In the Court of Appeal of Alberta

Citation: R v Rabbit, 2023 ABCA 170

Date: 20230530
Docket: 2203-0074A
Registry: Edmonton

Between:

His Majesty the King

Respondent

- and -

Rockie Ryan Rabbit

Appellant

The Court:
The Honourable Justice Frederica Schutz*
The Honourable Justice Jolaine Antonio
The Honourable Justice Bernette Ho

Memorandum of Judgment

Appeal from the Sentence by

The Honourable Justice C. J. Sharpe
Dated the 23rd day of March, 2022
(Docket: 210692364P1)

*Justice Schutz did not participate in the final disposition of the judgment.
 Memorandum of Judgment

The Court:

Introduction

[1] The appellant. Rockie Ryan Rabbit, appeals his sentences of nine years concurrent for
attempted choking with intent to enable him to commit an indictable offence (section 246(a) of the
Criminal Code) and aggravated assault (section 268). The sentence of nine years was imposed
after the defence proposed a sentence of three years and the Crown proposed a sentence of six
years.

Background facts

The appellant ‘s background

[2] The appellant is an Indigenous man from the Montana First Nation in Ponoka County,
Alberta. His father, mother and her siblings, and grandparents attended residential schools. The
family has a history of suicide, substance misuse and mental health issues.

[3] The appellant lived with his mother until he was five years old. She used drugs and drank
alcohol daily, and was physically abusive towards him at times. Because of his mother’s drinking
and drug use, he and his siblings were placed in group care away from the Montana First Nation.

[4] The appellant lived in two group homes from ages five to eleven. His sister reports, “it was
really difficult for us to be raised without our parents and our culture”. While in group care, the
appellant saw his mother once per year and did not see his father until he was 10 years old. At age
nine, an aunt he was close to was killed in a house fire.

[5] During this time the appellant felt out of place and was ostracized and bullied because he
and his siblings were the only Indigenous children at their school. The appellant described being
disconnected from his family and culture, which left him feeling lost and like he did not belong.

[61 When the appellant was 12, he and his sisters moved back to the Montana First Nation to
live with their father. Moving back to the reserve was a shock. The children struggled to relate to
the community after being in group care. Previously incarcerated for murder, their father had a
violent temper and was at times physically and emotionally abusive towards them. According to
the appellant’s sister, their father “tried to help connect us with culture and get us on the right path,
but he eventually gave up on us and sent us to our morn’s”.
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[7] The appellant moved to live with his mother at age 15. He says his mother’s priority was
her prescription medicine addiction. She would often ask her children for money. There was a
great deal of poverty and often there was not enough food. The appellant says his mother kicked
him out at age 17.

[8] The appellant’s sister reports drug and alcohol use were prevalent in the community and
the appellant was exposed to that behaviour as an adolescent. He used marijuana daily between
the ages of 16 and 24 and drank alcohol daily between the ages of 18 and 19.

[9] At age 19, the appellant began working full time and so began limiting his alcohol
consumption to the weekends. The appellant has worked, mainly at labour jobs, since then.

[10] At age 20, the appellant began a long-term relationship with a woman. Two years later,
they had a daughter. Their relationship was over by the time the appellant was 25. The couple
continued to share custody of their daughter after that. The appellant is close to his daughter and
has been described as a good father. His daughter is now 11 years old.

[11] In 2011, the appellant’s father died.

[12] In 2019, at age 28, the appellant began struggling with depression. though he was never
formally diagnosed. He also began using methamphetamines on a regular basis. He reports that he
used crystal meth monthly when he spent time with relatives who were using. Often, he would use
the drug daily for a week and then not for the remainder of the month.

[13] Beginning in 2020, the appellant and his family suffered a series of devastating losses. A
cousin committed suicide. Another cousin was murdered while incarcerated. A cousin’s son hung
himself. An uncle died of a heroin overdose. One of the appellant’s brothers committed suicide,
likely in connection with his addiction to crystal meth. The appellant was close to his brother and
found this loss to be extremely difficult. His sister says that at this point the appellant increased
his alcohol and drug use.

[14] In the summer of 2021, shortly before the subject offence, the appellant lost another cousin,
who was also his best friend. His brother reports that the death of this cousin was a trigger for the
appellant. The appellant says he began using substances more heavily at this time. The appellant
was described as normally quiet and gentle, but his sister notes that “he is a completely different
person when he is using; he becomes angry and violent”.

[15] Also in the summer of 2021, the appellant decided to move his daughter back to live at the
Montana First Nation with him. According to his sister, his daughter’s mother did not feel the
reserve was safe, and the appellant lost custody as a result. His sister reported that this was very
difficult for the appellant.
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The offence

[16] On the afternoon of July 14. 2021, the appellant committed a brutal and unprovoked attack
on a stranger. The appellant was 30 years old at the time.

[17] The victim was waiting to be let into her children’s daycare. The appellant came up behind
her and looked inside her backpack. When the victim tried to pull away, the appellant shouted at
her, “did you kill my daughter? and demanded to know where she had hidden his child.

[18] The appellant told the author of his Gladue report he had been using drugs and was
experiencing hallucinations that his daughter had been kidnapped two days prior. He said he had
been stopping random people and asking them where his daughter was. When he approached the
victim, he believed she had his daughter. This was the first time the appellant had experienced this
type of reaction to drug use.

[191 The victim tried to get away, but the appellant grabbed her head, slammed her to the
ground, got on top of her and began strangling her with both hands. He continued strangling and
punching her for over four minutes.

[201 Two of the victim’s three children, ages six and eight, observed the assault through the
glass door of the daycare and cried hysterically.

[211 A bystander who had observed and followed the appellant called 911. When police arrived,
they saw the appellant on top of the victim, straddling and strangling her. The appellant got up
when the police ordered him to do so. The attack was captured by a nearby high-definition video
camera. The bystander also recorded the end of the incident on his cell phone camera.

[22] The victim’s husband arrived after hearing her screams from half a block away. He was
distraught when he observed her condition. She appeared to be semi-conscious and was
unresponsive. Her face was blue, and her breath was shallow and laboured. She foamed at the
mouth and gurgled.

[23] The victim regained consciousness and was rushed to hospital. She sustained a tennis ball
sized hernatoma on her forehead, swelling and inflammation on her neck, and other injuries.

[24] The appellant was arrested and taken into custody at the scene. He was reported to have
been “rambling in the back of the police vehicle”. He told police he had consumed
methamphetamine a short time before.

[25] The appellant was on release for assaulting his brother when he committed the subject
attack and was later fined for that offence. His adult criminal record prior to the attack consisted
of a 2008 conviction for failing to comply with an undertaking; a 2009 conviction for failing to
pay a fine; and a 2015 conviction for failing to blow into a breathalyzer.
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[26] In her victim impact statement, the victim described her psychological trauma including
fear of leaving her home and inability to sleep well. She continues to suffer from ongoing pain in
her neck and knee. She has left herjob as a result of the attack. The attack also affected her children
and husband.

Sentencing hearing

[27] The appellant pleaded guilty to the offences in this case and an agreed statement of facts
was read at the sentencing hearing. He admitted his actions endangered the victim’s life and veiy
nearly caused her death. While in remand, the appellant completed two support programs. The
appellant provided a letter of apology, admitted responsibility, and showed remorse.

[28] At the sentencing hearing, Crown and defence counsel provided various authorities to the
sentencing judge, indicating a range of nine months to nine years in prison. The Crown provided
written submissions. Evidence included the agreed statement of facts, the victim’s emergency
medical records, a medico-legal opinion, video recordings of the assault and the Gladue report.
The defence proposed a sentence of three years; the Crown proposed six years.

[29] Following oral argument, the sentencing judge emailed counsel and advised she had
concerns with the range of sentence being proposed and was of the opinion that a fit sentence may
be over six years. Both the Crown and defence maintained their positions and made no further
submissions.

The sentencing judge’s decision: R v Rabbit, 2022 ABPC 68

[30] The sentencing judge found that the case against the appellant was overwhelming and that
the sole mitigating factor was the entry of guilty pleas. She found several aggravating factors,
including:

1) the attack was vicious, random and unprovoked;

2) the violence was prolonged;

3) the violence only ceased when the police arrived;

4) the medico-legal report indicated the actions of the appellant could have ended in the
victim’s death;

5) the victim suffered both physical and psychological harm as a result of the assault;

6) two of the victim’s children witnessed the attack and have suffered psychological harm;
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7) the victim’s husband heard his wife’s screams, attended the scene to discover his
unconscious wife and was extremely distraught;

8) the appellant was on release for assaulting his brother when he committed the offences;

9) the appellant has a prior criminal record, although it is fairly brief and only the assault
involved violence; and

10) there was evidence of voluntary consumption of methamphetamine and the resulting
violence, and the history of methamphetamine use is aggravating.

[3 11 The sentencing judge acknowledged the appellant’s Gladite factors were significant but
held where the offences are violent and serious, the principal [sic] of restraint and an
acknowledgement of the lessened moral blameworthiness of an individual with significant Gladue
factors cannot justify a sentence that ignores the seriousness of the offences and the harm done to
the victim”: Rabbit at para 17.

[32] After reviewing sentencing principles, the sentencing judge considered the sentencing
quantum for attempted choking to enable the commission of an indictable offence. She cited R v
Lemmon. 2012 ABCA 103, which describes the inherent dangerousness of the offence, noting it is
not to be treated as a detail of the underlying offence. Consecutive sentencing will often be
appropriate when the victim has been rendered unconscious or has suffered bodily harm.

[331 With respect to aggravated assault, the sentencing judge noted the sentencing range is wide
and sensitive to the circumstances of each case: R i’ Mo//er, 2012 ABCA 381. As always,
proportionality is the guiding principle. She commented that there is limited utility in attempting
to identify a fit sentence by reviewing comparator cases and that any fit sentence must reflect the
particular facts of the case and the circumstances of the offender.

[341 She held the case at bar was closer to near murder than mere accident, and that the sentence
for aggravated assault should be significantly increased because it was accompanied by choking.
In her view, its seriousness was not adequately reflected in the Crown’s proposed six-year
sentence.

[351 She held that although not all section 246 offences should result in an additional sentence,
they may where, as here, the victim was rendered unconscious. She also reminded herself that the
principle of totality must be considered.

[36] She imposed nine years for each offence, less credit for pre-sentence custody, to be served
concurrently having regard to the principle of totality.

[37] The sentencing judge held that Kienapple did not apply as there was a temporal distinction
between the aggravated assault and the strangling offence. That finding has not been appealed.
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Grounds of appeal

[38] The appellant submits the sentencing judge imposed an unfit sentence when she erred by:

a) discounting the mitigating factor of the appellant’s early guilty plea and demonstrated
remorse;

b) misapplying the totality principle by doubly punishing for the choking with intent and
aggravated assault and their aggravating features;

c) misapplying proportionality and Gladue principles by failing to appreciate the

appellant’s degree of moral blameworthiness, as informed by several factors including
his Indigenous experience; and

d) misapplying the parity principle by imposing a sentence outside the reasonable range
of sentences imposed for similar offences committed by offenders in similar
circumstances.

Standard of review

[39] Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle
that impacts the sentence, an appellate court must not vary the sentence on appeal. The overall
fitness of a sentence is reviewed with deference: R v Lacasse, 2015 SCC 64 at paras 12, 39-44, 49.

Did the sentencing judge commit errors in principle?

[40] We conclude the sentencing judge committed errors that impacted the sentence, and
therefore the appeal must be allowed. Our conclusion rests on two main foundations:

1) Sentencing must be proportionate not only to the gravity of the offence, but also to the
degree of responsibility of the offender.

2) In cases involving Indigenous offenders. particular attention must be paid to assessing

their degree of responsibility equitably, with an informed understanding of their
circumstances.

[41] Our first foundational point is the fundamental principle of sentencing, stated at section
718.1 of the Criminal Code.

[42] Vats ofjudicial ink have been spilled over the second foundational point. Still, Indigenous
people continue to be vastly overrepresented in the criminal justice system, and this
overrepresentation continues to rise: R v Hills, 2023 5CC 2 at para 87; R v Natomagan, 2022
ABCA 48 at paras 7, 8.
 Page: 7

[431 With or without a Gladue report, s 718.2(e) of the Criminal Code requires judges to do the
work of appreciating the degree of responsibility of Indigenous offenders. The Gladue report filed
in this case is tragically typical. It could have been drawn from past jurisprudence, studies and
reports, begirming with the appellant’s parents’ residential school experience. The appellant
endured abuse and addictions in his family home, was taken out of his community and placed in
group care, and struggled to readjust to his home community, poverty, low education levels,
disconnection from family and culture, unstable relationships, and depression.

[44] In the couple of years preceding the offence, the appellant lost family members to suicide,
murder, and overdose. A year prior to the offence, his brother committed suicide. Suicide rates are
high in Indigenous communities: Natomagan at para 105 and sources cited therein. The summer
of the offence, his close cousin died.

[45] The appellant reportedly increased his use of alcohol and drugs as a result of these losses.
Given the prevalence of substance abuse within his family, the appellant was exposed at an early
age to an environment in which distress was managed, at least in part. through consumption of
intoxicants.

[46] After losing his brother and cousin, the appellant effectively lost his daughter. According
to his sister, this was because the girl’s mother believed that the reserve was not a fit place for a
child.

[47] To apply s 718.2(e), sentencing judges must try to understand what influenced an
Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive
reaction to that conduct would be the same, given the circumstances, if the offender were of a
different race, culture, or background. This analysis involves empathy, imagination, and
introspection, among other things. It imposes on the sentencing judge the difficult task of
imagining a different life, and honestly asking how a person not the world’s strongest or most
—

resilient person might be affected by such an experience.

—

[48] The sentencing judge erred by not engaging in this analysis. instead relying on the concept
of a discount that is not available where a serious violent offence has been committed. Both facets
of this misconception have been repeatedly rejected: R v Hi/bach, 2023 SCC 3 at para 39; R v
Ipeelee, 2012 SCC 13 at paras 70-75 and 84-86; R v Wells, 2000 SCC 10 at paras 30. 50.

[49] According to the appellant, at the time of the offence the drugs caused him to hallucinate
that his daughter had recently been kidnapped and to believe that the victim had his child. The
sentencing judge dismissed this as mere self-reporting, claiming “there is no further evidence
before the Court to support this assertion”: Rabbit at para 6. In fact, there was other evidence. The
agreed facts included that the appellant shouted at the victim, “did you kill my daughter?”;
demanded to know where the victim had hidden his daughter; was “rambling” in the back of the
police vehicle; and reported to police that he had consumed methamphetamines a short time prior.
 Page: 8

Perhaps the sentencing judge felt expert evidence was required to support an assertion the appellant
had been hallucinating. While expert evidence may have been helpful. it was not a prerequisite for
sentencing purposes. All credible information that was before the court should have been
considered in assessing the appellant’s degree of responsibility.

[50] The sentencing judge identified the guilty plea as the only mitigating factor. She
summarized an apology letter written by the appellant but did not indicate whether it had any
mitigating effect. In the letter, the appellant referred to his hallucinations. He called his actions
unforgiveable; expressed shame and regret; and showed insight into the life-changing effect his
actions had on the victim. Similarly, the sentencing judge did not comment on whether the
appellant was remorseful. Remorse is a relevant mitigating factor. It can be of particular
significance where it reflects insight and a reduced likelihood of offending in the future: R v
Friesen, 2020 SCC 9 atpara 165; R vAmbrose, 2000 ABCA 264, 271 AR 164 atparas 71, 83.

[51] Further, the sentencing judge held, “The sentence for the underlying offence of aggravated
assault should be significantly increased because it was accompanied by choking”. She felt the
two offences violate separate legally protected interests where the normal rule of concurrent
sentences does not apply.” Nonetheless, she said she would consider totality ‘to ensure that the
result is not overly harsh”: Rabbit at paras 24 and 25. It is not evident which distinct interests are
protected by ss 246 and 268. The sentencing judge did not explain or cite authority. She used the
choking to “significantly” increase the aggravated assault sentence, then imposed the same
concurrent sentence for both the aggravated assault and the choking.

[52] Understandably, the sentencing judge was moved by the gravity of the offence and its effect
on the victim and her family. However, she lost sight of the proportionality principle and fell into
error by seemingly viewing recognition of any mitigating factor as an undermining of the gravity
of the offence. This error was most clearly expressed in respect of the Gladue factors. She said:
“where the offences are violent and serious, the principal [sic] of restraint and an acknowledgement
of the lessened moral blameworthiness of an individual with significant Gladue factors cannot
justify a sentence that ignores the seriousness of the offences and the harm done to the victim”:
Rabbit at para 17. She went on to say that since death could have resulted, “the seriousness of the
strangulation is not adequately reflected in the upper range of the global sentence suggested [by
the Crown] as six years’ incarceration.”

[53] The nine-year sentence she imposed mirrors the highest sentence either party was able to
find for offences of this kind. We conclude the sentencing judge gave no effect to any mitigating
factors. We return to the foundational principle of sentencing: a sentence must reflect the gravity

of the offence and the degree of responsibility of the offender. While the sentencing judge was
technically correct in saying the gravity of the offence cannot be ignored in imposing sentence,
she ignored the second half of the foundational principle. It is an error to decide on a sentence for
the offence alone, and then reject any accounting for the offender’s degree of responsibility
because it might require an adjustment of that partially informed sentence.
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[54] The error here parallels that found in R v Swampy, 2017 ABCA 134, where the trial judge
had stated:

The Gladue Report provided relevant information on the background and

circumstances of Mr. Swampy and his community. Taking into account the purpose
and principles of sentencing and the evidence in this case, Mr. Swampy ‘s
circumstances as an Aboriginal person does not justifr any ma/or departure from
a proportionate sentence. (emphasis added by the Court of Appeal)

[55] This Court explained at paragraphs 25 and 26:

this analysis reveals an error in understanding the Gladue principles. As noted,

the central purpose of the Gladue analysis is to achieve proportionality. The first
principle that a sentence must be proportional to the gravity of the offence and
degree of responsibility of the offender has “...long been the central tenet of the
sentencing process”: Ipeelee at para 36. The “constrained circumstances of
Aboriginal offenders may diminish their moral culpability”, as explained
in Ipeelee at para 73. Reduced moral culpability must also affect the proportionality
analysis, since moral culpability is one component of the equation. It follows that
where there is reduced moral culpability, there is a consequential reductive effect
upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87.

It is an error to proceed on the basis that Gladue factors do or do not justify

departure fioni a proportionate sentence, as the trial judge did. Instead, application
of the Gladue analysis achieves a proportionate sentence.

[56] We underscore the point: the mandatory s 7 18.2(e) analysis achieves a proportionate
sentence. Proportionality reflects the gravity of the offence and afair and informed understanding
of the degree of responsibility of the Indigenous offender.

[57] Having concluded the sentencing judge erred in principle in ways that affected the
sentence. it is open to us to sentence afresh.

What is a proportionate sentence?

[58] The appellant now concedes the trial Crown’s proposed six years is within the reasonable
range having regard to the principles of totality, parity, proportionality, and the balancing of
Gladue factors. Departing from his original position of three years, he submits a sentence of five
to six years would be fit.

[59] The Crown defends the nine-year sentence by asserting the sentencing judge did not err in
principle and was entitled to craft an individualized sentence in accordance with established
principles. It supports the sentencing judge’s conclusions on the gravity of the offence and the
 Page: 10

appellant’s degree of responsibility, noting she “considered and weighed all of the information
available to her”. Our analysis above shows that we disagree with much of the Crown’s
submission.

[60] Notably, the Crown has not attempted to defend the sentence on grounds of parity or
precedent.

[611 Before us, Crown counsel referred to R v Wa//in, 2003 BCSC 809, in which a nine-year
sentence was imposed for strangulation of a stranger. In Wa//in, the victim suffered catastrophic
brain damage. The offender was an unemployed “middle class computer geek” with a “lengthy
psychiatric and disability history”. An expert described the assault as “an extraordinarily impulsive
act” arising from “disinhibition” caused in part by the offender’s hypomanic symptoms and
underlying aggressive impulses. However, ‘{h]e was not acting under delusional content or
hallucinations at the time of the assault.”

[621 Below, Crown counsel referred to Wallin but did not rely on it for quantum, noting that
Wa//in was different because the victim there suffered permanent catastrophic brain damage and
Gladue factors were not engaged.

[63] He cited other cases establishing a suitable range of four to six years.

[64] One such case was R v Tourville, 2011 ONSC 1677. The sentencing judge there canvassed
a number of Ontario cases and identified four to six years as the “high end of the range” for the
offence of aggravated assault. The judge noted, “These cases generally involve recidivists. with
serious prior criminal records, or they involve ‘unprovoked’ or ‘premeditated’ assaults with no
suggestion of any elements of consent or self-defence”: R v Tourville, 2011 ONSC 1677 at para

[651 Another case cited by Crown counsel below was R v Sooch, 2008 ABCA 186. There,
shortly after his girlfriend had left him, the offender committed a premeditated confinement and
assault, strangling her to unconsciousness. When she came to, she had to plead with him to take
her to the hospital. On appeal, this Court agreed the Crown’s proposed range of four to six years
was appropriate for an offender with no record. It saw no reason to interfere with the four-year
sentence imposed below. An intimate partner relationship is meant to aggravate sentence,
suggesting that a similar attack on a stranger might attract a more lenient sentence.

[66] The Crown below also referred to R v Robinson, 1993 ABCA 91. In that case, the offender
attacked a woman while attempting to steal her car. I-Ic choked her until she lost consciousness
and when she regained consciousness, he choked her again. The victim suffered ongoing shoulder
pain and lasting psychological trauma. The sentencing j udge imposed a three-year sentence for the
choking offence, which this Court increased to four, noting that but for the three to four year range
proposed by the Crown, a five-year sentence might have been justified.
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[67] Another case cited was R vJones, 2017 BCPC 218. There, the offender randomly attacked
a woman while she was jogging through a park. He hit her in the back of the head with a large
rock, she fell to the ground, and he placed her in a choke hold. The victim escaped before being
rendered unconscious. She was traumatized but had no lasting physical injuries. A three-year
sentence was imposed.

[681 Defence counsel below cited different cases, including R v Betker, 2004 ABQB 482. In
that case, despite having been previously warned by police to stay away from his ex-girlfriend, the
offender coerced her into his car, threatened to kill her sister and mother, and choked her. When
she attempted to escape, he choked her again until police were able to free her. The victim suffered
from chronic pain, headaches, and emotional difficulties as a result. In imposing only a nine-month
sentence, the sentencing judge pointed to the offender’s “intellect and education” as a mitigating
factor, noting he had graduated from high school with honours and had been accepted into a
university level program.

[69] Because it is difficult to distinguish the gravity of the offence in Betker from that in the
instant case, one must conclude the offender’s circumstances can play an important role in
sentencing. Sentencing judges must apply relevant principles thoughtfully.

[701 The above cases reflect what the Saskatchewan Court of Appeal noted in R v Bear, 2018
SKCA 22 at para 47: sentences for the s 246(a) offence can vary considerably depending on the
relevant circumstances. The same applies to aggravated assault.

[71] We accept that no one precedent, or group of precedents, will establish a single fit sentence.
We find that in the context of the precedents, the range originally identified by the parties three
—

to six years is appropriate for the gravity of this offence and the degree of responsibility of this
—

offender.

[721 The offence was extremely serious. It was random and of frightening duration. It put the
victim’s life at risk, though thankfully, it appears, with little lasting physical injury. The
psychological effects on her, her husband, and their children will likely last a lifetime.

[73] In assessing the appellant’s degree of responsibility, we take into account his guilty plea,
expression of remorse, and meaningful Gladue experience. Significantly, the evidence credibly
suggests the appellant responded to loss by increasing his drug use and was under the influence of
drug-induced hallucinations when he attacked the victim. His use of drugs at this time, while
unlawful and dangerous, is to some degree explained by his past environment and recent events in
his life. He did have a history of prior drug use and was described as “angry and violent” when
using. but he had never before experienced hallucinations similar to those that precipitated the
subject attack. These factors diminish his moral blameworthiness.
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[74] We are mindful that we should consider a sentence that minimizes imprisonment to the
extent that is reasonable in the circumstances and consistent with the harm done to the victim and
the community: s 718.2(e).

[75] We conclude a proportionate sentence in all the circumstances is four years' incarceration,
less pre-sentence custody as calculated in the court below.

[76] The appeal is allowed and a sentence of four years less a credit of 379 days for pre-sentence
custody is imposed.

Appeal heard on January 17, 2023

Memorandum filed at Edmonton, Alberta

this 30th day of May, 2023

FILED
Antonio J.A.
30 May 2023

AO

Ho J.A.
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Appearances:

D. E. Green
for the Respondent

M. J. Marchen
for the Appellant