Her Majesty the Queen - v. -, 2016 SKPC 149

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 149 Date: November 21, 2016 Information: 31731694, 43832279, 43373023, 43367802, 43368035 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.G.V. Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Ms. Susanne Jeanson For the Accused SENTENCING DECISION D. KOVATCH , J FACTS [ 1 ] The accused, M.G.V. is charged that on April 3, 2008, he committed a sexual assault on BF contrary to

section 271 of the Criminal Code . The Crown proceeded by way of indictment. Hereafter, I sometimes refer to this charge as the principal charge. On this principal charge, a preliminary inquiry was held before myself on March 11, 2009. The accused was committed to stand trial by a Queen’s Bench judge sitting without a jury.

[ 2 ] The court was advised that a date was set for this matter to be spoken to in the Court of Queen’s Bench. However, prior to that date, the accused became scared and fled the jurisdiction. This resulted in the four other informations being laid, all under

section 145 of the Criminal Code . All of these additional charges were laid in 2009. For much of the intervening time, M.G.V. was living with a girlfriend in the Edmonton area. Following the break up of that relationship, he returned to the Moose Jaw area. I gather that he turned himself in, and was released on bail. He re-elected trial by this court, entered a guilty plea to all of the charges and sentencing submissions were held before me on August 18. [ 3 ] Counsel did considerable work to reach an agreement on all of the essential facts related to the principal charge.

The court was advised that on the date of the offence the accused was 18 years and 74 days old. On the date of the offence, the victim was 37 days short of her 14 th birthday. At the time, the accused was suffering depression, and was not doing very well in his life. He became friends with the complainant’s family. The accused and the complainant considered themselves boyfriend and girlfriend. Only one incident of sexual assault is alleged. On the date in question, the accused and the complainant both skipped school and went to the complainant’s home.

At the complainant’s home, both took off their own clothes, and they were about to engage in intercourse. [ 4 ] Meanwhile, the school contacted the complainant’s mother and advised that she was in inexplicably absent from school. The mother immediately returned to her home where she located the complainant and the accused in a state of undress and ready to engage in intercourse. The court was advised that there was no penetration and no intercourse. According to the pre-sentence report, the victim has issues trusting people and an ongoing fear that something could happen to her own children.

She has asked that the existing no contact order remain in place. THE RELEVANT STATUTORY PROVISIONS AND POSITIONS OF THE PARTIES [ 5 ] In 2008,

section 271 of the Criminal Code provided that where an accused is guilty of the indictable offence of sexual assault, he is liable to a term of imprisonment of not exceeding 10 years. At the time,

section 742.1 of the Criminal Code provided that the court could deal with such a matter by way of a conditional sentence order, if the sentence imposed was less than two years and the court was “satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”. [ 6 ] In the intervening years between 2008 and today, Parliament has made significant legislative amendments.

Section 271 now has a minimum mandatory term of imprisonment for sexual assault against a complainant under the age of 14 years.

Section 742 now provides that a conditional sentence order is not available where the Code provides for a mandatory term of actual incarceration, as is the case with

section 271 . [ 7 ] Both counsel addressed the issue of these legislative changes. Both took the position that this accused must be sentenced according to the law as it existed in 2008. As a result, for this sentencing, there is no mandatory minimum period of incarceration and a conditional sentence is available for consideration by the court. Having said that, Mr. Hendrickson argued that when I consider all of the facts, together with the sentencing principles in

section 718 to 718.2 and the relevant case law, that a sentence of actual jail in the range of nine to 15 months is appropriate. [ 8 ] He said the breaches committed by the accused and the lengthy delay before sentencing, were aggravating factors. He agreed that this was a one time occurrence and there was no evidence of grooming. Further, that these were mitigating factors. He pointed to the complainant’s very young age and the fact that she was under age. He pointed out that there was no consent in law.

On the basis of R v Revet , 2010 SKCA 71 , he said that this is a serious sexual offence and the primary sentencing considerations are denunciation and deterrence. He asked for a term of actual jail in the range of nine to 15 months. [ 9 ] Ms. Jeanson pointed out that the accused was 18 years and 74 days old at the time of the offence. The complainant was 37 days short of her 14 th birthday. She said that there was consent in fact, but not in law. She said the complainant felt that she was mature and she had made her own decision on this matter.

She pointed out that the accused was at a difficult point in his life at this time. He is now at a much better time in his life, and will suffer a set back and negative ramifications from an actual term of incarceration. She indicated that he has expressed remorse and shame and takes full responsibility for his action. She said the accused was not in a position a trust. Given these mitigating factors, Ms. Jeanson characterized this as a low end sexual assault. She asked for a two month conditional sentence order, followed by 10 months of probation.

ANALYSIS AND DECISION [10] I begin by responding to a couple of specific points argued by each counsel. Mr. Hendrickson argued that the breaches andthe delay in sentencing were significant aggravating factors. It is obvious that the accused fled the jurisdiction, and avoided this matterfor a lengthy period of time, resulting in the delay. It is equally obvious that the court can never condone an individual for taking flightto avoid the law and significantly delay an outcome. Having said that, I substantially accept Ms. Jeanson’s explanation of this.

Sheadvised that M.G.V. was approximately 19 years of age when the breaches occurred and he fled. The preliminary inquriy had been held,and this matter was on its way to the Court of Queen’s Bench. He had not previously spent any time in actual custody. He correctlyascertained that there was a significant possibility, if not a probability, that he would receive a term of actual custody. He panicked. While avoidance and flight cannot be condoned, it is somewhat understandable that a young person facing actual incarceration mightpanic and take flight.

As a result, while I cannot condone his avoidance and flight, I do not regard this as a serious aggravating factorand will attempt to focus on the punishment to be rendered for the principal charge. [11] As mentioned above, Ms. Jeanson emphasized that there was consent in fact, and characterized this as low end sexual assault. I cannot accept that this was a low end sexual assault. Some decisions in this area point out that the very purpose of a

section stating theminimum age for consenting to sexual activity is to protect children from having to make such decisions. The law is supposed to be aprotection for children from sexual abuse and exploitation. As a result, any sexual offence against an under age child, incapable ofproviding legal consent, must be regarded as a serious sexual offence. In the case of R v Whiting, 2013 SKCA 101, the court specificallysaid the trial judge was in error in not characterizing this as a major sexual offence.

The court referred to the Revet decision andindicated that denunciation and deterrence were the primary sentencing considerations. In Whiting, Revet and other decisions, the courthas said that most sexual offences will attract a term of actual incarceration. Further, a penalty that does not involve actual incarcerationis to be considered the exception, as opposed to the norm. [12] Having stated all of this, there are some exceptional cases where a term of incarceration was not imposed for sexual assault. Mr.

Hendrickson has fairly acknowledged and agreed that the accused must be sentenced on the basis of the law as it existed at the timeof this offence in April of 2008. At that time,

section 271 of the Criminal Code simply provided that an individual convicted of theindictable offence of sexual assault would be subject to a term of imprisonment not exceeding 10 years. Under

section 742.1, the courtcould and I am obligated to consider whether a conditional sentence is appropriate. In the case of R v Proulx (2000) 2000 SCC 5, 1 SCR 61, the court specifically stated that there is no presumption that a conditional sentence order is not appropriate forspecific offences. This same principle was made and ennunciated by the Saskatchewan Court of Appeal in R v D.J.J. (1998) (SK CA), 172 Sask R 182. [13] As is often the case in situations like this, there are a large number of sentencing decisions, and those decisions go both ways.

The following decisions impose significant periods of incarceration: R v Miller, 2016 SKCA 32; R v Whiting, 2013 SKCA 101; R vTetlow, 2014 SKPC 156; R v J.R., 2012 SKPC 167 and R v Glasser, 2011 SKPC 50. I note however, that in a number of these situations,there was actual sexual intercourse, which was not what happened here. Also, in a number of those cases, there was a prolongedrelationship and a number of sexual encounters that the accused was being sentenced for.

That also is not the situation. [14] The following cases dealt with the matter by some form of community based sentence: R v D.J.J. (1998) 172 Sask R 82(CA); R v R.R., 2013 SKPC 83 and R v V.J.S., 2016 SKPC 112. There are also some distinguishing features from these cases to the caseat bar. Two of the cases involved an individual with diminished mental or cognitive capacity and thus a diminished criminalresponsibility. I have no evidence before me that would allow me to conclude that M.G.V. suffered from any diminished mentalcapacity.

In my view, it is significant to note that in V.J.S., Her Honour Judge Daunt sentenced under the law as it presently exists. Shedealt with the matter by way of intermittent sentence and probation. I was advised that no appeal was filed in that case. [15] For the following reasons, I have determined it would not be inappropriate for me to deal with this matter by way of aconditional sentence order. I begin by noting that a term of incarceration would be in the range of nine months to 15 months. Indeed,this is the length of sentence requested by Mr.Hendrickson.

Section 742.1 of the Criminal Code says that the court may consider aconditional sentence order where the court imposes a sentence of less than two years and the court “is satisfied that serving the sentencein the community would not endanger the safety of the community and would be consistent with fundamental purpose and principles ofsentencing set out in sections 718 to 718.2.” The sentence here would be under two years. The pre-sentence report indicates that theaccused is assessed as a low risk to reoffend. He is assessed as a moderate to low risk to re-offend sexually.

In my view, a conditionalsentence order would not endanger the safety of the community. When I consider the relatively young age of this accused person at thetime of the offence, his lack of a significant criminal record, the fact that this was a single incident, that there was no actual sexualintercourse, that the accused has taken responsibility for his actions and shown remorse, and the present state of his life with supportivefamily and friends around him, I am of the view that a conditional sentence order is the most appropriate way of dealing with thismatter.

In reaching this conclusion, I have not disregarded the importance of denunciation and deterrence in sentencing this kind ofcharge. In the R.R. decision, His Honour Judge Bazin specifically addressed these factors and imposed a conditional sentence order. He

stated in part as follows; Denunciation Denunciation being a primary consideration in child sexual assault is best satisfied by a term of incarceration. The Court of Appeal as set out in Laliberte has held that conditional sentence orders have the ability to satisfy the principles of denunciation as long as they adequately restrict the offender’s liberty. Severe restrictions on conditional sentence orders are to be the norm not the exception.

Deterrence In both general and specific deterrence, the effectiveness of the deterrence is closely related to the conditional sentence orders ability to denounce offending behaviour. If a conditional sentence order gives the public the appearance that there are no restrictions on liberty, they will have little deterrent effect generally.

In many ways a conditional sentence order with appropriate restrictions demonstrates to the larger community, on a daily basis, the punishment that is imposed upon an offender as they have the offender in the community, and the restrictions remind the community daily of the punishment and the offence. Deterrence could be satisfied with a conditional sentence order with appropriate conditions. [ 16 ] Like Judge Bazin in the R.R . decision, I am satisfied that I can meet the principles of denunciation and deterrence by a conditional sentence order that is fairly lengthy and fairly restrictive.

For these reasons however, that conditional sentence order must be more lengthy and more restrictive than was requested by defence counsel in her submissions. [ 17 ] On the principal charge of sexual assault, I sentence M.G.V. to 12 months to be served conditionally and in the community on the following conditions: i.

Keep the peace and be of good behaviour; ii. appear before the court when required to do so; iii. report to the supervisor forthwith and thereafter as and when required and in a manner directed by the supervisor or their designate; iv. remain within the jurisdiction of the province of Saskatchewan unless written permission to go outside of that jurisdiction is obtained through the court or supervisor; v.

Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation; vi. live in a residence approved by the supervisor and not change that residence without the prior written permission of the supervisor or designate of the court; vii. For the first six months of this order, stay within your approved residence 24hrs a day unless you have the written permission of your supervisor or designate of the court. During this time, you will comply with the terms of the electronic monitoring program.

You may be outside of your residence for work, programming, and other matters deemed appropriate by the supervisor in writing, and you shall come to the door of your approved residence when asked to do so by a police officer/supervisor or designate who may be checking the residence and curfew conditions of this order; viii. Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place where the main purpose is the sale of alcohol such as bars or liquor stores; ix.

Provide suitable samples of your breath for testing upon the request of a police officer who has reasonable grounds to believe you are in breach of a condition of this order regarding the consumption of alochol; x. Participate in assessments and complete programming for sexual offending, mental health concerns or cognitive challenges and or personal counselling as directed by and to the satisfaction of the supervisor; xi. You are to have no contact directly or indirectly except through a lawyer acting on your behalf with B.F.

You are not be within five metres of that individual or within 50 metres of any residence, place of education or place of employment of this individual. [ 18 ] On each of the other charges to which the accused has entered a guilty plea, he will be sentenced to 30 days to be served conditionally and in the community. Each of these other sentences are to be served concurrently with the sentence on the principal offence.

[ 19 ] All of these matters arose under the old criminal victims surcharge regime, where imposition of the criminal victim surcharge was within the discretion of the court. I waive all of the criminal victim surcharges. [ 20 ] This is a primary designated offence within the meaning of

section 487.04 of the Criminal Code . As a result, there will be an order requiring M.G.V. to attend at the Moose Jaw City Police Station no later than 4:00 p.m. on Wednesday November 23 to provide suitable bodily samples for forensic DNA analysis. [ 21 ] This is also a designated offence withing the meaning of

section 490.011 of the Criminal Code . Accordingly there will be an order requiring the accused to comply with the Sex Offender Information Registration Act for a period of 20 years from today’s date. [ 22 ] There will also be an order under

section 109 of the Criminal Code prohibiting the accused from being in possession of any firearm prohibited and restrictive firearms and other weapons and explosive substances. That order will be in place for 10 years. [ 23 ] I express my thanks to both counsel for their thorough and helpful submissions. Dated at the City of Moose Jaw, the Province of Saskatchewan this ____ of November 2016. _______________________ Kovatch, J