) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - v. - ), 2012 MBPC 2

2012 MBPC 2 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - and - ) ) J. C., ) Peter Kingsley ) for the Accused Accused. ) ) Judgment Delivered: ) January 9 th , 2012 RESTRICTION ON PUBLICATION: Please note that, pursuant to s. 486.4(1), this decision is subject to an order restricting publication in any document or broadcast or transmission of any kind of any information that could identify the complainant.

HARAPIAK, P.J. [ 1 ] This is a Crown application to disentitle J.C. from applying for parole until half his sentence is completed, made pursuant to s. 743.6 of the Criminal Code of Canada at the close of sentencing on October 31 st , 2011. [ 2 ] J. C. was sentenced that day on three counts: 1. Repeated sexual assault of his daughter between February 1, 1999 and October 26, 2010, contrary to

section 271 of the Criminal Code of Canada ; 2. Sexual interference with his daughter between February 1, 1999 and April 8, 2006, contrary to

section 151 of the Criminal Code of Canada ; and 3. Repeated acts of incest upon his daughter between the dates of February 1, 2002 and October 26, 2010, contrary to

section 155 of the Criminal Code of Canada . [ 3 ] J.C. was sentenced to a total of 12 years in custody; being 4 years for sexual interference, 8 years consecutive for incest, and 5 years concurrent on the sexual assault. After giving J.C. credit for 10 months spent in pre-sentence custody the net sentence left to serve was 11 years and 2 months. THE LEGISLATION [ 4 ] Normally, according to s. 120 of the Corrections and Conditional Release Act, SC 1992 c 20, offenders are ineligible to apply for parole before serving one third of their sentence, or seven years, whichever is less.

[5] S. 743.6 of the Criminal Code of Canada gives the sentencing judge the ability to expand that period of ineligibility forspecific scheduled offences, when certain criteria are met, to half the sentence or ten years, whichever is less. All three of these offencesare included in

Schedule I. [6] The

section reads, in part, that: “…the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstancesof the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires,order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence orten years, whichever is less.” PROCEDURAL UNFAIRNESS [7] J.C. argues that there has been procedural unfairness in the timing of this application and, as such, it should not beentertained. [8] Guilty pleas were entered by the offender on August 18th, 2011.

A Gladue Report was ordered by the court, but was unableto be completed as J.C. was unable to provide, with any certainty, an appropriate community to be profiled. Sentencing submissions took place on October 20th, 2011 and a written decision was released on October 31st, at which time the Crown first raised the issue ofdelayed parole eligibility, both with Defence and with the court. [9] Defence objected to the Crown raising this issue at such a late juncture and urged the court not to entertain it for reasons ofprocedural fairness.

I requested written submissions from both counsel, and adjourned the matter to today for decision. [10] R. v. Zinck 2003 SCC 6 , [2003] S.C.J. No. 5, the leading case on this

section was delivered by the Supreme Court ofCanada in 2003. Justice Lebel, writing for a unanimous court, wrote about procedural fairness and stressed flexibility, as follows: “The obligation to assure fairness in the process is of critical importance, but it may be discharged in different and equally valid ways. When possible, the Crown may give notice in writing or verbally before the hearing. The application may be made at the sentencinghearing itself. The issue may also be raised by the judge in the course of the hearing.

Whenever and however the question is broughtup, the offender must be informed clearly that he is at risk in this respect. The offender must be allowed to make submissions and tointroduce additional evidence, if needed, in response to the request for delayed parole. Courts should be generous if adjournments arerequested for this purpose.

Fairness must be preserved, but in a flexible manner, taking into account the specifics of each case, withoutpointless procedural constraints.” [11] Defence argues that as the decision on sentence was complete this last minute application creates a “de facto appeal of thedecision” and that to allow it would undermine the entire process of sentencing, suggesting that “no thought was put to the length of thesentence including opportunities for rehabilitation and the requirements of parole.” [12] This position seems to run counter to the Supreme Court’s depiction of s. 743.6 as requiring a two-step process.

The judgemust “first determine what would be the appropriate punishment for the crime. The issue of parole eligibility is not considered at this stage. Courts consider all relevant factors and weigh them, in the circumstances of the case and taking into account the character of theoffender. On the basis of this analysis, the judge determines the duration of the jail sentence, if imprisonment is required by law orappears necessary.

At this point, the analysis may shift to the exercise of the power to delay parole.” (Zinck (supra)) As such, the splitting of the submission between sentencing and consideration of the s. 743.6 application still permits the requisite two-stage inquiry and the late application is not fatal to the Crown’s case. [13] Counsel routinely get up at the end of a decision and apply for ancillary orders. This is not that type of pro forma application. Delaying parole eligibility from one-third to one-half of sentence is not an insignificant or routine matter. The timing of the application

in this case was not ideal, particularly where a young and vulnerable victim should have been able to expect the matter would likely beconcluded, but for any possible appeal, on the date of decision. However, the possible procedural concerns raised by the Supreme Courtin Zinck (supra) have been met to my satisfaction. The offender would have been aware of the added jeopardy that this application puthim in, and was given ample opportunity to respond to it.

I am not persuaded that, overall, there was procedural unfairness and amprepared to entertain the Crown’s application. [14] A brief review of the troubling details of this case and the character and circumstances of the accused is warranted beforeconsideration of the application on its merits. THE FACTS [15] J.C. sexually abused his daughter for 11 years; starting when she was six and ending shortly after she turned 18. He routinelytouched her in a sexual manner and made her touch him. He controlled her with threats, violence and demeaning, derogatory comments.

He handcuffed her to her bed, bought her a vibrator and attempted penetrating her with it. When she was 12 years old he forced sexualintercourse on her and continued to do so, hundreds of times, over the next six years. She became pregnant as a result of this abuse andhe threatened her and urged her, at age 14, to sleep with someone else to create a cover story for the pregnancy. After the baby’s birthshe threatened to tell and he threatened to hurt her baby if she did. [16] The facts of the abuse are detailed more thoroughly in my sentencing decision, which I incorporate into these reasons.

Thesentencing objectives of denunciation and deterrence were central in my consideration on sentence. Due to the nature of the offences andlack of mitigating factors the other sentencing factors were given limited consideration. CHARACTER AND CIRCUMSTANCES OF OFFENDER [17] Information about 46 year old J.C. was remarkably scant. No pre-sentence report, expert’s reports or supplementary materialwas filed. J.C. grew up primarily in foster care and became a permanent ward when he was 12. He claimed to have been abused as ateenager while in foster care, but preferred not to offer any details.

He has a welding certification and worked off and on doing odd jobs. There was no evidence he had any insight into his offences. He has a criminal record which dates back to 1992. There was a relatedconviction in 1985, of sexual intercourse with a female under 14. He was just 20 years old at the time of that conviction, and received 15months custody. THE CASELAW [18] In 2003, when s. 743.6 wound its way up to the Supreme Court of Canada in R. v. Zinck (supra) there were arguably twodifferent approaches to its

interpretation in the appellate courts across the country – those that favoured its use only in “exceptional”circumstances (see R. v. Goulet (1995), (ON CA), 97 C.C.C. (3d) 61 (ONCA) and R. v. Traverse [1998] M.J. No.266 (MBCA)) and those that took a broader approach, requiring no evidence of exceptional circumstances. (see R. v. Matwiy (1996),1996 ABCA 63 , 105 C.C.C. (3d) 251 (ABCA)) [19] The Supreme Court found that this jurisprudential conflict had been exaggerated.

Justice Lebel wrote that: “both views address the same difficulty and adopt ultimately consistent approaches to the integration of delayed parole into the processof sentencing.” [20] The Supreme Court was sympathetic to the difficult, somewhat repetitive task that a 743.6 analysis requires. “It concerns”wrote Justice Lebel: “offences in respect of which the sentencing judge must first apply the normal principles of sentencing to the facts in order to determine afit punishment for the crime.

Then, the court must use the same principles all over again, in respect of the same facts – although nowwith a priority to deterrence and denunciation pursuant to s. 743.6(2) - in order to decide whether parole should be delayed (R. v. Dankyi(1993), (QC CA), 86 C.C.C. (3d) 368, at p. 376). The nature of the analytical process required in order to apply thisprovision remains far from clear.” [21] The court went on to attempt to provide some clarity, finding that:

a) Delayed parole orders should not be made routinely, automatically or mechanically;

b) Sentencing factors must be applied again by the court – in a “double weighing exercise”;

c) Priority must be given to denunciation and deterrence and

d) The prosecution bears the burden of demonstrating this additional punishment is required. [22] With the acceptance, by the Supreme Court, of both threads of jurisprudence (the exceptional and the non-routine) thepre-Zinck case law continues to be considered in s. 743.6 analyses. [23] Discussion of what it takes to satisfy this

section continues. In R. v. Cheddesingh (ON CA), [2002] O.J.No. 3176 (ONCA), [2004] 1 S.C.R. 433 (affirmed by SCC) the Ontario Court of Appeal adopted the reasoning in R. v. Dankyi (1993), (QC CA), 86 C.C.C. (3d) 368 (QCCA), which notes that “[t]he distinguishing characteristics of the offender may provide more fruitful grounds for invoking s. 741.2 as an exceptional measure. Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of paroleeligibility, an order under s. 741.2 will be appropriate.

A history of prior parole violations, or violations of other forms of conditionalrelease, or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applyings. 741.2.” (Note – 741.2 is the predecessor

section to s. 743.6) [24] Manitoba had adopted the exceptional framework in 1998. In R. v. Traverse [1998] M.J. No. 266, Manitoba’s Court ofAppeal relied on R. v. Dankyi (supra) and R. v.

Goulet, (1995) (ON CA), 97 C.C.C. (3d) 61 (ONCA), finding: “some of the relevant considerations for the imposition of a s. 741.2 order [to be] the particular violence, brutality, or degradationinvolved in the offence; a determination that the offender cannot be rehabilitated within the normal period of parole eligibility; the parolehistory of the accused; and the impact of previous sentences upon the accused.” [25] The Crown relies, in its brief, on R. v. Smith 2008 SKCA 20 , [2008] 4 W.W. R. 27 (SKCA).

This drug exportingcase dealt with offences involving participation in criminal organizations which bring with them mandatory parole delay (s. 743.6(1.2))unless the court is satisfied denunciation and deterrence are met rather than the permissive parole delay set out under s. 743.6(1).

Assuch, some of the dicta cited seems to be addressing a different scope of problem. [26] The Saskatchewan Court of Appeal implicitly recognizes the distinction at paragraph 67, saying that: “[w]hatever hesitation may arise in other cases, anxiety should not inhibit the exercise of discretion when dealing with those whoembrace organized crime on unprecedented scales.” ANALYSIS & DECISION [27] As mentioned, the Crown bears the burden of demonstrating that this additional punishment is required.

In arguing for delayedparole eligibility the Crown points to the circumstances of the offence, a lack of show of remorse by the accused and a 25 year oldrelated conviction. [28] These three points do not satisfy me that the usual parole provisions will not be appropriate for J.C. or that delayed paroleeligibility is required. These are his first criminal convictions in almost 20 years, he has never been sentenced to penitentiary time andhis likely response to treatment is unknown. When considering the sentencing factors a second time I find myself making a very similarassessment as the first.

Denunciation and deterrence were already of critical importance in determining the length of sentence and areadequately met by the effective global sentence of 12 years that I imposed on J.C.. [29] Will it be necessary for J.C. to remain in custody after serving one-third of his sentence? I will leave that to the Parole Board.

The Corrections and Conditional Release Act, SC 1992, c20, has sections to specifically refer sexual offenders against children to theParole Board prior to statutory release where: “there are reasonable grounds to believe that the offender is likely to commit a sexual offence involving a child before the expiration ofthe offender’s sentence according to law.” (s. 129(2)(a)(ii))

The Parole Board will be in a much better position to make that assessment at that point than this court, with such limited information, is today. [ 30 ] Granting this application based upon the information before me would equate to a near-automatic granting of delayed parole whenever the offence itself was serious enough. That would fail to recognize the Supreme Court’s direction that these orders remain “out of the ordinary.” [ 31 ] The application to delay eligibility for parole is denied. ________________________ Judge C. V. Harapiak