R. v. C.R.D., 2012 ABQB 35

Court of Queen ’ s Bench of Alberta Citation: R. v. C.R.D., 2012 ABQB 35 Date: 20120113 Docket: 101510105Q1 Registry: Edmonton Between: Her Majesty the Queen - and - C.R.D. Accused Restriction on Publication: By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 .

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] C.R.D. has plead guilty to the following charge: That she, between the 1 st day of August, 2009 and the 9 th day of September, 2009, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of A.M., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada .

[ 2 ] The Crown re-elected with Ms. C.R.D. ’ s consent to proceed summarily in respect of this charge. Circumstances of the Offence [ 3 ] Ms. C.R.D. signed an agreed statement of facts setting out the circumstances of her offence. I summarize that statement as follows: In September 2009, Ms. C.R.D., aged 22, had been dating the father of the complainant, P.M., who was 42 years old, for about 2 years. She frequently stayed at P.M. ’ s house. P.M. ’ s son, A.M., who in September 2009 was just over 14 years old, resided primarily with his mother, but spent the night at his father ’ s residence occasionally.

On September 3, 2009, Ms. C.R.D. and A.M. spent the evening together at P.M. ’ s residence. P.M. was out of town. Ms. C.R.D. had rented a pornographic movie. She and A.M. cuddled on the couch. At one point Ms. C.R.D. took A.M. ’ s hand and placed it on her breast underneath her shirt. She also invited him to place his fingers inside her vagina and he did so. On September 5, 2009, Ms. C.R.D. and A.M. were again alone at P.M. ’ s residence. Ms. C.R.D. told A.M. that she wanted his penis inside of her. She removed her pants. A.M. rubbed her vagina but no penile/vaginal penetration occurred. On September 6, 2009, Ms.

C.R.D. and A.M. were at Ms. C.R.D. ’ s residence. Ms. C.R.D. removed A.M. ’ s trousers but not his underwear. She straddled A.M. and “ proceeded to ‘ grind ’ on his penis ” . Text messages between Ms. C.R.D. and A.M. were obtained from A.M. ’ s cell phone. The messages were provocative and alluded to a sexual relationship. On September 25, 2009, while Ms. C.R.D. was attending a facility for the treatment of bulimia in Arizona she disclosed to her counsellor that she had had sexual contact with 14-year-old A.M.

The counsellor disclosed this information to the police in Arizona who advised the Edmonton Police Service. [ 4 ] These acknowledged facts constitute the offence to which Ms. C.R.D. has plead guilty. The requirements of s. 606 of the Criminal Code were canvassed and satisfied. I therefore accept Ms. C.R.D. ’ s plea and direct that a conviction be entered in respect of the charge to which she plead guilty. Circumstances of the Accused [ 5 ] Ms. C.R.D., as noted, was 22 at the time of her offence. She is now 25. She has no prior criminal history.

She accepted responsibility for and apologized for her offence at a very early stage of these proceedings. [ 6 ] Ms. C.R.D. was assessed by Dr. Marc Nesca, a forensic psychologist whose opinion is often obtained for and valued by the Court in situations such as this. Ms. C.R.D. reluctantly admitted to Dr. Nesca that she had a significant history of substance abuse in her mid teens. Dr. Nesca made observations consistent with Ms. C.R.D. having both narcissistic and histrionic traits. It was his view that these personality traits contributed to her offence.

He reported: More specifically, the alleged offence impresses as more intimately linked to problematic personality traits than sexual deviance. As I

noted earlier, these personality traits leave Ms. C.R.D. inclined to focus on matters of physical appearance and to seek attention, particularly complimentary attention from men. Ms. C.R.D. ’ s personality structure also leaves her vulnerable to lapses in impulse control and judgment. Her insight – especially as it relates to personal shortcomings – is also quite limited and her sense of interpersonal boundaries is merky.

It seems likely that these personality traits left her vulnerable to complimentary attention from the complainant and that this attention eventually gave rise to the inappropriate sexual attraction she experienced. Once she became sexually attracted to the complainant, issues related to judgement, impulse control, and interpersonal boundaries came to the forefront in a manner that facilitated inappropriate sexual conduct. This part of Dr. Nesca ’ s assessment, counsel for Ms. C.R.D. observed, provides an explanation but not an excuse for her offence. [ 7 ] Dr.

Nesca recommended both specialized sexual offender treatment and psychotherapy to address Ms. C.R.D. ’ s personality traits. [ 8 ] Dr. Nesca assessed risk of re-offence as low. He said: . . . my review of the empirical data regarding recidivism among female sexual offenders, coupled with my understanding of the events leading to the alleged offense, leave me inclined to view Ms. C.R.D. as posing a low risk for re-offense. In somewhat more precise terms, the best available data indicate a base rate for recidivism among female sexual offenders in the range of 3% over approximately 6 years.

I found nothing to suggest that Ms. C.R.D. ’ s risk is unusually high in comparison to this population. I have consequently formed the professional opinion that the level of risk posed by Ms. C.R.D. can be managed in a community setting without exposing the public to undue risk of harm, particularly within the context of the treatment recommended earlier and judicial interventions to monitor use of intoxicants. [ 9 ] Ms. C.R.D. followed up on Dr. Nesca ’ s counselling recommendation in the summer and fall of 2011. The materials include a report from her counsellor, Dr. Ann Marie Dewhurst, Registered Psychologist.

Dr. Dewhurst reported that significant progress had been made. In the

summary at the end of her report she said: Ms. C.R.D. has worked hard in her therapy on relevant offence-related issues. She is still in an active working stage of therapy. She appears very well engaged in the treatment process and reports positive treatment gains. Her parents confirm that they also observed the gains reported by Ms. C.R.D.. In my opinion, Ms. C.R.D. has made several significant changes in her lifestyle and should be considered a low risk for sexual recidivism. [ 10 ] Ms. C.R.D. is gainfully employed. The materials include a letter from her employer, who is aware of these proceedings.

Her employer is very appreciative of her work and her attitude to it. She is clearly a highly valued employee. She is in a common-law relationship. Her partner is aware of these proceedings and is supportive as are her parents. [ 11 ] The Crown adduced two victim impact statements, one by each of A.M. ’ s parents. Both appear to have attempted to use the opportunity to present a victim impact statement first to communicate to Ms. C.R.D. their anger for her actions and second to communicate to the Court their expectation that it will impose a harsh punishment. This is not the purpose of a victim impact statement.

The intended, authorized and exclusive purpose of a victim impact statement is to communicate to the Court a description of the harm done to or loss suffered by the victim, in this case, A.M., arising from the commission of the offence. While both parents indicate that A.M. has suffered emotional and psychological damage, I am reluctant to place significant weight on their opinions as to the cause of the behaviours they have observed in their son, notwithstanding the Crown ’ s submission that I should do so, given that they come packaged with such anger and invective.

Position of the Crown [ 12 ] Criminal Code , s. 151(

b) provides that when the Crown proceeds summarily, as it has done in this case, a person convicted of the offence created by that

section is liable to imprisonment for a term not exceeding 18 months and to a minimum punishment of imprisonment for a term of 14 days.

[13] The Crown submits that a fit sentence is 9 to 12 months incarceration followed by an 18-month term of probation. TheCrown submits that while Ms. C.R.D.’s offence does not constitute a “major sexual assault” it is serious. It is neither at the bottom northe top of the range of seriousness. It is somewhere midpoint in that range. [14] The Crown further submits that there are two statutory aggravating factors: that the victim of the abuse was under the age of18 (s. 718.2(a)(ii.1)); and that Ms. C.R.D. was in a position of trust or authority in relation to the victim (s. 718.2(a)(iii)).

In addition, itis aggravating that the offence appears to have been premeditated by Ms. C.R.D.: she showed A.M. a pornographic video on the firstoccasion; she took him to her own residence on the third. It appears not to have been entirely a situation of Ms. C.R.D. giving in to alustful temptation which arose spontaneously. [15] The Crown acknowledges the mitigating effect of the guilty plea. [16] In the Crown’s assessment Ms. C.R.D.’s crime is in the midrange of seriousness. A fit sentence would therefore be near themidpoint of the extremes set out in the Criminal Code

section which creates the offence - that is, the midpoint between 14 days and 18months. [17] The Crown cited several cases as illustrative of the principles that apply to the determination of a fit sentence in cases of thisnature. The cases were not cited for the purpose of establishing the range of fit sentences – simply as illustrative of principles. The caseswere: R. v. Collins 2008 NSSC 34; R. v. Basil 2002 BCCA 276; R. v. M.(N.) 2009 BCPC 281; R. v. Smart (BC CA),14 BCAC 73; R. v. Power 2010 BCCA 21; R. v. A.(D.B.) 2007 NSSC 324. [18] I have reviewed these cases. None were from the Courts of this province.

While 4 of them did involve female accusedhaving sexual contact with males about the age of the complainant in this case, there were few other similarities. In several the accusedhad not plead guilty and showed no remorse after conviction. In several the sexual conduct extended to intercourse. In all the cases theCrown proceeded by indictment. In several there can have been no dispute that the accused was in a position of trust and authority inrelation to the complainant.

In some, where the Crown proceeded by indictment and the conduct was clearly more serious than Ms.C.R.D.’s conduct, the sentence imposed was less severe than the sentence the Crown submits is fit in this case. The Crown did notidentify the specific principles that might be derived from these cases. In my review of the cases I did not identify principles theapplication of which would result in the sentence the Crown submits would be fit in this case.

Position of the Defence [19] Defence Counsel submits that a fit sentence is the statutory minimum - 14 days. [20] In support of that submission he points to the fact that the sexual conduct in which Ms. C.R.D. engaged did not involve sexualintercourse, that it occurred in the span of 3 days, that Ms. C.R.D. has no criminal record, and that she plead guilty early and isremorseful for her conduct.

He noted that before the recent changes to the law making conditional sentence orders unavailable in thesecircumstances, she would, on the basis of several authorities, have qualified for one. [21] Defence counsel disputes the Crown submission that Ms. C.R.D. was in a position of trust or authority toward A.M. She washis father’s girlfriend. She did not live in his father’s home. There was no evidence that she was in any sense supervising him or takingcare of him in his father’s absence. [22] Defence Counsel emphasized that Ms.

C.R.D. has on her own initiative progressed significantly toward rehabilitation. [23] Defence Counsel also cited several cases. In several of them Alberta judges faced with situations similar to that presented bythis case imposed sentences far less than the sentence suggested by the Crown. I will briefly summarize the cases I found to be mosthelpful of those cited by Defence Counsel:

1. R. v. K. (1996) (AB CJ), 191 A.R. 247 (Alta P.C.) A 69-year-old grandfather plead guilty to sexual assault of his 7-year-old female granddaughter. The assault consisted of rubbing herstomach area and the area above her vagina outside her clothes, and fondling the outside of her vaginal opening more than once with hisfinger. The Court found that the accused was in a position of trust in relation to the child. The accused was genuinely remorseful. Apsychologist found there was a low probability of re-offence. The Court accepted a joint submission of 90 days imprisonment.

Itdeclined to grant a conditional sentence order. 2. R. v. Penner (2001) 2001 ABQB 1133 , 318 A.R. 51 (Alta Q.B.) A 30-year-old male teacher was convicted after trial of sexual exploitation of a female student at his high school. The genital contactwas over clothing. There was no sexual intercourse. The accused had no criminal record. He did not acknowledge his guilt or expressremorse. Martin J., as he then was, imposed a 9-month conditional sentence. 3. R. v.

D.(D.T.) (2003) 2003 ABQB 57 , 351 A.R. 19 (Alta Q.B.) The 40-year-old accused plead guilty to touching a 7-year-old girl who was a friend of his daughter and was on a sleepover at his house. He placed his hand under her clothing and touched her in her vaginal area for about a minute. When she reported the incident headmitted it. He plead guilty without a preliminary inquiry. He was genuinely remorseful. Alcohol was a factor in his offence. He hadno related criminal record.

Noting that denunciation is the primary sentencing consideration, Lee J. of this Court imposed a sentence of90 days to be served on weekends and 3 years probation. 4. R. v. W. 2005 ABPC 5 The 40-year-old accused plead guilty to sexual exploitation of his stepdaughter. On 3 occasions over a 2-year period when thestepdaughter was between 14 and 16 and asleep, the accused touched her sexually over her clothing. A low risk of re-offence wasprofessionally assessed. There was no criminal record. There was a prompt admission of guilt.

The acts however escalated over the 2-year period and the accused was in a position of trust. Incarceration for 9 months followed by 3 years probation was the punishmentimposed. A Fit Sentence [24] I agree with the Crown’s submission that Ms. C.R.D.’s offence is serious. Parliament has clearly communicated by thechanges it has made to the law in recent years that the sexual exploitation of young people by adults cannot be tolerated.

It has stated ins. 718.1 of the Criminal Code that though in respect of most crimes denunciation and deterrence of the criminal conduct are but 2 of 6objectives of a fit sentence, in a case involving the abuse of a person under the age of 18, they are the two primary considerations. Thechief goals of the sentence I impose must be to denounce Ms. C.R.D.’s conduct and to deter her and others from engaging in the sexualexploitation of young people. [25] I also agree with the Crown that it aggravates the moral blameworthiness of Ms.

C.R.D.’s conduct that it was not aspontaneous submission to the temptations of the moment. There was a significant element of premeditation and planning in Ms.C.R.D.’s sexual exploitation of the complainant. [26] In my view Ms. C.R.D.’s own youth, the fact that the conduct did not involve actual sexual intercourse, and the relativelybrief duration of the exploitation - it occurred over the course of 3 days - mitigate the seriousness of Ms. C.R.D.’s offence. [27] As to the statutory aggravating features noted by the Crown, in my view the intent of s. 718.2(a)(ii.1), where Parliament has

instructed the Court to consider as aggravating the fact that the accused abused a person under 18, is redundant in the context of a conviction under s. 151 (b). It is an element of the offence created by s. 151 (

b) that the complainant be under 16 years of age. It seems illogical that a fact that makes the conduct criminal could also be considered aggravating in the determination of the sentence. [ 28 ] I also reject the Crown ’ s submission that the statutory aggravating factor set out in s. 718.2(a)(iii) is in play in this case. I accept Defence Counsel ’ s submission that it has not been proved that Ms. C.R.D. was in a position of trust or authority with respect to the complainant. [ 29 ] In my view the mitigating effect of Ms.

C.R.D. ’ s admission of her crime, guilty plea and remorse is very significant in this case. The fact that a crime had been committed came to light as a result of Ms. C.R.D. ’ s own disclosure of her conduct. And she disclosed it before a month had passed from the date of the offence. [ 30 ] It is also of substantial mitigating effect that Ms.

C.R.D. has taken significant initiative toward rehabilitation and that her efforts in that regard have succeeded. [ 31 ] I am not prepared to accept the Crown ’ s submission that as this offence is roughly of midrange seriousness, a fit sentence should be approximately midway between the 14-day minimum and the 18-month maximum penalty under s. 151 (b). That logic is certainly not applied when the Crown proceeds by way of indictment under s. 151 (a).

The cases cited by the Crown demonstrate that the sentences imposed for conduct on even the serious end of the scale do not come close to the midpoint between the minimum and maximum possible sentences where the Crown proceeds by indictment. [ 32 ] Neither am I prepared to accept the Defence submission that the minimum sentence possible is appropriate in this case. [ 33 ] In my view though Ms.

C.R.D. ’ s conduct is more serious than that of the accused in some of the cases summarized above, that is offset by the absence of the aggravating factor of a trust relationship which was present in all of those cases, and by the mitigating effect of Ms. C.R.D. ’ s guilty plea, remorse and youth. [ 34 ] In my view a fit sentence is 90 days imprisonment. Ms. C.R.D. I sentence you to 90 days imprisonment. [ 35 ] Pursuant to s. 732 of the Criminal Code I order that the sentence be served intermittently on weekends starting this coming weekend.

I direct that you report to the Fort Saskatchewan Correctional Centre on Friday, January 13 by no later than 8:00 p.m. and that you be released on Monday, January 16 by no later than 8:00 a.m. and that the same pattern be followed on each subsequent weekend until your release date. [ 36 ] Further I direct that you comply with the following probation conditions when not in confinement during the period that the sentence is being served and for 18 months thereafter: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3.

Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation. 4. Report to a probation officer by 4:00 p.m. January 13 and report thereafter to the probation officer when required by the probation

officer and in the manner directed by the probation officer. 5. Remain within the Province of Alberta unless written permission to go outside the province is obtained from the Court or the probation officer. 6. Maintain full-time employment or be engaged in the search for or in training for employment if not engaged in full-time employment. 7. Participate in such assessments, counselling and treatment as the probation officer shall determine to be required and practical including counselling for substance abuse issues and specialized sexual offender treatment and psychotherapy. 8.

Refrain absolutely from the use or possession of any intoxicating substance including alcohol. 9. Provide the probation officer with such waivers of confidentiality as are necessary to permit the probation officer to receive information from those providing the assessments, counselling and treatment required by this order. 10. Provide the probation officer with proof of attendance at the assessments, counselling and treatment required by this order in such form as the probation officer may require. 11. Reside at such place as is approved by the probation officer. 12.

Not be in the presence of male persons under the age of 16 years except when they are accompanied by a parent or guardian. [ 37 ] The Crown has applied for a Sex Offender Information Registration Act Order and a DNA Order. Both are granted. The former will be for a period of 10 years starting today. Heard on the 20 th day of December 2011. Dated at the City of Edmonton, Alberta this 11 th day of January 2012. Brian R. Burrows J.C.Q.B.A.

Appearances: Mark Huyser-Wierenga for the Crown Michel Fontaine for the Accused