Her Majesty the Queen - v. -, 2012 SKPC 167

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 167 Date: November 5, 2012 Information: 24394733 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.R. Appearing: Erin Schroh For the Crown Michael Weger For the Accused Note: Pursuant to s. 486(3) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. JUDGMENT K.

BAZIN , J [ 1 ] The issue in this matter is what is an appropriate and fit sentence for the offence, which involves a sexual assault by a father upon his 14 year old daughter. J.R. is charged with committing a sexual assault on a person under the age of 16 years contrary to s. 271 of the Criminal Code . This involves a consideration as to whether or not a conditional sentence order, being a jail term served in the

community, is appropriate. FACTS [2] The victim was 14 years old at the time of the assaults. The offence takes place in the family home, where J.R. touches andmassages the victim’s vagina. This occurs a number of times over a few days, and at one point J.R. uses a vibrator on the victim. Theassaults lasted a few hours each time. None of the assaults involved digital penetration. The victim indicates nothing has ever happenedsince these assaults. [3] The victim discloses the assaults approximately two years later to a school counsellor.

J.R. has stated that his actionstowards his daughter were to relieve her of ongoing chronic headaches. The victim in her impact statement indicates that as a result ofthe touching, she felt like crap, was very hurt emotionally and became distant with friends and family. She felt it was her fault. She feltdirty and was afraid to go to school that fall. She does not want to be with older men out of pure fear of a similar incident happening. She feels responsible that they have no dad at home now as a result of her reporting the incident.

POSITION OF THE PARTIES [4] The Crown seeks a period of imprisonment for 18 months, which is the maximum as the Crown proceeded summarily,followed by a period of two years probation with appropriate conditions. The defence position is that a term of jail is generally orderedfor similar offences, but they argue the jail term could be served in the community by way of a conditional sentence order. The Crownhas submitted and relies on the following cases for consideration, both as to an appropriate length of a jail term, as well as theappropriateness of a conditional sentence: R. v.

Lindsay, 2008 CarswellSask 210, 2008 SKCA 44 R. v. T.(S.G.), 2011 CarswellSask 11, 2011 SKCA 4, [2011] 5 W.W.R. 10, 265 C.C.C. (3d) 550, 366 Sask. R. 90, 506 W.A.C. 90 R. v. S.M., 2003 CarswellSask 225, 2003 SKCA 33, 232 Sask. R. 28, 12 C.R. (6th) 80, [2003] 11 W.W.R. 27, 294 W.A.C. 28, 173 C.C.C.(3d) 526 R. v. G.(H.), 2003 CarswellSask 625, 2003 SKCA 88, 238 Sask. R. 147, 305 W.A.C. 147 (Sask. C.A.) R. v. C.M.G.C., 2003 SKCA 83 R. v. Laliberte, 2000 CarswellSask 132, 2000 SKCA 27, 31 C.R. (5th) 1, [2000] 4 W.W.R. 491, 143 C.C.C. (3d) 503, 189 Sask. R. 190,216 W.A.C. 190, [2000] S.J.

No. 138 [5] The defence has submitted the case of R. v. Morgan, 1986 SKCA 213. [6] In addition, I looked at R. v. Glasser, 2011 SKPC 50, 369 Sask. R. 312, a decision of Judge Kalmakoff, out of Estevan, as itis a recent decision out of this jurisdiction and canvasses the area. As well, I considered R. v. J.(D.J.), (SK CA), 172Sask. R. 182, 1998 CarswellSask 830, 185 W.A.C. 182, [1998] S.J. No. 881 (Sask. C.A. Dec. 29, 1998), a decision discussed in R. v.S.M., supra, as it discusses conditional sentences in a child sexual offence setting.

ANALYSIS Is Jail Required? [7] The cases submitted establish the Court of Appeal’s direction that in relation to sexual offences against children, following

the fundamental principles of sentencing in s. 718 of the Criminal Code , denunciation and deterrence are paramount in considering a fit sentence. This is codified in s. 718.01 of the Criminal Code involving abuse of children under the age of 18. [ 8 ] As set out in R. v. J.(D.J.) , paragraph 24 , a sexual offence attracts a custodial sentence. This has been constant since 1998 as is seen in the cases submitted by the Crown.

It is of note that G.(H.) , C.M.G.C. and S.M. are all cases where the Court of Appeal overturned lower Court decisions where a conditional sentence was imposed. [ 9 ] The 1998 Saskatchewan Court of Appeal decision in R. v. J.(D.J.) , refers that in 1998, the Court of Appeal had not imposed a conditional sentence for sexual assault, but states that a conditional sentence is available in certain circumstances. [ 10 ] It is not disputed by the parties, and from a review of the case law, the facts of this matter, and the sentencing principles, it is my determination that a period of jail is required.

This leaves the question as to whether the sentence can be carried out in the community and what would be the appropriate jail term. Length of Jail Term [ 11 ] The following is a review of the authorities submitted by the Crown to support their position as to an 18 month jail term: R. v. C.M.G.C., supra - A 12 year old stepdaughter, sexually assaulted by her stepfather. Involves rubbing of the victim’s vagina with hand, licking her vagina. When the victim leaves, the offender goes to her bedroom and asks if he could put his penis in her vagina, but she says no. He continues to ask but she refused.

He makes her take her clothes off, makes her dress up in tight clothes, then touches her and kisses her all over while taking off her clothes. He rubs his penis on her vagina and ejaculates. He gets a frozen wiener and makes her put it in her vagina which she does a bit. The offender tells the victim not to tell anyone, and the accused generally blames drugs and the victim. Sentenced by the Court of Appeal, one year jail, taking into consideration five months on electronic monitoring and 10.5 months under conditions on interim release. R. v. S.M., supra - A seven to nine year old adopted daughter.

Offence occurs over two years. Crown proceeded by indictment. Generally the offence consisted of the accused having the victim hold his penis and ejaculating. This occurred four to seven times. The offender eventually touches the victim’s vagina and digital penetration occurs. The child is sent away from her home to live with an uncle as a result. The child kept the assault secret for five to six years. The Court of Appeal sentenced the offender to nine months jail, taking into consideration the accused had served approximately 4.5 months under the conditional sentence. R. v.

G.(H.), supra - The offender was an elder, medicine man and as well a great-uncle to the victim. He sexually assaulted the 12 to 13 year old victim, under the cover of performing a smudging ceremony. The accused did not accept responsibility and the victim and her family were ostracized from the extended community. The offender had touched the victim’s vagina and had penetrated her vagina with his finger. This was one occurrence. The Court of Appeal sentence was one year taking into consideration the offender had served one year of his conditional sentence order, which was an 18 month conditional sentence order.

R. v. Lindsay , supra - The nine year old victim was a niece to the offender. The offence involved a breach of a non-contact order with children as well as sexual touching of a child. The offender had called the child over and put his hand down her pants and fondled her vagina. The Court of Appeal states total sentence was 16 months, but was given credit for remand. The Crown in this matter had indicated that the total was 24 months with 20 months on remand. I was not able to rationalize this with the Court of Appeal decision, but it may have been 18 months and eight months in remand.

The accused received 12 months consecutive for the breach, so this would be four months for the sexual assault plus whatever he had on remand. As to the R. v. Lindsay case, I interpret it as being that the sexual assault penalty would be in the 12 month range as we know there was 12 months consecutive for the breach. R. v. T.(S.G.), supra - Being a 2011 Saskatchewan Court of Appeal case, the case comments on R. v. S.M. and R. v. G.(H.). The matter involves fondling of a 13 year old adopted daughter in a sexually inappropriate manner. Three separate assaults occurred.

Once in the shower where the accused put his hand between the victim’s legs. The accused had the victim shower together on numerous occasions prior and this appears to be what he did. This made the victim uncomfortable; the offender told the victim it was okay to shower with him as he was her dad. Two other incidents of the offender touching the victim’s vagina as she slept and she then woke up. There was a trial on the matter which was upheld on appeal for 18 months jail.

The Court comments that the matter involved requiring the victim to testify at the trial and the Court comments that this was very similar to R. v. G.(H.) where the victim had to go through a trial and preliminary inquiry.

[ 12 ] In considering an appropriate sentence, the factors to be considered are under s. 718 of the Criminal Code and are outlined in paragraphs 11 to 15 of R. v. Glasser , being consideration of: The fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718 sets out the purposes of sentencing which include denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, reparations for harm to the victim and community, and the promotion of a sense of responsibility in offenders as well as acknowledgement of harm done.

The relative emphasis placed on each of these objectives will vary according to the circumstances of the offence and the offender. [ 13 ] The circumstances of the present offence have been previously outlined. [ 14 ] The circumstances of the offender are that he is 39 years of age, married, with five children, including the victim who is the oldest of the siblings. The pre-sentence report outlines the accused’s background and that he has a good record of employment and continues to be employed, and continues to support his family.

The report outlines that J.R. is a medium risk for general re-offending, but as indicated by the defence one factor was his mobility, and that this was caused by his non-contact order, so the fact that he has moved is not a relevant factor. [ 15 ] J.R. is rated low to re-offend sexually, having scored zero, which puts him at 2.8 percent chance of re-offending in five years. The report does express concern that although J.R. has accepted responsibility, and pled guilty, he tends to display minimizing and justifying behaviour to the offence, and lacks insight into the offence.

He stated that he was trying to help his daughter, referring to relief for her headaches.

Mitigating Factors [ 16 ] J.R. has no criminal record. [ 17 ] J.R. had repeatedly apologized to his daughter, over approximately two years before being charged. [ 18 ] The victim has confirmed in the victim impact statement that J.R. has sincerely apologized numerous times and that she had forgiven him. [ 19 ] J.R. has been attending community counselling on his own through his church, after the charges. [ 20 ] There has been no repeat offences, or any offences. [ 21 ] The Crown and defence differ on whether there is real family support for J.R., as it is clear that there is a significant financial strain on the family, due to J.R. having a no contact order and living elsewhere.

The Crown states, when referring to the victim impact statement of the mother, which was not put forward, but commented on by the Crown, as well as the pre-sentence report, that it is clear that the mother is focusing on the financial position of the family, particularly if J.R. is required to go to jail. [ 22 ] There is also pressure on the victim, as she is viewed as the cause of the family’s financial and social problems. She is viewed as the person responsible for the father being away from the family. [ 23 ] There was an early guilty plea.

[ 24 ] There was no overt evidence of sexual pleasure by J.R., in that he remained clothed and there was no ejaculation or self- masturbation indicated. [ 25 ] While totally inappropriate, and an unjustifiable assault on his daughter, J.R. states that at the time of the offence, he held a belief that it would help his daughter with her migraine headaches. [ 26 ] The accused has recognized he has caused serious pain to his daughter after reading her victim impact statement.

The defence puts forward that J.R. is truly remorseful for his actions. [ 27 ] The accused has been under a no contact order in relation to the victim, as well as a supervised contact order relating to his other four children for seven months and there have been no breaches of the order.

Aggravating Factors [ 28 ] The victim is the daughter of the accused and he was in a position of trust. [ 29 ] The victim was under 18 years of age as per s. 718.01 of the Criminal Code , being 14 years old at the time of the assaults. [ 30 ] Although the assaults occurred over a few days and not repeated since, it involved a degree of planning, as it was done when the mother and siblings were away and known to be away for a number of days. The assault occurred for a few hours each time in context of normalizing the behaviour. It occurred in the family home.

The victim was told to keep the assault a secret. [ 31 ] There is a question as to the family support, in light of the mother’s primary concern as to the financial position of the family. There is also pressure on the victim as well as to being the cause of J.R. being out of the home. CONCLUSION [ 32 ] Applying the sentencing principles as outlined, considering the case law as presented, the mitigating and aggravating factors, and all facts related to this matter, I have determined an appropriate sentence is a jail term of 14 months, followed by two years of probation.

IS A CONDITIONAL SENTENCE APPROPRIATE? [ 33 ] Having determined that a jail term is required, the question is as put forward by the defence, whether the jail term can be served in the community. [ 34 ] The criteria is set out in s. 742 of the Criminal Code for a conditional sentence with the main factors being (

a) the service of the sentence would not endanger the community and, (

b) the sentence served in the community would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 . [ 35 ] The Saskatchewan Court of Appeal has stated that conditional sentence orders are available in sexual assaults, and the guidelines for conditional sentences have been canvassed by the Saskatchewan Court of Appeal in R. v. Laliberte , supra .

[ 36 ] I find in this matter based on the evidence and the pre-sentence report, particularly the accused’s low risk to re-offend sexually, and the fact that no subsequent assaults have occurred to anyone, a community sentence would not endanger the safety of the community. [ 37 ] Case law has held that although a conditional sentence order is available in matters of sexual assault, and in particular child sexual assault, it will be rare due to denunciation and deterrence being paramount factors. The case put forward by the defence, R. v.

Morgan , supra , does not have reasons, and as such it is of limited assistance. [ 38 ] The case of R. v. J.(D.J.) , of the Saskatchewan Court of Appeal orders a conditional sentence order, overturning a jail term, and the basis was new evidence that there was a very low chance of harm to the public.

The main factor for a conditional sentence was due to the accused’s reduced mental capacity. [ 39 ] Where the offender is not under a mental disability, or lacking intellectual capacity, the Court of Appeal on facts similar to the fact situation that the Court is faced with in this case, has indicated a conditional sentence order does not satisfy the sentencing principles, in particular the paramount considerations of denunciation and deterrence. [ 40 ] As such, a conditional sentence order is not appropriate and J.R. will be sentenced as follows: (

a) incarceration for a period of 14 months; (

b) a period of probation for two years, on conditions as outlined in the pre-sentence report dated October 10, 2012, with amendments, as attached; (

c) section 271 being a primary designated offence pursuant to s. 487.04 (

a) Criminal Code there shall be an order for DNA samples pursuant to s. 487.051 Criminal Code in Form 5.03. K. Bazin, J PROBATION CONDITIONS: 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the Court whenever you are required to do so. 3. Notify the probation officer or Court in advance of any change of the offender’s name or address and promptly notify the probation officer or Court of any change of the offender’s employment or occupation. 4.

You shall report to the Supervisor/Chief Probation Officer immediately after release, and thereafter when required by the Supervisor/Chief Probation Officer and in the manner directed by the Supervisor/Chief Probation Officer, Estevan, SK - 1302 3 rd Street, Estevan, SK.

5. You shall notify the Court or the probation officer/Supervisor in advance of any change in your name or address, and shall promptly notify the Court or the Supervisor of any change of employment or occupation. 6. Not possess any pornographic imagery or pornographic material in any form or medium whatsoever. 7.

Not to own or possess a computer or any similar communication device except for a purpose necessary for registered academic studies or for the purposes of employment, or where said device’s primary function is not to access internet services or similar communication services, and in such circumstances as are approved beforehand in writing by the Court or Chief Probation Officer, or their designate. 8.

Not subscribe to or access by any means whatsoever any internet service or similar communication device except as may be required for registered academic studies or employment and then again only with the prior written permission of the Chief Probation Officer, or their designate, and to provide forthwith upon request to the Chief Probation Officer, or their designate, billing records for such services. 9.

Submit to a search of your person, residence or any vehicles including any approved computer or communication device, without warrant, by any peace officer checking to ensure compliance with the terms of this order except on such limitations of not more than once per month or upon any reasonable suspicion of non-compliance with the order. 10. Have no contact directly or indirectly with any child under the age of 18 years unless in the presence of an adult who is fully aware of your sexual offending history and charges or as approved by the Ministry of Social Services.

This will not apply to casual contact with persons under the age of 18 years in public places such as malls or arenas where mixed children and adults are present. 11. Reside at a place approved in advance by the Chief Probation Officer or designate and not change that place of residence without advance written approval of the Chief Probation Officer or designate, or Court order.

You shall consent to the Chief Probation Officer or designate communicating with any person who resides at a proposed or approved residence for the purposes of the Chief Probation Officer or designate assessing the suitability of such residence. 12.

Not have employment or accept any offer of employment, or become involved in any volunteer organization or any other organization, without prior written approval from the Chief Probation Officer or designate, and to consent to the Chief Probation Officer or designate contacting any present or possible employer, or volunteer organization, or any other organization, for the purpose of obtaining information relating to the said employment or volunteer organization or other organization. 13.

You shall abide by the lawful instructions of the probation officer, or their designate, especially in regard to specific programming which may include:

i) Sex offender programming - you shall participate actively in counselling, assessments, education, and/or treatment in an approved program for sex offending, and you shall not give just cause for dismissal from such program. ii) Psychological/Psychiatric treatment - you shall enroll in and successfully complete any assessments and courses for treatment regarding personal, psychological and psychiatric counselling as is arranged and approved for you by the Supervisor. 14. Any approvals, or changes to this order may also be made by way of application to the Court.