Her Majesty the Queen - v. -, 2013 SKPC 083

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: June 18, 2013 Citation: 2013 SKPC 083 Information: 24347505 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.R. Appearing: Mitch Crumley For the Crown Robert Grimsrud For the Accused SENTENCING DECISION K.

BAZIN , J 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the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. [ 1 ] An oral decision was given May 27, 2013, indicating written reasons to follow and these are the written reasons.

[2] R.R. pled guilty to sexual assault, s. 271 of the Criminal Code, by which the Crown proceeded summarily. The victim was10 to 11 years old at the time of the offence. The facts of the assaults are set out later in this decision. This matter was argued forsentencing June 28, 2012. The delay has been to obtain funding for and arrange for a report for R.R. to determine his cognitive abilities. Arrangements had been made with Francis Stewart, Registered Psychologist in the latter part of 2012 for R.R. to attend in Moose Jawfor his assessment.

R.R. attended Moose Jaw for his appointment, however when he arrived in Moose Jaw he became lost and missedhis appointment and went home. Mr. Stewart then agreed to go directly to R.R.’s farm to interview him. [3] Mr. Stewart’s report was requested by the Court in light of the pre-sentence report as well as my observations of R.R. inCourt, although he did not testify in the sentencing submissions. Law [4] This case raises the issue of sentencing of offenders with reduced intellectual and mental capacity. The Saskatchewan Courtof Appeal in R. v. J.(D.J.) (1998), 172 Sask. R. 185 and R. v.

M.J.H., 2004 SCA 171, set out in paragraph 29 of R. v. M.J.H.: Intellectual or mental disability, depending on its nature and extent, clearly can limit an individual’s responsibility. It does not follow,however, that diminished responsibility arises as a matter of course every time there is a finding of intellectual impairment. Thatconclusion can be drawn only after due consideration of all of the relevant circumstances including the nature and extent of theimpairment and the particulars of the offence. We do not read this court’s decision in R. v. D.J.J., (SKCA), (1998),172 Sask.

R. 182 as standing for any different proposition. [5] The Court of Appeal has stated that as to child sexual offences, they will attract a jail sentence. It will be a rare instancewhere a jail term is not ordered. Conditional sentences, being the serving of the jail term in the community, may be appropriate incertain cases, where the application of sentencing principles reach such a conclusion. [6] In child sex assaults the primary sentencing principles that must be addressed are denunciation and deterrence. This iscodified in the Criminal Code

section 718.01. [7] I have reviewed the following cases: - R. v. M.J.H., 2004 SKCA 171 - R. v. S.G.T., 2011 SKCA 4 - R. v. Lindsay, 2008 SKCA 44 - R. v. L.W.T., 2008 SKCA 17 - R. v. Eashappie, 2007 SKPC 3 - R. v. J.R., 2012 SKPC 167 - R. v. Laliberte, 2000 SKCA 27 , 2000 CarswellSask 132 - R. v. D(P.), 2005 CarswellSask 358, 2005 SKCA 60, 275 Sask. R. 120 - R. v. W. Burden, 2001 SKCA 84 (Sent.

Dig) [8] Based on the facts of this case and the case law as set out, a jail term of 18 months is appropriate. [9] The question in dispute is whether this term of jail can be served in the community under a conditional sentence order. Thecriteria 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. 718to 718.2. [10] The Saskatchewan Court of Appeal has stated that conditional sentence orders are available on sexual assaults, the guidelinesfor conditional sentences have been canvassed by the Court in R. v. Laliberte, 2000 SKCA 27 , 2000 CarswellSask 132. Would the Safety of the Community be in Danger [11] R.R. has no criminal record. The sex offender risk assessment has determined R.R. is in the low risk category.

Hisassessment in the pre-sentence report is also low risk to re-offend. R.R. has been on a restricted release condition since March 31, 2010,or over three years, and has had no breaches. As such I find as to the first aspect the conditional sentence would not endanger the safetyof the community. [12] The second aspect is the considerations of the sentencing principles under s. 718 to 718.2 of the Criminal Code. Denunciation [13] Denunciation being a primary consideration in child sexual assault is best satisfied by a term of incarceration.

The Court ofAppeal as set out in Laliberte has held that conditional sentence orders have the ability to satisfy the principles of denunciation as long asthey adequately restrict the offender’s liberty. Severe restrictions on conditional sentence orders are to be the norm not the exception. Deterrence [14] In both general and specific deterrence, the effectiveness of the deterrence is closely related to the conditional sentence ordersability to denounce offending behaviour.

If a conditional sentence order gives the public the appearance that there are no restrictions onliberty, they will have little deterrent effect generally. In many ways a conditional sentence order with appropriate restrictionsdemonstrates to the larger community, on a daily basis, the punishment that is imposed upon an offender as they have the offender in thecommunity, and the restrictions remind the community daily of the punishment and the offence. Deterrence could be satisfied with aconditional sentence order with appropriate conditions. Separation [15] This is not a case where separation is necessary.

Rehabilitation [16] Rehabilitation of R.R. would be best served in the community. We have a person who was seriously sexually abused, as wellas bullied as a child that led to his leaving school at grade 6. He has not had the financial resources, or the opportunity, largely due to hislower cognitive abilities to address his own abuse issues, nor to deal with the abuse of his nephew by him.

Reparations [ 17 ] This is not an issue in this matter, but by continuing to be able to work on his modest family farm he would be able to maintain his cattle operation to pay any funds towards a civil suit if one were to arise. Promotion of a Sense of Responsibility and Acknowledgment of Harm Done [ 18 ] The pre-sentence report of May 31, 2012, does state there is some minimizing of the offence and rationalization by R.R. The cognitive report a year later does indicate that R.R. realizes his actions were wrong and that he had expressed some guilt and shame over his actions.

A conditional sentence order will be able to address instilling a further sense of responsibility and acknowledgment of harm done, by programming as well as restrictions on him. Fundamental Principle of the Gravity of Offence and Degree of Responsibility of Offender -

section 718.1 Gravity of Offence [ 19 ] The facts presented are that on the first occasion at the mother’s apartment when the mother was out, R.R. grabbed the victim’s penis on top of his clothes. He then sat beside the victim when he had his clothes off going to bed and R.R. touched the victim on the penis for about 10 minutes, the victim told him to stop but R.R. did not. [ 20 ] During a period when the victim stayed at his uncle’s farm for about one and a half weeks, during an ATV ride, R.R. told the victim to take his pants off, and the uncle played with the victim’s penis for about 10 minutes.

On another ATV ride, the uncle took his own shirt and pants off, but left his underwear on. R.R. played with himself on top of his clothing which was done after he had touched the victim’s penis. [ 21 ] There was also an incident inside the house when the victim was playing with video games and watching TV, and R.R. came in and sat beside him and played with the victim’s penis. This occurred at various times between the one and a half week stay. R.R. would also show magazines with pictures of naked women and have the victim take off his pants and play with his penis.

The last event occurred between the period September and December 2009, where R.R. again showed the victim a book of pictures of naked girls, and he played with the victim’s penis. He then stopped and told the victim that was enough. That was the last time he assaulted the victim near the end of 2009. The touching of the victim occurred over and under his clothes.

R.R. always remained clothed, other than on one occasion on the ATV where he took off his pants but left his underwear on. [ 22 ] The offence comes to light when the mother catches her son masturbating in their car while she is in the store and she inquires as to this behaviour and the victim indicates that R.R. had been touching him. [ 23 ] There was no indication as to any long-term affects on the victim, and the mother of the child is the sister to R.R. She has expressed her wish that R.R. not be sent to jail in light of R.R.’s personal history and cognitive issues.

Degree of Responsibility of the Offender [ 24 ] The pre-sentence report author throughout the report refers to R.R. displaying signs of cognitive limitations. R.R. has a grade 6 level of education and has basically lived on the family farm throughout his life. R.R. realizes that he touched his nephew six or seven times inappropriately over a span of about a year. The author indicates that the interview process was difficult as R.R. appeared to be cognitively limited. He often became frustrated with the questions and was unable to give adequate responses.

He appeared uncomfortable and frequently stated that he did not know how to answer. The author does not recommend electronic monitoring due to his cognitive limitations.

[ 25 ] The more detailed interview and the cognitive assessment report prepared by Mr. Stewart indicates that R.R. is not sure about what he is charged with but believes he is charged with rape, but does state that he never raped or had sex with the victim. He recognizes it was wrong and it should never have happened and he did not know why it happened. [ 26 ] R.R. only reads his mail, and as set out in the cognitive report he is unable to read or spell big words, although he knows the alphabet. R.R. indicated that he attended an all French school and had difficulties when going to an English school.

He states that others looked upon him as a dummy and he was picked on and bullied and eventually left school in grade 6. R.R. is in the low average range for the full scale IQ of 83, with the average range being 85 to 115 as set out in the report. Mr. Francis describes his IQ testing at the low end of the average range and that he does have average abilities in areas of verbal reasoning, comprehension, vocabulary, language development, judgment, analytical reasoning and general knowledge. R.R. on the memory index scores at the 50 percentile.

The report indicates that due to his low level education, he may have other deficits in traditional academic areas that are considered to be important for successful learning. Mr. Stewart indicates that cognitive intelligence as measured through the IQ test is only one aspect of intelligence. He indicates emotional intelligence is believed to play an equally important role in achieving success in life.

Although this was not assessed, the author believes that R.R. has low emotional intelligence based on his social behaviour, his personal presentation during the assessment, his skill level, his apparent low level of self-awareness, low level of motivation, and low level of self-regulation. He indicates that R.R.’s social and emotional intelligence may be at a level that is somewhat lower than his recorded IQ. [ 27 ] R.R.’s sister, the mother of the victim, through counsel, relayed a more troublesome background for R.R. and herself. R.R.’s father died when he was young.

They were basically under the control of an uncle. R.R. and herself suffered significant abuse from the uncle. The uncle would abuse R.R.’s sister, and force R.R. to touch her as well. The sister also indicated that the mother was subject to abuse by the uncle and this relationship was not appropriate. She outlined that the reason that R.R. was taken out of school was that he was continually bullied and his mother took him out of school. She indicated that R.R. is on medication all his life for depression. R.R.’s brother indicated through counsel that when he is not on pills he is very depressed.

The sister stated that R.R. cannot live alone and needs to be reminded to bath, take his pills and needs help with his finances. She stated R.R. cannot read or write except for a few words. She indicated that in school the kids would tease and bully R.R. as he did not talk or speak right, leading to her mother taking him out of school.

R.R. would come home from school crying and running away from school bullies. [ 28 ] In the approximate 40 years since leaving school and being abused by his uncle, R.R. has never obtained any counselling or assistance to deal with these issues. [ 29 ] In the pre-sentence report the author indicates that a community disposition may not be appropriate based on R.R. not displaying any signs of regret or insight into his behaviour. The defence argues that lack of insight may well be related to his own abuse as a child, being out of the school system and general isolation in his life. In the report by Mr.

Stewart, R.R. does state he knows his actions were wrong and this never should have happened and he doesn’t know why it happened. He is dealing with trying to figure this out. Aggravating Factors [ 30 ] The victim is the nephew of R.R. and R.R. was in a position of trust as the victim was in his care when the assaults occurred. [ 31 ] The victim was under 18 years of age as per s. 718.01 of the Criminal Code , being around 10 to 11 years old at the time of the assaults. Mitigating Factors [ 32 ] The mitigating factors were: • no criminal record;

• early plea of guilt; • child victim did not have to testify; • has complied with restrictions placed on him for over three years on initial release order; • R.R.’s low cognitive ability, education and prior being a victim of child abuse; • limited educational background; • limited employment history other than being self-employed on the modest family farm; • has support of his brother and sister, the sister being the mother of the victim; • R.R. has expressed shame and guilt in relation to the offence, but does have some limited insight due to his cognitive position and educational position; • historical lack of guidance and education in his family as a youth; • there are resources available to address psychiatric and sex offending behaviour available in the community. [ 33 ] Taking all the factors into consideration, I am satisfied that the jail term can be served in the community with appropriate conditions. [ 34 ] In order to satisfy the sentencing principles of denunciation and deterrence, R.R.’s liberty will be severely restricted. [ 35 ] The terms of the conditional sentence order are as follows:

(1) Keep the peace and be of good behaviour.

(2) Appear before the Court when required to do so by the Court.

(3) Report to the supervisor within two working days and after that when required and in the manner directed by the supervisor or their designate.

(4) Remain within the jurisdiction of the Court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the Court or supervisor.

(5) Notify the Court or 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) Live at a residence approved by the supervisor and not change that residence without the prior written permission of the supervisor or designate of the Court.

(7) For the first 12 months of this order, stay within your approved residence, residence being a rural farm, no greater than one-quarter section, 24 hours a day, unless you have the written permission of your supervisor or designate of the Court. R.R. may be outside his residence, for work, programming, and other matters deemed appropriate by the supervisor in writing, and you shall come to the door of your approved residence when asked to do so by a police officer/supervisor or designate who may be checking the residence and curfew conditions of this order. R.R. may attend his other three quarters of land only for work purposes and only during daylight hours.

(8) Have no contact with the victim unless in the presence of an adult approved of by the supervisor and who has knowledge of the charges.

(9) Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol such as bars or liquor stores.

(10) Provide suitable samples of your breath for testing upon the request of a police officer who has reasonable grounds to believe that you are in breach of a condition of this order regarding the consumption of alcohol.

(11) Participate in assessments and complete programming for sexual offending, mental health concerns or cognitive challenges and/or personal counselling as told to do so by the supervisor.

(12) Attend upon a medical doctor, psychiatrist and/or psychologist, as directed by the supervisor, or designate of the Court, following directions as to appointments, counselling, treatment and prescriptions and authorize the release of information about appointment times

and prescriptions to the supervisor.

(13) Have no contact directly or indirectly with any person under the age of 16 unless you are in the company of an adult who has been approved for such purpose by the supervisor.

(14) Not go to a public park, public swimming area, where persons under the age of 16 years are present or can reasonably be expected to be present or a school ground, playground, day care centre, community centre, except as approved by the supervisor in the company of an approved adult.

(15) Not obtain or continue any employment, or be a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years. [ 36 ] There will be an order under s. 490.012 of the Criminal Code , Form 52, requiring R.R. to comply with the Sex Offender Registration Act . [ 37 ] There will be an order pursuant to s. 47.051, Form 5.03 of the Criminal Code for the taking of a bodily substance for the purpose of forensic DNA analysis and storage of the results in the national DNA databank, pursuant to the DNA Identification Act, 1998 . [ 38 ] In addition there will be a one year probation order being as follows: (

a) the mandatory conditions; (

b) participate in assessments and complete programming for sexual offending, mental health concerns or cognitive challenges and personal counselling as told to do by the supervisor. [ 39 ] Dated at Estevan, Saskatchewan this 18 th day of June, 2013. K. Bazin, J