Judgment reads ‘like a novel,’ highlights Appeal Court’s sensitivity, sound judgment

By John L. Hill

Law360 Canada (February 24, 2023, 11:36 AM EST) --
John Hill
John L. Hill
The Saskatchewan Court of Appeal judgment in R. v. Ross 2022 SKCA 149 is lengthy — 43 pages — on what appears at first sight as a run-of-the-mill appeal of a sexual assault conviction. Leonard Thomas Ross was convicted of molesting a woman referred to as I. R. in June 2015.

The victim was a 39-year-old woman with less than a Grade 8 education who required assistance to manage her finances and buy her groceries. Although she was inarticulate in giving her evidence and there appeared to be contradictions in her testimony, the trial judge had no trouble in finding her story credible. The accused did not take the stand. The first eight pages of the judgment has the reader silently cheering the trial judge’s interpretation of the evidence and the Appeal Court’s decision to uphold the sexual assault conviction.

It is when the judgment turns next to appropriate sentencing of the decision of the three-judge appeal panel that a reader’s initial reaction is altered. A reader can be satisfied that the Appeal Court has correctly analyzed the “who, what, when and where” of a crime. It is only when attention is turned to the “why” the crime was committed that the sensitivity and sound legal reasoning of the Appeal judges shines forth. The judgment reads like a novel in capturing the sympathy of the reader in a case where we question what it is to be a victim.

Leonard Ross was born in 1966 as a treaty member of the Lac La Ronge Indian Band. His childhood was plagued by his parents’ alcohol abuse and violence. His mother was a residential school survivor and his father was largely absent. He was emotionally and sexually abused, apprehended on various occasions, and placed in foster homes. By age 12, with one suicide attempt under his belt, he returned home and started sniffing gasoline. A return to the band’s Prince Albert residence led to more sexual abuse. A psychiatrist, Dr. Shabehram Lohrasbe, advised the court that Ross’ life was filled with trauma stemming from serious neglect and no meaningful affection in his formative years.

A string of minor criminal convictions finally led to a penitentiary term. Forced abstinence from alcohol and drugs in prison allowed him to act responsibly. He became acquainted with his native heritage and became an artist in depicting native culture. His works were often sold and the proceeds donated to charity. Once released and returning to alcohol and drugs, Ross also breached conditions, causing a return to prison. He was stuck in a revolving door. The attack on I.R. in 2015 seemed to be the last straw. At trial he was declared a dangerous offender and sentenced to an indeterminate term. There was a good possibility he would be locked away for the rest of his natural life.

The psychiatric report was honest in describing his background but the report did not paint a totally negative picture. It described an individual whose background caused him to have an anti-social personality disorder and PTSD. However, should he refrain from intoxicants, accept and return to his aboriginal culture and simply age out, he could be returned to society. He was not a psychopath or a sexual sadist so there was a possibility that he would not reoffend by the time he turned 60.

The trial judge rejected that part of Lohrasbe’s report and opted to throw away the key. The Appeal Court accepted the argument that it was not clear the judge considered the Gladue factors present in this case. It was an error in law for the judge not to have considered s. 718.2(e) of the Code and the relevant authorities in determining what was an appropriate sentence, and not to have considered the role of culturally appropriate programming in reducing and managing Ross's risk.

Nonetheless, the verdict was reasonable and there was no basis to disturb the judge’s decision to declare Ross a dangerous offender. However, the judge erred by imposing an indeterminate sentence.  

The Appeal Court found there was ample precedent to avoid a new trial and simply vary the sentence meted out at trial. The indeterminate sentence was set aside and a determinate sentence of 10 years from the date of sentencing, to be followed by a 10-year, long-term supervision order was imposed.

A more traditional approach would have been to penalize an offender based strictly on the harm done. This case demonstrates that justice is also served when the court takes time to consider why a crime was committed and design a penalty appropriately.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

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