R v DP, 2023 ABCJ 113

In the Alberta Court of Justice Citation: R v DP, 2023 ABCJ 113 Date: 20230510 Docket: 210126835P1 Registry: Edmonton Between: His Majesty the King Crown - and - DP Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify GP shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Sentencing Judgment of the Honourable Justice R.E. Tibbitt [ 1 ] DP was convicted after trial of sexual assault, uttering threats, and assault. The violence and threats were committed against his intimate partner, in their home. [ 2 ] The Crown proceeded summarily.

Accordingly, the maximum sentence for the sexual assault is 18 months incarceration, and the maximum sentence for the assault and threatening are each 2-years-less 1 day. The Prosecutor argued a proportionate sentence is 2-years incarceration, followed by probation. DP urges the court to impose a Conditional Sentence Order of 2-years-less 1 day, which would allow him to serve a period of incarceration in the community. Alternately, he suggests the term of incarceration should be limited to 90-days and DP should be permitted to serve it intermittently.

He agrees that a term of probation is appropriate. [ 3 ] In relation to ancillary orders, counsel agree that a DNA Order and firearms prohibition are appropriate. However, they

disagree on whether DP should be subject to the Sex Offender Information Registry. [ 4 ] I will begin by reviewing the circumstances of the offence and offender. After that, I will discuss the principles and factors that I have considered in arriving at a proportionate sentence. Circumstances of Offence [ 5 ] At the time of the offences, DP and the victim, GP, had been married for approximately 30 years, and resided together. In the early morning hours of January 12, 2021, GP was awoken by DP.

In an aggressive manner, he said, - I’m going to fuck you up the ass, - I’m going to fuck you until your cunt is sore, and - I’m going to bite your tit and you’re going to like it. This language and tone were shocking to GP. [ 6 ] Around the same time that he was saying these things, DP rolled GP from her side onto her back and got on top of her, pinning her down on the bed with his body weight. She struggled to try get away. GP repeatedly yelled “no!” DP responded, “oh, this is going to happen.” [ 7 ] DP reached under GP’s pajama top and harshly grabbed her breast. He pulled down her pajama pants.

When he partially released his weight from her to pull down his own pajama pants, GP was able to roll off the bed, and go to the living room. DP came down the hallway in a hostile, aggressive manner. [ 8 ] GP held up her cellular phone and said, “Do I have to call 911?” DP grabbed her phone and threw it beyond her reach. [ 9 ] GP then got on the couch. She explained she did this because she had nowhere else to go. DP grabbed her arms and shook her back and forth three times.

Each time, he said, “I hate you.” The shaking action caused a bruise on GP’s chest, and her neck was sore for a few days. [ 10 ] After this, DP walked back to the bedroom, telling GP, “I want you out of here in the morning.” GP stayed awake on the couch all night, afraid DP would return and harm her. DP’s Circumstances [ 11 ] DP is 61-years-old. He has no criminal record. He graduated from NAIT in 1984 as a journeyman instrumentation mechanic. He has been employed in that field since. There were problems in the marriage before the offences, but they separated after it.

Several days after the offences, one of GP’s daughters saw the bruise and convinced GP that “enough was enough.” GP left the home on the pretense of going for coffee with her daughter. When she did not return, DP called his daughter’s home, and his son-in-law informed him that GP was not returning home. [ 12 ] They are in divorce proceedings. DP continues to reside in the condominium owned by the parties. Since September 2021 (which was about nine months after GP left the home), DP entered a consent order to pay $1000 per month alimony. [ 13 ] They have two adult daughters.

Even prior to the offences, DP’s daughters chose to have limited contact with him. They are now estranged. [ 14 ] The couple’s history reveals a high level of control by DP. Around the time of the offences, DP was upset with GP because she had played pool in the condominium’s social room with other members of the Condominium Board, including men. He was in the practice of reviewing her emails and texts and accused her of infidelity. He also limited GP’s access to and control over finances. GP was not employed at the time of these offences. However, when she worked in the past, she handed her income over to him.

She did not have a bank card or on-line banking access. Her purchases were on a credit card, which he reviewed before paying. He confronted her if he believed a purchase was excessive. GP had financial knowledge, having previously worked in a finance position, but she was not even aware what accounts or financial assets she had. After she left the home, her daughter took her to various banks with her identification to locate her accounts. [ 15 ] DP denies the offences. At the sentencing hearing DP stated that he had “made mistakes” and was sorry.

He said that the process has been extremely painful and that he is sorry this has “come to light in the courtroom.” Gravity of the Offences [ 16 ] The sexual assault and threats invaded GP’s personal and sexual integrity. DP did not treat GP with dignity and value, but rather as an object over which to exert his domination and serve his desires. While the assault in the living room was less serious, it is still a significant violent offence. [ 17 ] The following factors aggravate the gravity of the offences. (

a) Abuse of intimate partner The degree to which the intimate partner relationship will be aggravating depends on the circumstances – for example, the duration of relationship and whether they were living together. In the present case, the intimate relationship spanned more than 3 decades, and the offender and victim resided together. The breach of trust associated with this betrayal is at the high end.

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b) Level of Violence All sexual assaults inherently involve violence. In this case, the violence went beyond the minimum required for conviction. It included physically restraining the victim, and roughly grabbing her breast. In addition, DP threatened violent, degrading sexual acts. GP reasonably believed that he was going to violently force intercourse. The violence used in the living room was not as aggravating, but it did cause injury. (

c) Vulnerable Victim GP was vulnerable because she was not employed and had no access to a bank account to support herself. This limited her options. However, GP was not at the highest level of vulnerability. She had supports who encouraged her to leave and assisted her. (

d) Serious Consequences for Victim Gravity of an offence includes consideration of the consequences. The severe consequences suffered by GP are highly aggravating. GP filed a Victim Impact Statement describing the physical and emotional harm she suffered because of the offences. The court also learned about her circumstances through trial testimony. The level of violence and threatened violence had a profound impact on the victim. She suffered significant psychological trauma and harm. GP experienced extreme fear and anxiety during the offences and afterwards.

On the night of the offences, she remained awake all night, worrying that DP may return and harm her. She has become hypervigilant of her surroundings, saying, “The longer I am away the more scared I am that DP will try to come back into my life and the thought of that terrifies me.” She has been seeing a therapist. This has helped her see that she was treated like she had no rights or freedoms, and that what happened to her was not right. As a result of the offences, GP left the home, and experienced and continues to experience perilous and uncertain circumstances. (

e) Took place in the victim’s home As a society, we value safety in our own homes, so this is aggravating. [ 18 ] There are no factors that mitigate the gravity of the offences.

Offender’s Degree of Responsibility [ 19 ] As explained by Justice Renke in R v Pettitt , 2021 ABQB 773 , at para 28 (“ Pettitt” ), The “responsibility” aspect of proportionality focuses on the actor, the offender’s level of fault in committing the offence, how the act was done, why the act was done, and by whom the act was done. [ 20 ] In R v Friesen , 2020 SCC 9 at para 131 , the Supreme Court explained that some factors that aggravate the gravity of an offence also aggravate the degree of responsibility.

The intimate partner relationship, position of trust and vulnerability of the victim, which I discussed when considering the gravity of the offences, are also relevant to assessing DP’s degree of responsibility. By virtue of the relationship, DP would be aware of the profound impact his offending would have on the victim, and he was aware of her financial vulnerability. This increases his moral blameworthiness. [ 21 ] Clearly, DP’s actions were deliberate and intended to be degrading.

This carries a high degree of moral blameworthiness. [ 22 ] Defence counsel stated that DP was a person of prior good character and implied this was mitigating. DP has no prior criminal record, has been consistently employed, is active in his church, and has the support of family, including his mother. [ 23 ] I decline to fine this mitigating.

I draw from Justice Renke’s analysis in Pettitt at paras 136 – 142 to make the following observations: - Previous good character does not mitigate moral blameworthiness for offences, - Intimate partner sexual violence is committed by people from all life circumstances, including people who publicly appear to lead pro-social lives, and - Previous good character does not create a bank of credits that can be drawn down to reduce the penalty for wrongdoing. [ 24 ] DP did not express insight or remorse for these offences, but this is not aggravating – it is neutral. [ 25 ] The circumstances of the offences and DP’s personal history do not include any factors that mitigate his moral blameworthiness.

I conclude his moral culpability is very high. Parity

[ 26 ] As stated in R v Friesen , 2020 SCC 9 at para 33 : A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents... are the practical expression of both parity and proportionality. [ 27 ] In Alberta, the starting point for a major sexual assault is 3-years. Counsel for the Crown suggested that this was not a major sexual assault, but it was close to it because DP demonstrated an intention to perpetrate a major sexual assault.

Counsel for DP suggested that this was nowhere near a major sexual assault because there was no penetration or genital contact. The approach of both counsel turns primarily on bodily integrity. [ 28 ] In R v Arcand , 2010 ABCA 363 , at para 171 , the Court of Appeal defined major sexual assault as follows: A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs.

The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two. A major sexual assault includes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. (emphasis added) [ 29 ] In Friesen , the Supreme Court made it clear that psychological and emotional impacts were key to a proportionate sentence for sexual offences against children.

The SCC discussed changes to the sexual offence sentencing provisions relating to offences against children and stated, at para 56: This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. [ 30 ] Sentencing provisions for sexual offences against adults have undergone similar legislative changes. It follows that in adult cases, courts should consider all types of harm, and avoid undue emphasis on physical acts.

For clarity, I recognize that the harm suffered by child victims of sexual offences is particularly pronounced, so the gravity is not the same.

However, the same factors should be relevant in assessing gravity. [ 31 ] To determine if this is a major sexual assault, the question is: would a reasonable person foresee that a woman would experience serious psychological or emotional harm when she is violently restrained, grabbed on the breast, had her pants removed, threatened with penetration of her anus and vagina, and told that sexual assault was going to take place despite her voiced non-consent? [ 32 ] When GP’s unique circumstances are considered - namely, that this was committed in her home by a person she has been in an intimate relationship for 30 - I conclude such harm was obviously foreseeable.

However, it is not clear whether these individualized circumstances should be considered at this stage. Accordingly, I decline to label this as a major sexual assault.

Nevertheless, I want to emphasize that this is very serious. [ 33 ] I agree with Judge Jivraj’s comment in R v Saddleback , 2021 ABPC 53 at para 36 : In the final analysis, whether the sexual offence is described as a major sexual assault, a violent sexual assault, or a serious sexual assault, strict adherence to the proportionality principle (which Ipeelee describes as the sine qua non of a just sanction) would dictate that the end sentence be the same regardless of the description adopted by the sentencing judge. [ 34 ] To support a conditional sentence, defence counsel provided R v TS , 2023 ABKB 157 , which involved an intoxicated 19- year-old man sexually assaulting his intoxicated 16-year-old step-sister.

He touched her leg, hips and buttocks. He put his hand under her shirt and touched her breast. He moved her into a supine position on the couch and was on top of her. The Crown sought a conditional sentence in this case, and it was imposed. TS entered a guilty plea, had remorse and had taken steps towards rehabilitation.

This case has significant distinguishing features that limit its relevance. [ 35 ] Counsel for DP also referred to R v Simkins , 2023 ABPC 30 , since the Justice reviewed several sexual assault cases where conditional sentence orders were considered and ultimately imposed a conditional sentence order.

The underlying facts are not at all similar to the present case. [ 36 ] A key factor affecting the gravity and moral blameworthiness of this sexual assault with concurrent threats is that DP committed it against his long-term intimate partner. [ 37 ] Simkins referenced only one case involving people in a long-term intimate relationship: R v Nolan , 2009 ONCA 727 . In this case, the offender tied his wife of 19 years on the bed. He covered her mouth with duct tape, punched her in the face, cut her underwear off, threatened to cut her vagina, and, after removing the restraints, committed vaginal sexual intercourse.

The Court of Appeal overturned the original sentence of 100 days incarceration with probation and stated that an appropriate sentence would have been 21 months in custody. However, because the offender had served his sentence, they declined to return him to prison and instead imposed an additional sentence of 21 months conditional sentence order followed by probation. [ 38 ] The following Alberta Court of Justice cases involved intimate partners.

(1) R v Saddleback , 2021 ABPC 53 – 3 years for assault and sexual assault. The victim and offender were domestic partners who had been together for 7 years and lived together for 5. They had recently began cohabiting after a separation. The victim awoke to find the accused thrusting a sex toy inside her vagina. She threw it and told him not to do that. Hours later, the offender slapped the victim in the face, waking her. He was angry about her alleged infidelity. He said, “you

want to fuck other men in my bed and you won’t even fuck me,” and “if you’re not going to give it to me, I’m just going to fucking take it.” He forced her legs over her head and pulled down her pants as she fought and begged him not to. He pulled her underwear to the side and attempted to insert his penis into her vagina. He told her “Stop clenching or I'm going to stick it up your ass.” She told the accused that he was hurting her and that she couldn't breathe, to which he replied, "that's the point". He also bit her elbow and buttock. The victim was able to get away.

(2) R v JTM, 2014 ABPC 125 – 12 months incarceration and probation The offender and the victim had been married 15 years but were living apart. The accused attended her residence, and in the course of an argument, the offender pushed the victim down and began chocking her. He sexually assaulted her by pulling down her pants and penetrating her vagina with his fingers, while alleging there had been infidelity. He stopped, removed the battery from her cell phone and left. The accused entered an early guilty plea and had taken counselling.

The Crown suggested 12 months was at the top of the range, but Justice Fradsham found it was at the bottom of the range. [ 39 ] These cases include vaginal penetration with a finger or an object. However, as noted, the focus is on the psychological impact on the victim. Based on GP’s circumstances, the violent physical restraint, and the angry threats to penetrate her anus and vagina, the expected psychological harm may be comparable. [ 40 ] JTM is a dated case, and a higher sentence would likely be appropriate today due to changes in law and society.

On September 19, 2019, Criminal Code amendments came into force. 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal Female Victims. 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 41 ] The Alberta Court of Appeal stated that these sections and other amendments made at the same time “signaled Parliament’s intention to enhance victim safety and toughen criminal law response to intimate partner violence.” ( R v McDonald , 2021 ABCA 262 at para 28 ). [ 42 ] In R v CG , 2022 ABKB 696 , at para 22 , Justice Angotti explained: The introduction of these sections relates back to the issue of starting points, as departure may be required from such precedents if they pre-date such changes in legislation, as well as more recent precedents if they simply follow "...the more dated precedents that inadequately recognize the gravity of sexual violence against children..." or adults: Friesen , supra at para 110 ; R v Kolola , 2021 NUCA 11 at para 36 .

This caution must also be applied to many of the precedents provided by the Crown and CG, as they pre-date the introduction of these sections, which express the legislature's will to signal the gravity of offences against intimate female partners as a reflection of society's view. Collateral Impacts of Offence and Sentence [ 43 ] Counsel for DP urged the Court to reduce the sentence to account for the collateral consequences faced by DP.

In particular, - As a result of the conviction, DP cannot volunteer with youth or children at church, - If incarcerated, he may lose his employment and may have difficulties paying spousal support, and - He has lost his relationship with his wife and daughters. [ 44 ] Consequences are part of an offender’s personal circumstances that can affect the sentence. (See: R v Pham , 2013 SCC 15 at para 11 ; R v Suter , 2018 SCC 34 at para 41 “ Suter ”) [ 45 ] The SCC explained at para 48 in Suter : The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [ 46 ] The Alberta Court of Appeal has cautioned that disruption of employment and damage to family is an unavoidable consequence of criminal convictions and should not be overemphasized. ( R v Godfrey , 2018 ABCA 369 at para 16 , R v Boucher , 2020 ABCA 208 , at para 31 . [ 47 ] The collateral consequences faced by DP are typical.

That is, any offender who violently sexually assaults, threatens and assaults their spouse should expect that their relationship would be harmed. The deterioration of a relationship with children is reasonably to be expected when their mother is victimized. In any event, there were other issues that contributed to the estrangement. [ 48 ] Similarly, any person who is convicted of sexual assault will not be able to volunteer with children or youth. The submission

before me was only that this is something DP had done in the past. There was nothing to suggest this would affect him in a disproportionate way. Similarly, the possibility he may lose his job is common to all who are incarcerated. [ 49 ] In conclusion, the argued collateral consequences are neither peculiar, nor compelling enough to lessen the sentence. Conclusion [ 50 ] A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Here, both factors are high.

I find that the most important sentencing objectives in this case are denunciation, deterrence, and recognition of the harm to the victim and community. Sometimes, an offender’s prior good character can support rehabilitative potential. I do not find this to be significant in DP’s particular circumstances. In any event, rehabilitation has a lesser role in sentencing for serious sexual and violent offences against an intimate partner. The only proportionate sentence in this case is a period of incarceration.

To protect the victim and assist in rehabilitation, a period of probation will follow. [ 51 ] I considered a Conditional Sentence Order (CSO) and concluded it would not be a fit sentence. A CSO can only be imposed where it would be consistent with the fundamental purpose and principles of sentencing.

No conditions could be imposed to make a CSO a proportionate sentence for the gravity of these offences and degree of responsibility of this offender. [ 52 ] I impose sentences as follows: • Count 1 – sexual assault - 18 months and 3 years’ probation, • Count 2 - uttering threats, 18 months, and • Count 3 - assault, 2 months. [ 53 ] The sentences for sexual assault and threatening will be concurrent since I considered the threats as aggravating in assessing the sexual assault. The assault was separated by a short period of time and was of a different character.

A consecutive sentence would be appropriate, but I impose a concurrent sentence after taking a final look at the sentence for totality. [ 54 ] Pursuant to s. 743.21 of the Criminal Code , I order that while incarcerated, DP will have no contact with GP, except through a member of the Law Society of Alberta for the purpose of matters related to separation and divorce proceedings. [ 55 ] In addition to the mandatory probation terms, DP shall: - have no contact directly or indirectly with GP except through a member of the Law Society of Alberta for the purpose of matters related to separation and divorce proceedings; contact at the courthouse for proceedings in which they are both parties is permitted, but such contact shall not extend beyond that which is necessary for the proceedings; and contact specifically permitted by an Order of the Court of King’s Bench is permitted; - report to probation within 3 working days of release and thereafter as directed; - take such assessment, treatment and counselling as directed, for intimate partner violence and sexual assault; and - sign a waiver, and provide proof of completion of any assessment, treatment or counselling. [ 56 ] In relation to count 1, pursuant to s. 110 of the Criminal Code , I find that it is desirable in the interests of the safety of the public that DP be prohibited from possessing firearms.

I order that DP be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years from the date of his release from custody. [ 57 ] On count 1, I order a DNA sample. I decline to waive the Victim Surcharge. [ 58 ] The final issue is whether I should make an Order requiring DP to register in the Sex Offender Information Registry (SOIRA). [ 59 ] The law in relation to SOIRA is in a state of flux.

Section 490.012(1) of the Criminal Code requires a SOIRA Order for every sexual offender. On October 28, 2022, the Supreme Court of Canada found that this

section breaches the Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice. ( R v Ndhlovu , 2022 SCC 38 ). However, the Supreme Court delayed the declaration of unconstitutionality for 1 year to allow Parliament the opportunity to amend the legislation. [ 60 ] DP asks for a personal exemption from the suspension of the declaration of invalidity. In R v Lepki , 200698983Q2, February 23, 2023, (unreported) Justice Whitling addressed whether courts have jurisdiction to grant individual exemptions. He concluded they do not.

Subsequently, in R v TS , 2023 ABKB 157 , Justice Hayes-Richards accepted jurisdiction to make a declaration of invalidity on an individual basis, without providing written analysis on the issue. I do not need to resolve the jurisdictional issue in this case. [ 61 ] I will begin by assuming I have jurisdiction.

To be successful, DP must prove, on a balance of probabilities, that SOIRA’s impacts on his liberty bears no relation to, or is grossly disproportionate to, the objective of s. 490.012 of the Criminal Code , which is to help police prevent and investigate sex offences. ( Ndhlovu at 76, 140) In other words, he must show that he fits within the group of

people for which the Supreme Court found that SOIRA is overly broad. [ 62 ] DP filed a letter from a Clinical Forensic Psychologist. Dr Nesca opined that DP was generally a low risk to reoffend, but that he was at moderate risk to commit intimate partner violence against GP. Dr. Nesca stated that DP’s risk for intimate partner violence increases when he experiences sexual resentment or jealousy, but concluded DP would only experience these feelings in relation to GP. [ 63 ] I give limited weight to Dr. Nesca’s opinion. My reasons include the following:

(1) He did not have complete information; for example, he did not have a transcript of DP’s testimony, nor my decision, and

(2) He necessarily relied on DP for some information, and I found DP was not credible. [ 64 ] DP’s demonstrated high level of control, intense jealousy and sexual resentment relate to DP’s own belief system and are connected to his risk to reoffend. I conclude that DP poses a moderate risk to reoffend, particularly against any potential intimate partner. [ 65 ] DP’s registration in SOIRA is therefor connected to the purposes of the legislation. I dismiss his application for Charter relief. In the alternative, if I lack jurisdiction, I dismiss his application on that basis.

I order that DP comply with SOIRA for a period of 10 years. Heard on the 4 th day of April, 2023 . Dated at the City of Edmonton, Alberta this 24 th day of May, 2023. R.E. Tibbitt A Justice of the Alberta Court of Justice Appearances: F. Genuis for the Crown J. Leung for the Accused