R. v. Carlin Marsden, 2020 MBPC 57

Citation: R. v. Carlin Marsden 2020 MBPC 57 IN THE PROVINCIAL COURT OF MANITOBA WINNIPEG, MANITOBA BETWEEN HER MAJESTY THE QUEEN and CARLIN MARSDEN Accused REASONS FOR SENTENCE (Excerpt) (Pages T1 - T9) September 17, 2020 Winnipeg, Manitoba Royal Reporting, A Veritext Company 120 - 330 St. Mary Avenue Winnipeg, Manitoba R3C 3Z5 Phone: 204-306-9149

Fax: 204-306-9154 TABLE OF CONTENTS Description Page September 17, 2020 Afternoon Session T1 Reasons for Sentence T1 Certificate of Transcript T9 Proceedings taken in the Provincial Court, Winnipeg, Manitoba September 17, 2020 Morning Session The Honourable Judge Provincial Court of Manitoba R. Pollack M. Hazelton For the Crown S. Paler For the Accused M. Bergman Court Clerk Reasons for Sentence THE COURT: Having elected to be tried in this court, Carlin Marsden has entered a guilty plea to one count of sexual interference.

The offender was 28 years of age when he violated the sexual integrity of his 15-year-old victim. The facts are not in dispute. Ten years before the incident, the offender was a neighbour of the victim’s foster father and the victim was living there at the time. The victim had not seen the offender for the past 10 years but, on August the 18th of last year, the offender was a guest at a barbecue at his and his foster parents’ home. The offender asked if he could stay over as he had been drinking and he was permitted.

At about 3:30 AM, he and the victim went to the basement of the home to play video games. In that basement, the offender removed his shorts and sat in his underwear on the couch with the victim. He began rubbing the victim’s back and thigh and squeezing him as if hugging him. Then he began rubbing the victim’s penis and asked him to remove his shorts, too. The offender rubbed the victim’s penis, causing an erection, and then asked the victim to touch his penis, which the victim did. This stopped briefly.

And after a few minutes the offender rubbed the victim’s penis again and then performed fellatio for approximately two minutes. The police report states at this point: (as read) Marsden again stopped, but by this time, the victim’s foster father came downstairs and became aware of the situation. At approximately 4:05 AM, Marsden called 911 and told Winnipeg Police what had transpired, and police attended, and investigation was initiated. Mr. Marsden was detained, and in an interview, fully admitted his offending indicating that he knew that the age difference made his actions wrong.

He was granted interim release. Eight years prior to this offence the offender was charged for having committed assault, failing to attend court, and failing to comply with a recognizance. He was supervised for a period of one year, without further conflict with the law. The offender’s husband and two collateral sources told the probation officer who wrote the pre-sentence report that this offence was out of character for Mr. Marsden. Although married in 2016, he and his partner had been together since 2010. They describe their marriage as open, with other partners and, with no conflict as a result.

That said, there have been police investigations into whether the offender’s husband was guilty of domestic violence. Mr. Marsden was raised by his grandmother who apparently had more than one partner. She was the daughter of residential school victims and was beaten as a child. And Mr. Marsden reports receiving beatings from her - a syndrome with which the Court is no stranger. The offender was also subjected to abuse by a grandfather, and some of it was of a sexual nature. As a youth, he was involved with Manitoba Adolescent Treatment Centre as a result of a stressor at school.

Conflict arose when some of his peers became aware that he was gay. He has had exposure to indigenous culture, as well as some church activities, but was allowed to drop both as a teenager. Presently, he does not seem to have an interest in organized religion. His employment history is unclear, reflecting only odd jobs. It took him until age 22 to graduate from an adult education program, and he has taken some University of Manitoba courses. At the present time he is on disability although he can’t articulate why and told the pre-sentence report writer that he was trying to find out. Mr.

Marsden has been drinking since he was a teenager and describes times when he would black out. At the present time he seems to be a weekend drinker, although the evidence from him as well as collateral sources is vague. He has used drugs in the past when living in Winnipeg but claims that he has not used drugs in several years. The couple live in La Broquerie now and the offender does not have a wide circle of friends. He does keep in touch with some Winnipeg friends by messaging. Health information in the pre-sentence report comes only from him.

He explained that he has had trouble finding doctors, although he is managing pain with medication and receiving treatment for Crohn’s disease. He reports mental health issues in the past and some collaterals agree that he seems to have issues. I would add, not parenthetically, that it is very unusual not to have a forensic assessment in a case such as this, but the only information I have is his self-reporting. The pre-sentence report concludes that the offender presents a high risk for offending again.

The identified factors that concern me are his lack of employment - and indeed - his lack of things to do or any other anchor for his time, undiagnosed alcohol consumption, and concerns about his mental health. Of less concern, but noteworthy, is a Static-99 analysis which does not clear him of risk factors. The defence took issue with the results of that analysis, and in cross-examining the analyst, pointed out a small discrepancy. It’s not, however, the score of the Static-99 which concerns me, so much as its consistency with the concerns of the probation officer.

It is important that this offender appears to have withdrawn from his offence on his own and confessed immediately to a 911 operator. The prosecution agrees that he has done nothing to delay this matter and always indicated an intention to plead guilty. Against that background, the pre-sentence report contains warning signs about this offender.

By the time he spoke with a probation officer in spring of 2020 he was saying that he was inebriated, that he was in a black-out, that he has no memory of what occurred and that he, “Stopped as quickly as I started.” That remark reveals to me that he has no insight into his wrongdoing. And it did not surprise me to read the probation officer’s assessment immediately thereafter that, “He did not provide any insight with respect to victim impact.” I want to deal specifically with two submissions made by the defence with reference to parts of the April 2nd sentencing decision by the Supreme Court of Canada in R. v.

Friesen [1] . The first concerned how Mr. Marsden minimized his wrongdoing in that quote I just read. The Friesen decision, in which the Court attempted to elevate incarceration levels for offences against children, is a fulcrum for the Crown position that a penitentiary sentence of three and one half years is called for in this case.

The defence submitted that there was “no grooming” and that this is a “single isolated brief incident.” Although the Supreme Court reminded sentencing judges that duration and frequency of sexual violent are relevant factors in determining a fit sentence, such simplification obscures what actually happened to the victim here. He was expecting to play video games when he went to the basement with his foster father’s old friend. Then the man removed his shorts and sat down beside him in his underwear. There was touching of a less harmful nature at first.

But then, at the direction of the offender, there was touching each other’s penis. After a pause, the touching resumed. Finally, there was the act of fellatio which, although it was of a short duration, it was not momentary. In sentencing today, significant weight must be given to what that child experienced with his penis in the mouth of his assailant for however long it was, and the impact of the violation as he ages.

That brings me to the second defence submission that, when examining the degree of physical interference, I should consider that it was “really a form of sexual touching.” While the discussion about the degree of physical interference in the Supreme Court of Canada judgment is difficult to summarize, in my opinion it eschews an intricate analysis of exactly how much sexual violence was perpetrated by one act compared with another. And that is what the defence submission tried to achieve.

At paragraph 141, the unanimous judgment includes this: Specifically, attributing intrinsic significance to the occurrence or non-occurrence of penetrative or other sexual acts based on traditional notions of sexual propriety is inconsistent with Parliament’s emphasis on sexual integrity in the reform of the sexual offences scheme. And the Supreme Court had already stated at paragraph 50 that: To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important. The characterization of the offending here as sexual touching distorts the wrongfulness and harmfulness of the offender’s actions. The prosecution say that a penitentiary sentence of three and one half years is justified because of the risks identified by the probation officer stressing his lack of insight, as well as the need to deter with a higher sentence for the reasons explained in Friesen . The defence urged me to consider that Mr.

Marsden has had no re-involvement since his interim release, which I know included a child protection clause, but did not require him to abstain from alcohol consumption. They also stressed that the offence was extraordinarily out of character for him. The history of abuse in his family as well as their circumstances as an aboriginal family has been noted by both sides. The defence conclude that a sentence of less than two years would address the sentencing principles articulated in the Friesen judgment. And whether that is true is the issue in this case.

The Friesen judgment sends a clear message that denunciation and deterrence -- I’m just quoting Criminal Code

Section 718.01 -- for sexual offending against children requires sentences to increase. In that way, sentencing becomes proportional to the wrongfulness

and harmfulness of such crimes. Although there are some hints at the range of sentence, the Court did not specify that every offender in Mr. Marsden’s circumstances should be sentenced to imprisonment in a penitentiary. It was properly submitted that the Supreme Court did not alter its previous messages about sentencing indigenous offenders. As Professor Quigley observed in R. v.

Friesen , Sentencing Guidance from the Supreme Court of Canada [2] this year: (as read) In spite of taking a much more stern view of an offender’s responsibility for such offences, the Court was alive to factors that might mitigate an offender’s moral culpability. Therefore, mental disabilities may reduce culpability. As well, the systemic and background factors of indigenous offenders may bear on this assessment. And as I said, the prosecution also acknowledged the influence of Gladue factors in the criminal behaviour.

Certainly, the sentence sought by the prosecution would be responsive to the Supreme Court of Canada. It approaches the four-year sentence in R. v. Sidwell , a Manitoba case in which the wrongfulness/harmfulness quotient is far more serious. It is not necessary to rely upon a bank of case law to say that such a sentence would demonstrate a significant extension of the sentencing range in Manitoba for offenders like Mr. Marsden. R. v. Friesen is not a declaration that sentencing patterns in Manitoba for sexual offences against children are obsolete.

In restoring Judge Stewart’s sentence and affirming that it was in accord with the Court of Appeal Sidwell [3] decision and its sentencing criteria, the Supreme Court stated at paragraph 38: The differential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case.

Different methods may even be required to account properly for relevant systemic and background factors… And, in parentheses, you have the Ipeelee case - Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range. In determining a sentence proportionate to the gravity of the offence and the degree of Mr. Marsden’s responsibility, I am not now required simply to determine how harsh a sentence I can impose after the Friesen decision.

Sentencing principles require my sentence to protect the public and to encourage rehabilitation. In one way, the submission by the prosecution asks me to limit that. Because of the restriction found in Criminal Code Section 731(1)(b), to impose a penitentiary sentence is to disable me from specifying conditions of probation for a period of up to three years following the expiry of the incarceration portion of the sentence. In this indictable proceeding, the maximum available sentence, if probation is to be included as part of the sentence, would be two years less one day.

Having examined the police report and the pre-sentence report, and having heard from counsel, it is my opinion that this offender should be bound by a probation order following his release from imprisonment. That leaves the question, whether applying the Friesen criteria, a sentence of up to two years is capable of reflecting the gravity of the offence. In addressing this, Professor Quigley wrote: (as read) Thus the gravity of the offence is to be assessed through three factors; one, the inherent wrongfulness of the offences; two, the potential harm; and three, the actual harm.

Wrongfulness is to be measured through the interference with sexual integrity and bodily integrity with physiological violence being associated with the physical violence. Therefore, the exploitation involved is relevant to the normative character of the conduct particularly because of the power imbalance between offender and victim. The discussion of a potential harm is especially important because it can occur at two stages of a child’s life; childhood and long-term harm that affects the person during adulthood. With respect to actual harm, I have no victim impact information.

I am mindful however of the Supreme Court’s statement in paragraph 82 that:

We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence. As we have explained, any manner of physical sexual contact between and adult and a child is inherently violent and has the potential to cause harm. Mr. Marsden is an offender who has been supervised successfully in the past and he has kept the peace and been of good behaviour on interim release for over a year. He has never seen the inside of a jail cell.

After serving a sentence that reflects the wrongfulness and harmfulness of his offence, he should be bound by a probation order for three years. That is the only way in which this court, as opposed to a parole officer, can both supervise him while he is back in the community and provide resources that a probation officer would specify to address his criminogenic risk factors.

The maximum provincial jail sentence of two years is not outside the previous Manitoba range of 12 to 17 months illustrated by a series of cases such as J.E.D. , and G.W.R . [4] Assuming arguendo that this range starts too low in light of recent guidance, in my opinion two years is still a sentence within a reasonably raised range for this offender’s wrongful actions and victim impact. Such a sentence allows the court to follow his incarceration with probation conditions that address public protection as well as his rehabilitative needs. Please stand, Mr. Marsden.

You are sentenced to a term of two years less one day, followed by supervised probation for a period of three years. The terms of your probation order will be these: if you have not done so while imprisoned, contact your probation officer within one working day of your release to make your first appointment; keep all appointments with your probation officer as directed. While on probation, enrol in, attend, and complete all assessments and programming as directed by your probation officer. Do not attempt to communicate directly or indirectly through any other person, or any -- or with any device with the victim.

Stay at least 200 metres away from wherever the victim may work, attend school, be employed, or worship. Do not possess or consume alcohol or drugs unless prescribed by a doctor with your name on the container. Do not possess any offensive weapons and do not convert anything into an offensive weapon. Pursuant to the Sex Offender Information Registration Act , you are required to comply with its provisions for a period of 20 years, commencing with registration within seven days of your release from imprisonment. Pursuant to Criminal Code

Section 109, you are prohibited from possessing a series of firearms and other weapons and devices that will be set out in an order for a period of ten years. Pursuant to Criminal Code

Section 161, you are prohibited from being within 200 metres of wherever the victim may work, attend school, be employed, or worship. You are prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority toward persons under the age of 16 years.

You are prohibited from having any contact, including communication by any means, with a person who is under the age of 16 years unless you do so under the -- under the supervision of a probation officer or such other person as court may direct. And I would add, Mr. Marsden, that these orders have the same authority as your probation order. They are part of your sentence. Pursuant to Criminal Code

Section 487.05(1), upon being convicted of a primary designated offence, you are required to provide a sample of your DNA suitable for entry in the National Data Bank upon demand by a qualified peace officer. EXCERPT CONCLUDED