R. v. D.R., 2020 NLSC 28

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.R. , 2020 NLSC 28 Date : February 19, 2020 Docket : 201804G0232 Her Majesty The Queen v. D.R. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: Corner Brook, Newfoundland and Labrador Date(

s) of Hearing: February 13, 2020 Date of Oral Judgment: February 13, 2020

Summary: The accused was convicted of one count of sexual assault contrary to

section 271 of the Criminal Code . A previous decision of another judge of this Court determined that the mandatory minimum sentence of one year provided for in

section 271 (

a) imposes cruel and unusual punishment contrary to the guarantee against such punishment provided for in

section 12 of the Canadian Charter of Rights and Freedoms and declared the provision of no force and effect. The Court imposed a sentence of eight months’ imprisonment, followed by two years’ probation, and the usual ancillary orders.

Appearances: Lori-Lee M. St. Croix Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Kienapple (1974), (SCC), [1975] 1 S.C.R. 729; R. v. MacLean, 2018 NLSC 209; R. v.Ferguson, 2008 SCC 6; R. v. McCaw, 2018 ONSC 3464; R. v. Chan, 2019 ONSC 783; R. v. B. (A.), 2015 NLCA 19; R. v. W.P., 2018NLSC 113. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44; Sex Offender Information Registration Act, S.C. 2004, c.10. REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] D.R. was convicted of one count of sexual interference with the complainant, a person under the age of 16, contrary to section151 of the Criminal Code, R.S.C. 1985, c. C-46. A charge of sexual assault contrary to

section 271 of the Criminal Code arising out ofthe same conduct was stayed pursuant to the principle in R. v. Kienapple (1974), (SCC), [1975] 1 S.C.R. 729. [2] Following conviction and before sentencing, the Crown applied to vacate the stay of the

section 271 charge on the basis thatthe application of the Kienapple principle in the original decision resulted from error on the part of counsel and the Court. At the time ofthe offence, the Crown says the

section 271 offence was, based on the severity of penalty, a more serious offence than the

section 151offence. Therefore, in accordance with Kienapple, if both offences were established on the evidence, then the

section 151 convictionought to be stayed. The accused agreed with this position. As I am not functus until sentencing is complete, I allowed the application bythe Crown. I also found that the elements of the charge under

section 271 were established on the evidence. A conviction was thereforeentered on the

section 271 charge; the conviction for the

section 151 charge was stayed. [3] This is the decision on sentence on the offence of sexual assault contrary to

section 271 of the Criminal Code. THE POSITIONS OF CROWN AND DEFENCE REGARDING SENTENCE [4]

Section 271 provided for a mandatory minimum sentence of one year for a person convicted of sexual assault where the victimwas under the age of 16. The Defence submits that that mandatory minimum sentence is unconstitutional and ought to be struck down.The Defence argues that a previous decision of this Court, R. v. MacLean, 2018 NLSC 209, declared that mandatory sentencing provisionof no force and effect, and it is not open for the Crown to seek in this matter to relitigate that issue, or for the Court to apply a provisionthat was declared unconstitutional and of no force and effect in this province.

The Defence says that an appropriate range of sentence isbetween four and nine months’ incarceration, followed by a period of probation. [5] In response to that position, the Crown submits that I am not bound by a previous decision of this Court and that the questionof the constitutionality of the mandatory minimum sentencing provision is not settled in this province until a decision of the Court ofAppeal is rendered. The Crown has appealed the MacLean decision. The Crown seeks a sentence in the range of 18 – 24 months’imprisonment, followed by three years’ probation.

THE CONSTITUTIONALITY OF THE MANDATORY MININUM SENTENCE [6] The offence of which D.R. was convicted has a statutorily-prescribed minimum sentence of one year incarceration: Sexual assault 271 Everyone who commits a sexual assault is guilty of

(

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; … [ 7 ] The Defence says that this provision is no longer operative because this Court declared it to be of no force and effect in MacLean . In that case, Justice Murphy found that the mandatory minimum sentence provision offended the protection from cruel and unusual punishment in

section 12 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [ 8 ] The Crown says that the decision in MacLean is not binding on me. The rationale of a decision from a court of equal status as this one is very persuasive, but I am not required to follow it. [ 9 ] I agree with that position of the Crown. The rationale used by Justice Murphy in MacLean is not binding on me, and I need not follow it. However, the Defence is not relying merely on the reasoning in MacLean , but on the declaratory order made by Justice Murphy.

In order to consider the Defence position, and the argument of the Crown in response, it is important to recite the salient part of Justice Murphy’s decision in MacLean at paragraph 23 : “As such, it is my determination that the mandatory minimum sentence under

section 271 (

a) cannot be saved under

section 1 of the Charter and therefore is declared to be of no force and effect.” [ 10 ] Section 52(1) of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 , reprinted R.S.C. 1985, App. II, No. 44, says as follows: 52. ( 1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 11 ] In R. v.

Ferguson , 2008 SCC 6 , a case which also dealt with the constitutionality of a mandatory minimum sentence, the Supreme Court of Canada – at paragraph 65 – clearly articulated the consequences of a declaration that a statutory provision is of no force and effect: 65 The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne , per Wilson J.

In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend ; Sharpe . Where this is not possible — as in the case of an unconstitutional mandatory minimum sentence — the unconstitutional provision must be struck down. The ball is thrown back into Parliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects.

In either case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books. [ 12 ] The question as to the effect of a prior court declaration of constitutional invalidity has been dealt with in numerous cases in Canada. In one such case, R. v.

McCaw , 2018 ONSC 3464 , Justice Spies determined that section 52(1) of the Constitution Act, 1982 , as interpreted in Ferguson , mandated her conclusion that once a superior court declares an unconstitutional statute of no force and effect then, at least in the province where that court has jurisdiction – Spies J. says at paragraph 82 – “The constitutionality of [that statute] ceases to be a “live” issue for courts to litigate - unless and until the Crown successfully appeals that determination.” [ 13 ] I agree with her conclusion. [ 14 ] The Crown relies on a later decision of the Ontario Superior Court, R. v.

Chan , 2019 ONSC 783 , a decision of Justice Boswell. In that decision, Justice Boswell refused to follow the decision of Justice Spies. Justice Boswell decided that the Supreme Court of Canada in Ferguson did not deal at all with the question of horizontal precedent, and its decision did not displace the principle that cases from judges on an equal level are highly persuasive but not binding. [ 15 ] With respect, I do not see the question before me as one involving the precedential value of another judge’s reasoning. Rather, the question before me is the effect of Justice Murphy’s declaratory order.

Once Justice Murphy made his declaration in MacLean , then the mandatory minimum sentence in

section 271 (

a) ceased to have force and effect in this jurisdiction. I cannot make an order that reverses Justice Murphy’s order, and I have no jurisdiction to make a declaration that the statutory provision is of force and effect notwithstanding Justice Murphy’s order. [ 16 ] I therefore find that I should proceed to impose sentence without consideration of the mandatory minimum sentence set out in section. 271(

a) of the Criminal Code . THE PRINCIPLES OF SENTENCING [ 17 ] The principles of sentencing are well established under sections 718 - 718.2 of the Criminal Code and the common law. A

sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender. [ 18 ]

Section 718 of the Criminal Code prescribes that the purposes of a criminal sentence are to contribute to the maintenance of a just, peaceful and safe society and promote respect for the law.

Section 718 directs that this purpose is to be achieved by the Court imposing sanctions with one or more of these 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. [ 19 ] The Criminal Code prescribes the following as a fundamental principle of sentencing: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 20 ] The Criminal Code mandates priority of the following sentencing objective in sentencing for certain offences against children: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 21 ] Finally, in respect of the relevant Criminal Code provisions, the Court is directed to have regard to the following additional principles of sentencing: 718.2 … (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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … [ 22 ] In a case such as this one involving a sexual offence committed against a minor, our Court of Appeal in R. v.

B. (A.) , 2015 NLCA 19 , stated at paragraph 26 , that the purposes and objectives of sentencing are best met by considering the circumstances of the offence, including the following factors: 1. Position of trust, more serious where the offender is in a position of authority; 2. Age of the victim, being less serious where the victim is close to the age of consent; 3. Significant age difference between the parties;

4. Sexual encounters occurring over a period of time; 5. Manipulation of the victim; 6. Planned or calculated conduct by the offender; 7. Knowledge of and acting on the victim’s vulnerability; 8. Continuation of conduct after being warned; 9. Particular impact on the victim; 10. Lack of remorse or acceptance of responsibility; placing of blame on the victim or others; limited appreciation of the harm caused; minimization of the offence; 11. Previous criminal record; 12. Prospects for rehabilitation and risk of re-offending; 13. Positive pre-sentence report; 14. Guilty plea; and 15.

Willingness to access counselling. APPLICATION TO THIS CASE The Circumstances of the Offence [ 23 ] D.R. was convicted for conduct involving fondling the complainant's penis on two occasions while the two shared a bed during an overnight visit to the home of a relative. [ 24 ] D.R. is the complainant’s maternal grandfather. The evidence at the trial demonstrated that the two had enjoyed a close relationship prior to this conduct. [ 25 ] The complainant was 11 years old at the time of the offence. At that time, he was living with his grandmother and D.R.

This living arrangement followed an intervention by Child, Youth and Family Services that initially resulted in the complainant and his sisters being placed in foster care and later into the custody of their grandparents. The complainant’s mother lived in a different community from her parents during this time. [ 26 ] D.R. and the complainant slept in the same bed on the night of the offence. The complainant awoke during the night to find D.R. had his hand down the complainant’s pajama pants. D.R. grabbed the complainant’s penis and started pulling on it. He never stopped for almost five minutes.

The complainant moved away as far as he could and rolled onto his stomach. D.R. then removed his hand and they both went to sleep. However, the complainant woke again in the middle of the night to find D.R. had again put his hand down his pants, grabbing his penis and pulling on it. This time the incident lasted less than a minute until the complainant got up and left the bedroom. The Extent of the Interference [ 27 ] The interference in this case, viewed objectively, was at the less serious end of the spectrum for such offences. It was brief and

occurred without extraneous violence or force. Although D.R. did not stop immediately on the complainant expressing protest, he also did not persist for long or attempt to physically overcome the complainant. Age of the Victim [ 28 ] The Criminal Code,

section 718.2 (ii.1), specifically provides that abuse of a person under the age of 18 years should be considered as an aggravating factor in sentence. However, the offence of sexual interference is predicated on the victim being younger than 16, so this factor is a common feature of all cases of sentencing for this offence, and this needs be kept in mind in comparing this case to previous cases. [ 29 ] The complainant here was 11 years old, often a vulnerable age for children in their sexual development (although the Court heard no direct evidence about the complainant in this regard). The Degree of Trust and Violation of that Trust [ 30 ] The Criminal Code ,

section 718.2 (iii) specifically provides that violation of a position of trust or authority is an aggravating factor in sentence. The common law principles identified in R. v. B. (A.) , also support consideration of the aggravating nature of violation of trust. [ 31 ] The evidence at trial demonstrated that before this incident, the complainant and accused were very close. The complainant did not live with his father, and there was no evidence that his father played a significant role in his life. D.R. seems to have been the only adult male family member in the complainant’s life.

At the time of the offence, the complainant was living with D.R., his mother was living in a different community, and he had to return to that living arrangement following the interference by D.R. All of this evidence demonstrated that D.R. certainly stood in a position of trust and authority relative to the complainant. The Impact on the Complainant [ 32 ] The complainant prepared a written Victim Impact Statement. He recounted that the sexual interference left him with feelings of significant betrayal, violation, and loss of dignity, which led him to self harm and mental health issues that continue to this day.

The Attitude and Circumstances of the Offender [ 33 ] A Pre-Sentence Report was completed and submitted to the Court . D.R is 66 years old. He was disabled from employment due to a back injury in 2005, and he is now retired. He has a stable marriage and good relationships with his adult daughters. He participates in his community. He has numerous physical ailments, mainly stemming from his back injury. He has been diagnosed and treated for depression and anxiety. [ 34 ] D.R. does not have a criminal record.

He maintains that he still has no memory of his conduct that led to these charges. [ 35 ] D.R has previously accessed counselling for mental health issues and is willing to do so again. There are no focussed, sex- offender counselling programs in his community. Denunciation and Deterrence [ 36 ] No proof is required to recognize the public concern with sexual crimes against children. This concern is reflected in the direction in

section 718.01 of the Criminal Code to the Court sentencing an offender for abuse of a child to “give primary consideration to the objectives of denunciation and deterrence of such conduct”. Range of Sentence [ 37 ] Justice Knickle of this Court recently considered the range of sentence in cases similar to this one in R. v. W.P, 2018 NLSC 113 . The offender in that case was a man who was convicted of one count of sexual assault and one of sexual interference as a result of two incidents involving his teenage granddaughter.

One incident involved touching the granddaughter’s vagina through her clothes, and one under her clothes. Both incidents occurred while the victim was physically vulnerable because she was driving a vehicle. In one incident, she caused an accident with the vehicle, a snowmobile, in order to stop the assault.

Justice Knickle imposed a total sentence of six months’ imprisonment, followed by two years of probation. [ 38 ] In the course of her decision – at paragraphs 41-50 – Justice Knickle reviewed recent cases from this jurisdiction that clearly established the range of sentence for the type of offence that I am dealing with: 41 The Crown provided the recent case of R. v. Waterman , 2018 NLSC 80 (N.L. S.C.), per Goulding, J. Mr. Waterman was convicted by a jury of sexual offences against a victim who was between the ages of 7 and 13 years of age at the time of the offences. Mr. Waterman was known to the victim.

There were four incidents where the offender invited the victim for a ride on his motorcycle and exposed his penis to the victim. There was one incident where the offender masturbated in front of the victim. On the fifth incident, when the victim was 13, he punched the offender. Mr. Waterman had an unblemished history, was married with grandchildren. A period of conditional imprisonment of 12 months was imposed; followed by one-year probation. 42 In R. v. W. (R.J.) , 2014 NLTD(G) 63 (N.L.

T.D.) upon conviction, a period of six months consecutive each on two counts of indecent assault was imposed to be served conditionally, for a total of 12 months. The victims were the offender’s nieces by marriage. The offender fondled their breasts, unzipped their pants, and stroked the thigh of one victim. The offender was 71 at the time of sentencing and suffered from medical conditions. He was also remanded for two days in custody, pending sentence. An 18-month probation order followed.

43 In R. v. W. (C.), 2012 NLTD(G) 22 (N.L. T.D.) an accused, aged 90, was convicted of sexual interference with a 13-year-old girl.The offence occurred four years earlier. The offence consisted of grabbing the girl’s crotch area outside her clothes while making a“crunching” gesture with the hand. Because of the date of the offence, a conditional sentence was not available. The offender wassentenced to six months in prison and two years’ probation. 44 In R. v. Regular, [2011] N.J. No. 248, 95 W.C.B. (2d) 318 (N.L. Prov.

Ct.) a 15 year old girl awoke to find a family friend kissingher neck and touching her breasts and vagina outside and inside her clothing. He bit her breasts. The victim pretended to be asleep duringthe ordeal that lasted 30 minutes. The sentencing judge imposed four months imprisonment, less time served in custody, followed by twoyears’ probation. 45 In R. v. R. (B.), [2007] N.J. No. 111, 73 W.C.B. (2d) 297 (N.L. Prov. Ct.) the 56 year old offender with no prior record, wasconvicted of fondling his young child inside and outside her clothing.

He was considered to be akin to an uncle or grandfather, and wasalso the godfather of the victim. A period of six months’ imprisonment was imposed followed by probation. 46 In R. v. Hancock, [2015] N.J. No. 307, 1158 A.P.R. 228 (N.L. Prov. Ct.) while supervising a sleepover, the accused fondled thecomplainant’s vagina, who was under the age of 14 at the time while she was sleeping. When she awoke to the touching, she got up andmoved. He apologized. He was sentenced to nine months, less time served followed by two years’ probation. It appears a conditionalsentence was not available. 47 In R. v.

H. (C.T.), 2015 NLTD(G) 56 (N.L. T.D.) an offender fondled the vagina of the 8- year-old daughter of his then girlfriend,while the she was not home. He was sentenced to nine months’ imprisonment, and two years for what Goulding, J. described asreprehensible conduct. 48 In R. v. Daye, 2010 NLTD(G) 192 (N.L. T.D.), a ten month sentence was reduced to five months on appeal for fondling andkissing a young girl. The victim in that case was 11. The offender pleaded guilty, and was 60 at the time of sentencing.

He had no priorrecord and had been continuously employed since he was 16. 49 All of the cases cited by the defence were recently reviewed by Goulding, J. in Waterman at paragraphs 19 - 28. These casesprovided numerous examples where the court determined it appropriate to impose a conditional sentence of imprisonment for similarforms of inappropriate sexual contact with children, and involving varying degrees of trust. 50 The cases provided a range of sentence generally a low of 60 days, in R. v. S. (E.C.), (NL SC), [1997] N.J. No.88, 148 Nfld. & P.E.I.R. 347 (Nfld. T.D.) to a high of 12 months in R. v.

L. (T.J.), (NL SC), [2001] N.J. No. 328,208 Nfld. & P.E.I.R. 163 (Nfld. T.D.). The decisions filed by defence counsel predated the amendments to the Criminal Code in 2005;amendments which precluded the availability of a conditional sentence. [39] Having considered that range of sentence, Justice Knickle imposed consecutive sentences of incarceration for two months onthe first offence, four months on the second, followed by two years’ probation.

Appropriate Sentence if not for Mandatory Minimum [40] I find that the appropriate sentence in this case if not for the provision for mandatory minimum would be eight months’imprisonment, followed by two years’ probation. [41] In arriving at that determination, I find the following factors most important. First, section. 718.01 mandates that I give primaryconsideration to denunciation and general deterrence. This provision was enacted in obvious recognition of societal concern about thefrequency of sexual abuse of children and the enormous harm that results to the victims of abuse. Second,

section 718.2 (ii) directs theCourt to give particular weight to violation of trust in cases of abuse. Again, this enactment was a recognition that trust relationships bytheir nature provide greater opportunity for abuse, and also the amplification of harm to the victim caused by the undermining of trust.D.R. committed a breach of significant trust in his relationship with the complainant who was particularly vulnerable to him at the timebecause they were required to live together and the complainant looked up to D.R. as his closest male relative. [42] On the other hand, there are mitigating factors.

The conduct in this case was without question toward the lower end of thespectrum for cases such as this. D.R has no criminal record and a stable place in society. D.R. is willing to participate in counselling. Theappropriate counselling is not available in the area of his residence. A period of probation would be appropriate here, during which D.R.would have the opportunity to participate in the type of programming directed towards resolving the underlying causes of his conduct.

Aperiod of probation would go a significant ways toward achieving the rehabilitative objectives of sentencing through least restrictivemeans.

CONCLUSION AND SENTENCE [ 43 ] For the reasons that I have outlined, the sentence that I will impose is eight months’ imprisonment, to be followed by two years’ probation, subject to the usual conditions and also these conditions: • Refrain any contact or communication directly or indirectly with the complainant, his mother and sisters, and remain away from the complainant’s place of residence, schooling or employment; • Report immediately to a supervisor upon release, and thereafter as required; • Take such counselling as recommended by the supervisor, with particular attention to be counselling with regard to the commission of sexual offences; and • Refrain from the use of alcohol. [ 44 ] The following ancillary orders are imposed:

(1) Firearms' Prohibition There will be a firearms’ prohibition pursuant to section 109(1) - (2) of the Criminal Code .

(2) DNA Order As the offence of which he was convicted is a primary designated offence under the Criminal Code , there will be a mandatory order authorizing the taking of DNA from D.R., pursuant

Section 487.051 of the Criminal Code .

(3) Sex Offender Information Registration Act Again, as the offence in this case is a designated offence under

section 490.011 of the Criminal Code , an order will issue pursuant to Sections 490.012(1) and 490.013(2.1) requiring D.R. to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“ SOIRA ” ) for a period of 20 years. CONCLUSION [ 45 ] D.R. is sentenced to eight months’ imprisonment on the offence under

section 271 of the Criminal Code . Two years of supervised probation will follow that sentence. The conviction under

section 151 of the Criminal Code is stayed. [ 46 ] A DNA order, firearms' prohibition and SOIRA order are imposed accordingly. _____________________________ Daniel M. Boone Justice