R v CMC, 2016 ABQB 196

Court of Queen’s Bench of Alberta Citation: R v CMC, 2016 ABQB 196 Date: 20160407 Docket: 131360554Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - CMC Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Corrected judgment: A corrigendum was issued on November 13, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on April 7, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment.

_______________________________________________________ Sentencing Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] On April 9 th , 2015 CMC entered guilty pleas to the two charges he faced arising out of events on November 17 th , 2013. He pled guilty to sexual assault on KBP contrary to s271 of the Criminal Code and uttering a threat to cause bodily harm to KBP contrary to s264.1(1)(

a) of the Criminal Code . Guilty pleas were entered on the opening day scheduled for trial some 18 months post-offence. It has taken almost a year to get to sentencing. The delay in sentencing is due to problems in getting the Pre-Sentence Report and Gladue Report, to the Court and in Court scheduling. [ 2 ] CMC had a change of heart and applied to change his plea from guilty to not guilty. He also changed counsel. On January 6 th , 2016, 9 months after pleading guilty, CMC applied to change is plea.

On January 18 th , 2016 I ruled that CMC was not successful in demonstrating any of the criteria for a change of plea and set this matter over for sentencing on March 18 th , 2016. The Facts [ 3 ] On the evening of November 16 th , 2013 CMC called his cousin KBP to assist him in scoring some crack cocaine. He came by her house and picked her up, the purpose of which appeared to be two-fold: 1. For her to score some drugs for him. 2.

So she could come over to his house and watch fights on TV with friends. [ 4 ] KBP is referred to as his cousin in an adopted or cultural sense, not as in a blood relation. [ 5 ] After picking KBP up and going back to his house on the Blood Tribe Reserve it was obvious there was no one at his house and his TV was not connected in order to watch the fights. They had a drink at his house. KBP didn’t finish hers. They then drove back into town for the express purpose of the accused using KBP to purchase drugs for him.

After acquiring the drugs the accused did not take KBP home as promised but rather used a ruse of having to go back to his house to lock it. This seemed odd to KBP but she trusted him. Why? He was a family friend and a member of the broader family. [ 6 ] After stopping at his house he went in and did not come out. After waiting sometime in the car KBP went into the house to see why there was a delay. She entered his house and found him in the bedroom. He immediately attacked KBP, ripping her shirt, pulling down her pants, and tearing her clothes off her. He threw her on the bed and had his hands on her throat.

He proceeded to violently sexually assault KBP. As he assaulted her he threatened her not to tell anyone as it would be, “the last person she told and the last thing she would say.” [ 7 ] KBP fought him off and heard him say it was her fault. She pleaded with him to stop. She managed to escape and ran to another part of the house and pled with him – “consider what the family would think of this.” The accused took KBP back into the bedroom and finished the sexual assault. After he finished the assault KBP managed to get free, jumped out of the bedroom window, and started running.

She was dazed, confused, and had just suffered a violent sexual assault by a friend and family member that she trusted. She ran with only her running shoes on in sub-zero weather to a neighbour’s house. She had jumped some several feet from the bedroom window. She narrowly escaped suffering from hypothermia. [ 8 ] KBP was examined by Dr. West at the Chinook Regional Hospital some three hours after the incident and Dr. West reports the following: “She had multiple bruises noted, all of the same colour which would have occurred around the same time. She had several abrasions on her forearm and leg.

The lack of genital injuries does not exclude the use of force. The presence of sperm would confirm intercourse.” [ 9 ] DNA results show the accused’s DNA in the complainant. Circumstances of the Offender [ 10 ] CMC is now 42 years of age and was married to his first wife who passed away early in their relationship. From that relationship he has two sons. He is currently in a common law relationship with SCM and has a 2 year old daughter named S from this relationship. His current partner has three other children from a previous relationship who all reside with the couple.

CMC stands in the place of a father to those children. CMC graduated from High School in 1994.

[11] A Gladue Report was prepared for CMC and provides the following information: [CMC] (his nickname is [CMC]) is an Aboriginal male who is 41 years of age. He has Treaty status and is registered under the BloodBand. He was born in Cardston Alberta and was raised on the Blood Reserve since birth. His parents are [Calvin CC] and [ER](deceased). [CMC] was adopted by his paternal grandparents, [D] (deceased) and [Charles CC] from the age of four.

They were bothBlood Band members and [Charles CC] is the surviving grandparent who is in his 70’s. [CMC] stated at the beginning of the interview that his biological mother, [ER], died from cancer when he was four years of age andsubsequently went to live with his paternal grandparents. His parents are [Calvin CC] (59) and the late [ER], who were legally married.His siblings from his biological parents are; [omitted]. His father remarried after his mother’s death and his siblings from thatrelationship are; [omitted]. He mentions he has a positive relationship with all of his brothers and sisters.

He commented he did not getalong with his step mother [CS] from the Siksika Nation. [CMC] describes his early family life as “lonely” although he had a good relationship with his grandparents and has fond memories ofthem. He describes his grandmother [D], as being good to him. He lived with his father [Calvin CC] for a brief time after his motherpassed away. He believes his father was unable to care for him because he had remarried and started a new family. The family vacations were usually local and [CMC] recalls several during his childhood.

His family raised horses and cattle and he wasinvolved with the family ranching enterprise and he often looked after the livestock which included some race horses. His grandfatherraised [CMC] in the traditional ways of the Bloods and has been a spiritual Elder in his society.

His father currently is a member of theHorn society and [CMC] often helps with these ceremonies during the Sundance in July and August every year. [CMC] did not cite any parental substance abuse while he was growing up as his grandparents did not allow alcohol or drugs in thehome. [CMC] did not witness any domestic violence in the home, although he mentions his father was a Blood Tribe Police Officer and wouldoften “whip” [CMC] as a child when he would come home. He believes his father was often stressed in his job and would take out hisfrustrations on [CMC] when he didn’t listen or do what he was told.

The Blood Tribe also known as the Kainai First Nation is located 200 km south of Calgary and forms one of three Treaty 7 First Nationsthat make up the Blackfoot Confederacy. In 2006, Blood 148 had a population of 4,177 living in 1,250 dwelling’s, an 8.4% increase from2001. As of December 2013, Blood 148 had a total registered population of 11,791[3]. Kainai has the largest population of bandmembers (12,000) and is the largest reserve (540 square miles) in Canada.

Over half of the band members live on reserve and manyBand members face housing, employment and education challenges. [CMC’s] maternal family attended the St. Mary’s Indian Residential School on the Blood Reserve, AB. It operated from 1911 to 1989and was a Roman Catholic school. He did not attend this school and did not know how family members went to this school, but recallshearing stories about their experiences at this school. [12] CMC has strong family support. Both his sister and his wife spoke at his sentencing hearing and gave strongrecommendations as to his character.

Impact on the Victim [13] Due to the violent nature of the assault it is understandable that the complainant KBP has had an extremely difficult timerecovering from her experience. KBP’s Victim Impact Statement is telling. She is a mess emotionally. She is constantly scared and doesnot trust anyone. She suffers from panic attacks and has difficulty sleeping. She is forced to take medication for her difficulties arisingfrom this assault. In her words she feels “uncomfortable in her own skin.” She has regressed as a 32 year old woman to some childlikebehaviour due to this assault.

She narrowly escaped suffering from hypothermia and most significantly feels deep humiliation, shameand pain because the person that she so proudly called her cousin turned into an ugly monster and brutally raped and injured her. [14] She is on medication and her description of the medication and its effect is telling: ...I have medication for my nerves, sleep, seizers (sic) as well as anti-depressants. I don’t know how long I will be on these medicationsbut they do not always help me through the day or night.

And they never fade the memory of being raped, running for my life, or thefear he will carry through with threats because I told someone. Even with all he has done to me, I do not hate him. Although I wish Icould. I am however, disgusted to be related to that monster [CMC]. [15] This is no doubt a major sexual assault which the authorities and Courts in this jurisdiction take very seriously.

Positions of Crown and Defence [16] The position of the Crown is that an appropriate sentence is a custodial range of between 5 to 6 years along with the standardancillary DNA Order, SOIRA Order and a s109 weapons prohibition. The Crown relies on R v Veiga, 2007 CarswellOnt 6900 (OntSCJ), R v Arcand, 2013 SKCA 75 and R v S(G), 2008 MBPC 11 in support of its position on sentencing. [17] Previous counsel for the defence filed a brief outlining authorities in detail and submitting that each case is individual andunique.

An appropriate sentence in line with requirements of s718.2 and authorities such as R v Gladue (SCC), [1999]1 SCR 688 and R v Ipeelee [2012] 1 SCR 455 warrant a special tailor-made sentence in the range of 42 to 48 months if the accused wasnon-Aboriginal and 30 months incarceration because Mr. Crow Chief is Aboriginal.

Aggravating Factors [ 18 ] The aggravating factors in this case include: • the victim knew the accused her whole life and thought of the accused as a trusted friend and member of her extended family; • the victim thought of the accused as a cousin; • there were two separate sexual assaults; • the victim escaped from the home in -20° C weather, wearing only her shoes, by jumping out of a window 9 feet off the ground.

The victim ran approximately 400 metres through the snow to the neighbour’s home and asked for help; • the accused has a criminal record which includes convictions for domestic assault; • the offence is a major sexual assault involving forced intercourse with the victim; • the force used against the victim was significant: she was choked, sustained multiple abrasions and bruises on her forearm, outer thigh and back; the number of abrasions was extensive; the bruises were red-purple; • the attack also involved threats on the victim’s life. [ 19 ] In addition the accused has a series of 15 Criminal Code convictions spanning about 20 years including property offences, impaired driving, assault, breach of recognizance and drug offences.

It does not appear that the accused has served any custodial time for any of his prior criminal convictions. Mitigating Factors [ 20 ] While a guilty plea is considered a mitigating factor it is difficult to say that this was an early guilty plea such that it would result in a substantial reduction of the period of incarceration. [ 21 ] It could have been a mitigating factor that the accused, within hours of the offence, issued what appears to be an apology: Dear KBP, I am very very very sorry! Please forgive me. I’ll never never do that. I was drunk. High on crack. Don’t know why I didn’t listen.

SORRY!!! (signed) CMC [ 22 ] I wish to make some comments on the status of an early guilty plea in terms of sentencing. [ 23 ] An early guilty plea can significantly reduce an offender’s sentence, in this Court’s view. Here, an early guilty plea coupled with the accused’s almost immediate apology combined with the recommendation of his Gladue Report could have substantially reduced his incarceration time. A guilty plea can indeed be considered “early” even though the accused had a preliminary inquiry.

In my view, a guilty plea entered after a preliminary inquiry can constitute an early guilty plea because a preliminary inquiry is an accused’s constitutional right. Early guilty pleas along with expressions of remorse will significantly reduce incarceration time. [ 24 ] An early guilty plea which saves the Court and the Court Administration time is to be rewarded. But more importantly in cases such as this, where the victim hears words of early remorse and observes the accused accepting legal responsibility promptly in the Courts, the accused’s early plea is to be considered a serious mitigating factor.

This then saves the victim the pain and anguish of prolonged delays, and he or she avoids the emotional stress of having to prepare to testify long after the event. [ 25 ] While early remorse may have been shown by the accused it was not followed by an early guilty plea; he did not plead guilty until the first day of trial. While the application to change plea and the resulting delay is not an aggravating factor, the accused gets no benefit from his guilty plea as the victim was forced to prepare for trial and almost a year later has not seen closure of this matter.

Principles of Sentencing [ 26 ] The starting point for any sentencing under the Criminal Code is s718, and s718.2: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [27] A Gladue Report was prepared pursuant to the important sentencing case of R v Gladue, (SCC), [1999] 1SCR 688. The sentencing principles extracted from that decision are as follows: The Canadian criminal justice system has failed one group of Canadians, the Aboriginal peoples of Canada.

There has been bias against Aboriginal people and an unfortunate institutional approach that is more inclined to refuse bail and to imposemore and longer prison terms for Aboriginal offenders. Judges must consider whether imprisonment is meaningful to the community of which the offender is a member and craft the sentencingprocess and the sanctions in accordance with the Aboriginal perspective.

In all cases, the sentencing judge must take judicial notice of the systemic or background factors and the approach to sentencing which isrelevant to Aboriginal offenders. [28] The Gladue Report in this case is not as helpful as it might be. Unfortunately, the report was prepared in the context of CMC’sdecision to deny the allegations after he had pled guilty. This was also the case with the Pre-Sentence Report. As well, the GladueReport improperly describes this case as a plea bargaining situation.

The report says: ...he accepted a plea bargain with the Crown without exploring his options and his right to plead not guilty as cited in the Cawsey Report(Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta, March 1991). He didnot understand the legal system and he is afraid of the damaging implications for him and his family. This practice of plea bargaining isconsistent with findings of many reports on Aboriginal people and the justice system. [29] This unfortunately, is not accurate.

There was no plea bargain in this case, because CMC entered guilty pleas on his first dayof trial to the only two charges he was facing. [30] Therefore, because of the attempt to deny responsibility and change his plea the Gladue report in this case is not an effective

as it could be. The report does say: - CMC is 41 years of age and a registered Treaty Indian. - He is a member of the Blood Indian Band. - The client’s family members attended the St. Mary’s Residential school on the Blood Reserve. These schools were part of a social engineering practice between the Church and the state.

These institutions led to the cultural and family breakdown for many First Nations members, and have led to a multitude of social problems today. - The client is from a First Nations Reserve that struggles with health, housing, substance abuse, and poverty-related problems that are pandemic in many First Nations communities. - The client was not raised by his mother who passed away during his formative years, but was raised by loving grandparents who provided him with a stable home and strong parenting skills.

His other extended family members and his maternal grandparents have struggled with cultural disconnection and did not provide positive role modelling. [ 31 ] Conditions recommended in the Gladue Report include: • Psychological Assessment is strongly recommended. This would help provide programming and individual counselling. Dr. Steve and Jennifer Thibideau of Lethbridge have worked with the Blood and Peigan members and can provide a psychological assessment, individual and group counselling and referrals to an appropriate Treatment Center.

They are very skilled in First nations issues including family counselling, addictions, physical and sexual abuse and violence prevention. [See attachment – Lifestar program]. There are no financial costs for this service for [CMC] and his family, as Medical Services pay these costs. A Stay of the Charges so that [CMC] may seek counselling, legal help in rebuilding his life. [ 32 ] At the risk of stating the obvious, denunciation and deterrence are the primary sentencing principles in the case of a major sexual assault. Because an accused person is Aboriginal does not change that consideration.

However, what s718.2(

e) of the Criminal Code does, is alter “the method of analysis” which each sentencing judge must use in determining the nature of a fit sentence for an Aboriginal offender. Further, the circumstances of Aboriginal offenders are most certainly different from non-Aboriginal offenders and therefore when comparing sentences imposed on non-Aboriginal offenders the sentencing Courts cannot simply state that we are comparing like cases with like.

This means that the parity principle is not to be applied in a formalistic way. [ 33 ] In the present case, the position of the Crown is a term of incarceration in the range of 5 to 6 years. The accused argues that for a non-Aboriginal accused’s the term of incarceration would be 3 to 4 years, but because the accused is Aboriginal he should receive a term of incarceration of 30 months. [ 34 ] I am not satisfied that the analysis of the sentence range for even the non-Aboriginal accused put forward by defence counsel is necessarily sound based on the authorities.

And as previously described, the Gladue Report in this case is not particularly helpful. [ 35 ] The reality in this case is that the Court is forced to choose a penitentiary term of incarceration. In my view, based on the information before me, penitentiary time cannot be excluded without having a tremendous amount of information on what restorative measures are available to this accused in his community.

That information is not available to the Court, notwithstanding the fact that I must pay particular attention to restorative justice principles in sentencing Aboriginal offenders. [ 36 ] Further, the Court is faced with the principle in the case of R v Wells , 2000 SCC 10 that typically and generally the more violent and serious the offence, the more likely as a practical matter the sentence will not differ as between Aboriginal and non- Aboriginal offenders due to the fact that denunciation and deterrence are the primary factors. [ 37 ] The Crown argues there is nothing in the material that says the accused should receive a serious reduction in sentencing.

In fact, the accused’s adaptability in manoeuvering and manipulating the victim on the night in question are somewhat aggravating factors which warrant a sentence with a starting point of 5 years. [ 38 ] Counsel for the defence did not emphasize the accused’s drug problem. In my view, the accused’s drug and alcohol related dependency is a very significant factor. Had it not been for his pursuit and consumption of drugs, the events of November 16 th and 17 th , 2013 would likely not have happened.

Any term of incarceration served by this accused must include a program dealing with the accused’s predilection to taking both legal and illegal drugs, and alcohol. Sentence [ 39 ] I am satisfied that an appropriate sentence in a serious case such as this must take into account deterrence and denunciation and should include drug and alcohol treatment. As well, this Court has taken into consideration CMC’s Aboriginal background which appears to include substance abuse issues. Accordingly, on the sexual assault charge, I sentence CMC to a 4 year term of incarceration in a federal penitentiary.

I am recommending that during the time he spends in custody that special consideration be given to his drug and alcohol reliance. [ 40 ] The charge of uttering a threat to cause bodily harm was also serious. In her Victim Impact Statement KBP specifically stated that she still fears the accused will make good on his threats because she told someone. The threat was of the gravest kind, a threat on her life. I have taken the threat into account as an aggravating factor on the sentence for the sexual assault, and therefore, I sentence the accused to a term of 6 months, concurrent, for the uttering threats charge.

[ 41 ] As well, the accused must submit a sample of DNA pursuant to the Criminal Code , there will be the appropriate SOIRA Order for a period of 20 years, and pursuant to s109 of the Criminal Code he will be subject to a 10 year prohibition order of possession of firearms. Heard on the 9 th day April, 2015, the 18 th day of January, 2016, and the 18 th day of March, 2016. Dated at the City of Lethbridge, Alberta this 29 th day of March, 2016. D.K. Miller J.C.Q.B.A. Appearances: Darwyn C. B.

Ross for the Crown Greg White and James Rouleau for the Accused _______________________________________________________ Corrigendum of the Sentencing of The Honourable Mr. Justice D.K. Miller _______________________________________________________ Restriction of Publication, Identification Ban has been added. _______________________________________________________

Corrigendum of the Sentencing of The Honourable Mr. Justice D.K. Miller _______________________________________________________ The Docket Number was incorrect and has now been changed.