R v Kambeba, 2023 MBPC 64

CITATION : R v Kambeba , 2023 MBPC 64 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) M. Moorthy ) for the Crown – and – ) ) Shadrick Kambeba ) M. Schwartz (Accused) ) for the Accused ) ) ) Reasons for Decision ) Delivered November 29, 2023 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. CHOY, P.J. [ 1 ] This is the sentencing of Shadrick Kambeba. On February 7, 2023, following a two-day trial, he was convicted of sexual assault contrary to

section 271 of the Criminal Code . The parties are very far apart on sentencing recommendations. The main issue for me to decide is whether the social context factors applicable to Mr. Kambeba justify the imposition of a conditional sentence order. Facts [ 2 ] The facts were that in August 2019, when Mr. Kambeba was 20 and the complainant was 16 years old, they got together to hang out and went to his apartment together. They had some food and alcohol, when Mr. Kambeba suggested they engage in sexual activity.

The complainant said she did not want to have sex, but he pushed her backwards onto the bed and put his hand under her dress and into her vagina. Mr. Kambeba told her, “Five minutes then I will let you go home.” She did not consent or agree to his actions, and waited for it to end. After about five minutes he took his fingers out and she got up to leave. He then went to a dresser drawer to get a condom, put it on his penis, then pushed her down again. He got on top of her and put his penis in her vagina.

The complainant was crying and told him to stop, that she did not want to have sex and that she wanted to go home. Mr. Kambeba continued to have penile vaginal intercourse with the complainant until he ejaculated inside her. After he pulled out, he told her that the condom broke. She was upset by this and later obtained an emergency contraceptive pill. Mr. Kambeba helped pay for the medication. Sentencing Positions [ 3 ] The Crown recommends a prison sentence of seven years. It was submitted that denunciation and deterrence are the paramount considerations in this sentencing.

While the starting point for sexual assault was traditionally considered to be three years, as set out in R v Sandercock , 1985 ABCA 218 , the Crown argued that following the landmark decision R v Friesen , 2020 SCC 9 , there is better understanding of the trauma suffered by victims of sexual assault, and sentences should be increased to reflect this modern approach. A seven-year sentence would reflect the facts that the victim was still a child at age 16, there was a breach of trust and Mr.

Kambeba demonstrates no victim empathy or insight. [ 4 ] Defence submitted that the Crown position of seven years would be to take a longer sentence than imposed in Friesen and disproportionately place it on a youthful first-time offender. Defence recommends a conditional sentence order for two years less one day, plus three years of supervised probation. [ 5 ] For the reasons that follow, I find that a sentence of three years in prison is a fit and appropriate sentence for Mr. Kambeba. Sentencing Principles [ 6 ]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when imposing a sentence which include: denouncing unlawful conduct; deterring the offender and other persons from committing similar offences; where necessary, separating the offender from society; assisting in the offender's rehabilitation; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in the offender, acknowledging the harm done to victims and to the community. [ 7 ]

Section 718.1 identifies the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 8 ]

Section 718.2 sets out other sentencing principles a Court should take into consideration including regard for aggravating or mitigating factors, the principle of parity, the effect of combined consecutive sentences resulting in an unduly long or harsh sentence, and the principle of restraint in imposing imprisonment, with particular attention to the circumstances of Aboriginal offenders. Particulars of Mr. Kambeba [ 9 ] Both a pre-sentence report and an Impact of Race and Culture Assessment (“IRCA”) report were filed which provided a detailed history of Mr. Kambeba. [ 10 ] Mr.

Kambeba is a 24-year-old male who was born in the Democratic Republic of Congo. He has two sisters and a brother and was raised by his mother. He has never known his father. When he was two years old, he and his family moved to Zambia and lived there until 2007 when they relocated to Namibia as refugees. They lived in poverty and sometimes when they did not have enough food, he left school to kill birds so he and his siblings could eat. In 2014, he and his mother and sister moved to Canada and settled in Winnipeg. Housing was challenging for the family and Mr.

Kambeba describes living in neighbourhoods where he felt unsafe due to high levels of drug and alcohol use, criminal activity and frequent police presence. The IRCA states: He is grateful that he and his family moved to Canada but recognizes that they have endured a lot of stress. Unlike living in Africa, they have not had to worry about food security. However, concerns about their physical safety have increased. He said some Canadian neighbourhoods are so dangerous he fears for his life. [ 11 ] Growing up, Mr. Kambeba’s education in Africa was sporadic due to financial barriers.

After arriving in Canada, he was placed in the ninth grade at St. John’s High School where he studied until he graduated grade 12. He encountered difficulties with English classes, partly due to lack of confidence in the language, but excelled in other subjects. Mr. Kambeba describes his overall experience in school as positive, although there were incidents of racism experienced from some of the white students. His future goals would be to take a carpentry apprenticeship so that he and his mother can go into the business of remodelling houses. [ 12 ] Mr.

Kambeba has a very close relationship with his mother and is protective of her. When they lived in Zambia, she was in an abusive relationship and her partner would physically beat her and the children. As an adult, he lives with his mother and cares for her. He manages their household by cooking, cleaning and running errands, and he drives her to and from work. [ 13 ] Mr. Kambeba himself has been employed in various jobs since he was 15 years old. He has worked in retail, manufacturing, in a bakery and as a mover. At the time of the sentencing hearing, he was employed as an Amazon driver. [ 14 ] Mr.

Kambeba uses both alcohol and marijuana but does not consider his use to be a problem. Collaterals agree with this assessment. He is in good physical and mental health, although understandably worries about how incarceration may affect him. He identifies as Christian, but does not attend church. [ 15 ] Mr. Kambeba has no prior criminal record. He does relay having involvement with the criminal justice system as a black male and describes three occasions where he was approached and questioned by police when he was doing nothing wrong.

The interactions left him feeling self conscious as he felt targeted and a victim of racism. On the third occasion, he felt very scared as handcuffs were applied and he worried he would be shot. [ 16 ] With respect to immigration status, Defence counsel advises that there are no immigration consequences to take into account in this sentencing. Victim Impact Statement [ 17 ] The complainant appeared at the sentencing hearing and read in a detailed victim impact statement. It is clear that Mr.

Kambeba’s actions have had a significant impact on the complainant’s life, and continue to affect her over four years later. [ 18 ] The complainant described the psychological damage the sexual assault has caused and how her life has been thrown off course. She graduated high school with a 4.0 GPA but has not been able to move forward with university because of her challenges with mental health. She has issues with trust and intimacy, and her social life has suffered severely. The trauma was so deep that she at one point attempted suicide. The complainant is now on medication and sees a therapist regularly.

She has supports around her and is taking back her narrative. She is a survivor, and it is hoped that she will continue in her recovery. [ 19 ] The Supreme Court of Canada in R v Goldfinch , 2019 SCC 38 , discussed the modern understanding of the effects of sexual assault (at para 37): As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault.

Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering.

The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [ 20 ] It is striking how closely aligned this

summary is to the challenges described by the complainant in the victim impact statement and vividly illustrates the harm that these types of crime inflict.

Sentencing Range for Sexual Assault [ 21 ] Traditionally, the starting point for sexual assault where the offender is mature and has no previous record was a period of three years ( see Sandercock ). [ 22 ] In Friesen , the Supreme Court endorsed significantly increased sentences in cases of sexual interference in order to reflect the profound physical and psychological harm that victims of sexual violence experience.

The Supreme Court made specific note that there was nothing in their reasons which should be taken as a direction to decrease sentences or as a bar against increasing sentences for sexual offences against adult victims. [ 23 ] In light of Friesen and Goldfinch , our Court of Appeal in R v Bunn , 2022 MBCA 34 observed (at para 80 and 122 ): In

summary, society and the courts are continuing to recognize the significant harm caused to adult victims of sexual assault. This must be reflected in sentences imposed by the courts. On the other hand, the courts must balance this with Parliament’s maintenance of the maximum sentence for the offence of sexual assault which has been in place since 1983. . . .

Sentencing judges must feel free to respond to these considerations and impose sentences that reflect society’s and the courts’ deepened understanding of the harm caused in light of the legislative provisions discussed by increasing sentences where appropriate. [ 24 ] These general sentencing principles were summarized by Justice Turner in a case provided to me by the Crown: R v YGK (9 May 2022), Winnipeg CR 19-04-01228 (Man KB). Aggravating and Mitigating Factors [ 25 ] Statutorily aggravating under

section 718.2(a)(ii) is the fact that Mr. Kambeba abused a person under the age 18. The complainant was 16 years old when the assault occurred. Mr. Kambeba was four years older than her. [ 26 ] The Crown argued that Mr. Kambeba abused a position of trust or authority over the complainant. While the parties had been romantically involved two years prior, on the date in question they had reconnected and were spending the afternoon together.

While there was familiarity between the parties, I do not find that there was a trust relationship involving a position of authority or reliance, akin to a parent/child or between spouses. [ 27 ] As noted by defence counsel, the case R v BAJN , 2021 MBCA 32 involved an 18-year-old male who engaged in a several- month-long relationship with the 13-year-old victim during which time they had unprotected sex approximately five times. In its decision, the Manitoba Court of Appeal said that those facts did not create a situation where the accused was in a position of trust over the victim.

I find that similarly, in this case, there was no trust relationship which would constitute an aggravating factor. [ 28 ] Mitigating in this case, are the social context factors which were highlighted in the IRCA report. Impact of Race and Culture Assessment (IRCA) [ 29 ] An IRCA is a type of pre-sentence report which details information about a person’s racial and cultural background to assist the sentencing judge in assessing how the person’s background might be connected to their involvement in the criminal justice system.

IRCA reports, particularly in Manitoba, are a relatively new development in sentencing intended to address the problem of overrepresentation of racialized individuals in the criminal justice system. [ 30 ] The two leading cases on addressing anti-Black racism in the context of sentencing are the Ontario Court of Appeal in R v Morris , 2021 ONCA 680 , and the Nova Scotia Court of Appeal in R v Anderson , 2021 NSCA 62 . In my recent decision R v Sumaili , 2023 MBPC 63 , I provide a more extensive analysis of the use of IRCA’s in sentencing.

The existence of anti-black racism in Canada must be acknowledged and I take judicial notice that systemic discrimination and racial inequity affects Black people in Manitoba. [ 31 ] In the present case, both the IRCA and the pre-sentence report provide detailed information about Mr. Kambeba’s background. The IRCA also contains a useful

summary of issues faced by Congolese communities. Drawing on that information, there are multiple social context factors which I take into account in this sentencing. Social Context Factors [ 32 ] The IRCA describes the following individual, interpersonal and systemic factors that have shaped Mr. Kambeba’s life experiences: - Violence and war: Mr. Kambeba was born in Congo, a country torn by war and rebellion, where many civilians experienced conflict and violence. Mr.

Kambeba himself does not recall witnessing conflict in Congo but his family has certainly experienced loss of security and safety in their displacement to refugee camps where they were often subjected to overcrowding, and inadequate food and resources. - Poverty: Mr. Kambeba and his family experienced extreme poverty and absent a patriarchal breadwinner, he worked at a young age to help his mother support his family. The effects of poverty were such that his mother could hardly afford the necessaries of life and schooling for the children. - Childhood trauma: Mr.

Kambeba experienced various childhood traumas including witnessing domestic violence and being abused by his stepfather.

- Forced migration and displacement: Mr. Kambeba and his family moved from Congo to Zambia then Namibia before travelling to Canada. - Systemic racism: Mr. Kambeba relates experiences growing up in Winnipeg where he was called pejorative stereotypes and denigrated as a Black person. He spoke of numerous encounters with police where he felt harassed and targeted and he expressed concerns about differential treatment in the court system.

He reports that his frequent experiences of anti-Black racism have had deleterious effects on his well-being and sense of self and has contributed to self-doubt and fear. [ 33 ] When considering the impact of social context factors, a sentencing judge should assess whether there is a connection between the lived experience and the offending behaviour. As explained at paragraph 97 of Morris : There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.

Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour.

Everyone agrees there can be no such discount. [ 34 ] When taking into account social context as a mitigating factor, the Court must consider how racial disadvantage may have influenced the choices made by the offender which have resulted in the charges coming before the court. [ 35 ] The nature of Mr. Kambeba’s offence is that he took advantage of a one-on-one situation and sexually victimized a person who was weaker than him. The effects of systemic racism have a less direct connection to this offence that it may to other types of crimes, such as property or weapons offences.

His victim is also a member of a non-white minority and presumably has also experienced some degree of racial inequity. [ 36 ] Defence counsel submitted that Mr. Kambeba never had a father and only learned about sex and relationships from his friends, so this should reduce his moral blameworthiness. I reject this submission. It was evident from comments in the pre-sentence report and IRCA that Mr. Kambeba is well aware of the wrongfulness of sexual assault.

In the pre-sentence report he shared: “He was born in Africa, where even an accusation of sexual assault can be punished harshly, up to and including death.” Mr. Kambeba supported both his mother and his sister exiting abusive relationships. It cannot be said that he did not know better or that he was unaware that he had to stop when the complainant said no. [ 37 ] While there are many social context factors which have negatively impacted Mr.

Kambeba, including undeniable discrimination on the basis of race, I am not satisfied that there should be any significant reduction in moral blameworthiness for this offence. Quite plainly, Mr. Kambeba knew better but he selfishly and violently continued to have intercourse without regard for the profound harm he was causing to the complainant. He had no concern for anything other than satisfying his own carnal desires. His moral blameworthiness is high.

Availability of Conditional Sentence Order [ 38 ] According to the criteria set out in R v Proulx , 2000 SCC 5 , there are four factors which are to be considered when deciding whether it would be appropriate to impose a conditional sentence (see para 46): 1. That the charge carry no minimum sentence; 2. That the length of the sentence imposed be less than two years; 3. That the imposition of a conditional sentence not unduly endanger the community; and 4.

That the sentence be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 39 ] As outlined earlier, the modern understanding of sexual assault is that it causes significant harm to victims, and this must be reflected in increased sentences where appropriate. The gravity of the offence is high, particularly in these circumstances where there was full forced intercourse, ejaculation and a broken condom resulting in risk of pregnancy and disease. [ 40 ] In the present case, I am unable to conclude that the length of the sentence imposed be less than two years.

In view of the devastating effects of sexual assault, and seeing those very effects being reflected in the complainant’s post-assault life experience, I cannot accept that a sentence of less than two years would be proportionate to the offence. This was a serious bodily and emotional violation with lasting consequences on the victim. As such, a conditional sentence order is not available to Mr. Kambeba. [ 41 ] Nevertheless, there is still room in this sentencing for a restorative approach which recognizes the challenges and systemic discrimination Mr. Kambeba has experienced as a Black refugee newcomer to Canada.

While I am not satisfied that a conditional sentence is available in this case, I do find that the length of Mr. Kambeba’s jail sentence can be moderated to reflect his challenging life experiences, including anti-black racism, his youthful age and his high potential for rehabilitation. [ 42 ] Defence counsel provided me with the recent Supreme Court of Canada case R v Bertrand Marchand , 2023 SCC 26 . In it, the Supreme Court explained that a significant mitigating factor in child luring cases can be that the offender is a youthful first-time offender.

The criminalized conduct may indicate a lack of guidance or adult mentorship more than it does criminal intent. Lack of maturity is an important consideration, and rehabilitation and individual deterrence are primary sentencing objectives. The Supreme Court stated: “It is crucial that all other dispositions be explored before imposing custodial sentences on youthful first offenders” (at para 132). [ 43 ] As noted earlier, in 1985 Sandercock set a starting point of three years for a mature, first offender and the range has moved

upward since then. Here, Mr. Kambeba is still a very young man and although the complainant was a child, there was not a large gap between their ages. He has high potential for rehabilitation, and is assessed in the pre-sentence report as an average risk for being charged with another sexual offence and a medium risk to reoffend generally.

He has been on release since June 2021 without any issue. [ 44 ] Although I accept that the modern approach to sentencing for sexual assault would be to impose a higher sentence, I am satisfied that restraint in the case of this racialized young man with a high potential for rehabilitation justifies the imposition of a jail sentence of three years. While it is a denunciatory penitentiary length sentence, it is not crushing and will enable Mr. Kambeba to serve his time, then continue on with his life. [ 45 ] Ancillary orders will be as follows: - Mandatory

section 109 weapons prohibition for a period of 10 years; - DNA order as a primary designated offence; - Mandatory order under the Sexual Offender Information Registration Act for a period of 20 years; - No contact with the victim while in custody, pursuant to

section 743.21. [ 46 ] Given the time going forward in custody, costs and victim surcharge are waived. Original signed by Judge Choy L. Choy, P.J.