R v KER, 2021 ABQB 976

Court of Queen’s Bench of Alberta Citation: R v KER, 2021 ABQB 976 Date: 20211208 Docket: 190946434Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - KER 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 By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Oral Reasons for Sentence of the Honourable Mr. Justice E.C. Wilson _______________________________________________________

[1] The accused is the 76-year-old grandfather of the victim, SR, who is now 17 and a half years old. She was 8 or 9 years ofage when the accused committed his crimes upon her. He was in his mid-60’s at that time. [2] There were two discreet events which I found to have occurred. Both occurred at the accused’s Calgary apartment where hewas babysitting overnight. The first incident occurred when the victim’s young brother was also spending the night. The second incidentoccurred when the victim was there overnight alone. [3] On the first incident the accused laid down in her bed with her. He was naked.

The victim reports concern and confusion andthen a feeling of discomfort, which is quite understandable, as the accused committed

an act of cunilingus upon her for some time periodthat she thought lasted 10 or 20 minutes. She tried to force him off her using her legs to push him off, but as she said, she was too young,meaning too small and lacking in strength to be effective in her use of force against her grandfather. She tried to wiggle away but hepinned her down and he told her she was doing good. She said she stopped resisting and the accused just stopped. She thought hestopped only because he got bored.

He left and then sometime later he returned and slept with her for the rest of the night. [4] The second incident happened some weeks later. She reluctantly slept over again, this time with no brother. She was scaredof the accused. She did not want to be there. Again, early in the morning the accused came into the bedroom, knelt down beside the bed,and reached under the sheets. He felt her vaginal area on top of her bed clothes for what she felt to be about 5 minutes. She said shesquirmed and kept saying “No”. Finally, he stopped.

The victim thought that the accused only stopped because the volume of her “no’s”increased such that the neighbours in the apartment block might have awakened. [5] That is an overview of the evidence which I found to be the truth and upon which I found the accused guilty of both offences. [6] The law regarding the prohibition against double-jeopardy convictions, better known as the Kienapple principle, warrantsme to impose a conviction solely for the

section 151 offence at the request of the Crown and with the concurrence of the defence. I mustadd that I agree with both counsel. [7] Accordingly, a conviction is registered for the

section 151 offence in Count 2, and I conditionally direct a stay ofproceedings for the

section 271 offence in Count 1. [8] Approaching sentencing for sex offenders who perpetrate their crimes in breach of a relationship of trust in the Province ofAlberta, requires a sentencing judge to have regard to the guidance given by the Alberta Court of Appeal as it may have been modifiedby the Supreme Court. [9] The principle of stare decisis is the reason why I am required to approach sentencing in this manner. And, of course, theconsiderations which I am required to take into account and for which I am required to give effect also include the sentencing provisionsof the Criminal Code.

I will start with the former. [10] In an effort to attempt to bring some rigor to the sentencing process, the Alberta Court of Appeal has, for many decades,utilized the device of starting points for many, but not all, crimes. The various complaints that starting points were impermissible per sewere put to rest in R v Parranto 2021 SCC 46. [11] In R v S (1992) (AB CA), 73 CCC (3d) 530, our Court of Appeal set a 4-year starting point sentence for asingle major sexual assault upon a child by a parent or a person standing in loco parentis, see page 551.

The Court of Appeal then set outa number of factors which could aggravate or mitigate, see pages 551 and 552. One of the listed mitigating factors would be a guiltyplea. Thus, it stands to reason that the 4-year start point is for sentencings after trial. [12] The Crown submits at paragraph 15 that the 4-year start point assumes no prior record and previous good character.

While thetwo appellate decisions cited in paragraph 15 of the Crown’s submissions do not make this assumption, the Court of Appeal in R vArcand, 2010, ABCA 363, did so at paragraphs 132 to 135. [13] However, the Supreme Court in Parranto said it was wrong to pre-weigh or build in any mitigating factors when settingstarting point sentences, see paragraph 46. [14] I am satisfied, however, that there is no pre-weighing or building in of any mitigating factors in the 4-year start point outlinedin R v S.

It is agreed by counsel that the first incident which involved cunnilingus puts that assault into the category of a major sexualassault, due not simply by the nature of the act, but because the assault created the very real risk of very real harm to the victim, bothshort term and long term. When the accused is a parent or stands in loco parentis: A sexual assault committed by him upon the child constitutes a grave breach of that duty [to protect the child from harm] and anoutrageous breach of that trust.

R v S at page 537. [15] Defence argues that the second incident would not meet the definition of a major sexual assault because the physical act oftouching the victim’s vaginal area over her pajamas for 5 to 10 minutes is not the type of intrusive activity such as cunnilingus. Idisagree. In these circumstances the sexual contact is a repetitive type of sexual act upon a child who is already frightened by theaccused’s earlier assault, and who is assaulted in yet another breach of trust.

When coupled with her testimony and victim impactstatement that her victimization had been caused by her “best friend”, and that almost 10 years later she still has difficulty in trustingpeople and is discomforted in even staying overnight at other residences, all combine to demonstrate the type of real and profound harm,psychological and emotional, which would meet the requirements to have the second incident branded as a major sexual assault.

Suchharm was recognized some 30 years ago in R v S and in an even more nuanced and detailed fashion in the recent decision of R v Friesen2020 SCC 9. [16] Reference must also be made to paragraphs 137 to 147 of Friesen, where the Supreme Court cautioned against the

downgrading of the wrongfulness of the offence or harm to a victim where the physical act involved is not as intrusive as cunnilingus. [ 17 ] Accordingly, I find both incidents qualify as major sexual assaults. [ 18 ] While the violation of trust is built into the 4-year start point, it must be noted that Parliament has also specified statutory aggravating factors in

section 718.2(a)(ii), (ii.1), (iii): (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (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... [ 19 ] Clearly the gravity of the offence here is high and the accused’s moral blameworthiness is equally high. [ 20 ] The Crown seeks a sentence of 5 to 6 years. She cites a number of aggravating factors at paragraph 29: (

a) The offender sexually abused his young granddaughter. This is the highest position of trust and the offender’s conduct is the basest form of betrayal. (

b) The offences occurred in the offender’s home while she was there for sleepovers with the offender which she previously enjoyed. The offender abused the victim where she should have been safe. (

c) There were repeated incidences sexual assault. R v Boucher , 2020, ABCA 208 , paragraph 24 . (

d) The offences were predatory in nature. One of them occurred while another young child was present in the apartment. (

e) Physical force was used by the offender in the first incident. The offender pinned SR down using physical force to prevent her from stopping the assault. (

f) The significant actual and potential harm suffered by SR. The evidence that supports this includes: (

i) SR was abused by her grandfather, irrevocably damaging a previously close relationship; (ii) SR kept telling the offender to stop in the second incident, but he did not until her protests were quite loud; (iii) SR had to live with the offender and endured verbal abuse by him in the months leading up to her disclosure to her father; (iv) these offences have significantly affected the interfamilial,w relationships as the offender is the father of SR’s father; (

v) the offences occurred shortly after SR’s mother died from cancer and she moved in with her father and former step-mother; (vi) The impact is described by SR in her evidence in court, including the effect on her ability to trust and her discomfort with staying over at residences other than her own, and with men. That impact is still prevalent, despite the offences occurring almost a decade ago. [ 21 ] I agree with all of these. [ 22 ] As to mitigating facts there are none. Even his apology for causing such pain rings hollow, having exercised his right to a trial requiring his granddaughter to testify.

Any claim of previous good character is limited in such cases of sexual offences – see R v Arcand , at paragraph 136 and R v Hepburn 2013 ABQB 520 at paragraph 37 . [ 23 ] Defence seeks a sentence in the three to four-and-a-half-year range. The two authorities cited by defence are Queen’s Bench decisions from 2011 and 2014.

Thus both were rendered prior to the Criminal Code amendments increasing the maximum available sentence for this offence, and of course, prior to Friesen , which directs all courts to sentence such sex offenders to more lengthier terms – certainly lengthier than what was then imposed in those two cases. [ 24 ] Further, in the L.W.H . case, 2011 ABQB 22 , the Court made a number of remarks from paragraph 22 onward which appear to be now at odds with what has now been directed in Friesen and Parranto . [ 25 ] Regarding the WEM case, 2014 ABQB 10 , among other points of deviation with this case before me, I note that the three-and- a-half-year sentence was imposed where the Crown sought 4 years following the R v S starting point for the one incident upon which the accused was convicted. [ 26 ] In my view, while each incident before me on its own would engage the 4-year start point, I am satisfied that a fit and proportional sentence will be one of 6 years.

Some restraint from what would otherwise could warrant an 8-year sentence is required here, both in recognizing the accused’s age and that his time in jail might not be particularly easy for him, and also having regard to the Crown’s position on sentence. [ 27 ] There will be no credit given for his presentence custody given he had to be arrested for failing to appear at his sentencing last week. [ 28 ] In addition to the 6-year sentence there are the following ancillary orders. A DNA order because it is a primary designated offence; a SOIRA order for a period of 20 years.

There will be direction that he is to have no contact with SR while in prison and there is also an order under

section 161, the terms which will be as set out in paragraph 37(a), (

b) and (

c) set out in the Crown’s sentencing

materials. For the record I will read it: The offender shall not attend at any daycare, elementary school, junior high school, high school, or youth shelter; the offender shall not be within 50 metres of any known residence or place of employment of SR or any other school known to be attended by SR; and the offender is prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16.

Oral Reasons Delivered on the 2 nd day of December, 2021. E.C. Wilson J.C.Q.B.A. Appearances: Karuna Ramakrishnan for the Crown Allan Fay for the Accused