R. v. Rosenthal (A.R.), (2015) 365 B.C.A.C. 281 (YukCA)

• Judge: Chiasson, Schuler and Goepel, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: November 17, 2014
• Jurisdiction: Yukon
• Citations: (2015), 365 B.C.A.C. 281 (YukCA);2015 YKCA 1

R. v. Rosenthal (A.R.) (2015), 365 B.C.A.C. 281 (YukCA);

    627 W.A.C. 281

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JA.037

Regina (appellant) v. Ashton Reed Rosenthal (respondent)

(14-YU743; 2015 YKCA 1)

Indexed As: R. v. Rosenthal (A.R.)

Yukon Court of Appeal

Chiasson, Schuler and Goepel, JJ.A.

January 8, 2015.

Summary:

The accused and the victim had been consuming alcohol with others at a home where the accused often stayed. The victim asked to stay over and share the accused's bed rather than go home late at night. The accused agreed. The victim later awoke to find the accused's finger in her vagina. She moved over and he removed his hand. She told him that she was not interested in having sex and went home. The accused was convicted of sexual assault. He had no prior criminal record. The trial judge imposed a suspended sentence with probation for two years. The Crown appealed the sentence. The Crown argued that the trial judge erred in declining to take judicial notice that the offence would result in psychological harm to the victim. The Crown also argued that the sentence was unfit and outside the usual range for the offence and that the trial judge erred in not imposing a firearm prohibition order under s. 109 of the Criminal Code, an error conceded by the accused.

The Yukon Court of Appeal allowed the appeal and varied the sentence to one of 14 months' imprisonment. The court also imposed a 10 year firearms prohibition. The trial judge did not err in declining to take judicial notice of the specific psychological consequences that Crown counsel submitted would occur. However, in sentencing for sexual assault it was proper to consider the likelihood of psychological harm to the victim. To the extent that the trial judge refused to acknowledge the likelihood of psychological harm from a sexual assault, he erred. Further, a suspended sentence was a significant departure from the range identified in R. v. White, 2008 YKSC (12 to 30 months' imprisonment in cases involving non-consensual sexual intercourse with a sleeping or unconscious victim). A suspended sentence did not serve the principles of denunciation and deterrence, which were especially important given the prevalence in Yukon of sexual assaults on sleeping or unconscious victims. The trial judge erred in departing from the range with the result that the sentence imposed was unfit.

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - See paragraphs 12 to 15.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - See paragraph 12.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - See paragraphs 4 to 6.

Criminal Law - Topic 5836

Sentencing - Considerations on imposing sentence - Deterrence - Prevalence of similar crime - See paragraph 12.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - See paragraphs 7 to 14.

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - See paragraph 12.

Criminal Law - Topic 5848.10

Sentencing - Considerations on imposing sentence - Sexual offences - See paragraphs 4 to 14.

Criminal Law - Topic 5932

Sentence - Sexual assault (incl. by multiple parties) - See paragraphs 1 to 15.

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - See paragraphs 4 to 6.

Cases Noticed:

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 6].

R. v. White, 2008 YKSC 34, consd. [para. 7].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 10].

R. v. A.A.F., 2014 BCPC 46, dist. [para. 11].

R. v. Ingrey (S.R.) (2003), 236 Sask.R. 129; 2003 SKQB 300, dist. [para. 11].

R. v. T.J.H., 2012 BCPC 115, dist. [para. 11].

R. v. C.F.N., [2003] Yukon Cases (Terr. Ct.) 80; 2003 YKTC 80, refd to. [para. 13].

Counsel:

Noel Sinclair, for the appellant;

Lauren Whyte, for the respondent.

This appeal was heard on November 17, 2014, at Whitehorse, Yukon, before Chiasson, Schuler and Goepel, JJ.A., of the Yukon Court of Appeal. The following judgment of the Court of Appeal was delivered by Schuler, J.A., at Vancouver, British Columbia, on January 8, 2015.