Her Majesty the Queen - v. -, 2013 SKPC 167

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 167 Date: December 19, 2013 Information: 24479921 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.F.U. Appearing: Thomas Healey For the Crown Wade Rogers For the Accused Note: Pursuant to s. 486(4) of the Criminal Code, the Court made an order directing that the identity of the complainant or awitness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document orbroadcast in any way.

SENTENCING DECISION I. CARDINAL, J 1. On August 15, 2013, I found M.F.U. guilty of the offence of choking a female relative by using his arm with intent to enablehimself to commit the indictable offence of sexual assault contrary to s. 246(

a) of the Criminal Code. I also found him guilty ofcommitting an assault (s. 266 of the Criminal Code) and a sexual assault (s. 271(1) of the Criminal Code) but those counts werejudicially stayed as they arise from the same circumstances as the choking offence and I found that the rule in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729 (S.C.C.) applied.

2 . Previously, M.F.U. had pled guilty to a charge of common assault upon his mother arising from the same incident. He has also pled guilty to a charge of breach of undertaking for failing to attend court and both matters are also scheduled for sentencing before this Court. FACTS 3 . After trial, I found that M.F.U., after a night of consuming alcohol, returned home to his mother’s residence to find his 14 year old relative and her friend alone in the home. He let it be known to the victim that he thought her friend was beautiful, and he wanted to have sex with her.

His relative tried to dissuade him, and told her friend of his intention. The friend then left the residence. 4 . That left his 14 year old relative alone in the house with her much older, much stronger, and apparent to her, much intoxicated relative. A direct relative who wanted to have sex with her. 5 . Shortly after the friend left, the victim got into her bed to sleep. The accused came into her bedroom, uninvited, and started asking her to have sex with him. She refused and told him he’s her relative. M.F.U. pulled the blankets off her so she left the room as she was scared. 6 .

She went into the living room and sat on the couch to watch TV. M.F.U. followed and sat beside her on the couch. He continued to ask her to have sex with him. She again refused. 7 . He started grabbing her on the couch and got his arm around her neck. She tried to get him off and in the struggle they wound up on the floor. He managed to keep his arm around her neck, hold onto her hands and wrapped his legs over hers to confine her. 8 . He used his arm to choke her until she lost consciousness. She lost consciousness because he was deliberately choking her as he wanted to have sex with her.

He was so intent that he even threatened to kill her. Since she was not willingly going to have sex with him, he was prepared to achieve sex with her even if she was “blacked out” or unconscious. 9 . The victim regained consciousness to find M.F.U. with his pants down around his knees. He appeared to be ready, in her opinion, to get on top of her to have sex. 10 . She managed to stop the attack by kicking him hard on the chest and running out of the house, barefoot, to avoid being caught by him as he was chasing after her. 11 .

I found as a fact that M.F.U. choked the victim with intent to commit the offence of sexual assault. 12 . The assault upon his mother happened after she came home and confronted him in his basement bedroom about the choking incident. He hit her on the side of the face, pushed her down, and, using a door he had earlier removed from its hinges, put a door on top of her, hitting her with it. She did not suffer any lasting injuries. ISSUE 13 .

The issue to be decided is what is a fit sentence for the offence of choking the victim to enable himself to commit the indictable offence of sexual assault contrary to s. 246 of the Criminal Code , and assaulting his mother contrary to s. 266 of the Criminal Code The former carries a maximum sentence of life imprisonment, while the latter carries a maximum sentence of six months imprisonment as the Crown proceeded by way of

summary conviction. The charge of breach of undertaking is also a

summary conviction matter.

CIRCUMSTANCES OF THE VICTIM 14 . The 14 year old victim, who is now 16 years of age, suffered no physical injuries in the assault. During the trial, it was evident she was in a difficult position having to testify against her relative. She testified that she is on medication as she suffers from seizures ( apparently epilepsy but there was no medical evidence in this regard). Although she did not file a formal victim impact statement, her sister provided a hand written note indicating that the victim wanted it given to the court.

The Crown took objection to the note as there was no way to confirm the victim had written it or that it was done of her own free will. In reviewing the note I accept it is from the victim. She states it is very hard to accept what M.F.U. did because he was drunk, but she forgives him. She feels he is still a good person and asks the court to let him go stay with his common law as they are expecting a baby and the victim wants him to be there for his family. CIRCUMSTANCES OF THE ACCUSED 15 . M.F.U. is a 27 year old First Nations man with a Grade 11 education. He is the oldest in a family of six children.

During his formative years he experienced “a lot of drinking and abuse” in his family. His father was an alcoholic and abusive both physically and verbally to his family. As a result, his father was in and out of jail and was not a positive role model. His mother also struggled with an alcohol addiction, leaving him with little structure and on his own since he was 14. 16 . Although he was separated from his common law wife at the time of the offences, they have four children ranging in age from 14 months to 9 years, and are expecting another child.

He was gainfully employed in early 2013, but has been on remand since May 23, 2013 as a result of the matters before the court. 17 . M.F.U. has a criminal record containing 12 convictions, two of which are for violence. In February 2005 he was sentenced to 9 months incarceration (served in the community under a conditional sentence order) after being convicted of assault causing bodily harm. In May 2005 the conditional sentence order was terminated and he was sentenced to three months incarceration concurrent upon a conviction for common assault.

His last conviction in 2008 was alcohol related involving driving with over 80 mg of alcohol in his blood for which he received a fine. POSITION OF THE PARTIES 18 . The Crown submits a five year sentence of imprisonment in the penitentiary is warranted. The facts are “troubling” in that the accused should have been protecting the victim given his relationship and age to her, and that she should have been able to count on him rather than being viewed as a sexual object for him to do with as he pleased.

Her refusal to participate in any sexual activity was clearly communicated to him, so he choked her to unconsciousness to overcome her resistance. It was only good fortune that she gained consciousness and was able to escape and thus prevent any further assaultive behaviour. The Crown submits the accused’s self induced intoxication is an aggravating factor and should not be used to diminish the seriousness of the offence. The accused did not admit his guilt and, having been found guilty after trial, there is no mitigation in that regard. His criminal record includes two previous convictions for violent offences.

The accused showed no remorse but simply denied the offence. Crown counsel could not locate any Saskatchewan cases on point, but relies upon R. v. Robinson, 1993 ABCA 91 to support their position. 19 . With respect to the common assault, the Crown submits a further period of incarceration, consecutive, is appropriate. 20 . Defence counsel suggests a period of incarceration in a correctional centre is appropriate taking into account the facts, the personal circumstances of the accused, Gladue factors, his criminal record and the time already spent on remand awaiting trial and sentence.

Counsel recognizes that his consumption of alcohol is not a defence, but submits while the offence was alcohol fuelled it was not premeditated. In all of the circumstances, counsel submits a fit sentence is 18 months incarceration for the choking offence and 5 months time already served for the common assault. Concerning the choking offence, counsel relies upon: R. v. Francisco, 2004 MBCA 110 (4 months incarceration); R. v. Baker, 1990 CarswellBC 1605 (BCCA) (15 months incarceration); R. v. Betker, 2004 ABQB 482 ( 9 months incarceration); R. v. McCreight, 2006 ONCJ 514 (12 months incarceration); R. v.

Lonechild, 2008 ABPC 263 (8 years global

with 3 months consecutive for choking). Defence counsel could not locate any Saskatchewan cases. 21 . I brought to the attention of counsel the decision of R. v. Lemmon, 2012 ABCA 103 . I could not locate any Saskatchewan cases concerning overcoming resistance by choking pursuant to s. 246 . 22 . Both counsel agree that ancillary orders for DNA, a firearms prohibition, and a lifetime SOIRA order are mandatory concerning the choking offence. The Crown is also seeking a s.161 order, but Defence counsel is not in agreement with such an order. ANALYSIS 23 .

In all of the circumstances, a sentence of incarceration in the penitentiary is warranted. The cases cited by Defence counsel, other than Lonechild , supra , are all low end choking offences. In none of them was the victim choked to unconsciousness. Baker, supra mentions the victim “believes” she was choked to unconsciousness but it is not clear whether there was such a finding of fact. In Lonechild , supra, the accused was sentenced for a horrific sexual assault upon a female security guard. Mr.

Lonechild went into a construction site and attacked the guard, choking her at one point such that she had trouble breathing. She managed to pull his hand away to stop the choking. He had no criminal record. He was sentenced to a global sentence of 8 years with one year consecutive for the choking offence, but after taking into consideration time spent on remand, it was reduced to 5 years, with 3 months consecutive for the choking. 24 . I prefer the line of reasoning of the Alberta Court of Appeal in R. v. Lemmon , supra and Robinson, supra. 25 .

In Robinson , a woman noticed a man walking ahead of her, then past her and begin following her as she walked to her vehicle. At her vehicle, he came over and asked her to provide a boost to the battery of his vehicle. She declined, but he insisted and she agreed to provide whatever assistance she could. She turned her back to open her vehicle and the accused jumped her, putting a choke hold around her neck for 20-30 seconds. The victim started to scream but lost consciousness and fell to the ground. The fall caused the accused to lose his grip on her throat. She regained consciousness and started screaming.

The accused attacked her, again put both his hands around her neck, but she fought back. Others heard her scream and came to her rescue and caught and held the accused for police. The victim suffered physical injuries and was devastated psychologically by the attack. 26 . The Court noted the attack was for the purpose of stealing her car, not for the purpose of committing a sexual assault. The accused was a cocaine addict and had consumed cocaine on the day of the offence. He had his Grade 12 and had generally stayed out of trouble for 5 -6 years prior to these offences.

He had only served one previous sentence of incarceration for a break and enter 12 years prior to these offences (the accused was also facing sentencing for robbery and break and enter unrelated to the choking offence). 27 . The accused entered a guilty plea and the Crown submitted a sentence in the range of 3 to 4 years was appropriate for the choking offence. The Provincial Court sentenced him to 3 years incarceration and reduced it to 2.5 years after considering time spent on remand ( the global sentence was 8 years).

On appeal, the Albert Court of Appeal observed: [8] The first question is whether the sentence for choking the woman was fit. It is a very serious offence. It is one to which women are particularly vulnerable, whether on the street or elsewhere, whether the intent of the offender was to commit a sexual assault, or, as in this case, some other crime. Women must feel confident that this Court requires the trial courts in Alberta to impose sentences for such an offence which will deter other men from taking advantage of women in such a fashion, putting their lives in peril. 28 .

The Court of Appeal reviewed a number of sections of the Criminal Code dealing with violent offences and noted that the offence of choking carries a maximum sentence of life imprisonment, as does aggravated sexual assault. Both offences are more serious than the offences of sexual assault causing bodily harm and aggravated assault which carry maximum sentences of 14 years. This is an indication that Parliament treats the offence of choking as a very serious offence. 29 . The Court observed at paragraph 10 that in the circumstances, the sentence for choking might have justified a sentence of 5 years.

They found the sentence of 3 years demonstrably unfit. The Court also stated that “the sentence of 4 years would not have been appropriate” if the Crown had not agreed to it. However, since the Crown had only argued for a sentence in the range of 3 or 4 years, the Court was only prepared to raise the sentence to 4 years, even after allowing for the guilty plea and time in custody. Overall, and taking into consideration the totality principle, the global sentence of 8 years was reduced to seven, being 4 years for choking

(considered the most serious offence); 3 years consecutive for robbery, and one year concurrent for break and enter. 30. The Alberta Court of Appeal revisited the offence of choking in 2012 in Lemmon, supra. There the victim and accused were known to each other as he frequented the restaurant and bar where she was a waitress. She gave theaccused and his friend a ride home, dropping the friend off first and then proceeding to the shop where the accused worked as he said hewas staying the night there. At his invitation they had a drink, but as she was leaving she noticed the gate to the compound was locked.

She asked him to unlock it but he instead grabbed her by the neck and pulled her into the shop. He bolted the door while continuing tohold her by the neck. She lost consciousness, and when she came to, he had her in a headlock. He ordered her to undress and thensodomized and repeatedly raped her. She managed to talk him into letting her leave, and he allowed her to dress but kept her underwearas a souvenir. She suffered physical injuries and outlined the devastating ongoing consequences she suffered as a result of the attack. 31. Mr.

Lemmon had a lengthy criminal record with previous convictions for violence including robbery, aggravated assault, andsexual assault of various degrees. The accused was convicted of unlawful confinement, sexual assault and choking with intent tocommit an indictable offence. He was sentenced to 13 years incarceration on each of the offences concurrent, declared a long termoffender, directed to serve half of his sentence before he was eligible for parole, and was also subject to a 10 year supervision order.

TheCourt reduced the sentence for the sexual assault and the unlawful confinement to 10 years as that was the maximum allowed under thelaw. 32. The Court of Appeal again underscored the seriousness of the offence of choking, especially when it renders the victimunconscious.

At paragraphs 27 to 29 the Court stated: [27] Parliament’s recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of anotheroffence is reflected by the maximum penalty prescribed for that offence: life imprisonment. ...The only other related offences of personalviolence subject to such a serious penalty are attempted murder and aggravated sexual assault. [28] A moment’s reflection will reveal the reason for that.

Rendering a person unconscious, whether by choking, strangulation orsuffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelongconsequences. See R. v. Horvath (1982), (ON CA), 2 C.C.C. (3d) 196 (Ont. C.A.), R. v. Wallin

(2003) BCSC 809,and R. v. Muckle (unreported, July 28, 2006, Alta. P.C.). The difference in the outcome, between unconsciousness, brain damage anddeath, may be only a matter of a few additional seconds of pressure. In the final analysis, this is

an act of cruel domination met by sheerhorror and often accompanied by serious physical and psychological harm. [29] In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been renderedunconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what isoften the more serious offence, and in the process marginalizes extremely dangerous conduct.

I do not mean to suggest that every act ofapplied force to a victim’s throat will warrant a significant additional sentence. However, such a sentence is appropriate when the victimis rendered unconscious or suffers bodily harm. 33. Further, at paragraph 23 the Court observed: [23] We must remember that the ultimate objective is a sentence that reflects the gravity of the offence and the degree of responsibilityof the offender, not a mindless application of sentencing principles... DECISION 34.

It is imperative that in determining the appropriate sentence that both aggravating and mitigating circumstances be taken intoaccount. I am also mindful of the purposes and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. M.F.U.is an Aboriginal man with four, and perhaps by the date of sentencing, five young children. He has had a difficult upbringing with littlesupport or guidance from his parents. He has two previous convictions for violence but to his credit he has a three year break in hiscriminal record from his last conviction to the date of the offence before the court.

He is a young man of 28 years of age, with his lifeahead of him.

35. In the circumstances of this offence and this offender, the aggravating factors exceed those in mitigation. He repeatedly tried toconvince the victim to have sex with him, and she repeatedly declined. The victim was initially not afraid of him because of their closefamilial relationship. She was only 14 years of age. Knowing she would not consent to sexual activity, the accused attacked her, put herin a headlock and choked her until she was rendered unconscious. He pulled his pants down and was about to get on top of the victim inwhat was clearly an intent to sexually assault her.

The only thing that saved her was her quick thinking. She had come to and managedto kick him backwards, giving her time to get up off the floor and run to the neighbour for help. 36. He has shown no remorse for his actions, nor admitted his guilt. Although he did say to the court that he was sorry he did not dealwith this matter sooner, that is not an apology nor do I consider it an expression of remorse. 37. While there is not much information as to how this offence has impacted the victim, it is clear it has been traumatic for her.

Shemay not have suffered any significant physical injuries, but the betrayal of the trust she had in the accused will undoubtedly be with herfor many years. Her victim impact statement was concerned more with her wanting the accused to be free in the community and withhis family because he was expecting a new baby. This is a natural reaction, especially for a young victim who is related to the accusedand who does not want to see his family separated. I accept that she does forgive him for this vicious assault, and that is a matter thatonly she can address.

She is not to blame for his actions in attacking her as he alone bears that responsibility. He is responsible for anyfamily breakup that ensues from his commission of this shocking offence.

Section 718.2(a)(ii.1) of the Code provides that it is an aggravating factor where the offender abused a person under the age ofeighteen years.

Section 718.01 of the Code mandates that a court give primary consideration to the objectives of denunciation anddeterrence where the offence involved a person under the age of eighteen years, as is the case here. As noted in R. v. Branton (2013) 2013 NLCA 61 , 301 C.C.C (3d) 408 (NLCA) at paragraph 19: By enacting

section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call for specialattention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their personsbecause of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, asthey are still “finding themselves” in these formative years.

For this reason offenders who criminally abuse young people are particularlydeserving of society’s denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. Thisdenunciation also affords some reparation to young victims, who need reassurance that they are not to be blamed for what has happenedto them so that they can move on with their lives.

Offenders and like-minded others who abuse young people must also be deterred fromrepeating or engaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct are going to betreated seriously by the justice system. 39. It is unfortunate M.F.U. did not have better guidance and role models as he was growing up. However, he is a mature adult whois capable of making appropriate decisions and knowing that choking a close family member in order to have sexual relations is not onlyunlawful, but reprehensible. He has previously been convicted of two violent offences.

He now is before the court with two additionalviolent offences, one of which carries a maximum sentence of imprisonment for life. His moral blameworthiness is high. While Iacknowledge he is an aboriginal male who has provided information concerning Gladue factors, such factors do not tip the balance infavour of a less restrictive sentence. As noted by the Supreme Court of Canada in R. v.

Gladue (SCC), [1999] 1 S.C.R688, at para. 79: Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. 40. Considering all of the circumstances, and considering he has spent since May 23, 2013 on remand for which I credit him with 7months, I sentence M.F.U. as follows: 1. Common assault on his mother: 5 months incarceration time already served; 2.

Fail to attend court-- 2 months incarceration time already served; 3. Choking with intent to commit the indictable offence of sexual assault: 4.5 years incarceration from today. 41. As the choking offence is a primary designated offence for DNA, there will be order pursuant to s. 487.051 that the accused

provide a sample of his DNA as required in Form 5.03; there will be a mandatory 10 year firearm prohibition pursuant to s. 109; and pursuant to s. 490.012 (2) there will be a lifetime SOIRA order. I decline to make the order pursuant to s. 161 as I do not feel it is necessary on the facts of this case. I. Cardinal, J