) Mr. S. Cooper ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Manning - v. -, 2014 MBPC 69

2014 MBPC 69 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. S. Cooper ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Manning - and - ) for the Accused ) J.C.S., ) ) Sentence delivered Accused. ) January 14, 2014 _____ MARTIN, P.J. (Orally) On January 31, 2013 J.S. pled guilty to one count of sexual assault against his 10 year old foster brother between June 2, 2011 and May 17, 2012. He also pled guilty to one count of failing to comply with a recognizance by not abstaining from the consumption of alcohol. The issue for this court is that of an appropriate sentence for Mr. J.S..

The circumstances of the offences are as follows. Mr. J.S. and the victim, his 10 year old foster brother, lived together in the same foster family. At the end of June, 2011, J.S. came into his foster brother's room, locked the door and began kissing him on the lips. When the foster brother told J.S. to stop he did, only to return later that same day. This time J.S. grabbed his foster brother by the head in an attempt to have him perform fellatio on him stating: “If you don't fucking suck my penis I'll kill you.” Luckily the foster brother was able to pull his head away. Unfortunately J.S. did not stop there.

In fact, his sexual offending increased in severity. Approximately one month later J.S. came into his foster brother's room on two separate occasions when he was sleeping and performed fellatio on him. When the foster brother awoke, he would tell J.S. to stop and he would. Unfortunately the sexual offending worsened to the point where J.S. forced his foster brother to perform fellatio on him, ejaculating in his mouth on each occasion, and forcing anal intercourse on him to the point of ejaculation. These sexual assaults were many and occurred between July, 2011 and April, 2012.

Eventually the foster brother told CFS about the sexual assaults. After an investigation, J.S. was arrested on May 31, 2012. He admitted to the offences, expressing his view that the sexual contact had been consensual. J.S. was released from custody on June 4, 2012. He was removed from his foster placement and moved into a different home. The transition was difficult for J.S. and he began abusing drugs and alcohol, behaving in an aggressive and threatening manner toward his new foster family, and absconding to live on the street.

He was then placed in a hotel but ultimately got kicked out when he began inviting people off the streets into his room to drink. Twelve days after his release on June 16, 2012, J.S. was found roaming the streets of Winnipeg in an intoxicated state, contrary to his release conditions. At the time of the offences J.S. was 18 years old. To say that he has had multiple challenges in his life would be an understatement. J.S.'s parents hail from Waywayseecappo.

I do not have much information about them other than what I can read between the lines given J.S.'s apprehension at birth, a birth that saw J.S. malnourished with alcohol in his system and a hole in his heart. He was diagnosed with severe FASD. He displayed physical, mental and emotional developmental delays which made him a high medical needs baby. From that time forward J.S. went from one foster home to another. The pre-sentence report notes that the first two placements were in Portage la Prairie. After those, he lived in a number of placements in Winnipeg, including several hotels.

All of these were before he was 10. He then went to Ebb and Flow First Nation where he stayed for four years. That placement broke down because of allegations of inappropriately touching a foster brother. From there J.S. was placed with the Morriseau family in Winnipeg. He remained in that home until he was arrested in May, 2012. Not surprisingly, J.S. described what he could remember about his childhood as negative - abandoned, rejected and beaten. The Morriseau home was different. He felt accepted and cared for. Mr. Morriseau described J.S. as easygoing and compliant with

their house rules. It appears as though Morriseau shared both his time and his values with J.S.. He noted that J.S. needed constant supervision and reminders about consequences and what is right and wrong. He also noted that J.S. could be easily influenced, and the longer he remained away from his supervision, the less respect he had. Morriseau shared that when J.S. was arrested he did not want to leave the foster home and went berserk. It was Morriseau's belief that CFS did not provide adequate support to J.S. after this point in time.

It was at this point that J.S. began spending a significant amount of time with his siblings who, by his account, are all criminally involved. J.S.'s feelings about his siblings are ambivalent; on the one hand, knowing that they are a negative influence on him, on the other, a desire to be just like them. As for girls, J.S. has had two intimate relationships, apparently at the same time because he forgot he was going out with one. He did, however, express a desire to find a girlfriend that kept out of trouble and who did not drink or use illegal drugs.

As for friends, J.S. has had difficulty finding pro-social companions. He has, however, reported getting along with everyone. J.S. has experienced substance abuse issues since he has been a child. He told the pre-sentence report writer, that since he was 10, he would drink until he was able pass out to stop the pain he was feeling. He has abused alcohol, hand sanitizer, crack cocaine, marihuana, Restoril and Xanax; most of the abuse occurred after he turned 18 and seemingly after the sexual assault, though alcohol and marihuana seemed to have been consumed regularly during the commission of the offences.

J.S. acknowledges the negative impact his substance abuse was having on him; leading him down a path of destruction and contributing to bad choices. It was at the time of the offences that he was also selling marihuana to make money, an activity he thought was an easy way to make a living if you do not get caught. J.S. comes before the court with a limited, unrelated youth record but one that is concerning nonetheless; a break and enter commit from February, 2007 for which he received six months of probation, and a robbery from July, 2008 for which he received 18 months of supervised probation.

It is noteworthy that there are no breach convictions from either of those probationary periods. It is also noteworthy that there are no criminal convictions after 2008. J.S. has been in custody since June 17, 2012, just over 19 months. He has never received a custodial sentence before.

While he has been awaiting sentencing, he has been detained at the Headingley Correctional Centre where he was placed in the differential needs unit - a unit for mentally disordered offenders which comprises those offenders with mental illnesses, addictions, brain injuries, cognitive impairments, intellectual disabilities and FASD. As already mentioned, J.S. has been diagnosed with severe FASD since birth. He has also been diagnosed with ADHD.

Though this court does not have evidence as to which parts of J.S.'s brain are affected by his mother's abuse of substances while pregnant, there is evidence as to his cognitive impairment, as well as anecdotal evidence as to his ability to function. In 1999, J.S. was seen at a newborn follow-up program when he was five. The report notes that since birth, J.S. had been receiving developmental and behavioural intervention for FAS. His functioning at that point in time appeared to be consistent with a child 14 months younger than his stated age. In April, 2012, J.S. was assessed by psychologist Dr.

Rayleen De Luca for academic, behavioural and emotional consideration. Dr. De Luca reported that J.S.'s overall cognitive ability was in the borderline range of intelligence. She also noted that he continued to struggle with unresolved emotional issues which could impact on his ability to cope with day-to-day life. At that time, she recommended individual therapy to address the possibility that J.S. may offend sexually. This therapy does not appear to have been provided to J.S.. Dr. De Luca also recommended positive adult attention, structure and consistency in his daily routine.

She added: “J.S. needs to be protected in the community as he is at risk for possible harm from others because of his inability to look after himself. J.S. will need assistance to look after himself and make decisions about his future.” In her report, Dr. De Luca referenced some comments made by Mr. Morriseau with respect to J.S.'s level of functioning. Mr. Morriseau noted that J.S. could not survive on his own, would not do laundry or cook. He was afraid for him to use the lawnmower alone and felt that he could not handle a job.

In school, J.S. was assessed as being very high needs, requiring constant supervision. His guidance counsellor at R.B. Russell noted that due to J.S.'s low cognitive abilities and low level of functioning, he had difficulty following through with tasks required to succeed in the special education work program. In his view, a life skills program would be better suited to J.S.'s abilities. J.S. has recently been declared a vulnerable person thanks to a very caring teacher, Mr. Sasowhich. As a result, the Public Trustee looks after his affairs. According to Mr.

Sasowhich, J.S. “needs direction; we can’t anticipate when he can function independently, (however), he is no where near there.” J.S. has been described as very easily influenced by negative peers and at risk of harm from others. J.S. is evidently embarrassed about the offences. He has refused to talk about them other than to state he had blacked out during the offences. He has indicated that he is sorry for them but noted that he did not like his foster brother. Moving forward, J.S. does want to return to school, have a committed relationship with a girl and lead a pro-social life without drugs or alcohol.

He is also prepared to work with Community Living disABILITY Services in regards to required housing and programming. The probation officer who wrote the pre-sentence report assessed J.S. as a very high risk to re-offend generally and a high risk to re- offend sexually. His criminogenic risk factors include his family situation, lack of leisure activities, negative peers, alcohol and drug abuse, and his attitude, orientation and social patterns.

The probation officer did opine J.S. could benefit greatly from the structure, supervision and support offered through the intensive programming, such as Changes, as participation could improve his coping and

self-management skills through pro-social connections and involvement in the community, thus lowering his risk to re-offend. She went as far to state that with the proper supports in place, J.S. would be a suitable candidate for community supervision. The plan for that supervision in the community is a residential placement and programming. Mr. Turko, an employee with the Department of Family Services and Labour and specifically Community Living disABILITY Services, testified at the sentencing hearing and spoke to the type of plan that could be in place.

He explained that his program works with community programs and facilities that assist Manitobans with an IQ of 70 or less, including those individuals who have been in conflict with the law. This applies to J.S. who is funded by their program. Mr. Turko testified that based on his knowledge of Mr. J.S. and his needs, he would recommend a residential facility that is staffed on a 24 hour basis. He noted that these residential facilities are not locked but that they have very stringent breach protocols. Some of the facilities offer their own day programming; others do not, so Mr.

J.S. would attend those outside of the facility. He testified that he is often successful in finding an appropriate placement within six to 12 months lead time. Sometimes a residential placement is available earlier but generally not. Mr. Turko added that his department works closely with Probation Services. No victim impact statement was provided by the young victim. This court is not aware of the circumstances which brought the young boy into care, but he was certainly in a vulnerable situation as a result of having been removed from his family.

He had just been placed in the Morriseau family and was therefore in a situation where he was still adjusting and trying to create relationships. It was only one month after arriving at the home that J.S. began assaulting him sexually. The type and length of offending was serious and lengthy and one can only imagine the amount of emotional and psychological suffering this boy went through. The Crown is seeking a custodial sentence in the range of four to five years less time in custody. Both counsel agree that any time in custody should be granted at a rate of one-to-one.

The Crown acknowledges the very difficult set of circumstances in this sentencing. He has set out some of his main concerns which are: a fit sentence for the nature of Mr. J.S.'s offending notwithstanding his cognitive impairments, the necessity to appropriately manage Mr. J.S.'s risk in the community, and the lack of a fixed plan given the nature of how Community Living with disABILITY Services obtains funding for its clientele, that is, on a post-sentencing basis.

Defence counsel initially submitted that a sentence going forward of approximately six months would be appropriate, followed by a period of supervised probation, though, at the last appearance, J.S. asked to be sent to the penitentiary. It appears as though he has had a difficult time in custody. Defence counsel was prepared only to share that J.S. had been badly beaten.

Section 718 of the Criminal Code sets out the purpose of sentencing which 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community." When imposing a sentence the court must also take into consideration the sentencing principles set out in

Section 718.2 including mitigating and aggravating circumstances and, of pertinence, evidence that the offender, in committing the offence, abused a person under the age of 18. A court must also take into consideration parity, restraint and, all other sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. Fundamentally, any sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

Before turning to the application of these sentencing principles I think it first important to deal with the two issues that are in dispute at this sentencing: the nature of the sexual assault and whether it was a breach of trust situation, which will assist in determining the starting point of the sentence; and the treatment of J.S's FASD, which will determine the extent to which his disorder can be considered a mitigating circumstance. In dealing with these issues, I will review the case law which will assist in considering parity.

Dealing first with the nature of the sexual assault, there is no dispute that the offence committed by J.S. is a major sexual assault, anoffence which the Manitoba Court of Appeal indicated in R. v. D.(C.), (MB CA), 75 Man. R. (2d) 14, has a startingpoint of three years. The issue is whether the sexual assault was committed within a familial relationship. The starting point for thistype of offending is four to five years given the gross abuse of parental trust and the fact that the abuse typically begins when a child isvery young and continues over a significant number of years.

These situations involve a breach of trust situation. Crown submits that the starting point in this case is four to five years given that J.S. was in a position of trust vis-à-vis his youngerfoster brother. Defence says that there was not - J.S. and the foster brother just happened to be placed in the foster home together. Therelationship was not the typical family relationship that the breach of trust situation deal with. Further, he points to J.S.'s younger mentalage given his limited cognitive abilities. The Criminal Code does not define position of trust.

The definition relied on by the courts as to what constitutes trust is that endorsedby the Supreme Court of Canada in R. v. Audet, (SCC), [1996] 2 S.C.R. 171. It is: 35 ...[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement. As stated by the Supreme Court of Canada, the determination of whether there was a position of trust is a factual one.

I quote: 38 It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of therelationship between a young person and an accused, whether the accused was in a position of trust or authority towards the youngperson or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence... It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact.

The age differencebetween the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to theyoung person will of course be relevant in many cases. In this case, the court has no information about the relationship between J.S. and the foster brother other than the age difference andthe amount of time the two would have lived together under the same roof.

The age difference was one of eight years, and the timetogether would have been the time span of the offending, since the offending started approximately one month after the foster brotherarrived at the foster home. I do not think I can infer a position of trust or dependency on these facts. The evidence before me is that J.S. cannot take care ofhimself. I find it difficult to believe that he would have been placed in a situation where there would have been any kind of relationshipof authority or dependency.

Further, this is not a situation where the two foster brothers would have had time to develop a trustingrelationship. As I indicated, the offending began almost immediately. As a result, I find that this is a situation where the starting point isone of three years, not four to five. The case law provided by the Crown, or referred to in the cases provided by the Crown, involve situations where a fully functioningadult in a position of trust sexually abused a child. There is the case of R. v.

Innerebner,2010 ABQB 188, a decision of the Alberta Courtof Queen's Bench, where the accused was a Taekwondo instructor who committed 16 counts of sexual interference or sexual assault. Likewise, in R. v. B.(W.R.), 2010 MBQB 102, a 44 year old First Nations man with limited Gladue factors sexually assaulted his 11year old step-daughter over a period of one and a half years. The assault included fondling, digital penetration and sexual intercourse. The sentence was one of four years. In R. v.

M.(E.), 2010 BCPC 146, a grandfather with a prior conviction for sexual assault against a child of the same family wassentenced to eight years of custody. The judge noted that the accused had been placed in a position of trust as he babysat the young boy. Over a period of five to six months he groomed the boy and then began committing repeated and escalating acts of sexual assaultculminating in anal intercourse. Defence provided one case of a sexual assault with a weapon that was not a major sexual assault.

That was the case of R. v.Malcolm, 2005 YKTC 25, a decision from Judge Ruddy in the Yukon Territory Territorial Court. In that case, a 24 year old accusedwith three prior convictions for sexual offences was sentenced to a period of two years of custody and three years of supervisedprobation. The judge opined that a sentence in the range of three to four years was appropriate before taking into consideration all of themitigating circumstances, including his cognitive impairment.

The accused had lured a six year old girl into a shack, threatened her witha knife and lighter, uttered threats to burn down the building with her inside, and demanded that she take off her clothes. He preventedher from leaving and proceeded to kiss, hug and touch her vagina with his hand. There are many other cases from our own jurisdiction that deal with appropriate sentences for major sexual assault. Many of thosecases are very recent Manitoba Court of Appeal decisions. I note in particular the case of R. v. K.(P.), 2012 MBCA 69, a decision fromour Manitoba Court of Appeal.

In that case, the accused was six years older than his sister "S" and 10 years old than his sister "H". Theaccused started abusing "S" when she was approximately five years of age and continued to do so for approximately eight years. Theaccused would have been 11 to 19 years of age during that time frame. It started with doctor games then progressed to attemptedpenetration, mutual masturbation, oral sex and finally to full sexual intercourse.

When the accused was 18 to 19 years old he also sexually assaulted his sister "H" on two occasions when she was eight to nine years of age. Those assaults did not involve sexual intercourse but rather involved masturbation to the point of ejaculation. I would note parenthetically in that case that the Crown submitted that the starting point was a four to five year sentence given the familial relationship.

The Manitoba Court of Appeal rejected that submission stating: 9 To begin with, the cases upon which the Crown relies to suggest a range of sentence of four to five years for incest are appropriate when the facts disclose a breach of trust situation. In cases of incest, that breach usually involves a breach of parental trust. As already indicated, the incestuous relationship in this case is between siblings; the incest is not between a parent and a child.

While I acknowledge that there may be situations where the offending sibling can become in loco parentis and occupy the position of parental authority over the sibling that has been abused, the facts do not disclose such ... in this case. The sentencing judge found the Crown’s cases to be distinguishable. For the above reasons, I would agree that they are of limited value in this case. The Court of Appeal went on to note that the appropriate starting point was three years.

In the end, the Court of Appeal found that the sentencing judge's sentence of 30 months for the incest, 18 months for the sexual interference against sister "H" and two years for "S", was appropriate given what appears to be the mitigating circumstance of having grown up in a sexualized environment. I turn next to the case law on FASD. Courts have been grappling with how FASD factors into the sentencing process for many years. Oftentimes, courts have expressed frustration over the lack of appropriate resources in the community to adequately supervise FASD offenders so that the protection of the public is ensured.

Judge Giesbrecht's decision in R. v. M.(L.E.) , [2001] M.J. No. 62 is one of many of these decisions. I think the case law is now clear that FASD is a disorder that can be a mitigating circumstance. The difficulty is the extent to which it impacts on moral blameworthiness. In R. v. M.(L.E.) , Judge Giesbrecht wrote that: 50 The major mitigating factor in this case is the fact that the accused has Fetal Alcohol Syndrome. This condition distinguishes his case from the usual drunken beating homicide.

Ordinary principles of deterrence and punishment have little meaning in a case such as his because there may be little or no appreciation of the cause and effect and consequences. The crimes committed by (the accused) should not be assessed against the standards of a normal person. His moral culpability must be judged in light of his abilities and his intellectual impairments. In Malcolm , Judge Ruddy considered the offender's severe cognitive disabilities noting that

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the case before her, the offender's cognitive disabilities and their impact on the executive functions of his brain affected the degree of his moral culpability. She did, however, find that the primary objectives of the sentence were denunciation, separation of the offender from society to protect the public, and rehabilitation. The Manitoba Court of Appeal recently confirmed in R. v.

Draper , 2010 MBCA 35 , FASD is a mitigating circumstance that should be taken into consideration mindful, however, of the impact of the FASD on rehabilitation. At the same time, the sentencing judge must be careful not to mitigate to the extent that it unduly minimizes the seriousness of the offence. Sometimes protection of the public needs to be emphasized. This was the case in R. v. Mason , 2011 MBQB 66 , where Justice Keyser emphasized the need to protect the community given what she found was a risk that was too high.

In that case though, Mason was sentenced to two counts of manslaughter and had an unenviable record that began over 30 years prior to those manslaughter convictions. The record was related and replete with violence, breaches and parole violations. He had served three prior penitentiary terms and spent most of his adult life in jail. The Manitoba Court of Appeal ( R. v.

Mason , 2012 MBCA 71 ) noted that the “record evidences minimal prospects for rehabilitation, lack of empathy, lack of insight as well as repeated and continuous aggressive behaviour spanning his entire adult life.” It noted that Mason “has also failed to restrain his behaviour and has been unable or unwilling to address substance abuse and anger management problems.” ( R. v.

Mason , para 7) The court went on to say that it was open to the judge to conclude that Mason could not be deterred and that out of public safety concerns, the time had come to physically remove and separate him from society and to put controls in place for the remainder of his life. A similar conclusion was reached in R. v.

Flett , 2013 MBQB 124 where, although the offender was intellectually disordered and at borderline or low average intellectual ability, Justice McCawley found that the crimes were abhorrent and there was a real question as to whether the accused would ever be able to productively and safely function in society without continual monitoring. Recently the Alberta Court of Appeal dealt extensively with the evidence required and the extent to which FASD can be a mitigating circumstance in R. v. Ramsay , 2013 ABCA 257 .

In that case, the offender was sentenced to a global eight year sentence which included five years for brutal sexual assault against his girlfriend. I quote from an excerpt at paragraphs 15 to 25 of the decision: 15 FASD has been described as 'a non-clinical umbrella term that refers to a range of cognitive deficits associated with disabilities incurred when a mother uses alcohol during her pregnancy.

Such disabilities are permanent and can result in a range of symptoms including poor memory, impulsiveness, [and] inability to appreciate fully the consequences of one’s actions' (Kent Roach & Andrea Bailey, “The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing” (2009) 42

UBC L Rev 1 at para 1 (QL). In quoting this passage and others from this article, we emphasize that the actual condition of a specific offender depends on the qualified expert evidence adduced.

A conclusion about a specific case cannot be reached by mere generalization from legal commentary... 16 Crafting a fit sentence for an offender with the cognitive deficits associated with FASD presents at least two identifiable challenges: accurately assessing the moral blameworthiness of the offender in light of the adverse cognitive effects of FASD; and balancing protection of the public against the feasibility of reintegrating the offender into the community through a structured program under adequate supervision.

Medical reports assessing the prospect of the offender’s rehabilitation and reintegration into the community are essential to the task and must be carefully analyzed. 17 This notion is concisely captured by Roach and Bailey who observe that: The determination of an appropriate sentence for the FASD offender is a challenging task for courts.

Although it is increasingly recognized that FASD is a disability that can have a profound impact on the level of an offender’s moral culpability, the mitigation that this consideration would normally have on the length of a sentence is frequently tempered by the practical need to protect the community. [Yet often] the programming available to an FASD-affected offender is inadequate and the resources to support and monitor such an individual in the community are severely lacking (at para 85). 18 These challenges must be placed within the principles and objectives of sentencing.

The fundamental principle of sentencing is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code , RSC 1985, c C-46, s. 718.1 19 Further,

section 718.2(

a) of the Criminal Code requires that a sentence should be increased or reduced to account for any relevant aggravating or mitigating factors relating to the offence or the offender.

Therefore, to the extent that FASD is demonstrated to have attenuated or diminished the moral blameworthiness of the offender, it must be taken into account. 20 Moreover, sentencing is an individualized process and courts should craft sentences for FASD-affected offenders with awareness of their unique neurological deficits and abilities. '[T]he brain abnormalities associated with FASD are different for every person with this disability'( Path to Justice Conference, Final Report , online: Yukon Department of Justice www.justice.gov.yk.ca/pdf/Path_to_Justice_Conference_Final_Report cited in R. v.

Harper , 2009 YKTC 18 (Y.T. Terr. Ct.) at para 25 , (2009), 65 C.R. (6 th ) 373 (Y.T. Terr. Ct.)) Courts in dealings with persons with cognitive defects in the spectrum will encounter a 'wide range of effects resulting from prenatal alcohol exposure' (Edward P. Riley, M. Alejandra Infante & Kenneth R. Warren, “Fetal Alcohol Spectrum Disorders: An Overview” 21 Neuropsychol Rev (2011) 73 at 74).

This broad diversity in the severity of impairments accounts for the marked disparity in IQ and other quantifiable indicia of cognitive ability among persons diagnosed with FASD, which should in turn alert courts to the 'danger of ignoring differences that may be relevant to the appropriate policies applied in each case' (Roach & Bailey, at para 17). 21 Accordingly, in assessing the offender’s moral culpability, the sentencing judge must have regard to the cognitive deficit of the particular offender. This is consistent with the approach of this court in sentencing offenders suffering from a mental disability.

Ordinarily, 'where an offender is found to be criminally responsible, but suffering from a serious mental illness, a more lenient disposition reflective of the offender’s diminished responsibility is called for:' R. v. Tremblay , 2006 ABCA 252 (Alta. C.A.) para 7 , (2006), 401 A.R. 9 (Alta. C.A.); see also R. v. Resler , 2011 ABCA 167 (Alta. C.A. at para 14, (2011), 505 A.R. 330 (Alta. C.A.); R. v. Virani , 2012 ABCA 155 , 524 A.R. 328 (Alta.

C.A.) at para 16 ) Mental disorder can also be, on much less frequent occasions, a factor that may escalate the objective of protection of the public, but in such cases Parliament and the common law require strict proof and clear fact finding: R. v. Arcand , 2010 ABCA 363 , 499 A.R. 1 (Alta. C.A.) at para 164 ... 22 A diagnosis of FASD also affects the principles of denunciation and deterrence (both specific and general)... 23 Other courts, and in particular the Yukon Territorial Court, have addressed this issue. In R. v.

Harper the court observed that '[t]he role of specific deterrence in sentencing FASD-affected offenders decreases in proportion to the severity of the offender’s cognitive deficits' ... In R. v. Quash , 2009 YKTC 54 (Y.T. Terr. Ct.) at para 70 , [2009] Y.J. No. 72 (Y.T. Terr. Ct.) the Yukon Territorial Court noted that '[t]he greater the cognitive deficits of the offender, the less role specific deterrence should play'. 24 Where the cognitive deficits experienced by the offender significantly undermine the capacity to restrain urges and impulses, to

appreciate that his acts were morally wrong, and to comprehend the causal link between the punishment imposed by the court and the crime for which he has been convicted, the imperative for both general deterrence and denunciation will be greatly mitigated ( Quash at para 71 ; Harper at para 47 ). We agree with the observation of the court in Quash that: 'That is not to say that the principles of general deterrence and denunciation have no place in sentencing FASD offenders.

In certain cases there may be a role, depending on the nature of the offence and the degree of moral culpability of the offender, based upon the extent of his or her cognitive difficulties' (at para 72). 25 The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable to FASD. The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded to deterrence and denunciation, all of which will serve to 'push the sentence ... down the scale of appropriate sentences for similar offences'...

In that case the trial judge, though recognizing that the offender had FASD, found it to be less of a mitigating circumstance as the offender was literate, able to read at a high school level, was able to function, and had obtained his welding ticket and had been regularly employed. I turn now to an application of the sentencing principles in the case at bar. The sexual assault perpetrated by J.S., against his foster brother, was very serious. These types of offences cry out for denunciation and deterrence.

There are many aggravating circumstances related to the commission of the offence: It is statutorily aggravating because it was committed against a child under the age of 18; The child was in the care of Child and Family Services, one of the most vulnerable positions a child can be placed in; The offences were committed in the victim's home, often in the privacy of his own room; They were committed multiple times over a relatively lengthy period of time; The offending increased in severity.

It was highly invasive including anal penetration and ejaculation; Threats to kill the victim if he did not comply were made on at least one occasion; And the potential impact of the offending on the victim is significant. The mitigating circumstances are: J.S.'s young age; His guilty plea; and His remorse, as I do accept that J.S. is sorry for what he did. His acknowledgement of wrongdoing is not expressed in the clearest of terms, though as Judge Ruddy noted in Malcolm , his brain does not function as a normal brain. The Gladue factors here are also significant.

I dealt with them earlier in my decision, and without reiterating all of them, suffice it to

say, J.S. is another lost child who came into this world with severe deficits, and has spent most of his childhood subjected to severe dysfunction and abandonment. As for his moral blameworthiness, the evidence before this court is that J.S.'s level of functioning is very basic. It would have been of great assistance to this court to have the FASD assessment reports that explain the part of J.S.'s brain that is affected. This sentencing has been delayed significantly to try to obtain that information, but try as he might, defence counsel has been unable to obtain it.

The pre-sentence report does, however, contain a reference to medical reports that were provided to this court, as well as anecdotal evidence as already referenced. That evidence is that J.S. is unable to function on his own or manage in a special education program. This level of functioning reduces J.S.'s moral blameworthiness. There is also the issue of protection of the public which cannot be ignored. This particular offending is all the more concerning, given the prior allegations of sexual offending and J.S.'s rated risk of high for sexual re-offending, and very high for criminal re-offending.

There is also the prior record from 2007 and 2008. There is also evidence of J.S.'s conduct once he was removed from a stable foster home. He went berserk, began abusing significant substances, began acting out aggressively toward his new foster parents then began living off the streets. There is also his ambivalence towards pro-social values. His ambivalence and behaviour may be explained by the withdrawal from his long-term foster placement with the Morriseau family. It is clear that J.S. loved this placement. His answers to Dr. De Luca are very instructive in this regard.

For J.S., this is the place he should have lived his entire life. He felt loved and confident. I note that, while in this placement, there was no criminal offending after July, 2008. I also note, in relation to his two prior youth convictions, there are no breach convictions showing that in the right conditions J.S. can do well on community supervision. This was the probation officer's assessment. I am, however, aware that this offending took place while in the Morriseau placement and under the watchful eye of those who should have known to be on the lookout for it.

What this means is that the plan going forward is of the utmost importance. Though much of the plan is up in the air until J.S. is sentenced, Mr. Turko was adamant that he would receive appropriate funding for J.S. and that with a lead time of six to 12 months he is typically successful in securing a residential facility and programming for J.S.. Though it certainly would have been more comforting to know the exact plan for J.S., this is not a case such as Mason or Flett where the offender has a horrendous criminal record and keeping the offender in jail is the only real alternative to keeping the public safe.

When I consider all of the sentencing objectives, I find that denunciation, deterrence but also rehabilitation, are key. Though J.S. will not be able to be rehabilitated in the usual sense of the term, there is certainly programming that can assist in reducing his risk to the community. In considering and weighing the principles of sentencing, I find that an appropriate sentence is one of three years. Counsel agree that J.S.'s pre-sentence time in custody should be attributed at a rate of one-to-one. I understand that J.S. has been in custody since June 17.

There was also five days from May 31 to June 4 which, by my calculation, works out to 581 days but I wanted to check with counsel to make sure that they agree with that calculation. Does anybody have the exact time? MR. MANNING: That sounds about right. THE COURT: I had 576 days from June 17 plus the initial five. MR. MANNING: That sounds right, Your Honour. THE COURT: Thirty-six months is equal to 1,095 days. Subtracting the 581 days equals 514 days or roughly 17 months going forward. I am aware that J.S. has had difficulties while in custody and has asked to be sent to the penitentiary.

I am not prepared to do that as it would not be a fit sentence in the circumstances. I note that there is sexual offending programming available in the provincial institutions that are usually 18 months in length. Unfortunately, since J.S. has been awaiting disposition, that programming has not, to my knowledge, taken place. Hopefully some type of sexual offending program can at least begin while he is in custody. I am imposing a period of three years of supervised probation to follow his custodial sentence. So, Madam Clerk, going forward the sentence is one of 514 days.

I am noting 581 days pre-sentence with three years of supervised probation. The mandatory conditions: Keep the peace, be of good behaviour; Appear before the court when required to do so; Notify the court or probation officer before you change your name or address and promptly notify any change of employment or occupation. Mr. J.S., going forward, as you understand, I have sentenced you to 17 more months of custody, all right? THE ACCUSED: Do it in Headingley? THE COURT: They will tell you where you are going to be, okay? THE ACCUSED: Okay.

THE COURT: After that you are going to be on probation for a long time, okay? Three years.

THE ACCUSED: I can deal with it. THE COURT: Okay. They will go over these again when you are done custody because I do not think you are going to remember them. You will also have a piece of paper with all the conditions, okay? But I am going to read them now -- THE ACCUSED: Okay. THE COURT: -- okay? And if Mr. Manning or Mr. Cooper have any submissions I am prepared to entertain those submissions. You are to report to a probation officer immediately upon your release from custody and thereafter as directed, okay?

It may be and I am thinking that someone will likely come to see you while you are in custody already, okay? THE ACCUSED: All right.

THE COURT: You are to reside as directed by Probation Services including at a residential facility that is staffed on a 24 hour basis, that is experienced in working with sexual offenders as directed; You are to attend, participate and complete all assessments, counselling, programming and treatment as directed including but not limited to substance abuse counselling, sex offender programming and counselling for past abuse and abandonment issues as directed; You are to abstain absolutely from the possession or consumption of alcohol, illegal drugs, prescription drugs for which you do not have a prescription from a doctor, and all other intoxicating substances; You are not to have any contact or communication with the victim, [N.S.], and you are not to attend within two city blocks of where he lives, works, worships or goes to school; You are not to have any contact or communication with a person under the age of 18 without the supervision of a responsible adult approved in writing by Probation Services or Child and Family Services; You are not to attend any place where a child under the age of 18 is present without the supervision of a responsible adult approved in writing by Probation Services or Child and Family Services; You are to abide by a curfew of 9:00 p.m. to 7:00 a.m. daily unless in the company of a staff member from the residential facility or as otherwise pre-authorized by Probation Services; You are to come to the door of your residence and answer the land line telephone in the case of a curfew check by Probation Services, Winnipeg Police Service or their designate.

With respect to the conditions of the probation order, did counsel wish to make any submissions? MR. MANNING: I don't. MR. COOPER: No, Your Honour. THE COURT: All right. There will also be a 10 year

Section 109 order, so you cannot have any of the prohibited weapons, ammunition. This is also a primary designated DNA order so there will be one that is issuing and that will be done while you are in custody. They are going to take either a sample of your blood or they will take a swab of your mouth to get your DNA. THE ACCUSED: I see. THE COURT: Okay? There will also be a 20 year SOIRA order. And I am imposing a 10 year

Section 161 order under subsections (a), (

b) and (

c) so that Mr. J.S. is prohibited from attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre. He is also prohibited from seeking, obtaining or continuing any employment whether or not that 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.

And he is also prohibited from having any contact including communicating by any means with a person under the age of 16 unless under the supervision of a responsible adult aware of his conviction for sexual assault against a child. As for the breach of the recognizance by not abstaining, as I indicated, he does not have a prior record for breaching but he was pending on some very serious charges. There was, however, the change of situation to his foster home which evidently caused disruption to his stability. I am going to be imposing a concurrent sentence of one day of custody.

And I am waiving costs and surcharges on all matters. _____