charged the respondent, but he could not be located and was not arrested until 15 months later. He was released on a promise to appear in court when he could not be transported back to Buffalo Narrows because of bad weather. He failed to appear and was unlawfully at large until he was arrested in March 2015. At trial, the respondent denied that anything of a sexual nature had occurred. In her victim impact statement, the complainant described that after the offence, the respondent had pressured her to drop the charges and threatened to commit suicide if she didn�t. In addition, his brother and others in the community put pressure on her to drop the charge and blamed her. She said that she had become suicidal after the assault and angry because she had been blamed. The trial judge convicted the respondent. The Crown submitted that a penitentiary sentence of three and one half to four years was appropriate. The defence, relying upon R v Chanalquay, submitted that two years less a day was proper, followed by probation. When sentencing, the judge followed Chanalquay. He determined that Gladue factors were relevant in the circumstances.
HELD: The appeal was allowed. The sentencing judge�s decision was set aside except for the ancillary orders and a sentence of three and one half years was substituted. The court found that the judge had erred in his interpretation of Chanalquay by applying s. 718.2(e) of the Criminal Code as if it were a directive to shorten jail...