R. v. H.L., 2012 MBPC 80

CITATION: R. v. H.L. , 2012 MBPC 80 Date: 20121126 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Catherine Hembroff, ) for the Crown ) and ) ) ) H.L. ) John Skinner, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) November 26, 2012 ) Allen P.J. [ 1 ] H.L. has entered a guilty plea to one count under

section 151 (

a) of the Criminal Code of sexual interference with a person under the age of 16 years. H.L. plead guilty to sexually touching his foster child, S.M., on two occasions between June 1, 2009 and September 3, 2011. FACTS: [ 2 ] The child, S.M., was a ward of Cree Nation Child and Family Services. She had originally been placed in the home of H.L. and his wife in April of 2005.

She remained in that home for approximately four years, only to be removed and eventually returned in January of 2010, until she was finally removed in September of 2011 after the revelation of these incidents. [ 3 ] It is accepted by counsel for H.L. that at all relevant times, he stood in loco parentis and in a position of trust over S.M. [ 4 ] H.L. has acknowledged sexually abusing S.M. on two occasions. The first incident took place when the complainant was 13 or 14 years old. At that point, she had lived with H.L. and his wife for approximately four years.

On this occasion, H.L. and S.M. were alone in the living room at the family residence on Opaskwayak First Nation when H.L. told the child to look away. He then pulled her pants down, bent her over and put his penis in her vagina. The complainant did not report this matter at the time. [ 5 ] The second incident took place on September 3, 2011, when the victim was 15 years old. On that occasion, H.L. called S.M. to his bedroom. He then (as set out in the Prosecutor’s Information Sheet filed as Exhibit 1) “started kissing her, but S.M. had her mouth turned away.

He then grabbed and touched S.M.’s behind before moving down towards her vagina. H.L. pulled down her pants and licked and kissed her vagina before S.M. told him to stop and he did. S.M. then ran out of the room.”

[ 6 ] This incident was revealed to A.C., H.L.’s wife, the next day and the R.C.M.P. were contacted. A.C. told police that before calling them she spoke to her husband and that he thought the R.C.M.P. should be called to deal with the accusations. BACKGROUND: [ 7 ] H.L. is 58 years old and a lifetime resident of Opaskwayak Cree Nation.

He has a criminal record which includes: i) 1978 at The Pas - two counts of Assault Causing Bodily Harm (ACBH) and one of being Unlawfully in a Dwelling, for which he received seven months in jail; ii) 1992 at Creighton, SK - two counts of Assault and one count of ACBH which resulted in an 18-month suspended sentence. [ 8 ] A Gladue /Pre-sentence Report was prepared and was made an exhibit at the sentencing (Exhibit 1).

This report indicates that H.L. is of Cree ancestry and has treaty status at Opaskwayak Cree Nation (OCN). [ 9 ] The report states that H.L. may have been either “directly or indirectly impacted by colonization” (page four). There is no direct evidence provided as a foundation for this statement.

Other than pointing out that H.L. attended high school in The Pas (which adjoins OCN) and “got into some fights” and that most of the time he was fighting with non-natives whose penalties for fighting did not seem equal to his, and that he experienced difficulty in speaking English at school and Cree at home, there are no concrete examples of his life being affected by racism. [ 10 ] H.L. told the Probation Officer who prepared the report that he witnessed one incident of domestic violence between his parents and that his father worked, but “would drink and sometimes get violent” (page 5 PSR/ Gladue ). [ 11 ] H.L. reported that he had previously used alcohol and drugs, but that subsequent to attending alcohol treatment, he has been sober for 28 years. [ 12 ] A Victim Impact Statement was filed at the sentencing (Exhibit 2).

The victim reported that “after this incident, especially under the care of Cree Nation Child and Family Services, I felt betrayed” (page 1). She also reported that she felt fearful, normally sleeping with the lights on and that “everything was my fault”. She also reports feeling unworthy and that she is “a failure”. She also said “I feel like what happened to me hasn’t gone away and it will never go away.” POSITIONS OF THE PARTIES: [ 13 ] Counsel for the Crown and counsel for H.L. agree that he was in a position of trust as foster parent to S.M.

Both counsel also agree that this is a serious offence which requires that the sentencing principles of denunciation and deterrence be given primary consideration. [ 14 ] Crown counsel suggests that an appropriate sentence in this case is five years in jail. Defence counsel takes the view that H.L. should receive a period of two years of incarceration to be followed by three years of probation. THE LAW: [ 15 ]

Section 718 of the Criminal Code of Canada sets out that “the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” [ 16 ] The Criminal Code also sets out at

section 718.01 that: When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 17 ] Additionally, the Criminal Code at 718.2(iii) says that if the offender in committing the offence abused a position of trust or authority in relation to the victim, this shall be deemed to be an aggravating circumstance. [ 18 ] Finally, it is imperative that any sentencing court note the fundamental principle of sentencing set out at

section 718.1 of the Criminal Code which says that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 19 ] It goes without saying that in this case the offence is very serious. Sexual abuse of a foster child by a foster parent is clearly an incident of the utmost concern to society. [ 20 ] From a general perspective, the Criminal Code sets out at 718.2(

a) that:

a) A sentence should be increased or reduced to account for any relevant or mitigating circumstances relating to the offence or the offender. [ 21 ] In terms of mitigating factors, the court needs to consider the circumstances of H.L. as set out in the Pre-Sentence ( Gladue ) Report, as well as what was said by counsel on his behalf. More specifically, inter alia , that: - H.L. initiated contact with the R.C.M.P. (albeit after the complaint was made by the victim); - He is active in his community; - He has a stable marriage and has been sober for 28 years;

- He has expressed his remorse by way of a guilty plea which has spared a youthful victim the trauma of testifying. [22] It is aggravating that: - H.L. has a criminal record, albeit dated, which includes five previous convictions for assaultive crimes, including three of AssaultCausing Bodily Harm; - This is a crime involving the sexual abuse of a child; - H.L. was the victim’s foster father. She was in the care of Child and Family Services because of circumstances of instability in herown family life.

She was entitled to expect stability and protection from her foster parents; - These two incidents took place over a span of several years and the victim lived for approximately two years in the home of a manwho had sexually abused her; - The abuse did not stop until it was revealed by the complainant; - It is clear from the Victim Impact Statement prepared by S.M. that she has and continues to suffer significant emotional damagefrom these incidents. ABORIGINAL SENTENCING CONSIDERATION: [23] Section 718(2)(

e) of the Criminal Code requires sentencing courts to consider: - all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenderswith particular attention to the circumstances of aboriginal offenders. [24] In the recent Supreme Court decision of R. v. Ipeelee, [2012] SCC 13, the court set out a sentencing judge’s duty to consider anaboriginal offender’s background. It did this by looking back and essentially explaining the elements of the Gladue decision. Thisexplanation is found at paragraphs 59-60: The court held, therefore, that

section 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of over-representation of aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach tosentencing (Gladue (SCC), [1999] 1 SCR 688, at para 93). It does more than affirm existing principles of sentencing;it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directssentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique anddifferent from those of non-Aboriginal offenders (Gladue, at para 37). When sentencing Aboriginal offenders, a judge must consider: (

a) the unique systematic or background factors which may have played a

part in bringing the particular Aboriginal offender before thecourts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender becauseof his or her particular Aboriginal heritage or connection (Gladue, at para 66). Judges may take judicial notice of the broad systemic andbackground factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel andfrom the Pre-Sentence Report (Gladue, at paras. 83-84). [25] In this case, H.L. was born and grew up at Opaskwayak Cree Nation (OCN). This particular First Nation is considered to beone of Canada’s most economically favoured.

OCN, as it is more commonly known, owns and runs numerous businesses and has arelatively high standard of living. While this may not have been the case when H.L. was growing up, the evidence before the court isthat he comes from an intact family, his father was regularly employed and poverty was not an issue in his childhood or in his adult life. [26] Background information from the PSR states that H.L. self-reports that he attended high school up to grade 11.

He hasapparently been regularly employed throughout his working career and is currently employed as a sub-contractor and steel assemblerwith Interlake Powerlines. While his employment is for between six to nine months each year, he is a crew boss with others working forhim. [27] As stated earlier, the only case specific information relating to H.L.’s background is that he sometimes fought with non-aboriginal (and aboriginal) youth in high school and found it difficult to speak Cree at home and English at school.

Additionally, H.L.says he observed domestic violence from his father to his mother on one occasion and that his father “drank”. [28] As required by Criminal Code

section 718.2(

e) and the clarification of that

section as provided in R. v. Ipeelee, I have taken intoconsideration the above elements of H.L.’s life, which may have contributed to this crime. [29] In determining an appropriate sentence, I must also consider the comments of Iacobucci, J. of the Supreme Court in R. v. Wells,2000 SCC 10 , [2000] S.C.J.

No. 11, 141 C.C.C. (3d) 38 at page 386: Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions ofsentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals ofdenunciation and deterrence are fundamentally relevant to the offender’s community.

As held in Gladue, at paragraph 79, to the extentthat generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriatesentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciationand deterrence are accorded increasing significance. [30] While other later judgments and legal commentators have criticized the proposition that Gladue principles should not apply in“serious” cases, they have generally suggested that there should not be a serious case cut-off beyond which these principles are forgotten,but that in more serious cases other sentencing principles take precedence.

This view is expressed by the Ontario Court of Appeal inR. v. Jensen, (ON CA), [2005] O.J. No 1052, 195 CCC (3d) 14 at paragraph 27:

We do not read Gladue as saying that there are cases in which the Gladue principles will not apply. While we agree that there will becases in which the principles and objectives expressed in Gladue will not weigh as heavily as other sentencing objectives, and that, inthose cases, it may be likely that the ‘terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same’.

The Gladue principles remain applicable in all cases where an aboriginal person is the offender. [31] It is my opinion that the sexual abuse of a foster child is a case where Gladue principles fall behind other more pressingsentencing concerns. This does not mean that these principles do not remain part of the sentencing equation, just that the principles ofdeterrence and denunciation take precedence. CASE LAW: [32] The Criminal Code at

section 718.2, states that a sentencing court should consider a number of enumerated principles. One ofwhich is set out at 718.2(b), as follows: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances; [33] Accordingly, it is appropriate that any sentencing court look at prior decisions to adhere to the above sentencing principle. [34] In this regard, the Crown provided several cases. I believe that these cases were provided more for their value as to generalstatements of sentencing principles relating to sexual abuse by persons in positions of trust.

They were of little assistance in determiningthe quantum of sentence in this case, as their circumstances were very different from the case at bar. [35] In the eighth edition of “Ruby on Sentencing”, Clayton Ruby writes: Where the offender is in a position of trust in relation to the child, the violation of this by sexual abuse will often be noted by the court asan aggravating factor. Four years imprisonment for the sexual assault of a child by an adult in a position of trust has been recognised as astarting point. (pages 936-937) [36] Justice L. Duval in R. v.

W.R.B., 2010 MBQB 102, said in reference to the sexual abuse of a step-daughter, at paragraph 17: The applicable principles of sentencing are denunciation and deterrence. The starting point guideline where the sex assault is committedin a trust or familial relationship is four to five years incarceration. [37] In the W.R.B. case, the offender plead guilty to acts of fondling, digital penetration and intercourse, which took place on anumber of occasions over a 12 to 18 month period. He was sentenced to four years in jail. [38] In the case R. v. R.W.N., [2004] O.J.

No. 282 (Ont CA) (leave to appeal refused, [2004] SC.CA. No. 297) which involved asexual offence against a 17 year old girl by an older man, the victim lived with the man and his family at a time when she had nowhereelse to live. At paragraph 54: The appellant undoubtedly committed a serious offence. He occupied a position of trust towards a vulnerable victim. His sexual abuseamounted to a breach of that trust. His sexual assaults included two incidents of sexual intercourse. A significant penitentiary term waswarranted. [39] On appeal, the eight year sentence was reduced to five.

In that case, the Ontario Court of Appeal stated at paragraph 55: In R. v. B.(J.) (1990), 36 O.A.C. 307 this court confirmed that in cases of sexual abuse of a young person, where the abuse includessexual intercourse and a convicted person occupies a position of trust toward the victim, the usual range of sentence is three to fiveyears. Aggravating or mitigating factors may put the sentence at the higher or lower end of that range. [40] In R. v. W.E.B., [2012] M.J.

No. 103, the Manitoba Court of Appeal upheld a three and a half year sentence for sexualinterference by a custodial father for chronic sexual interference with his daughters. [41] In R. v. J.L.C., a 2012 decision from the Supreme Court of B.C., [2012] B.C.J. No. 852, the offender received a 36-monthsentence for sexually fondling his two step-children. The offender was an aboriginal person who had been sexually abused as a child. He had a lengthy unrelated criminal record with one charge of sexually assaulting a 13-year old girl.

That charge was claimed to be froma consensual relationship, but arose because of the victim’s age. [42] In R. v. L.W.H., a 2011 decision of the Alberta Court of Queen’s Bench, [2011] A.J. No. 39, the 53 year old offender was foundto have committed

an act of oral sex on his seven year old step-granddaughter. The court in that case described the events as a majorsexual assault and said that the “starting point sentence of 4 years applies” (paragraph 16). [43] The court in paragraph 30 emphasized that the offence was brief and isolated, not premeditated and ended quickly without theintervention of others. Justice Ross also noted that there was no evidence of specific harm to the complainant and jailed L.W.H. forthree years. [44] In R. v.

K.G.R. the Alberta Court of Appeal sentenced a 63 year old spiritual healer to four and a half years in jail for, under theguise of “treatment”, having sex with a 16 year old girl and sexual contact with her 13 year old sister. He had no previous criminalrecord [2009] AJ No. 1264. [45] From the Saskatchewan Court of Queen’s Bench in R. v. M.J., 2012 SKQB 168 , [2012] S.J. No. 275, a 27 year olduncle sexually interfered with his 13 year old niece on two occasions. On one occasion, the abuse was in the form of fondling and on theother, he forced intercourse.

He had what was described as a minor record which included convictions for assault and an indecent act. He received a four-year jail sentence.

[46] All of the above cases largely fit within the three to five year guideline for sexual abuse of a child by a person in a position oftrust. There are other cases from courts throughout Canada which have fallen above and below that guideline, more typically below; thefollowing cases are representative samples. [47] In R. v. E.P. from the Newfoundland Court of Appeal, [1994], N.J. No. 93, the offender received a two-year jail sentence for ahistoric indecent assault against his nine year old niece who had been forced to “sleep-over” with him for a week due to a winter storm.

During that week, the uncle had repeatedly tried to have intercourse with his niece. [48] In R. v. J.C. from the Ontario Court of Justice, [2006] O.J. No. 959, a step-father received a 15-month jail sentence for acts offondling, oral sex and attempted intercourse repeated over a period of 15 months. [49] In 2004, the Ontario Court of Appeal in R. v. G.C.F. sentenced the offender to two years in jail. G.C.F., who was 31 years old,was a family friend of two, 13 year old girls. He lured the girls into his apartment with alcohol. He fondled both girls and hadintercourse with one of them. [50] In R. v.

C.P.S., also from the Court of Appeal of Alberta, a step-father received a 27-month jail sentence for two separateoccasions of touching the genital area of his eight or nine year old step-daughter. [51] Finally, the Nova Scotia Court of Appeal decision in R. v. T.E.H., 2011 NSCA 117 , [2011] N.S.J. No. 677, whichfound that the 51 year old offender who was a family friend of the victim was in a position of trust. On two occasions the offender tookthe 15 year old victim and his sister to a secluded swimming area. On the first occasion, the offender touched the victim’s buttocks andpenis.

On the second trip, the victim testified that he and the offender engaged in reciprocal oral sex at the offender’s request. Theoffender had no criminal record. The court ordered the offender jailed for 16 months. [52] Clearly there is a significant range of sentencing in the above noted cases.

Obviously, there is wide latitude in sentencing, to alarge extent reflecting the differing circumstances of the offenders, the victims, the nature of the trust relationship from case law and thecircumstances of the offence. [53] In terms of understanding the two groupings of cases noted above, on the one hand there are cases which fit within the three tofive year guideline and on the other, cases that fall well below that guideline range.

It is arguable that in each of the cases falling below,the nature of the trust relationship is not as significant as the trust relationship between a foster parent and foster child. A foster child incare is already in a vulnerable position. That child has not chosen to live with their particular caregiver; arguably they have no choice butto live with that person. In most cases they are living in care after having been removed from their birth family. This is undoubtedly oneof the most disruptive and traumatic circumstances that could possibly befall a child.

To then find themselves in a situation of dangerand/or sexual abuse is to be considerably adding to the anguished circumstances they already find themselves in. This situation in myopinion is somewhat different than a niece or a neighbour being abused by someone who has been allowed into their lives. In R. v. E.P.,the relationship is that of an uncle to a niece. In R. v. J.C., a step-father to a step-daughter. In R. v. G.C.F., the offender was a familyfriend. In R. v. T.E.H., again the offender was a family friend.

In my opinion, the nature of those relationships is not as significant asthe relationship between H.L. and S.M. ANALYSIS: [54] The offence for which H.L. accounts today is a serious one. He has taken advantage of his position of authority and trust toabuse S.M., a foster child who lived for a number of years in his home. [55] As a result of this crime, she lived for approximately two years under apprehension and fear of a repeat of the sexual violationshe suffered from H.L. when she was 13 years old. [56] H.L. has a criminal record which includes five previous crimes against a person.

His record is dated with no entries for manyyears. [57] H.L. is employed and has been an active member of his community. [58] The damage done to S.M. is clear from the Victim Impact Statement filed and can be inferred from the nature of the crime. [59] It is clear from the Criminal Code, from case law and from the agreements of counsel, that denunciation and deterrence areparamount sentencing considerations. [60] In coming to a fit sentence for H.L., I have also considered the earlier quoted references in the Criminal Code to proportionalityand the need for the punishment to reflect the gravity of the crime and the offender’s responsibility. [61] I have also to consider that Canadian law states that crimes against persons under 18 years are considered particularlyegregious.

Similarly I have to note that abuse of a position of trust is by law to be considered an aggravating factor. [62] I have to remember that a fit sentence should, if possible, look to H.L.’s rehabilitation and should consider

section 718.2(3) as toall sanctions available other than imprisonment, particularly with regard to H.L.’s circumstances as an aboriginal offender. [63] Finally, and in addition to all the other relevant sentencing considerations, I must take note that the Criminal Code and case lawfrom the highest courts in Canada have said that for a crime of this nature, denunciation and deterrence must be the principal sentencingconsiderations. [64] For all of the above reasons, I feel that an appropriate sentence in this matter would be somewhere in the middle of the three tofive year range.

However, while mindful of the significant breach of trust in this matter and the need to denounce this crime and providedeterrence to others, I also must be mindful of several mitigating factors. H.L. is a first offender in regards to this kind of crime. He has

largely been a productive member of his community. H.L. initiated contact with the police and plead guilty without requiring the victim to testify. [ 65 ] I must also take into consideration that in many of the cases cited which find themselves higher in the range of sentencing; those were ongoing situations wherein the abuse took place on many occasions over a length of time. In this case, H.L. is accounting for two incidents. [ 66 ] Accordingly, I believe that after noting the above factors, I am satisfied that an appropriate sentence for H.L. should be at the lower end of the range for crimes of this nature.

H.L. is sentenced to a period of three and one-half years of incarceration. [ 67 ] Additionally, there will be:

a) an Order to comply with the Sex Offender Information Registration Act (SOIRA) S.C. 2004, C.10 for a period of 20 years;

b) a DNA Order pursuant to

section 487.051 of the Criminal Code ;

c) a weapons prohibition Order pursuant to

section 109 (

i) of the Criminal Code for ten years;

d) an Order pursuant to

section 743.21(1) of the Criminal Code prohibiting contact from H.L. to S.M. while he is in custody;

e) an Order pursuant to

section 161 of the Criminal Code prohibiting H.L., for life, as follows:

i) from attending a public park or public swimming area where persons under the age of 16 years are present and can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; ii) 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 towards persons under the age of 16 years. Original signed by Judge L. Allen P.J.