R. v. Bruneau, 2021 MBPC 65

CITATION: R. v. Bruneau, 2021 MBPC 65 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) S. Doe for the Crown ) - and - ) ) Michel Bruneau ) K. Gowenlock for the Accused ) ) Judgment delivered: ) November 23, 2021 Pollack S.P.J. [1] This case is an example of how narrow a slice of the life of an accused is portrayed in a criminal trial. At his trial I foundMichel Bruneau guilty of attempting to make child pornography from his jail cell at Headingly Correctional Centre (HCC).

The subjectof the intended pornography was his girlfriend’s son, V, with whom he had been in a position of trust. I knew that I would be sentencinghim for disobeying court orders which prohibited him from contacting his victim and his victim’s mother because he entered guilty pleasto those offences upon being arraigned. [2] At the sentencing hearing, however, I was provided with his criminal record which explained the circumstances of his beingincarcerated. I am now informed that the case involving the V took place in 2018 and that the prosecution also involved two additionalvictims, a girl and a boy.

On March 18, 2021 he was sentenced to a total of twenty and one half years for a series of offences detailed inhis criminal record, Exhibit​​​​ S-1. Two months later he was sentenced to a consecutive term of one year for attempting to obstruct justice;in that case he prepared a false confession to enable a cellmate to try to escape prosecution for sexual assault. Although his cellmatepresented the letter to authorities and Mr.

Bruneau recanted it the following day, the offence of attempting to obstruct justice wascomplete. [3] I was also provided with a 2007 report from The Manitoba Learning Center compiled when the offended was seventeen yearsold. The report is the psychological assessment of Dr. Kent Somers, a psychologist who frequently provides forensic assessments. I alsoreceived a risk assessment report compiled shortly after the offender’s eighteenth birthday by Opportunities for Independence. Thatreport appears to have been prepared for Eastman Family Services by a therapist.

Of course I had no idea that these reports existedduring the trial. [4] Although he had some conflict with law as a teenager, there were no convictions on Michel Bruneau’s record until recently. A2007 Wechsler test indicated that his general cognitive abilities were only within the borderline for his age. His working memory was inan extremely low range for his age and his reading fluency was also low. In behaviour, he was described as being similar to youthdiagnosed with Attention Deficit/Hyperactivity Disorder and his life skills were substantially less than what would be expected of aseventeen-year-old.

It is important to note that Alcohol-Related Neurodevelopmental Disorder has always been suspected but his motherdenied alcohol consumption during pregnancy and therefore he did not qualify for an assessment. [5] Finding a placement for Michel Bruneau was a challenge for Eastman Family Services.

He was reported to have “engaged ininappropriate sexual behaviour with children and had been previously assessed for risk in April of 2005” and the conclusion of theassessment was “the placement of Michel in a foster home with children or adolescents is very risky and it is not recommended”. [6] During his childhood in Hollow Water First Nation he not only witnessed abuse; he, too, was a victim. He blames hismother’s substance addictions on his cognitive difficulties so carefully documented in the reports.

And the law does not require him toprove that the roots of his difficulties lie in the way generations before him were exploited and marginalized. The defence stressed that,although his ability to control his behaviour and keep boundaries was deficient, he had never been punished for this in his youth. Theyasked me to consider that his efforts to obtain pornographic photos of V are in themselves evidence of his cognitive deficits.

From thatdeparture level they say that the absence of any prior punishment is a relevant pre-sentence fact for someone with those deficits. [7] I digress by referring to a 1980 decision, R. v. Cheetham, (ON CA), 17 CR (3rd) 1; 53 CCC (2nd) 109, inwhich the Ontario Court of Appeal was considering a case involving punishment for a subsequent offence. Blair JA wrote that: It is expected that the conviction and penalty for the initial offence and the peril of the more severe penalty for a subsequent offence willbe present in the mind of the offender and to guide his future conduct.

I suppose that, if there is a benefit to having been prosecuted and jailed previously, that is a benefit that Michel Bruneau has missed, butit is not of high relevance in the circumstances of this sentencing. [8] The prosecution say that the convictions for abusing children as well as attempts to interfere with the trial process indicatehow difficult it is to control this offender.

Taking into account his personal history, they say that he is both dangerous and vulnerable atthe same time and I agree. [9] Having considered the reports filed and the submissions of both counsel, I am prepared to accept that, while this offender wasstanding trial as a detainee, his view of the proceedings against was – for lack of a better term – simplified.

He found access to trialwitnesses that went undetected over thousands of attempts and many connected calls but he did not try to affect the outcome of his trial;he simply sought some continuity of the gratification that received from sexual interference with V. In jail he sought the next bestaccess: photographs. [10] In my opinion, even that naïve attempt must attract a sentence that reflects the violation of V’s integrity and sense of self-worthand control over his body that would have continued as the offender demanded the photos. In making that statement, I am paraphrasing a quotation from R. v.

M(TE) (SCC), [1997] 1 SCR 948, approved of in R.v. Friesen, 2020 SCC 9 at paragraph 57. I accepted evidence from V’s police interview that “He explained how the accused, both inletters and on the telephone, asked for photographs in sexualized poses. This included the accused telling him that he wantedphotographs of him unclothed and with an erection and that he would teach him how to masturbate.” [11] Enough has already been written about the Supreme Court of Canada’s leadership in its Friesen judgment and the defenceacknowledge that the sentencing stakes are now higher for those who offend against children.

In that regard, they submitted that thesentencing expectations set out in the Friesen judgement have been satisfied by the sentences already imposed. But Friesen did not alterthe proportionality principle; it applies to each conviction for which an offender is sentenced.

As I have already indicated, I amsentencing the offender for compounding the gravity of his sexual offending against V; and, of course, in assessing his degree ofresponsibility I must give consideration to the forensic psychological information. [12] Although I have called the offender’s attempt simplistic, it added to the actual and future harm suffered by V. In my opinionthe appropriate sentence for attempting to make child pornography in the circumstances that I found at the trial is three years. [13] While in custody, Michel Bruneau was bound not to communicate with either V or V’s mother.

Using his own or others’prisoner codes, he made over three thousand calls in violation of those orders. About two dozen of the conversations were recorded andtranscribed. Although I did not find evidence in those transcripts of the offence of attempting to make child pornography, it is clear thateach of the thousands of tries was an attempt to flout a court order in the midst of a trial in which V was his victim. Notwithstanding thecognitive deficits that psychologists warned about fourteen years ago, it is clear to me that Mr. Bruneau understood the judge whoordered him not to contact V or his mother.

He also understood that using false names, both in conversation and in notations made onthe back of the photographs by V’s mother, would make it appear that the conversations and the mail were not forbiddencommunications. [14] Although Michel Bruneau was a first-offender in breaching court orders, he offended against the Court thousands of times. Heis sentenced to one year for each of those counts. I considered whether these one-year sentences should be concurrent to each other andconcluded that there was a significant difference in the criminal decision to contact a complainant compared to contacting a witness.

Accordingly the two one-year sentences will be consecutive to each other. Because intent to disobey court orders is different from theintent to make child pornography, these sentences will also be consecutive to the sentence for attempting to make child pornography. And each of these sentences will be consecutive to any sentence Michel Bruneau has yet to serve. [15] That is an assessment of five more years and, even if this 32-year-old offender was not already sentenced, it merits a furtherreview.

It is a significant penitentiary term and my calculation is that it will be about fifteen years before he will begin serving that totalof five years. I also consider this passage in Friesen where the Court was referring to high-risk offenders, at paragraph 124: …the imperative of providing immediate and short-term protection to children may preclude early release. In these cases, efforts atrehabilitation must begin with such treatment or programming as is available within prison (see R. v. S. (R.M.) (1997), (BC CA), 92 B.C.A.C. 148 (B.C. C.A.), at para. 13).

In some cases, the only way to achieve both short-term and long-termprotection of children may thus be to impose a lengthy sentence (see R. v. Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318 (N.S. C.A.), atpara. 19, per Cromwell J.A., as he then was). [16] It is clear to me that rehabilitation of this offender requires a lengthy term of imprisonment and a last look at proportionalitydoes not require a reduction in the total sentences which I have assessed.

“Original signed by” Pollack S.P.J.