R. v. J.H., 2023 MBPC 15

CITATION: R. v. J.H., 2023 MBPC 15 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) J. Yan ) ) for the Crown - and – ) ) ) J.H. ) ) E. Pollock for the Accused ) ) ) Judgment delivered: ) March 14, 2023 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. HARVIE, P.J.

INTRODUCTION [ 1 ] The accused has entered a guilty plea to one count of sexual assault and one count of failing to comply with a recognizance by failing to abstain, both of which have an offence date of June 13, 2020. Crown counsel seeks a sentence of five years on the sexual assault along with other ancillary orders. Defence counsel seeks the imposition of a conditional sentence. [ 2 ] The accused entered a guilty plea on the day of trial. The complainant was present but was not called to testify. The matter was adjourned for the preparation of a Pre-Sentence and Gladue Report.

Both counsel have filed case law in support of their respective positions. [ 3 ] The sentencing in the matter requires the Court to balance a number of competing factual and statutory factors, including the seriousness of the offence, the youth and background of the complainant and the accused’s own Gladue factors. BRIEF OVERVIEW OF THE FACTS [ 4 ] On June 13, 2020 the accused, his brother, and his brother’s girlfriend (the complainant) were all drinking alcohol and smoking marijuana at the brother’s residence. The complainant became intoxicated and was assisted to the bedroom where she passed out.

After the accused’s brother left the apartment to pick up food, the accused attended to the bedroom and digitally penetrated the complainant’s vagina. The assault ended when the accused heard his brother returning. The complainant indicated that she experienced significant soreness and tenderness to her lower abdomen, as well as some superficial abrasions which resulted in some significant bleeding.

After the assault came to light, the complainant was interviewed, indicating that she recalled her hands being behind her back and the accused telling her to “pull up her panties” however she had difficulty recalling exactly what had occurred. [ 5 ] On June 15, 2020 the accused was arrested, transported to Winnipeg Police Headquarters and interviewed on continuous video where he admitted to the sexual assault.

When interviewed for the Pre-Sentence Report (“P.S.R.”), the accused indicated that he was highly intoxicated at the time, that he had previously had “an affair” with the complainant on several occasions, and misinterpreted the complainant’s actions due to his own level of intoxication. During the interview he acknowledged the seriousness of the offence and the likely impact it had on the complainant. [ 6 ] A Victim Impact Statement was not provided on the date of sentencing, despite efforts made by the Crown to obtain one.

Because Crown counsel who spoke to the sentencing was not the Crown assigned to the trial, she was unable to provide any information as to the impact of this offence on the complainant, other than to say that the complainant attended on the trial date and was willing to testify. Crown counsel did reference comments from the complainant’s statement as to the impact of this assault, including significant pain in her abdomen, difficulty going to the bathroom, as well as her being emotional and crying after this incident. THE BACKGROUND OF THE ACCUSED

[ 7 ] The accused was nineteen years old at the time of this incident. He has no adult criminal record and a minor youth record. There has been no re-involvement during the almost three year period since this incident. [ 8 ] The P.S.R. contains considerable information about the accused’s background, including significant Gladue factors. He was born in Winnipeg but moved frequently as a child, likely due to financial challenges faced by his mother. He is the middle child of seven children. His father left when he was young and he has no relationship or contact with him.

His mother struggled to provide an appropriate environment for the accused and his siblings, often leaving his oldest sister to watch over the children. The accused does not have a close relationship with his mother or siblings other than his oldest sister and the brother who was in a relationship with the complainant. His sister confirms the disruptive upbringing, which included “a lot of violence and drinking in the home”.

The accused was the subject of inappropriate forms of physical discipline, some of which were detailed in the P.S.R. [ 9 ] The accused has had limited information or exposure to his cultural heritage. As a youth, he reports visiting his mother’s family in Lake St. Martin but has limited awareness of his cultural background, and has no interest in residing in a community outside of Winnipeg. [ 10 ] The accused has had a recent and somewhat sporadic work history. His casual employer describes him as “a good guy”, but rather unreliable and would not be inclined to offer him employment in the future.

The accused has recognized the possibility of a custodial sentence in this matter and therefore has not sought long-term employment. He otherwise seems to have managed well on judicial interim release, completing his Grade 12. He is the father of a young son and spends most of his leisure time assisting with the child’s upbringing.

THE OFFENDER’S BACKGROUND AND THE RISK ASSESSMENTS [ 11 ] As is the usual case, the P.S.R. addresses the personal circumstances of the accused as they relate to identified “risk assessment” criteria, regarding both general offending and as they relate to reoffending sexually. [ 12 ] The P.S.R. assessed the accused as being a “high risk” to reoffend generally, based on a series of generalized topics including “Procriminal Attitude and Orientation; Alcohol/Drug Problem; Leisure/Recreation; and Family/Marital.” I am concerned that some of the factors used to evaluate his risk are consistent with some Gladue factors present in the report.

It is clear that Gladue factors have negatively affected both this accused and his family. Issues of displacement, substance abuse, and financial insecurity, which are clearly present in this case, are often by-products of issues rooted in Gladue factors. The weight to be attached to this assessment must be considered in this context. It is incumbent on the Court to craft a sentence which avoids contributing to the disproportionate representation of Indigenous offenders in custody.

Such consideration involves an assessment of both the nature of the sentence- whether it is a community based sentence or involves provincial or federal custody- and consideration of the length of the sentence. [ 13 ] The P.S.R. also addressed issues related to the accused’s previous sexual relationships and encounters. During the interview, the accused acknowledged being sexual abused in the past when he was “groped” by a woman when he was about twelve years old, an event which occurred during a drinking party at his home. The accused was anxious and uncomfortable discussing the topic.

The link between this incident and the often-inappropriate home environment is clear. What is more concerning, as it relates to these charges, is the Static 99R testing, with the accused assessed as a 4 which placed him at: “above average risk for being charged or convicted of another sexual offence. J.H.’s score places him in the 80 th percentile of sexual offenders in routine correctional samples. In other words, out of out 100 sexual offenders, 75 would have a lower score and 15 would have a higher score.

Within routine correctional samples of sexual offenders with a Static 99R score of 4, the 5 year sexual recidivism date rate is between 10% and 12%. This means that out of 100 sexual offenders with the same risk score between 10 and 12 would be charged or convicted of a new sexual offence after 5 years in the community”. [ 14 ] The Static 99R assessment is a concerning finding that must be carefully considered when assessing the appropriate sentence.

IS A CONDITIONAL SENTENCE AN APPROPRIATE DISPOSITION? [ 15 ] In order to answer this question, it is necessary to consider the statutory prerequisites for such a disposition.

As is well recognized, these include the requirements that: • The sentence imposed be less than 24 months; • The imposition of a conditional sentence would not endanger the safety of the community; and • The imposition of such a sentence is consistent with the fundamental principles of sentencing. [ 16 ] I shall begin with a general assessment of the length of the sentence, because obviously, if I accede to the Crown’s request for a lengthy penitentiary sentence, I am barred from imposing a conditional sentence. [ 17 ] In assessing the appropriate length of the sentence, a few comments are warranted.

First, I consider this to be a very serious offence, committed on a vulnerable victim who was vulnerable due to her state of intoxication. I am mindful as well that this offence was committed against a young Indigenous female, a factor that is statutorily aggravating, and for good reason. Far too often, this Court is called upon to address offences committed against Indigenous females, and Parliament has rightly called upon the Courts to impose sentences which recognize this reality, and to assess it along with the other principles of sentencing.

[ 18 ] Adding to the seriousness of the offence is the manner in which it was committed. Digital penetration is a very invasive form of sexual assault, and it is aggravating that she was vulnerable due to her state of intoxication at the time of the offence.

I note as well that the complainant was known to the accused, and that they were together because of the relationship between the complainant and his brother. [ 19 ] Although we do not have a Victim Impact Statement, it is clear that this offence was traumatic and had both a physical and emotional impact on the complainant in the days following the incident. [ 20 ] I recognize that recent cases, including the SCC decision in R. v.

Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424 , have addressed offending behaviour against children and have sent a message that Courts must impose sentences of a sufficient length to reaffirm the primary role of the principles of denunciation and deterrence. I fully recognize that a penitentiary sentence must be considered for an offence of this nature. [ 21 ] Having said that, I also recognize that all principles of sentencing must be considered when determining the ultimate disposition of a matter, and that “parity” in sentencing does not equate to the creation of hard and fast sentencing ranges.

Sentences must be adjusted taking into account the circumstances of the offence and of the offender. [ 22 ] To this end, the background of this accused, and in particular his Gladue factors, must play a role in the determination of an appropriate sentence. It is understood that these factors do not result in an automatic reduction in any sentence. It is equally important to go beyond a simple reference to Gladue without actively considering how these factors impact the overall sentence. When pressed, Crown counsel had difficulty articulating the impact of the Gladue factors on her recommendation.

With respect, I am not satisfied that her sentence recommendation adequately accounts for the identified Gladue factors, which are signficiant. His upbringing was marked by upheaval and exposure to physical violence and drug and alcohol abuse. [ 23 ] The role of rehabilitation must be considered as well. The accused has been on release for almost three years without incident. He has expressed a willingness to participate in programming.

Although not offering the information as an excuse, the accused recognizes the role that alcohol played in his offending behaviour, telling the P.S.R. author that if he “had a few more shots” on the night of the offence, he would have “passed out”. He reports that he has stopped drinking and now only uses marijuana, although the latter may be an issue that requires a professional assessment and counselling.

Similarly, professional programming related to his Static 99R assessment seems necessary and has not yet occurred. [ 24 ] Taking into account and balancing the foregoing, I am satisfied that it is open to the Court to consider a sentence of less than two years. The question then becomes whether the remaining prerequisites for a conditional sentence can be met. [ 25 ] As noted, the Court must be satisfied that the safety of the community would not be endangered by the imposition of a conditional sentence. To that end, I am mindful of two competing factors present in this case.

As noted, the accused has a limited criminal record and has remained out of trouble while on release. While the principle of rehabilitation is at play concerning the Static 99R score, so to is the issue of public safety. To date, the accused has not taken any formal counselling or programming to address his now admitted sexual offending behaviour. This is a concerning factor when assessing community safety as it relates to a conditional sentence. [ 26 ] More significantly, I must consider whether the imposition of a conditional sentence is consistent with the fundamental principles of sentencing.

In discussing the length of the sentence, I referenced various sentencing principles, recognizing that while denunciation and deterrence do not completely displace other factors, they remain paramount in addressing an offence of this nature. I recognize that in some cases these principles can be adequately addressed by a conditional sentence. Taking into account the totality of the circumstances, I am not satisfied that this is one of those cases. The offence is extremely serious and, as noted earlier, was committed against a vulnerable young Indigenous female.

While the accused has remained out of trouble while on release, and advises that he no longer drinks, he has not sought professional help to address either of these issues. Considering the foregoing, I am not satisfied on the facts of this case that the fundamental principles of sentencing can be addressed by the imposition of a conditional sentence.

However, given his prospects of rehabilitation, I am satisfied that a custodial sentence followed by a probationary period is an appropriate way of addressing all sentencing considerations. [ 27 ] Taking into account all of the foregoing, I am satisfied that a custodial sentence of 18 months is warranted with respect to the sexual assault.

With respect to the fail to comply charge, a concurrent disposition of 1 day, being his appearance in court, is appropriate. [ 28 ] This will be followed by two years of supervised probation on the following conditions: • The statutory condition of Keep the Peace and be of Good Behavior; • Report to probation services immediately upon release from custody and thereafter as directed to do so by probation services; • Attend, participate and complete an addictions assessment and any counselling arising from that assessment as directed to do so by his probation officer; • Attend, participate and complete any other counselling or programming as directed to do so by his probation officer including but not limited to sexual offender counselling; • No contact or communication directly or indirectly with the complainant; and • Not to attend within 200 meters of the complainant’s place of residence, employment, schooling or worship. [ 29 ] Collateral orders:

• He is to provide a sample suitable for DNA analysis; • He is to be subject to a s. 109 weapons prohibition for 10 years; and • While in custody he is to have no contact or communication directly or indirectly with the complainant pursuant to s. 743.21. [ 30 ] Given the length of the sentence, costs and surcharge are waived. “Original signed by” Harvie, P.J.