Her Majesty the Queen - v. -, 2018 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 071 Date: November 28, 2018 Information: 90133690, 90179518, 90179520, 991043667, Ticket No. 8088533 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - JSM Appearing: Ms. M. Lambert-Wignes For the Crown Ms. M. Ward For the Accused SENTENCING DECISION D.C. SCOTT , J Introduction [ 1 ] JSM has pleaded guilty to the following charges: 1. Assault against his spouse KG on July 17, 2017 contrary to s. 266 of the Criminal Code ;

2. With the consent of the Crown, pursuant to s. 606(4) of the Criminal Code , to the lesser included offence of assault against his child KM on May 31, 2018 contrary to s. 266 of the Criminal Code , maintaining a not guilty plea to assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code ; 3. One count of breach of undertaking on June 7, 2018 contrary to s. 145(3) of the Criminal Code ; 4. Drive while suspended and non-compliance with a defensive driving course on June 29, 2015, contrary to s. 140(1) of The Traffic Safety Act ; 5. Fail to appear in court on December 13, 2017 contrary to s. 24(2)(

b) of The

Summary Offences Procedure Amendment Act . [ 2 ] On August 8, 2017, JSM pleaded guilty to the assault against his spouse KG and entered the domestic violence program associated with the Domestic Violence Court. He subsequently committed the further offences to which he has pleaded guilty, and as such, his participation in the program was terminated. [ 3 ] On November 6, 2018, I sentenced JSM on all counts. These are my written reasons. Circumstances of the Offences Assault against KG [ 4 ] The alleged facts regarding this offence are sparse.

On July 17, 2017, JSM and his spouse KG were arguing with regard to their baby. He became angry and struck the complainant. Assault against KM [ 5 ] On May 31, 2018, JSM was caring for their then six-month old daughter KM, when he punched her in the face, causing her nose to bleed and some bruising. Photos taken the same day illustrate red bruises under the child’s eyes and a bleeding nose.

While the child sustained some bruising there was no long-term physical impact. [ 6 ] In a subsequent text message conversation between himself and KG he stated the baby was the outlet for his temper and anger. [ 7 ] JSM explained to the Court that he was caring for their young son NM and infant daughter KM. They had gone upstairs to give the infant her bottle. He became impatient with her crying and having to deal with both children. He struck the infant in frustration one time. He recognized that was not the appropriate way to deal with the situation and regretted his actions.

His text message responses to KG were sent out of anger. Breach of Undertaking [ 8 ] JSM was bound by an undertaking with a condition that he not be at the family residence. He was found there on June 7, 2018 and arrested.

Traffic Safety Act [ 9 ] JSM admitted to driving while he was suspended from doing so on June 29, 2015. Failure to Appear [ 10 ] On December 13, 2017, JSM failed to attend court in relation to his Traffic Safety Act matter. Crown Position [ 11 ] The Crown submits that because of a number of aggravating factors including the assault on a domestic partner, the assault on an infant, and the breach of the trust relationship between parent and child, a period of incarceration is warranted. [ 12 ] With regard to the assault on the child KM the Crown is seeking six-months incarceration followed by 18 months probation.

With regard to the assault on KG, the Crown asks that I impose an 18-month period of probation. Defence Position [ 13 ] The defence submits that a conditional sentence is available and appropriate in these circumstances. The defence asks that I impose as a global sentence an 8 to 12 month conditional sentence order followed by 18 months probation on the assaults. JSM ’s Personal Circumstances [ 14 ] JSM is 33 years of age and a member of Waterhen Lake First Nation.

He has been employed on a full-time basis as a labourer with Tron Construction and Mining for 10 years. [ 15 ] He and his spouse have three children together and are raising KG’s son from a previous relationship in the family home on Whitecap Dakota First Nation. Since the charges were laid, he has had no contact with his family but continues to support them financially. [ 16 ] JSM’s grandparents and parents attended residential schools, where they were victims of physical abuse. JSM grew up on a remote Reserve in a home where violence was prevalent.

His father struggled with substance abuse, but at some point worked toward recovery. [ 17 ] JSM and his mother were the targets of his father's violent and abusive behavior. When his mother would remove herself from the situation, JSM became responsible even at a young age for the financial support of his younger siblings. JSM, with few resources, has struggled to deal with his childhood trauma. [ 18 ] JSM has accessed a number of resources to address his underlying anger. He attended the “Living without Violence” program through Probation Services. He has been seeing a mental health therapist.

He is currently registered in the “When Anger Gets in the Way of Parenting” course through Family Services beginning in 2019. He is interested in following through with and completing domestic violence treatment post-sentence.

[ 19 ] A number of letters supporting JSM were filed with the Court. The human resources coordinator for his employer refers to him as honest, trustworthy and willing to go above and beyond what is expected of him. He is respectful and gets along well with co- workers. He has been assigned additional responsibilities and assumed a leadership role at work. His employer refers to JSM as a family man for whom his wife and children are a priority. They are described as a strong unit. [ 20 ] A letter from a co-worker indicates that JSM has helped him out with personal and financial matters from time to time.

He is described as a hard worker, devoted friend and outstanding gentleman. His colleague also refers to JSM as an all-around outstanding person who works hard and cares for his friends and family. [ 21 ] A letter from Anthony Roulette, a First Nations Approved Mental Health Therapist with a Masters degree in Social Work, states he has had several counselling sessions with JSM since June 2018. He describes JSM as intelligent, capable, dedicated and personable.

He reports JSM is willing to discuss difficult issues and demonstrates great maturity and thoughtfulness in accepting the work he needs to do to correct the mistakes he has made with his family. [ 22 ] In a follow-up letter, Mr. Roulette confirms that he continues to provide ongoing counselling to JSM, who is currently half- way through a 16-session module in narrative therapy that appears to address family dynamics. In addition, JSM is working on his Cree and Saulteaux cultural identity. Mr. Roulette verifies JSM’s expressions of remorse. Mr.

Roulette states JSM has demonstrated improvement and he is confident that JSM is beginning to develop new attitudes toward violence. [ 23 ] The progress reports filed while JSM was enrolled in the domestic violence treatment program were positive. He attended the sessions regularly, having completed 18 of the 22 sessions. The reports refer to him as a role model for other participants.

He told the report writer that he wanted more intense programming and was open to individual counselling in addition to group sessions. [ 24 ] The complainant KG provided two letters to the Court, dated July 23, 2018 and October 22, 2018, in which she states she was writing on behalf of herself and her children. According to KG, she and JSM have created a drug and alcohol free life for themselves and their children. Their son is involved in hockey and their daughter in dance. According to KG, JSM spends "countless hours" with their son playing soccer, basketball and road hockey.

They share the responsibility of taking their children to lessons. It is apparent they both derive a great deal of joy from family life and are very proud of their children. [ 25 ] KG states JSM is a good provider for their family. She is planning to return to the University of Saskatchewan to work toward her Bachelor of Commerce degree, but requires JSM's help in that regard.

KG has been involved in the Women's Alternative to Violence group through Mental Health and is gaining insight into their relationship dynamics and the roots of the violence from their respective childhood traumas. [ 26 ] It is KG who informed the Court that when JSM was young, he had to provide for his younger siblings and nephews, while residing on his home Reserve. [ 27 ] According to KG, JSM's absence from their lives has posed considerable hardship. However, both KG and JSM have benefited from programming they have received.

No doubt, the disruption caused by JSM's offending behavior has had a dramatic impact on the entire family. [ 28 ] JSM provided a letter to the Court in which he expresses deep remorse for hurting his spouse and family. He describes himself as a leader, a motivator, a problem-solver and a learner. He states that the memories of his father’s violence toward him and his mother still troubles him. In addressing the Court directly, he again expressed his remorse. Criminal Record [ 29 ] JSM’s criminal record is limited, dated and unrelated to the offences for which he is being sentenced.

He has one conviction from 2007 of driving while over .08.

Risk Assessment [30] A risk assessment, completed when JSM was accepted into domestic violence treatment in September 2017, indicated that hewas a low risk for re-offending generally but a high risk to re-offend in relation to domestic violence. His risk factors were determined tobe family and marital relationships, with a need to focus on anger and conflict resolution. Pre-Sentence Custody [31] JSM spent five actual days in pre-sentence custody following the offences in June 2018.

Sentencing Cases [32] The Crown and defence filed the following cases in support of their positions, for which I thank them. [33] In R v RGB, 2017 ABCA 359 [RGB], the Alberta Court of Appeal upheld a global sentence of two years less one day followedby two years probation after the offender pleaded guilty to one count of assault causing bodily harm against his one-year old daughterand one count of breach of recognizance. The sentence was reduced only to take into account credit for pre-sentence custody. Theinjuries included bruises and contusions to the back of the child's neck, caused by repeated strikes.

The Court of Appeal found thesentence imposed was demonstrably fit. [34] In R v Bowden, 2015 NSPC 13 [Bowden], where the offender pleaded guilty to assault causing bodily harm for life-threatening head injuries to his six-week old son, the Court found a conditional sentence was not appropriate and imposed an 8-monthperiod of incarceration followed by two years probation.

Denunciation and deterrence were the primary considerations taken intoaccount by the Court, but rehabilitation was also addressed through the probation order. [35] In R v JB, 2016 ONCJ 312 [JB], the Court granted a six-month conditional sentence followed by probation where the offenderpleaded guilty to assault causing bodily harm after fracturing his three-year-old son's arm.

The Court was not concerned about specificdeterrence in that case, but rather with general deterrence and denunciation. [36] In R v Berg, 2017 SKPC 11 , 2017 SKPC 011 [Berg], a younger offender with mental health problems was granted athree-month conditional sentence followed by probation for one year after being found guilty for assault causing bodily harm to hisinfant daughter by striking her with a video game controller unit, which resulted in severe bruising.

The Court surveyed a number ofsimilar cases where conditional sentences were imposed. [37] In R v TDT, 2017 ABPC 119 [TDT], where the offender slapped his nine-year-old step-daughter's face with an open hand withsufficient force to chip or break her front tooth, the Court imposed a 12-month conditional sentence. The offender had no criminalrecord, had experienced childhood trauma, was involved in the community and had taken counselling in relation to the offence.

Aggravating and Mitigating Factors The following are aggravating circumstances in this case: - JSM’s victims were his spouse and his child who was under the age of eighteen years: s. 718.2(a)(ii) and s. 718.2(a)(ii.1)

Criminal Code . - The circumstances of the offences are aggravating, particularly the punching of his vulnerable, infant daughter’s face. - As the child’s father, the assault was a breach of the parent-child trust relationship: s. 718.2 (a)(iii) Criminal Code . - JSM committed offences while bound by conditions of an undertaking. [ 38 ] The following are mitigating factors in this case: - JSM accepted responsibility by pleading guilty. - He has expressed his deep remorse, shame and guilt for his offending behavior and its impact on his family. - He was regularly attending domestic violence treatment in relation to the spousal assault at the time of the subsequent offences. - Following the offence against his child, he was removed from domestic violence treatment but began seeing a therapist and has planned continued treatment on his own initiative. - His letter to the Court indicates he has gained insights into his offending behavior and he is determined to take the necessary steps to address its underlying causes. - He is gainfully employed and a productive and contributing member of the community. - He has support from his employer and friends. - He provides financially for his family. - He is ordinarily a supportive and involved parent. - He has maintained sobriety for six years.

Discussion [ 39 ] The purpose, principles and objectives of sentencing are set out in s. 718 of the Criminal Code . The fundamental principle of sentencing is that of proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 40 ] The purpose of sentencing is to protect society and to contribute to respect for the law.

The objectives include: to denounce; to deter, to separate offenders, where necessary, from society; to assist in rehabilitation; to provide reparations to victims; and to promote a sense of responsibility and acknowledgment of the harm done.

[41] A sentence should be similar for offences committed by similar offenders in similar circumstances. [42] In sentencing for offences of violence, the primary objectives are denunciation, deterrence and protection of the public. Inparticular, according to s. 718.01 of the Criminal Code, the Court must give primary consideration to denunciation and deterrence whensentencing for an offence involving the abuse of a person under the age of 18 years. [43] Restraint should be exercised when considering imprisonment.

All available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders. [44] I must therefore give particular attention to the circumstances of JSM, as an Indigenous person, when arriving at anappropriate sentence. [45] I am guided by the following authorities: R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]; R v Ipeelee, 2012SCC 13, [2012] 1 SCR 433 [Ipeelee]; R v Chanalquay, 2015 SKCA 141 [Chanalquay]; R v Whitehead, 2016 SKCA 165, 344 CCC (3d)1[Whitehead]; R v Okimaw, 2016 ABCA 246, 340 CCC (3d) 225 [Okimaw]; R v Delorme, 2017 SKCA 3 [Delorme]. [46] First, I must consider the unique systemic and background factors that may have contributed to JSM’s offending behavior.

Second, I must consider sentencing alternatives, including those that are restorative, keeping in mind that the purpose of s. 718.2(

e) is toaddress the overrepresentation of Indigenous offenders in Canadian jails: Chanalquay paras 40 – 41; Ipeelee. [47] Although it is not necessary to establish a causal connection between the Gladue factors and the offending behavior, theoffender’s experiences “must cast a light” on his moral blameworthiness for the offence and any link between his background and theoffending behavior must be “comprehensible”: Delorme para 81; see also Okimaw. [48] Further, in addition to the Indigenous offender’s unique circumstances, the Court must take into account the linkages betweenthe systemic, intergenerational effects of residential schools and violence: Whitehead para 64. [49] The intergenerational impact of residential schools on JSM’s family is apparent.

His grandparents and parents attendedresidential schools, where they endured physical abuse. As an adult, his father engaged in substance abuse and was regularly violenttoward JSM’s mother and the children, primarily JSM. His father modelled the type of behavior in which JSM ultimately engaged. [50] JSM's early exposure to family violence provides a context within which to view his current offences. He has not completelydealt with his anger related to the turmoil in his childhood home and continues to be affected by those memories.

JSM’s experiencesprovide an explanation and assist the Court in understanding his violence and aggression toward his spouse and child. [51] In spite of those factors, JSM has demonstrated a good deal of resilience. He has been clean and sober for six years. He has avery limited criminal record. He is a responsible employee, a provider for his family and a contributing member of the community.

Byall reports, his family is a priority to him. [52] I am satisfied that systemic factors and JSM’s unique, personal circumstances had a bearing on his responsibility for theseoffences and diminish his moral blameworthiness in this case. [53] In light of JSM's background, I must consider appropriate sentencing alternatives. Is a period of incarceration warranted or canthe relevant sentencing objectives be actualized by a conditional sentence?

[ 54 ] I am mindful that I should not simply resort to a reflexive reduction of what might otherwise be a fit sentence. Rather, the analysis involves “the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate”: Chanalquay para 36 . [ 55 ] In this case, a conditional sentence is available. Neither a penitentiary term of imprisonment nor probation would be an appropriate sentence.

None of the offences is punishable by a mandatory minimum term of imprisonment. [ 56 ] I must consider whether allowing JSM to serve his sentence in the community would pose a danger to the public. He was considered a low risk to re-offend generally, but a high-risk with respect to domestic violence. This is a concern because of the potential serious harm to his spouse and children if he were to re-offend.

The details of the assault against his spouse are limited, but we know that he struck the victim one time out of anger and he punched his infant daughter once out of frustration and impatience. [ 57 ] To his credit, he has taken a number of positive steps to deal with his anger, as have been previously outlined. He has participated in programs specifically designed to address his risk factors, including domestic violence, managing anger and parenting. He plans to continue with that type of programming. He has been working with a therapist regularly and has demonstrated improvement.

He has stable, full-time employment. He has maintained a lengthy period of sobriety and lives a positive, family focused lifestyle. [ 58 ] Since June 2018, he has been bound by strict conditions, including that he stay in his house for 24 hours each day, except to travel to and from work or with prior permission of his bail supervisor.

He has complied with the terms of his recognizance to date, demonstrating his willingness and ability to abide by court-ordered conditions. [ 59 ] I am satisfied that if appropriate conditions are imposed, along the lines of those proposed, the safety of the public, including the victims, would not be endangered by allowing JSM to serve his sentence in the community. [ 60 ] I must also consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Criminal Code . [ 61 ] In R v Proulx , 2000 SCC 5 , 140 CCC (3d) 449, the Supreme Court of Canada recognized that a conditional sentence is as effective as incarceration in achieving the objectives of denunciation and deterrence and is preferable where there is an opportunity to achieve restorative objectives. [ 62 ] In this case, JSM’s post-offence conduct indicates he is willing to engage in and likely to benefit from rehabilitative measures. [ 63 ] Further, there is an opportunity to take a restorative approach to JSM’s sentence with a view to breaking the cycle of family violence.

A jail sentence will reflect the gravity of the offences. However, allowing JSM to serve that jail sentence in the community will reflect his diminished moral responsibility and will address restorative objectives. He will be able to continue treatment and counselling without disruption. He will be able to continue his employment in order to support his family so that they may maintain their standard and quality of living.

He will be able to deepen his appreciation for his Indigenous identity. [ 64 ] I am mindful of the cases relied upon by the Crown where assaults of a child resulted in sentences of incarceration. In RGB , the child sustained repeated strikes and in Bowden , the injuries were much more severe than in the present case.

In Berg , JB and TDT , conditional sentences were granted, even where the assaults were arguably more serious than here, but where the offenders suffered from childhood trauma or mental health issues. [ 65 ] None of the cases provided by counsel involved Indigenous offenders necessitating the consideration of Gladue factors. In any event, in Whitehead , the Court of Appeal cautioned against overemphasizing parity in sentencing Indigenous offenders and encouraged an "individualized proportionality analysis": para 33; see also R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 at para 54 .

[ 66 ] The offences for which JSM is being sentenced are serious. In particular, striking out against a vulnerable infant as he did is extremely troubling. However, taking into account the circumstances of the offences, JSM’s unique background, relevant systemic considerations, the principles of sentencing and the aggravating and mitigating factors, I am satisfied that a conditional sentence would be appropriate. It would serve to denounce, to deter, and to rehabilitate with a view to achieving restorative objectives. It would promote in JSM a sense of responsibility and an acknowledgement of the harm done.

At the same time, it would reflect the gravity of the offences as well as JSM’s moral culpability. Conclusion [ 67 ] In this case, for the reasons given, I am satisfied that a sentence of actual incarceration is not warranted. [ 68 ] A conditional sentence order followed by probation is appropriate in all of the circumstances. However, it is my view that the sentence proposed by defence counsel would be disproportionate.

JSM has been bound by house arrest since his release in June 2018 without incident and he has been participating in extensive programming for a considerable time. [ 69 ] I find that a fit global sentence on the assault against KG, the assault against KM and the breach of Undertaking, is a six- month conditional sentence order followed by probation for a period of 12 months, on the following conditions: [ 70 ] Conditions of the Conditional Sentence Order: 1. Keep the peace and be of good behavior; 2. Appear before the court when required to do so by the court; 3.

Report to a supervisor today, at the Probation Services office in this building, and thereafter as required by your supervisor; 4. Remain within the jurisdiction of the court unless written permission to leave the jurisdiction is obtained from the court or your supervisor; 5. Notify the court or your supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation; 6. Reside at 2824 Central Place, Saskatoon and not change your address without prior permission of your supervisor; 7.

Abide by a curfew of 11 p.m. to 7 a.m. each day, except for employment purposes; 8. Present yourself to the door of your residence to your supervisor or a peace officer checking your curfew; 9. Have no contact directly or indirectly with your spouse KG, and your children KM, BM, SM and NM except with prior written permission of your supervisor;

10. Not be at 705 Buffalo Berry Place, Whitecap Dakota First Nation or at the residence, workplace or place of education of your spouse KG, and your children KM, BM, SM, and NM, except with prior written permission of your supervisor; 11. Participate in domestic violence treatment programming, personal counselling and anger management as recommended by your supervisor; 12. Perform 30 hours of community service work prior to the expiry of the Conditional Sentence Order. [ 71 ] Conditions of the Probation Order: 1. Keep the peace and be of good behavior; 2.

Appear before the court when required to do so by the court; 3. Notify the court or your probation officer of any change of name or address and promptly notify the court or your probation officer of any change of employment or occupation; 4. Report to your probation officer within two working days of the expiry of the conditional sentence order; 5. Reside at a residence approved by your probation officer; 6. Have no contact directly or indirectly with your spouse KG, and your children KM, BM, SM, NM, except with prior written permission of your probation officer; 7.

Not be at 705 Buffalo Berry Place, Whitecap Dakota First Nation or at the residence, workplace or place of education of your spouse, KG, and your children KM, BM, SM, and NM, except with prior written permission of your probation officer; 8. Participate in domestic violence treatment programming, personal counselling and anger management as recommended by your probation officer; [ 72 ] On The Traffic Safety Act ticket, I impose a fine of $500.00.

On the failure to appear, Information ending 667, I impose a fine of $100.00. [ 73 ] The provisions of ss. 742.4 and 742.6 of the Criminal Code have been explained to JSM. _____________________ D.C. Scott, J