R. v. Pijogge, 2019 NLSC 15

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pijogge , 2019 NLSC 15 Date : January 28, 2019 Docket : 201708G0037 Her Majesty The Queen v. Michael Pijogge Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Decision on Sentencing Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: December 7, 2018

Summary: The offender, while heavily intoxicated had sexual intercourse with the victim, a close friend, in her own home, while she was also heavily intoxicated and unconscious. Both the offender and victim were of indigenous descent. The assault was a humiliating experience for the victim. The offender stopped the assault upon the victim waking and yelling at him. The offender possessed a criminal history but had never served any lengthy period of incarceration. The offender presented with reasonable prospects for rehabilitation.

The offender was sentenced to 30 months for sexual assault and two months consecutive for the breach of probation for a total sentence of 32 months. The usual ancillary orders were also imposed. Appearances:

Stephen A. Anstey Appearing on behalf of the Crown Sandra J. MacKinnon Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Pijogge, 2018 NLSC 161; R. v. Lacasse, 2015 SCC 64; R. v. A. (K.J.) (1988), (NLCA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. Winters, 2018 NLSC 4; R. v. Tuglavina, 2011 NLCA 13; R. v. N.(T.),2005 NUCJ 16; R. v. Zarpa, 2009 NLTD 145; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Anderson, 2018 NLCA41; R. v. Wells, 2000 SCC 10; R. v. Murphy, 2011 NLCA 16; R. v. Noseworthy, 1982, 40 Nfld. & P.E.I.R. 193, 9 WCB 91 (Nfld. C.A.);R. v.

White, 2008 ABCA 328; R. v. S. (B.), 2006 NWTSC 47; R. v. Boudreault, 2018 SCC 58 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Sex Offender Information Registry Act, S.C. 200 4, c. 10 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Michael Pijogge was convicted of sexual assault against C.F., contrary to section 271(1)(

a) of the Criminal Code, R.S.C.1985, c. C-46. He was bound by a Probation Order at the time of the alleged sexual assault, so he was also convicted of breaching aProbation Order, contrary to

section 733.1 of the Criminal Code. [2] This is the decision on sentence. [3] The circumstances of the offence are detailed in the decision convicting Michael Pijogge of the offences (R. v. Pijogge, 2018NLSC 161). In

summary, after an evening of heavy social drinking with Michael Pijogge and others, C.F. awoke from having passed outon her living room couch to find Michael Pijogge on top of her with his penis in her vagina. She immediately started screaming atMichael Pijogge and chased him out of her home.

Michael Pijogge denied that he engaged in such conduct, asserting he is “not that kindof guy.” However, because of his level of drinking, he has no memory of the evening past a certain point. [4] As a further background note, Michael Pijogge was scheduled to be sentenced on January 16, 2019, and this sentencingdecision was to be released at that time. However, Michael Pijogge failed to appear as directed, and a warrant for his arrest was issued. The sentencing was thus postponed until he was arrested, and he appeared in Court on January 28, 2019.

PRINCIPLES OF SENTENCING [5] The principles of sentencing are largely codified under the Criminal Code at sections 718-718.2. Under

section 718.1, asentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to asthe level of “moral blameworthiness” or the “proportionality principle.” Wagner, C. J. in R. v. Lacasse, 2015 SCC 64 explained therelationship between the proportionality principle to its subset the “parity principle” in sentencing, at paragraph 12: 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [6] The fit or proportionate sentence must serve the fundamental principle under

Section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [7] In R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.) at paragraph 32,the Newfoundland Court of Appeal provided useful guidelines as to the considerations in determining the appropriate sentence for sexualassault.

These guidelines assist how the sentencing judge gives effect to the principles codified in the Criminal Code and include, butare not limited to the following: • The extent of the assault • The degree of violence or force used • The impact of the crime on the victim, family and the offender • The degree of trust • Public abhorrence • The circumstances of the offender including his or her age, attitude towards the offence, his prospects for rehabilitation, hisantecedents [8] The considerations in A. (K.J.) as they relate to the circumstances of this case are addressed below.

The Extent of the Assault and the Degree of Violence Used [9] The offence of sexual assault simpliciter under

section 271 of the Criminal Code encompasses a broad range of conduct frominappropriate touching to intercourse. The sentences vary accordingly with the circumstances and the nature of the conduct. Themaximum sentence available is ten years when prosecuted by indictment. [10] In this case, Michael Pijogge engaged in intercourse with C.F. while she was in a very vulnerable state and incapable ofconsent. While there was no victim impact statement filed, it was evident from her testimony at trial that the assault was very upsettingto C.F. [11] In R. v.

Winters, 2018 NLSC 4, a recent sentencing decision from this Court, that offender also committed a sexual assaultagainst an unconscious victim, by performing oral sex. My comments at paragraph 12 of Winters are relevant here: 12. In this case, Mr. Winters engaged in oral sex with R.F., while she was in a very vulnerable state, and incapable of consent. Shewas asleep. He was in her home. There was no violence beyond the violence inherent in the offence itself, but it clearly was humiliatingand demeaning to R.F. and her sexual integrity. Mr. Winters, you were her friend, drinking together as friends.

She was entitled to feelsafe in her home with you. [12] The circumstances in the present case are more serious than in Winters because here, Michael Pijogge actually engaged inintercourse. I view this as a more intrusive violation of C.F.’s sexual integrity, and therefore a more serious assault. The circumstancesin the present case are similar to R. v. Tuglavina, 2011 NLCA 12, in which the offender had intercourse with an unconscious victim. Aswell, Mr. Winters pled guilty and received the benefit of the significant mitigating effect that had on the determination of sentence. [13] In

summary, in terms of the assessment of the gravity of the offence, I find that the circumstances of having intercourse with avictim who was in a vulnerable state because of her inability to consent due to being unconscious, at the serious end of the spectrum ofconduct that constitutes sexual assault. The sentence I impose must adequately reflect this gravity. The Degree of Trust [14] Michael Pijogge was not a relative upon whom C.F. was dependent, nor a person in authority toward C.F.

However asdiscussed above, this assault was an opportunistic act committed by Michael Pijogge, in which Michael Pijogge took advantage of hisfriend. C.F. was entitled to feel safe in her home with people she understood to be her friends. In that sense, Michael Pijogge violatedC.F.’s trust (R. v. N. (T.), 2005 NUCJ 16). This also supports a serious view of this offence. Public Abhorrence of the Offence [15] The perpetration of sexual offences against vulnerable victims, such as the situation in which C.F. found herself, is

appropriately the object of public abhorrence. This abhorrence illustrates a need for an emphasis on deterrence. While it is distressingenough the frequency with which sexual assaults comprise the criminal justice system dockets, I also recognize that the perpetration ofthis peculiar form of sexual assault is, sadly, not a rare occurrence. [16] This recognition is supported by review of judicial decisions such as, but not exclusive to, Winters and Tuglavina (see also R. v.Zarpa, 2009 NLTD 145 at para. 27).

The observations made in Winters, at paragraph 13, are apropos the circumstances here: thatwomen are not in a perpetual state of consent of which they must rebut to overcome overt unwanted sexual advances. This kind of sexualassault, where the assault is perpetrated because the victim does not even know what is happening, is indicative of an attitude that thevictim is there for the gratification of the offender.

Abhorrence of sexual assaults upon victims who are incapable of consent warrants asignificant emphasis on denunciation. [17] The sentence imposed must promote respect for the law, and a just and peaceful society as stated in

section 718. The prevalenceof this manifestation of sexual offences in communities in Labrador supports an emphasis on denunciation of the offence in determiningthe fit sentence (see Lacasse at paragraphs 13 and 90). THE CIRCUMSTANCES OF THE OFFENDER

a) The Pre-Sentence Report [18] According to the Pre-Sentence Report (PSR) filed by consent, Michael Pijogge has lived his entire life in Nain, Labrador. Aswas testified to at trial, he is in a long-term relationship with R.D. and they have two children born 2011 and 2013. [19] Growing up, Michael Pijogge stated that while he had “rough” patches, his parents took good care of both him and his brother. His parents were regularly employed and there was never violence or abuse in the home.

However, Michael Pijogge disclosed that hedid suffer sexual abuse at the hands of an unrelated male, when he was only eight or nine years of age. According to the PSR the malewas convicted of this crime. Michael Pijogge also witnessed a cousin commit suicide. Michael Pijogge stated he has never receivedcounselling for these traumatic events. With the exception of these events, Michael Pijogge enjoyed a relatively stable upbringing, withcaring parents. [20] Michael Pijogge has achieved his Grade 12 education, and has generally maintained employment, sometimes full time andsometimes seasonal, for most of his life.

He cares for his sons and is understandably concerned as to the impact of the pending sentenceon his ability to care for them. He has been unemployed since September of 2017.

b) The Criminal History [21] Michael Pijogge possesses a criminal history, including offences for violence and breaches of court orders. While he hasserved a brief period of imprisonment by way of a conditional sentence, he has never served a lengthy period of incarceration. He hasalso completed periods of supervised probation without issue. Even so, the presence of his record is an aggravating factor on sentence. [22] The commission of this latest offence shows an escalation in seriousness as compared to the kinds of offences Michael Pijoggehas committed in the past.

For this reason, the sentence to be imposed must have a deterrent effect specifically on Michael Pijogge. Thesentence imposed must assist Michael Pijogge in understanding the significance of his conduct and the consequence that will follow if heis to continue on such a path, as per sections 718(

b) and (

f) of the Criminal Code.

c) The Role of Alcohol [23] Michael Pijogge was candid in the PSR that in the past he abused alcohol. On the positive side, in the past ten years, and withhaving his sons to care for, Michael Pijogge stated alcohol has not presented so much of a problem. R.D., his partner, described thatMichael Pijogge becomes a “different” person when he is under the influence of alcohol.

Michael Pijogge testified at trial that in relationto whether he committed the sexual assault “he is not that kind of guy.” From having the opportunity to observe Michael Pijogge whiletestifying, and the general candor with which he has spoken about his issues with alcohol abuse and his circumstances, that while soberat least, Michael Pijogge appears to be a responsible and caring person. [24] Given this, I accept that alcohol likely played a role in how he came to commit the offence upon a friend, and that this kind ofconduct, may be out of character for him, again, at least when sober.

The role alcohol may have played, may explain the behavior. Itdoes not excuse the behavior.

SECTION 718.2(

e) CONSIDERATIONS [25]

Section 718.2(

e) requires that all available sanctions be considered as appropriate and relevant in the circumstances, taking intoparticular account Michael Pijogge’s indigenous circumstances and background.

Section 718.2(

e) states: 718.2 … (

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. [26] In many circumstances, the background and circumstances of an indigenous accused has played a role in how that particularaccused comes to be before the court, and it is appropriate and necessary to acknowledge such circumstances as mitigating (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688). As stated in Gladue (at para. 80):

80. As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [ 27 ] In this case, Michael Pijogge identifies as Inuk and is a beneficiary of the Nunatsiavut Government.

Michael Pijogge has indigenous roots and maintains some features of the traditional life of his indigenous ancestors from his community in Nain, Labrador. His upbringing and circumstances have been, for the larger part, positive. [ 28 ] However, other events reported in the PSR, including that Michael Pijogge witnessed a suicide of a family member, and having been the victim of a sexual assault, as well as the problem with substance abuse are, sadly, the kind of systemic problems familiar to aboriginal communities, of which, as stated in R. v.

Anderson , 2018 NLCA 41 (at paragraph 43 ), “the Court is required to be conscious” in finding the fit sentence for Michael Pijogge as an aboriginal offender. [ 29 ] Despite the presence of these known systemic issues, Michael Pijogge has the support of his family, and his partner R.D. These important relationships are relevant to his prospects for rehabilitation and support an emphasis on his rehabilitation in determining the appropriate sentence.

In these circumstances, Michael Pijogge’s ties to his indigenous community and family are strong supports for Michael Pijogge and his own efforts in addressing his issues with alcohol (notwithstanding his having committed this very serious crime while under its influence) are support for some emphasis on rehabilitation. [ 30 ] At the same time, I must not ignore that aboriginal women (or any victim of sexual assault), are also part of the community. They are entitled to the same protection from the law as any citizen of this country ( Tuglavina , at para. 45).

My comments earlier at paragraphs [14-16] regarding society’s abhorrence of this kind of conduct, as well as the concern with the prevalence of this offence, must be balanced against the above considerations for Michael Pijogge as an aboriginal offender. [ 31 ] As pointed out in Gladue at paragraph 79 , the more serious the circumstances of an offence, as a practical reality, there may be less weight accorded such indigenous considerations in mitigation of sentence: 79. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered.

In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. ( See also Zarpa , at paragraphs 35 and 36 , citing R. v. Wells , 2000 SCC 10 at paragraph 42 ). [ 32 ] In this case, the offence is serious.

The Crown argues that as a practical reality, the aboriginal circumstances should have little effect on sentence. [ 33 ] I agree, there must be an emphasis on deterrence and denunciation because of the abhorrent nature and prevalence of this crime, but for Michael Pijogge, specifically, notwithstanding the concern in the escalation of the type of offence, these positive factors mitigate against a higher sentence and must also be factored into fashioning the appropriate sentence. As stated by Welsh, J.A. in Anderson , at paragraph 30 : 30.

In Gladue , at paragraph 88 , the Court recognized that all relevant factors must be taken into account when determining an appropriate sentence, but at the conclusion of the paragraph, emphasized the importance of aboriginal status as a factor: [88] … The provision is a direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as a part of the task of weighing the multitude of factors which must be taken into account in striving to impose a fit sentence. It cannot be forgotten that s. 718.2 (

e) must be considered in the context of that

section read as a whole and in the context of s. 718, s. 718.1, and the overall scheme of

Part XXIII. … It may not always mean a lower sentence for an aboriginal offender. The sentence imposed will depend upon all the factors which must be taken into account in each individual case. The weight to be given to these various factors will vary in each case. At the same time, it must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.

The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence. [Underlining in original.] [ 34 ] In my view, the above positive or mitigating factors can be given their proper emphasis without unduly minimizing the very real harm done to C.F., or the protection of society, or ignoring the appropriate emphasis on denunciation and deterrence.

RANGE OF SENTENCE AND POSITION OF THE PARTIES The Sentencing Range of Sexual Assault [ 35 ] The available sanctions for sexual assault as dictated by the Criminal Code is anywhere from a minimum of an absolute discharge to a maximum of ten years’ incarceration; where the Crown has proceeded by indictment. The maximum punishment for a breach of probation is two years’ incarceration. [ 36 ] There is no dispute the circumstances of this sexual assault requires a period of incarceration (see Tuglavina at para. 46).

[ 37 ] The Crown has suggested a period of incarceration of three years for the sexual assault and a consecutive sentence of two months for the breach of probation. Counsel for Michael Pijogge has suggested a period two years, and a period of probation to follow. [ 38 ] In support of the sentencing position proposed, Crown counsel filed the following decisions. [ 39 ] In R. v. Murphy , 2011 NLCA 16 , an accused was convicted by a jury of sexually assaulting the victim by having non- consensual intercourse.

The trial judge imposed a sentence of 54 months, finding several aggravating features, in particular, a disturbing level of violence. [ 40 ] On appeal, the Court of Appeal reduced the sentence to three and a half years, finding that the trial judge erred in his acceptance of certain acts of violence that had not been proven beyond a reasonable doubt. The Court accepted that three and a half years was the appropriate sentence.

The offender possessed a lengthy criminal record and there was some violence beyond the nature of the offence itself; established by the fact that the victim’s clothes had been torn ( Murphy at paras. 20-21 ). [ 41 ] The Crown also provided R. v. Noseworthy (1982), 40 Nfld. & P.E.I.R. 193, 9 WCB 91 (Nfld. C.A.) for the well-known statement by the court at that time, that the “normal range” for sentence for “rape” (as sexual assault by way of intercourse was then termed), was three to seven years.

See also Zarpa , at paragraphs 38 where Goodridge, J, as he then was, reviewed a number of similar sexual assault sentence cases where a period of incarceration of three years is typical. [ 42 ] The Crown also provided Tuglavina , cited earlier, in which the Newfoundland and Labrador Court of Appeal found that a suspended sentence was unfit where a mentally delayed accused engaged in intercourse with an unconscious victim.

The proper sentence should have been for a period of imprisonment, and that even with the mitigating circumstances of the accused, (for example his guilty plea, and aboriginal circumstances, and his low level of functioning), a sentence of two years would be considered to be “extremely lenient” (see para. 46).

In my view, the circumstances of the present case do not warrant so lenient a sentence. [ 43 ] In Zarpa , the offender, with a lengthy criminal history, and previous sexual assaults received a sentence of three and a half years for having vaginal intercourse with a young victim while she was unconscious and incapable of consent. While the circumstances of the offence in Zarpa are similar to the present circumstances, the antecedents of Mr. Zarpa were far less positive than Michael Pijogge. Mr. Zarpa possessed a lengthy record, which included three previous convictions for sexual assault.

Thus, there was little room for rehabilitation to be given significant weight. [ 44 ] Counsel for Michael Pijogge provided the decision of Winters , referred to earlier. Winters received a period of incarceration of 15 months, for performing oral sex on the victim. As discussed earlier, the circumstances here are more serious because of the nature of the assault. However, I do find that the personal circumstance of Winters are somewhat similar to Michael Pijogge. [ 45 ] Counsel for Michael Pijogge also provided the decision of R. v. White , 2008 ABCA 328 .

The offender there, in a position of trust towards the victim, received a conditional sentence of two years less a day for having oral sex with the victim while she, like the victim in the present case, was unconscious. A conditional sentence is not available in these circumstances but I accept that a sentence of less than two years is typical (as in Winters ), for a sexual assault that involves contact that is less than vaginal intercourse on an unconscious victim (see also Wells ). [ 46 ] Counsel for Michael Pijogge also provided R. v. S. (B.) , 2006 NWTSC 47 .

S. (B.) pleaded guilty to break and enter and the commission of a sexual assault. Unfortunately, the decision does not provide the details of the assault, except that like the present case the victim was unconscious at the time. S.B. possessed a lengthy criminal history. The victim was his spouse, against whom he had a previous conviction of assault. He also possessed a previous conviction for sexual assault. S.(B.) received a sentence of two years. [ 47 ] In assessing the above cases it is important to remember that ranges are just that, ranges.

They are not fixed points or “straightjackets” from which a sentencing judge may never deviate ( Lacasse , at para. 57 ). [ 48 ] Keeping the above in mind, the appropriate sentence in this case is on the mid-range of the sentences imposed for sexual assault. I am taking into consideration the aggravating factors as discussed above, including Michael Pijogge’s criminal history, and the need for an emphasis on denunciation and deterrence.

But I am also recognizing that in this case, Michael Pijogge’s indigenous circumstances warrants weight; in particular that his situation reveals positive prospects for rehabilitation and re-integration into his community. [ 49 ] Taking into account the gravity of the offence, the necessary emphasis of not only deterring other individuals from taking advantage of vulnerable victims, but society’s abhorrence of such conduct, the prevalence of this kind of conduct in the community, the lack of violence beyond the violence inherent in the offence itself, that the offence appears to be out of character for the accused, and his family support and prospects for rehabilitations, the fit sentence for the sexual assault is 30 months, or two years, six months.

The Range of Sentence for Breach of Probation [ 50 ] In Murphy , referred to earlier, the offender was also sentenced by the trial judge for two breaches of two separate probation orders for 24 months and 12 months, to be served concurrently to each other but consecutive to the sentence for sexual assault. [ 51 ] After a thorough analysis of the Mr. Murphy’s criminal history as it related to his convictions for breaches of court orders, the Court of Appeal reduced each sentence to six months, again finding that the trial judge had erred in his approach to the determination of the fit sentence for the breaches.

The first six-month sentence was ordered to run consecutively to the sexual assault sentence and the second sentence of six months to run concurrently to both sentences. [ 52 ] In considering the appropriate sentence for a breach of probation, Welsh, J.A. speaking for the court in Murphy , at paragraph 28 , stated: 28. I begin by noting that breaches of probation are viewed as serious because they indicate a failure by the offender to comply with

court orders. For this reason, breaching a court order will generally result in a sentence to be served consecutively to a sentenced for the related offence…. [ 53 ] This is Michael Pijogge’s first conviction for breach of probation; however, it is not his first conviction for a breach of a court order. On three previous occasions, he has been convicted under section 145(3) of the Criminal Code . Two of the convictions appear to be associated with his two previous convictions for assault. One conviction stands alone. Michael Pijogge has also been convicted of failing to appear in court under section 145(5).

These convictions, while not convictions for a breach of probation, do show a pattern of disrespect by Michael Pijogge for the authority of the court, whether by way of a recognizance, undertaking, or a requirement to appear in court. I view the breach of probation in this case as a continuation of what appears to be a careless attitude toward the authority of the court and court orders. [ 54 ] On the other hand, I also accept that Michael Pijogge has shown that he can comply with court orders. He was placed on probation in 2015 and appears to have completed that period of probation without issue.

Like the role alcohol may have played in the commission of the sexual assault, it may also have played a role in Michael Pijogge ignoring the obligations of his probation order to keep the peace and be of good behavior. [ 55 ] Given the above, I accept the sentence of two months incarceration, as proposed by counsel, is appropriate. This sentence will run consecutive to the sentence imposed for the sexual assault. Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [ 56 ]

Section 271 of the Criminal Code is a primary designated offence under

section 487.04 (a)(xi.3). As a primary designated offence, a DNA Order is mandatory under

section 487.051(1). It is ordered that a peace officer be authorized to take or cause to be taken from Michael Pijogge the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer. Firearms’ Prohibition [ 57 ] Section 109(1) (

a) of the Criminal Code requires a mandatory prohibition where the conviction for the indictable offence is ten years or more, and I order that such is imposed in this case. Michael Pijogge is prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition and explosive substance, for ten years. Order to Comply with Sex Offender Information Registration Act (SOIRA) [ 58 ] Under

section 490.011(a)(xvi),

section 271 of the Criminal Code is a designated offence.

Section 490.012(1) requires an offender be subject to the Sex Offender Information Registry Act , S.C. 2004, c. 10 ( SOIRA ) and an Order in Form 52 for a designated offence. I order that Michael Pijogge is subject to such an Order for a period of twenty years, as per

section 490.013(2)(b). Fine/Victim Surcharge Order/Victim Fine Surcharge [ 59 ] Given the recent decision of R. v. Boudreault , 2018 SCC 58 , there will be no victim fine surcharge. CONCLUSION [ 60 ] Michael Pijogge is sentenced as follows; 1) For the breach of section 271(1)(a), Michael Pijogge is sentenced to 30 months’ incarceration (two years, six months). 2) For the breach of probation, under

section 733.1, Michael Pijogge is sentenced to two months incarceration to run consecutively to the 30 months imposed for the sexual assault for a total period of incarceration of 32 months. 3) Michael Pijogge is prohibited from possession of a firearm for a period of ten years, under section 109(2). 4) Michael Pijogge is subject to an Order for DNA under

section 487.051(1). 5) Michael Pijogge is subject to an order under SOIRA for a period of 20 years, under

section 490.013(2)(b).

_____________________________ FRANCES J. KNICKLE Justice