R. v. Norquay, 2019 MBPC 28

CITATION: R. v. Norquay , 2019 MBPC 28 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) S. Harland and S. Cooper for the Crown ) - and - ) ) Blaine Austin Justice Norquay ) ) G. Champagne for the Accused ) ) Judgment delivered: ) October 4, 2019 CORRIN, P.J. Introduction [ 1 ] The accused was convicted of two offences pursuant to

section 151 and

section 271 of the Criminal Code of Canada . The first conviction provides that it is an offence to touch “directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years” for a sexual purpose. The Court entered a judicial stay with respect to the second conviction pursuant to the so-called Kienapple rule as this conviction is arguably the least serious offence in the context of this particular case. [ 2 ] The Crown proceeded by indictment with respect to the sexual interference charge, attracting a minimum mandatory sentence of one year.

However, after the hearing but prior to the sentencing, there has been a change in the sentencing law in relation to this offence. On November 22, 2018, in R. v. J.E.D. , 2018 MBCA 123 , the Manitoba Court of Appeal determined that the one year minimum prescribed period of imprisonment for a breach of

section 151 (

a) was unconstitutional. [ 3 ] The facts of this matter are relatively straight forward. The accused and the victim began a social relationship in September, 2014. The accused was then 17 years old and the victim was only 13 years of age. Both parties testified that they had been dating conventionally for a couple of months prior to physically consummating their increasingly intimate relationship. The accused turned 18 during this period of time.

The evidence suggests that the parties had sexual intercourse five or six times prior to their February, 2015 breakup, when the complainant’s mother advised the accused that she disapproved of the relationship. The Court found that, given the disparity in ages, the accused had not taken sufficient steps to ascertain the victim’s age. During direct testimony he told Court that she looked 16 when he first met her but conceded that he had never actually asked her age. On cross-examination, he changed his evidence and said she had told him that she was 15 when they started dating.

These inconsistencies suggested that the accused’s testimony was either unreliable and/or not credible. After the dissolution of their relationship the victim learned that she had become pregnant. Subsequent DNA tests determined that the accused was the father of the child. The Issue [ 4 ] The issue for the Court to decide is what the appropriate sentence for Mr. Norquay should be with respect to the commission of this offence. Positions on the Sentence [ 5 ] Defence counsel recommended a Conditional Sentence Order of two to four months with extensive supervised probation.

An alternate position put forward by defence counsel was a sentence of 90 days or less to be served intermittently. Defence counsel submitted that because of “clear evidence of the substantial transformation that the accused has undergone since he was 18 years of age” that exceptional circumstances are present which should mitigate against a longer sentence. Defence also submitted that the offender’s cognitive limitations should also mitigate against the application of the general range.

In other words, that the offender’s moral blameworthiness was reduced in this case by virtue of the fact that he suffers from mild cognitive retardation and Attention Deficit Hyperactivity Disorder (ADHD). Defence reminded the Court that the accused had not attempted to contact the victim after her mother related such information to him in February, 2015. [ 6 ] Crown counsel’s position is that a conditional sentence is legally unavailable as an appropriate range of sentence in this case is three and one-half to four years imprisonment, more than two years less a day, followed by probation.

The Crown concedes that there are factors, most particularly his youth, that mitigate sentence and which justify a sentence beneath the stipulated sentencing range, which the Crown submits is four to five years imprisonment. The Crown further submitted that there are no exceptional circumstances

pertaining to this matter and that the offender’s mild cognitive retardation should not be perceived as reducing his moral blameworthiness. The Crown emphasized that a sentence of imprisonment within the generally accepted range is required to address the sentencing objectives of deterrence and denunciation. Sentences for

section 151 Offences [ 7 ] The Crown particularly relied on an Ontario Supreme Court case cited as R. v. B.D. , 2017 ONSC 5526 . In B.D. the accused was 31 and the victim 14 years of age. Their relationship included two acts of sexual intercourse. The victim had subsequently become pregnant. The mature accused had a significant criminal history and suffered from ADHD. Although he was related to possess learning disabilities, there was no evidence put forward respecting actual cognitive impairment.

The accused in B.D. pled guilty, something that the sentencing judge perceived as a mitigant, indeed one of the only mitigating factors in the case. Gladue factors were deemed irrelevant notwithstanding that the judge states that B.D. had a very difficult life, one that “would have been a challenge for anyone to overcome.” The accused had also been on bail and ordered to keep the peace at the time of the offence, something appropriately perceived as an aggravating factor by the judge.

The victim, her mother and her sister all filed letters of support for the accused, an exceedingly unusual situation to say the least. The sentencing judge nevertheless pronounced a sentence of three and one-half years but did not reference any substantive sentencing jurisprudence supporting what the court described as a three and one-half to four and one- half year sentencing range. [ 8 ] The Crown also filed R. v. Norton , 2016 MBCA 79 , a decision of the Manitoba Court of Appeal.

In this case the Crown had appealed a 15-month incarceratory sentence for an offence of sexual interference in relation to a 15-year-old female complainant. The accused at the time of the incident was 20 years old. At the time of the offence, the accused was about three and one-half months over the five year age difference statutory exception found in

section 150.1(2.1)(

a) of the Code . The victim had provided consent but was too young to have legally done so. The appeal court determined that the sentencing judge had placed too much weight on the issue of consent, causing her to impose a sentence that was too low. Cameron J.A., speaking for the court, emphasized that

section 718.01 of the Criminal Code stipulates that sentencing judges in cases involving the abuse of persons under the age of 18 years must give primary consideration to the principles of denunciation and deterrence. She also noted that

section 718.2 (a)(ii.1) of the Criminal Code provides that evidence that the offence had a significant effect on the underage victim “considering their age and other circumstances is to be considered an aggravating factor”. The court, at paragraph 42, specifically states that “factual consent will not constitute a mitigating factor when victims are below the age of 16. At paragraph 41 the court also expressed approval for caselaw wherein a sentencing judge had rejected argument that a lower sentence was warranted in cases where the complainant had given consent to the illegal activity.

Perhaps most significantly, given the Crown’s range position in the case at bar, the court also suggested that the starting point for interference cases involving acts of intercourse should generally be three years, if the accused was “a mature person with a clean record and good prior character” (see para. 44). In the Norton case it was noteworthy that there were significant victim impacts including depression and self-destructive behaviour, which ultimately led to several hospitalizations.

The victim also missed a significant amount of school in relation to gossip and rumours that were being spread about the incident. The appeal court substituted the 15-month sentence with a sentence of three years, the bottom of the stipulated range, but stayed the remaining custodial portion of the sentence. [ 9 ] The Crown also referenced the J.E.D. case (previously mentioned herein). This case involved sexual touching of two victims who were in a position of trust in relation to the 23-year-old offender.

One of the victims was abused for two years between the ages of seven and nine, and the other, for six months, starting when she was six.

There was evidence in this case that the offender’s autistic spectrum disorder (ASD) may have played a role in his sexual-offending behaviour insofar as it limited the offender’s ability to fully appreciate the inappropriateness of his conduct. [ 10 ] The Court of Appeal offered three “areas of guidance” in reference to offenders suffering from mental disorders (see para. 73): First, in determining whether a mental disorder affects the moral culpability of an offender, a court should consider whether the evidence indicates that the offender’s cognitive defects undermine the offender’s capacity: (1) to restrain urges and impulses; (2) to appreciate that his or her acts were morally wrong; and (3) to comprehend the link between the punishment imposed by the court and the crime for which he or she has been convicted.

The mental illness does not have to have caused the offender to commit the crime. It is sufficient that the mental illness contributed to the commission of the offence. Second, the magnitude of the cognitive deficits must be considered so that the degree of moral blameworthiness can be commensurate with the magnitude of those deficits.

Third, public safety issues will always have to be taken into account as well. [ 11 ] The Court of Appeal, concluding that the ASD condition did not contribute to the accused’s offending, decided that the 90-day intermittent sentence imposed by the sentencing judge was inappropriately low in reference to the principle sentencing objective of deterrence i.e. the discouraging of similar conduct being committed by either the accused or the public at large. It also felt that it was inadequate in terms of communicating society’s disapproval of the wrongdoing.

And the court went on to stress the importance of societal denunciation of serious sexual crimes committed against children. Taking all of this, as well as the offender’s degree of responsibility for the offence in reference to his particular mental illness, the court sentenced the accused to a period of 22 months imprisonment, opining that the appropriate sentence range for a first time offender involving touching-type behaviours, not intercourse, should be “around 12 to 27 months” of imprisonment (see para. 67). [ 12 ] The Crown also filed and relied upon R. v.

S.J.B. , 2018 MBCA 62 , a case involving a 31-year-old stepfather’s sexual exploitation of his 17-year-old stepdaughter. The consensual relationship extended over a period of two months and involved numerous acts of unprotected intercourse. The offender was determined by psychologists to be very low risk for re-involvement with children. He had previously been of apparent good character and possessed no prior criminal record. The appeal court described the case as involving a serious violation of the child’s “sexual integrity” in circumstances which they perceived as a clear abuse of a position of trust.

They also cited the age disparity as a further significant aggravating factor. With all this in mind, after concluding that the accused’s moral blameworthiness was extremely high, a three-year sentence of incarceration was imposed. [ 13 ] The Crown also filed a number of other Manitoba and extra-provincial cases in reference to its submissions.

Many of these cases stressed the need for deterrent oriented sentencing in relation to sexual offences perpetrated against children in order to protect young teenagers from themselves and thus prevent the inherent harms which so often flow from premature sexual activity, harms which

often increase victim risk in reference to short and long-term negative developmental and psycho-social outcomes. The Court observes that it found such caselaw very helpful and informative as it made clear that the harm inherent in the crime of sexual interference often extends well beyond the child victim, that such harm can lead to ramifications that span generations and create social problems that negatively impact society as a whole. [ 14 ] The first case submitted by Defence was R. v. Drumonde , 2018 ONCJ 336 , a decision of the Ontario Court of Justice (a provincial court decision).

The accused successfully challenged the mandatory minimum sentence. The Court ruled that such sentence violated

section 12 of the Charter and further found that the violation could not be saved by

section 1 of the Charter . [ 15 ] Drumonde, a 21-year-old female accused had touched and kissed a 14-year-old victim in a manner that sometimes violated her sexual integrity. The kissing involved only caresses to the victim’s cheeks and forehead. The touching, which was described as being mostly “supportive and comforting”, was hugging. There was no touching of private places. All the touching was above the clothing worn by the victim. The accused had no criminal record and had a history of depression and anxiety. She had, at 12 years of age, been a voluntary patient in a youth mental hospital.

Prior to sentencing, the accused engaged in counselling with respect to her inappropriate relationship issues. A psychologist told the court that Ms. Drumonde was now able to “pinpoint her errors of judgment” and take “responsibility for the inappropriateness of her relationship with the victim”, gaining “insight as to why such a relationship seemed normal to her” in the context of her upbringing and life experiences. Court was also told that the accused had resumed self-harming behaviour, something she had stopped nine years previously and was also now experiencing suicidal thoughts.

After noting that the accused had been in a “quasi-position of trust”, an aggravating factor, the court sentenced the accused to five days of pre-sentence custody already served and a conditional sentence of 45 days to be served in the community. [ 16 ] The second case submitted by Defence was a Newfoundland and Labrador Provincial Court case cited as R. v. A.W. ,

(2018) N.J. No 296 . A.W. involved an offender who was the victim’s grandfather, and was also a case which proceeded summarily. The offence involved the touching of her genitals inside her underwear as she lay next to the offender, on a couch. The incident ended when the victim awoke and A.W. withdrew his hand. There was only one incident and the major aggravating factor was the offender’s breach of trust in relation to the victim. The victim was in her teens and was periodically residing with her grandparents due to a strained relationship with her mother.

The sentencing judge opined that the offender’s significant breach of trust in those circumstances was “particularly troubling”. The offender had no previous record and was 70 years of age at the time of sentencing. The offender was rated as a low risk to reoffend sexually. He was sentenced to a six-month conditional sentence and 12 months supervised probation. [ 17 ] The third case referred to by Defence was R. v. MacLean , 2018 NLSC 209 , a decision of the Nova Scotia Supreme Court. This

section 151 case involved only one act of “consensual” intercourse between the 21-year-old accused and a 12-year-old victim. The court, as in our case, determined that the accused had not taken all reasonable steps to determine the victim’s age. There was no finding that he was aware of the victim’s actual age, which was described as “a few days short of her 13 th birthday.” The court concluded that Mr. MacLean’s moral blameworthiness was lower than it would have been if he actually knew the victim’s real age. The victim did not become pregnant. A 90-day intermittent sentence was pronounced with two years probation to follow. [ 18 ] Another case cited by Defence was R. v. W.G.

(2019) O.J. No. 868 , a decision of the Ontario Superior Court of Justice. In this case, also dealing with a sexual interference sentencing, both parties agreed that the mandatory minimum sentence of one year was unconstitutional. The sentencing judge agreed with counsel, stating that he or she was bound by stare decisis because another Ontario superior court judge in a different case had previously held that the

section 151 one year mandatory minimum sentence contravened the Charter . The judge in W.G. cited Smith, J. in R. v. Sarmales , 2017 ONSC 1869 , para. 20 , as authority in such respect: I agree with the submission by defence that, once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the constitution, the offending

section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal.

As a result, there is no constitutional issue that remains ‘in question’ once such a declaration has been made under s.52(1) of the Constitution Act by a judge with inherent jurisdiction. [ 19 ] As a consequence, W.G. was sentenced to a one year conditional sentence as the court perceived no endangerment of public safety and felt that such a sentence was “consistent with the fundamental purpose and principles of sentencing set out in s.718-718.2 of the Code. ” The court observed that W.G.’s offence was “akin to one of negligence, rather than a deliberate attempt to engage in sexual activity with an underage person,” making him far less blameworthy than he would have been if he had knowingly engaged in the sexual activity with the under-aged victim.

Departure from the Accepted Sentencing Range [ 20 ] Sentencing ranges are guidelines.

Essentially, they factor in the necessary emphasis on the primary principles of deterrence and denunciation, and then, a sentencing court, in order to determine an appropriate individualized sentence, must adjust the sentence length upward or downward based on the aggravating and mitigating circumstances of both the offence and the offender. [ 21 ] Among other factors, “exceptional circumstances”, if found to be present, can create a situation in which a sentence significantly below the accepted range may be found to be fit and proportionate. As Justice Mainella explained at paragraph 27 of R. v.

Burnett , 2017 MBCA 122 : In a situation of exceptional circumstances, the sentencing judge does something far more drastic than simply showing leniency from a starting point or sentencing range; usually a non-incarceratory sentence in the form of a suspended sentence is imposed for an offence that commonly results in a lengthy period of incarceration.

Such a sentence largely forgoes the objectives of denunciation and general deterrence; the overarching goal in such cases is rehabilitation. [ 22 ] The second situation in which an offence may be significantly below the bottom of the accepted sentencing range, (although there may not be exceptional circumstances) is when a sentencing judge departs from the sentencing range to impose an individualized sentence based on the circumstances of the particular case. In such situations, the length of a ‘reduced’ sentence may sometimes be significantly below the accepted range.

However, such sentences must still be fit and proportionate. Gladue and/or mental health issues

can, in certain circumstances, reduce an offender’s moral blameworthiness to a greater or a lesser extent, depending on the circumstances. What are exceptional circumstances? [ 23 ] The sentencing principle of “exceptional circumstances” has been addressed by the Manitoba Court of Appeal a number of times in recent years. R. v. Peters , 2015 MBCA 119 ; R. v. Tran , 2015 MBCA 120 ; R. v. Racca , 2015 MBCA 121 and R. v.

Burnett (previously mentioned) all address the exceptional circumstances jurisprudence. [ 24 ] In paragraph 28 of Burnett , Mainella J.A. states that exceptional circumstances can arise from the way in which an offence is committed, or from the circumstances of the offender or from a combination thereof. Findings of exceptional circumstances only occur in cases where there are multiple mitigating factors of significance or the offender’s motive for committing the offence is highly unusual ( see R. v. McKnight , 2018 MBPC 42 , Carlson P.J. para. 20).

Judge Carlson also reminds that “An assessment of whether there are exceptional circumstances is a holistic exercise based on an evaluation of the totality of the circumstances and all of the relevant sentencing objectives and principles.” Justice Mainella at paragraph 30 of Burnett observes that two themes run through these types of cases. Firstly, where an accused has demonstrated that he has turned his life around and secondly, where the fundamental purposes of sentencing would be better served by a non-custodial rather than a custodial sentence.

In McKnight , Carlson P.J. quotes from Madame Justice Suche in R. v. Dzinic , 2018 MBQB 143 at paragraph 6 , in order to elucidate when a sentencing judge may find exceptional circumstances: Exceptional circumstances exist where there are multiple mitigating factors of significance. Those most commonly relied on include strict bail conditions, a guilty plea, cooperation with authorities, health issues, personal circumstances, family concerns, Gladue considerations, as well as demonstrated rehabilitation.

Other factors include the age of the offender, a lack of criminal record, the passage of time since the commission of the offence, as well as the nature of the offence and the need for a deterrent sentence.

The manner of the circumstances underlying the commission of the offence may be a factor as well, if there was something highly unusual or exceptional about it. [ 25 ] Mainella J.A. at paragraph 41 of Burnett cautions that sentencing judges must not conflate “sympathetic circumstances” with “exceptional circumstances.” Suffice it to say that the law relating to exceptional circumstances does not appear to have been fully settled to date.

When can a sentencing judge depart from a sentence range? [ 26 ] As Judge Carlson mentions in McKnight , the exercise of judicial discretion in relation to going below the bottom of a sentencing range is really just the exercise of judicial discretion that courts use every day in crafting individualized sentences (see para. 26); that judges generally depart from ranges in relation to the primary sentencing principle, proportionality.

She also observes that it is important that a court which significantly departs from the range provide reasons for doing so. [ 27 ] Carlson’s observation appears to be confirmed at paragraph 25 of Burnett , where Justice Mainella says that “the law does not require a sentencing judge to find ‘exceptional circumstances’ to justify imposing a sentence that merely departs downward from a judicially created starting point or sentencing range”. [ 28 ] In R. v.

Nasogaluak , 2010 SCC 6 , the Supreme Court of Canada discussed the role of the sentencing judge at paragraphs 42, 43 and 44, stating: No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law (see para. 43). [ 29 ] At paragraph 44 the Supreme Court goes on to describe the wide discretion afforded a sentencing judge as follows: The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (Italics are mine) [ 30 ] This Court also agrees with Madam Justice Greenberg’s apropos statement on this subject in R. v. Castelein , 2018 MBQB 37 . At paragraph 34 she states “While it may be necessary to find exceptional circumstances in this case to justify a non-custodial sentence, it is not necessary to find such circumstances to depart from a sentencing range”.

Circumstances of the Offender [ 31 ] Mr. Norquay’s personal circumstances are set out in the pre-sentence report (PSR) before the Court. He is now 22 years of age. The offence was committed when he was 18 years old. He has had a difficult and somewhat unusual life. He is the eldest of 10 siblings, who are all half-siblings as his mother had three children with separate fathers and his father has seven children with separate mothers. His parents separated when he was three years old, and his father relocated to British Columbia. At eight years of age Dr.

David Shih, a child psychiatrist, noted “Mental status today found him still hyperactive, very talkative and impulsive. There was no anxiety and no

depressive feelings. He wants to be powerful and in control. He showed attachment to his mother but also yearned for a father. His mother said he was verbally abused by a previous partner in Winnipeg and emotionally rejected by the present stepdad, Doug. There is no tic disorder, no obsessive compulsive disorder, no autism and no thought disorder.

My preferred diagnoses are severe attention deficit hyperactivity disorder, severe oppositional defiant disorder, with early conduct disorder features and probable learning disorders.” Soon after, the doctor added “mild mental retardation” to his diagnosis (in a letter of May 31, 2006 to Mr. Norquay’s mother, Jennifer Bell). At the same age, eight years, psychologist Dorothy Kilotat, recorded results of a Wechsler Intelligence Scale assessment (WISC-IV) and advised his mother that the accused scored in the “Borderline range” at only the fourth percentile. In her letter, dated June 21, 2005, Ms.

Kilotat stated that this meant that if 100 random children his age were given the WISC-IV, Mr. Norquay would only have scored above four of the 100 that were tested. The psychologist observed that the accused had had “a fair bit of difficulty understanding what was being said to him” “and needed...a lot of questions and instructions repeated.” [ 32 ] A recent Wechsler Adult Intelligence Scale IV administered by Dr. Michael Stambrook, a clinical psychologist, found that Mr.

Norquay’s “intellectual skills level has not kept up with his age peers’ development.” Stambrook, in a 14 page report filed by Defence, observed that the accused’s overall intellectual disablement range was now at the first percentile level, “the higher end of the Mildly Intellectually Disabled range.” His level of functioning on a non-verbal basis was however, somewhat higher, at the low end of the average range, at the 30 th percentile “albeit with an age equivalent of 11 years 6 months.” [ 33 ] Dr.

Stambrook described Norquay’s cognitive disabilities and ADHD as “salient and meaningful mitigating factors.” However, he cautioned and qualified that this should not be taken to mean that they were “significant mitigating factors” because the accused definitely knew that sexual contact with an underage youngster was inappropriate. [ 34 ] In court, Dr. Stambrook elaborated that he perceived Mr.

Norquay’s intellectual disabilities as being in the mildly disabled range, effecting both his reasoning and cognitive function, in particular his abstraction ability and his ability to reason in relation to problem solving. Court was told that his thinking ability presented as more in the moment and concrete. Stambrook also opined that an ADHD affliction caused Norquay considerable difficulty as it made him both impulsive and disabled his ability to organize his thoughts. Overall, Dr.

Stambrook perceived the accused as taking what he described as a “more child-like” approach to personal problems and existential issues. He described Mr. Norquay as being “unsophisticated” and very “suggestible.” He further elaborated that Mr. Norquay’s personal history and lack of nurturing in childhood had created a “neediness” for emotional intimacy, something that might have caused him to reduce his oversight in relation to physical intimacy with the under-aged victim. [ 35 ] Mr. Norquay had a tumultuous and highly unenviable personal history.

When he was 16 years of age he was kicked out of the house after telling his mother that he had decided to leave school. After several months of couch surfing, he was taken back in but then had a second falling-out with his mother and was effectively kicked out again. For the next three years he resided with an uncle. Mr. Norquay had further contact with his natural father when he was 18 years old, when his father returned to Winnipeg for one year.

To that point, there had been no communication since his father’s departure to British Columbia. [ 36 ] The accused struggled throughout his school years due to his significant personal issues; experiencing significant difficulty in school, a situation which must have been very stressful and probably negatively impacted his self-esteem. [ 37 ] At 12 or 13 years of age, Mr. Norquay, like so many distressed youth in our society, appears to have attempted to escape personal distress through self-medication. He fell prey to alcohol, a variety of illegal drugs and negative peer associations.

Substance abuse disorder studies have repeatedly found that extraordinarily high percentages of childhood trauma are associated with addictions. The correlation between such disorders and family violence, divorce, absence of a natural parent or parents and abuse has been scientifically determined by researchers. The renowned 2003 Adverse Childhood Experiences Study (ACE) found that the risk for early initiation of substance abuse increased two to four times with childhood exposure to each such experience.

Subjects with five or more ACE factors had seven to ten times greater risk for substance abuse issues than those with none (see pages 564-72). Mr. Norquay appears to conform with the norm in such respect. [ 38 ] Alcohol is now very problematic for Mr. Norquay. He described himself in the PSR as an alcoholic. He acknowledged consuming 40 to 60 ounce bottles of liquor weekly and often getting highly intoxicated in relation thereto. He also acknowledged that he had “tried almost every common known drug” when he was younger.

He maintains that he has desisted to do so recently and now only continues to use marijuana to assist in the management of his “stomach and bowel problems” which were incurred from a random attack in which he was stabbed. Mr. Norquay’s mother confirmed that her son has struggled with drug and alcohol abuse since his early teens and “still does them bigtime”. [ 39 ] The offender was scored in order to determine his relative degree of risk for sexual offence recidivism. The preparer of the PSR advised Court that his risk level was average “for being charged or convicted of another sexual offence”.

She explained that out of 100 sexual offenders, 40 would have a lower score and 43 would have a higher score. Court was told that his score level indicated that the five year sexual recidivism rate would be between five and seven percent. Court was told that this meant that out of 100 sexual offenders with the same risk score, between 93 and 95 would not be charged or convicted of a new sexual offence after 5 years in the community. Accordingly, Mr. Norquay’s risk of sexual reoffending is actually quite low. [ 40 ] The PSR preparer, a Manitoba Corrections official, deemed Mr.

Norquay to be a suitable candidate for probation supervision, suggesting he would benefit from an extended period of time on supervised probation in order to contend with “his considerable needs and lack of resources”. Such recommendation, because it recommended probation, implicitly endorsed a provincial level sentence of less than two years. Analysis [ 41 ]

Section 718.2(

a) of the Code states that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” [ 42 ] A number of mitigating factors present in relation to this case:

• Mr.

Norquay was very young when he committed the offence - only 18 years of age. • He possesses cognitive deficits which have been described as “salient and mitigating” factors by a qualified clinical psychologist. • He has been on bail, with strict conditions, for almost three years and has not been charged with any breaches of such conditions. [43] There are also aggravating factors: • The nature of the offence before the court, because it involved a minor and led to her giving birth to a child when she was only 14years of age, which have led to further traumatic and adverse life changing consequences for the victim. [44] The Court observes that it was encouraged by defence to perceive the complainant’s consent as a mitigant of sorts.

TheManitoba Court of Appeal has held that “ostensible consent” by a person under age 18 is not a mitigating factor for determination of anoffender’s sentence (see R. v. Nation at para. 42 and paragraphs 23 and 24 of R. v. S.J.B., 2018 MBCA 62). For this reason, it would notbe appropriate for the Court to accept defence’s argument in this respect. [45] The Court is of the view that this is not an exceptional circumstances case. This is because the Court does not perceive Mr.Norquay as having turned his life around to any great degree since his arrest.

Accordingly, the Court is not inclined to categorize hisrelatively innocuous and unexceptional post-offence behaviour as exceptional. [46] It is admittedly, as previously discussed, very difficult for the Court to determine to what extent Mr. Norquay’s mild mentalretardation contributed to the commission of the offence. The Court does, however, perceive Mr. Norquay’s cognitive limitations to besufficient to somewhat reduce his moral blameworthiness.

More simply put, while there is no evidence that his mild retardation or hisADHD actually caused him to commit the offence in question, there is some evidence that it may have encouraged his attachment to anotherwise age inappropriate intimate partner. Of course, the Court is aware that it must engage in the careful fact finding exercisedescribed at paragraphs 72 and 73 of R. v. Okemow, 2017 MBCA 59 in order not to under or overemphasize the effect of the offender’smental or cognitive disorder in relation to the issue of moral blameworthiness.

The Court appreciates that it cannot reduce an offender’smoral blameworthiness absent probative evidence of cause and effect. That having been said, the Court does not perceive this case to beencompassed or circumscribed by the dicta to be found at paragraph 136 and 137 of R. v. J.E.D., 2018 MBCA 123, as suggested by theCrown. [47] The Court agrees with Defence that a person who commits an offence by negligence is less morally blameworthy than someonewho commits the offence intentionally as was the case in J.E.D. As McLachlin, J noted in R. v. Creighton, (1993) 3S.C.R.

No. 91, “thosecausing harm intentionally must be punished more severely than those causing harm unintentionally” (see p. 46). In the case at bar Mr.Norquay was found not to have taken all reasonable steps to ascertain the victim’s age. In those circumstances, given how young shewas, although there certainly was reasonable foreseeability of the risk of emotional or psychological harm to the child victim. Mr.Norquay’s conduct was not wantonly reckless. It was, due to his cognitive limitations, something less.

I therefore feel that he should beperceived as having a lower level of moral blameworthiness than someone with normal cognitive capacity who engaged in the sameprohibited sexual activity. [48] Mr. Norquay was himself barely an adult when the offending behaviour occurred. The Court is of the view that because Mr.Norquay is by definition, a youthful offender, I should be mindful about tailoring a sentence in a way that does not over-prioritizegeneral deterrence.

I concur with defence counsel that young people lack maturity and because of that and the fact that their brains arestill developing, that their place in society is not yet formed in the same way as that of a fully grown adult. For that reason, the Court is ofthe view that when young people make poor choices, their lack of maturity suggests that they should not be held to the same standard asa fully mature adult making the same bad decision. The Court therefore perceives Mr. Norquay as being less morally blameworthy forthis offence than would have been the case if he were a mature adult.

It is my opinion that as a result, his punishment should be less thanthe Court might have otherwise imposed. [49] It has long been the case that courts have exercised the principle of restraint in relation to youthful offenders. I cite R. v. Demeter and Whitmore, (1978) 3C.R. (3rd) 55, a decision of the Ontario Court of Appeal in such respect. [50] Courts have also held that first sentences of imprisonment in relation to youthful offenders should focus on the particularoffender, not general deterrence (see R. v. Vandale and Maciejewski (1975) (ON CA), 21 C.C.C. (2d) 250).

Both theDemeter and Vandale cases were considered, quoted from and applied with approval by the Manitoba Court of Appeal in R. v.McCormick, (1979) (MB CA), 4 W.W.R. 453, a case where the Appeal Court upheld a three-month sentence for a 20-year-old offender who committed an armed robbery of a service station at knifepoint. [51] The overarching principle of proportionality is also very important as it is integral to the over-all Gladue analysis the Court ismandated to make as part of the sentencing process as Mr. Norquay is Metis and as such qualifies as an Indigenous person. One mustalso be mindful that

section 718.2(

e) requires that courts must consider for all offenders (not just Indigenous ones) “all availablesanctions other than imprisonment that are reasonable in the circumstances.” [52] As well, there is little doubt that Mr. Norquay’s childhood and early teens were impacted by Gladue factors; familialfragmentation and considerable economic hardship. These circumstances were related in the PSR. The cumulative impact of these andother functional disabilities such as his ADHD and mild mental retardation undoubtedly led him to early substance abuse and all itsattendant dysfunctional behaviour.

There were no effective male role models in his life during his formative developmental years. Theoffender was forced from the house at 16 and was assumably deprived of his primary source of emotional nourishment at that early age -his nuclear family. As Greckol J. of the Alberta Court of Queen’s Bench stated at paragraph 60 of R. v.

Skani, 2002 ABQB 1097, afterdescribing the background factors that led to the offender coming before the court, “few mortals could withstand such a childhood andyouth without becoming seriously troubled.” [53] The Code gives guidance respecting factors that might be looked at in the imposition of a fit sentence in determining whetherand to what degree an inappropriate relationship is exploitative (see Steel J.A. at para. 72 of R. v. PES, 2018 MBCA 124). Parliament has

instructed judges to assess such subject matter by reference to the factors related in section 153(1.2):

a) the age of the young person;

b) the age difference between the offender and the young person;

c) the evolution of the relationship;

d) the degree of control or influence by the offender on the young person. [54] The accused was clearly not in a position of trust or authority in relation to the complainant and she was not in a dependencyrelationship in relation to him. Their relationship per se was essentially not atypical of many conventional boyfriend/girlfriendrelationships. Because of the offender`s cognitive and other limitations and defects, he was more akin to a 16 or 17-year-old than an 18-year-old. His maturity and mental age was something less than that of a young adult.

He cannot be fairly characterized as a predator whowas in full control of the escalating sexual exploits that are the basis of their offence. This is not a case where there was obvious plannedsexual exploitation of the victim by a person in a position of trust. The accused was found guilty because he was wilfully blind in relationto the complainant’s age. As the Court stipulated in its decision, the “steps” taken by the accused “to determine (the complainant’

s) agewere less than sufficient given the sizable difference in their actual ages.” The Court parenthetically notes that it was unaware of Mr.Norquay’s cognitive deficits until the sentencing phase of this matter. [55] The Court, having taken into consideration all the foregoing circumstances of the offence and the offender, has determined thata more lenient sentence should be imposed on Mr. Norquay than might otherwise have been the case.

It does so noting that the offenceof sexual interference, like manslaughter, is not particularly amenable to traditional starting point range calculation because the widerange of offending circumstances simply defies the establishment of a meaningful bottom range point. That having been said this Courtis of the opinion that a 12 month jail sentence would be appropriate for this accused, ironically the same minimum sentence Parliamentchose to impose against indictable offenders in the 2015 Tougher Penalties for Child Predator Act.

Is a conditional sentence appropriate for an offender found guilty of having sexual intercourse with a 13-year-old child? [56] It was the Crown’s submission that even if a sentence of less than two years were to be imposed, a Conditional Sentence Order(“CSO”) is not appropriate. [57]

Section 742.1 of the Criminal Code provides the framework to consider when a CSO is contemplated. The relevant provisionsof the Criminal Code in force at the time stated: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender`s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and wouldbe consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that i. resulted in bodily harm [58] The Crown argues that

section 742.1(e)(

i) operates to make this offence ineligible for a CSO as the accused`s offendingbehaviour resulted in bodily harm. [59] The definition of serious bodily harm was discussed in R. v. McCraw, (1991) (SCC), 3 S.C.R. 72 at para. 23: The term “bodily harm” referred to in s. 267 is defined as “any hurt or injury.” Those words are clearly broad enough to includepsychological harm. Since 264.1 refers to any “serious” hurt or injury, then any serious or substantial psychological harm must comewithin its purview.

So long as the psychological harm substantially interferes with the health or well-being of the complainant, itproperly comes within the scope of the phrase “serious bodily harm.” There can be no doubt that psychological harm may often be morepervasive and permanent in its effect than any physical harm. I can see no principle of

interpretation nor any policy reason for excludingpsychological harm from the scope of s. 264.1(1)(

a) of the Code. [60] The Supreme Court’s analysis in McCraw was further discussed by the Nova Scotia Court of Appeal in R. v. Hutchinson: ...the meaning of “serious bodily harm” for the purposes of the

section is any hurt or injury, whether physical or psychological, thatinterferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant. R. v. Hutchinson, 2013 NSCA 1 at para 203 [61] The Crown reminded this Court that the Nova Scotia Court of Appeal in Hutchinson had adopted the observations of Derrick,J., the trial court judge as follows: ... Pregnancy does not have to be inevitable; it can be mediated by choice. And while it may naturally occur, it is not a benign condition,especially where it is unplanned and unwanted.

Biology is not destiny: an unwanted pregnancy intrudes upon a woman’s autonomy and leaves her with no option but to assume eitherthe risks associated with it and childbirth or the risks associated with abortion. The fact that the incidence of serious problems in

pregnancy, childbirth and abortion, are low does not alter the fact that a pregnant woman faces the possibility of risks to her health and even her life that a non-pregnant woman does not. The evidence supports the reasonable inference that had Mr. Hutchinson not sabotaged the condoms, [N.C.] would not have found herself in a condition that carries with it serious risks she did not choose to assume, faced with choices she should not have had to make. The evidence indicates that [N.C.] had already made an autonomous choice not to be pregnant, well before her relationship with Mr. Hutchinson started to unravel. Mr.

Hutchinson’s conduct deprived [N.C.] of her choice to avoid becoming pregnant and exposed her to all the potential risks associated with pregnancy, including risks that would endanger her life if she was unfortunate enough to develop certain conditions. Furthermore, Mr.

Hutchinson’s conduct exposed [N.C.] to the risks associated with having an abortion, the only choice she had available to her for ending the pregnancy and returning to her non-pregnant state. ( Hutchinson , para 207 ) [ 62 ] Defence, as previously mentioned, took the position that a CSO was legally available as attested to by a fairly significant number of Canadian court decisions referred to in her sentencing submissions. I note that some of these cases involved convictions relating to the “all reasonable steps” requirement while others did not.

The Crown conceded that it had not been able to find a single case which was directly on point, that to the best of its knowledge its submission was purely theoretical as it had never been upheld by a single Canadian court. [ 63 ] Defence argued that the facts of our case were not reflective of any conscious intention to cause the victim harm, that her client’s involvement in unprotected sex had never been calculated to expose the victim to an unwanted pregnancy.

She forcibly argued that the several acts of unprotected sex had been more akin to civil negligence, and therefore unreflective of any criminal intent to cause harm; that as such the facts of our case were not in the nature of a sexual assault. The Court agrees with Defence and is accordingly of the opinion that a CSO is available if the offender meets the prescribed eligibility requirements set out in the Code. [ 64 ] In order to determine if a CSO is an appropriate sentence, one must have regard for the general principles of sentencing.

The following provisions of the Criminal Code are relevant: 718 The fundamental purpose of sentencing is to protect society and 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. 718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii.) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation shall be deemed to be aggravating circumstances; (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 65 ] This court is satisfied that service of a jail sentence in the community would not endanger the safety of the community and would also be consistent with the fundamental purpose and principles of sentencing as set out in s. 718, 718.1 and 718.2 of the Code . [ 66 ] I therefore impose a 15 months sentence of incarceration to be served in the community as follows: In addition to the compulsory conditions set out in the Criminal Code , Mr.

Norquay will abide by the following conditions: 1) During the first 10 months of the sentence, he will be under house arrest except when he is working and for whatever time it takes to get to and from the location where he is working. He will also be exempted from complying with his house arrest to attend meetings with his supervisor, to attend for alcohol and drug assessment, to attend any treatment program approved by his supervisor, to attend to a medical emergency or to attend a medical or dental appointment if the attendance is pre-approved by a supervisor.

He will also have six hours per week as pre-approved by his supervisor to attend to matters of personal business in the community; 2) He will answer the door or telephone in response to authorities checking to see if he is complying with his house arrest;

3) He will complete an alcohol and drug assessment and comply with recommendations for counseling and treatment in accordance with that assessment; and 4) He will abstain from the consumption of alcohol and non-prescription drugs; 5) After the first 10 months of the sentence, his absolute daily curfew will be reduced to between the hours of 9:00 p.m. and 6:00 a.m. except when he is working. [ 67 ] The Court also makes a DNA order, a 10 year

section 109 weapons prohibition, a 20 year SOIRA order and a 2 year

section 161 order that the accused not be employed or volunteer in situations that place him in a position of trust in relation to children under the age of 16. “Original signed by:” CORRIN, P.J.