R. v. Mattess, 2021 BCPC 164

Citation: R. v. Mattess 2021 BCPC 164 Date: 20210430 File No: 47181-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARLEN ROBBY MATTESS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. KEYES Counsel for the Crown appearing by videoconference: D.J. Payne Counsel for the Defence appearing by video conference: M. Reed Place of Hearing: Prince George , B.C. Dates of Hearing: January 30, September 16, November 5, 2020, January 8, 2021 Date of Judgment: April 30, 2021

[ 1 ] THE COURT: Mr. Mattess pleaded guilty to breaking and entry into a dwelling house on July 13, 2019, with intent to commit an indictable offence, contrary to s. 348(1) (

a) of the Criminal Code . Mr. Mattess has admitted, through counsel and to other experts, that his intent on that evening was to commit a sexual offence. It is now the task of the court to impose a sentence upon Mr. Mattess for this offence. Circumstances of the offence [ 2 ] On July 13, 2019, the victim Ms. F. was asleep in her bed inside her home. Her six-year-old daughter was sleeping in her bed with her. They were both indigenous females, living in their home reserve. Ms. F. was awakened just after midnight by her daughter. Her daughter had awakened to see a man sitting at the end of their bed. [ 3 ] When Ms.

F. awoke, Mr. Mattess was sitting at the foot of the bed, with his pants around his ankles, digging around "down there", which I infer to be Ms. F.'s crotch area. Ms. F. yelled at him and kicked him off the bed. He ran away, saying, "I messed up pretty good, I'm sorry." Ms. F. discovered that the tights she wore to bed now had a hole cut in the crotch that had not been there when she went to sleep. She also found a fishing knife at the foot of the bed. [ 4 ] It is admitted that Mr. Mattess brought the knife into the room. Ms. F. believed he used the knife to cut the hole in her tights. Ms.

F. recognized him as Arlen Mattess, who was someone she had seen before in the village. It appeared Mr. Mattess had entered through a patio door that was left open slightly to allow the entry of family members coming home late. Mr. Mattess had not been in that house before and was not a friend of Ms. F. [ 5 ] Mr. Mattess did admit to Dr. Lopes, who prepared the psychological report which was prepared to assist the court in sentencing, that had Ms. F. not awakened and interrupted him, he would have committed a sexual offence. [ 6 ] At the sentencing hearing, the defence admitted that Mr.

Mattess had broken in and entered Ms. F.'s home for the purpose of committing a sexual offence. I find for the purpose of sentencing that Mr. Mattess used the knife to cut the hole in the crotch of Ms. F.'s tights while she was wearing them. He did that while his own pants were down around his ankles. The inference is inescapable that Mr. Mattess did intend to commit a sexual offence. [ 7 ] I find that when Mr. Mattess cut the hole in the crotch of the tights Ms. F. was wearing as she slept, he must necessarily have touched her, and he did so, obviously, without her consent.

A person cannot consent to sexual touching while asleep. Thus, although he was not charged with it, I find that Mr. Mattess did in fact commit a sexual assault with a weapon, in that he touched Ms. F., in a sexual part of her body, for a sexual purpose, and that in so doing he used a knife. Circumstances of the offender [ 8 ] Mr. Mattess is approximately 41 years old. He is a person of indigenous heritage who is a status member of the [omitted for publication] First Nation. He was raised between two of the villages of the [omitted for publication] Nations, [omitted for publication] and [omitted for publication].

At the time the offence was committed, Mr. Mattess was not residing in [omitted for publication], a community of about 500 people, but had attended there with family members, to attend a funeral. [ 9 ] Mr. Mattess told both Dr. Lopes, the preparer of the psychological report, and Ms. Christie, the preparer of the presentence report, that he was raised in a supportive home without violence, alcohol or drug abuse, or drug addiction in the house. His parents separated when he was a teenager, and he resided thereafter with his father. Mr.

Mattess indicated that his parents eventually went back to living together. [ 10 ] Mr. Mattess indicated that he has two siblings and two half-siblings, whom he described as very close and supportive. However, he was unable to recall how often he sees them or speaks to them, or where they live, or when he saw them last. He indicated that when released from custody for this offence, he hopes to live with his mother, but did not know where she lived. [ 11 ] Mr. Mattess had significant difficulty providing details of his background to the various report writers, and details he has provided are often inconsistent.

However, I have been informed from a variety of sources that Mr. Mattess suffered a brain injury in 1998 which impacts his ability to remember things. The reports differ as to the circumstances of the brain injury. Counsel submitted to me that the brain injury involved Mr. Mattess’ head going through the tines of a backhoe as a child. The psychiatric report and presentence report indicates that Mr. Mattess incurred the brain injury as a result of an assault that occurred at school when he was in Grade 8, but on the other hand, the reports include that the event happened in April 1998. Given that Mr.

Mattess would have been 19 years old in 1998, it is unlikely that he was attending Grade 8 when the brain injury occurred. [ 12 ] Mr. Mattess has a very limited work history. He told Ms. Christie that he worked doing brushing and weeding, driving a fork lift, and working in a mill. He said he has not worked since he suffered his brain injury and he has been receiving a disability pension since that time. He also told Ms. Christie that he spent a number of years earning money by selling drugs. [ 13 ] Mr. Mattess told Ms. Christie that his mother told him he has fetal alcohol syndrome. [ 14 ] Dr.

Lopes referred to the neuropsychological reports prepared in 2008, which indicate that according to psychological assessments done on Mr. Mattess in 1988, when he was in Grade 3 (a decade before his traumatic brain injury), he performed in the "slow learner" range. Another assessment done in 1993 (when he would have been in Grade 8) indicated largely similar results. Dr. Lopes concluded that although Mr. Mattess’ profile is compatible with a severe traumatic brain injury, the pre-incident information indicates that Mr. Mattess did have some form of cognitive impairment prior to his brain injury. [ 15 ] Dr.

Lopes noted that prior neuropsychological testing performed in 2008 revealed that Mr. Mattess' IQ falls in the mentally handicapped range. He wrote:

His verbal intellectual abilities fall in the extremely low range (1st percentile) and non verbal. Practical abilities in the average range. The overall pattern is similar to results of testing both pre-injury and during the early post injury years with a modest degree of improvement over time with regards to non-verbal functioning. [ 16 ] Dr. Lopes wrote that Mr. Mattess "presented as operating under diminished capacity." He went on to say that Mr. Mattess’ "train of thought, response style, and content appropriateness demonstrated concrete thinking with a limited range of vocabulary." He concluded that "Mr.

Mattess is not capable of understanding complex language or abstract concepts." [ 17 ] Dr. Lopes also noted that Mr. Mattess had been admitted to hospital in the Psychiatric Unit due to panic attacks and suicidal threats related to his relationship and his legal difficulties. These events occurred during the time in which Mr. Mattess was facing charges or serving a sentence for his first sexual offence. [ 18 ] In previous reports, Mr. Mattess indicated that he had at least 12 sexual partners, in brief relationships. However, when interviewed by the report writers, Mr.

Mattess indicated that he only had two sexual relationships with women: M., the mother of his daughters, and C., both of whom have died after their relationships with Mr. Mattess ended; one died of a heroin overdose and the other of alcoholism. [ 19 ] M. was the mother of Mr. Mattess’ two daughters who were in her care when she passed away. When she died, Mr. Mattess gave the children to his parents. Mr. Mattess does not know how old they are. They are in the permanent custody of Mr. Mattess’ parents. [ 20 ] Mr.

Mattess told the report writers that he was sexually abused by relatives as a child; once by an adult male and on another occasion by a female cousin who was living with his family when he was about 13. He told Ms. Christie that these experiences led him to "thinking wrong" about sex, explaining that he "didn't learn until attending treatment as an adult that you have to like each other and be in a relationship before having sex." [ 21 ] Mr. Mattess told Ms. Christie he began drinking alcohol and using marihuana at age 13, and began using methamphetamine after his brain injury. He told Dr.

Lopes that he also began using cocaine at the age of 15 or 16, mixing it with alcohol, and began to use methamphetamine in his early 20's. He told Ms. Christie that he found comfort in using methamphetamine, because, she said, "it makes him smarter, as it caused him to think more often and more clearly." He was drinking alcohol heavily and using methamphetamines regularly until the time of his arrest for this offence. [ 22 ] Mr. Mattess told Ms. Christie that substance misuse is a primary factor in his offending, and expressed confidence that he would not get arrested if he were sober. She writes Mr.

Mattess states he is not addicted, instead says he "chooses" to drink and use drugs. When asked about the reasons he turns to drugs and alcohol, Mr. Mattess said, "It's what everybody does and meth makes you smarter." Ms. Christie stated that Mr. Mattess’ sincere belief that using meth increases his intelligence raises concern regarding his ability to remain clean upon his release from custody. Criminal record [ 23 ] Mr. Mattess has a lengthy criminal record. He had 15 convictions as a youth, including two convictions for break and enter.

He has eight adult convictions, including two convictions for sexual offences, and one for overcoming resistance by choking. In the initial submissions from Crown in January 2020, I was informed that both of these prior sexual offences involved entry into residences and sexually assaulting the women sleeping within. However, when the Crown made supplemental submissions in November 2020, the circumstances of those offences were revealed to be entirely different. [ 24 ] For the sexual assault conviction in 2007, the circumstances were that Mr.

Mattess coerced a 13-year-old girl into getting into his vehicle, saying he would give her a ride home. Instead, he drove to a secluded spot, put his hands around her throat, and forced sexual intercourse on her. He told her he would kill her if she told anyone. For that offence, Mr. Mattess was sentenced to a two-year conditional sentence order. Less than six months into that sentence, Mr. Mattess was breached and spent the remaining 14 months of his sentence in custody. [ 25 ] For the second sexual assault conviction in 2011, Mr. Mattess was convicted of both sexual assault and choking to overcome resistance.

The circumstances of that offence were that the adult female victim was an acquaintance of Mr. Mattess. She invited him to her home where they consumed alcohol and some drugs. At a certain point in the evening, she decided to go and have a shower. When she got out of the shower, she found Mr. Mattess in the bathroom with her, using the toilet. He grabbed her by the throat, threw her down, began choking her, said he would kill her, and tried to vaginally penetrate her with his penis. She believed she would die if she did not cooperate, so she offered him a "hand job".

He agreed, so then she said she needed some lubricant, which she had in her room, so he let her up and she ran to her room and called police. When she told him the police were coming, he ran away. [ 26 ] He received a three-year penitentiary sentence. [ 27 ] In 2017, he was convicted of failing to comply with his obligations under the Sex Offender Information Registry and was sentenced to eight days. [ 28 ] When asked about his prior sexual offences, Mr. Mattess said he was unable to remember the incidents at all. He told Dr.

Lopes he was under the influence of alcohol at the time. [ 29 ] With respect to the incident before the court, Mr. Mattess told Dr. Lopes that he was under the influence of alcohol and methamphetamine, and wasn't thinking. He said he "came to this woman's bed, dropped … and left." (I infer from this remark that Mr. Mattess dropped the knife that was found at the scene.) He said he did not know why he entered the house and didn't know who lived there. He said he did not know the woman, except perhaps having seen her before. He did admit to Dr.

Lopes that, had he not left, his actions could have resulted in a sexual assault charge. According to Dr. Lopes, Mr. Mattess does not understand or recall his reasons for his offending behaviours.

[ 30 ] There is nothing contained within the presentence report, nor in anything that Mr. Mattess told me, which tells me anything about Mr. Mattess’ attitude towards the offence, his reasons for committing it, his understanding of the impact it had on Ms. F. or her daughter, nor is there any indication that he feels any remorse for having committed it. According to Ms. Christie, when asked how the victims may have been impacted by his actions, he continually replied, "I don't know." He appeared confused by the question, despite extensive explanation and questioning. Eventually he said, "I don't know.

I've hurt a lot of people." Prior treatment and educational interventions [ 31 ] Mr. Mattess has attended several residential treatment programs for substance abuse. When asked by Ms. Christie what he has learned during drug and alcohol treatment, Mr. Mattess focused only on his belief that meth makes you smarter. She wrote there was no indication that he recalls or understands what his triggers are, nor any steps he planned to take towards relapse prevention.

Although he is prepared to attend residential treatment again, if so ordered, he was of the view that it would not be as effective as not going to a liquor store. [ 32 ] Mr. Mattess has also taken sex offender treatment as a result of his previous convictions for sexual offences. In a psychological assessment by registered psychologist Jordan Hanley in 2008, prepared in connection with the earlier of Mr. Mattess’ prior sexual offences, Mr. Mattess was found to be "not suitable for the standardized group process as he would be unable to function adequately in a group therapy environment." [ 33 ] Mr.

Mattess completed the Forensic Sex Offender Program in custody in 2008. Registered psychologist Jean Nadeau prepared a discharge report, noting that Mr. Mattess had difficulty reading and writing throughout the program and required ongoing assistance with materials and homework. Ms. Nadeau stated that given his short-term memory impairment, it was not clear how much information, if any, he would be able to retain. Ms. Christie reports that Mr. Mattess admits he understood and retained very little information from the programs that he took. Risk [ 34 ] Dr.

Lopes was of the opinion that "from a perspective of risk, it is perhaps most important to note that the information in the police report does imply the possibility of a sexual intent in Mr. Mattess’ offending." [ 35 ] Mr. Mattess admitted as much to Dr. Lopes. However, Dr. Lopes did not express an opinion regarding the risk of future sexual offending, or provide any recommendation to address sexual offending, despite the fact that the current offence of break and enter was committed with the intention of committing a sexual offence. Dr. Lopes commented that Mr.

Mattess’ admitted underlying motivation to commit a sexual offence "fell outside the scope of the charges" and therefore did not further elaborate on the risk of committing a sexual offence, nor did he provide recommendations for treatment to address the risk of future sexual offending by Mr. Mattess. [ 36 ] Given the limitations of his opinion, Dr. Lopes assessed Mr. Mattess at medium risk to reoffend; that is, by committing a break and enter. Dr. Lopes was of the view that Mr.

Mattess’ cognitive impairment does not have a direct implication in the commission of this offence, although it may have an impact on his inability to modulate his substance abuse. Similarly, Dr. Lopes commented that Mr. Mattess’ substance abuse is not the cause of his offence either, although as a disinhibitant it is an important contributing factor. [ 37 ] Dr. Lopes noted further that Mr. Mattess has shown no improvement in his substance abuse issues despite having attended programs, and that he has an inability to understand and retain the necessary concepts. He wrote that Mr.

Mattess shows a lack of awareness and understanding of his risk factors and triggers, and functions with a level of impulsivity and impaired decision making. Dr. Lopes said that Mr. Mattess provided no information to support a belief that he will make the substantial changes he needs to make in his life, nor a commitment to long-term change. [ 38 ] Dr. Lopes was of the view that Mr. Mattess does not have the ability to address his risk factors on his own and will require enforced external barriers to stick to a new pattern. [ 39 ] Dr. Lopes recommends that Mr. Mattess complete an intense substance abuse program.

Dr. Lopes suggests that Mr. Mattess will function best when he has a significant degree of structure and routine in his environment, with outreach supports from agencies such a Community Living B.C. or the John Howard Society, but that he does not have the capacity to seek such supports by himself.

He would require assistance from a community supervisor to initiate such referrals. [ 40 ] Okay, I will be moving to a different portion of my decision at this point, so I will stop now and at two o'clock we will come back and I will carry on. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) THE CLERK: For the record, recalling the matter of Arlen Mattess. [ 41 ] THE COURT: Okay. Principles of sentencing [ 42 ]

Section 718 of the Criminal Code states: 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. Other sentencing principles 718.2 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 offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (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, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order … 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; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [43] In R. v. B.M.W., 2020 BCPC 9, Judge Doulis provided a helpful explanation of another principle of sentencing, theproportionality principle. At paragraph 76, she said: [76]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. [77] In R. v. Ipeelee, 2012 SCC 13, LeBel, J., states in para. 37, in part: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [44]

Section 718.2 of the Criminal Code directs the court to consider additional sentencing principles, specifically that the sentenceshould be increased or reduced to take into account aggravating or mitigating factors.

Mitigating factors Guilty plea [45] Mr. Mattess pleaded guilty to this offence. A guilty plea is always a mitigating circumstance, because it is an acknowledgementof responsibility for the offence. A guilty plea can have a greater or lesser impact on sentencing, depending on when that guilty plea isentered.

The earlier in the process that a guilty plea is entered, the greater the mitigating impact on sentence. [46] For instance, if a guilty plea were entered upon arraignment, prior to the matter being set for trial, that would have significantmitigating effect because it means the offender has acknowledged guilt right from the outset. It saves the victim from the fear andanxiety caused by the anticipation of having to testify in the future, and it also reduces the community speculation and censure that sooften afflicts a complainant in sexual assault matters until the outcome of the trial is known.

It also saves the public the time and expenseof preparation for trial. [47] On the other hand, if a guilty plea amounts to nothing more than an acceptance of the inevitable, it has little mitigating effect. Inthis case, Mr. Mattess was recognized by the victim, who informed the police immediately. He was arrested close to the scene. This wasa strong case for the Crown. [48] However, I do note that Mr. Mattess did plead guilty almost at the very first opportunity and very, very early in the process,before this matter was ever set for trial. [49] I also note that in pleading guilty, Mr.

Mattess simply accepted an offer from the Crown that was presented to the court as a jointsubmission. As pointed out R. v. McNutt, 2020 NSSC 219 , at para. 70: … Guilty pleas without a joint recommendation speak to real remorse, the acceptance of responsibility and the desire to save the victimsfrom the harm of testifying. [50] But given Mr. Mattess’ lack of any expressed remorse or concern for the victims, it seems unlikely that his guilty plea wasmotivated by a desire to save his victim from the harm of testifying. [51] However, at the end of the day, his guilty plea did save Ms.

F. and her daughter from the requirement to testify, so it is asubstantial mitigating factor. Remorse [52] In R. v. Friesen, 2020 SCC 9, the Supreme Court noted, at para. 165, that: Remorse is a relevant mitigating factor … However, remorse gains added significance when it is paired with insight and signs that theoffender has "come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending" ... (emphasis added in original). [53] Mr.

Mattess has not, unfortunately, expressed remorse for the offence committed against Ms. F. The lack of remorse is not, ofcourse, an aggravating factor; rather, lack of remorse is the absence of a mitigating factor. Diminished cognitive capacity [54] Mr. Mattess has limited cognitive capacity, which appears to have been lifelong. His brain injury appears to have exacerbated hispre-existing deficits. Diminished intellectual capacity has been viewed as a mitigating factor in many cases because it reduces theoffender's moral blameworthiness.

However, it is unfortunately a double-edged sword because, due to his diminished cognitive capacity,Mr. Mattess appears to be incapable of learning anything from treatment programs that are intended to reduce his risk, with the resultthat his risk to others in the community, in particular the women of his community, is likely to remain unmitigated. Childhood trauma [55] It appears that Mr. Mattess was the victim of sexual offences as a child. It was submitted to me that this fact is a mitigatingcircumstance, in the sense that Mr. Mattess is the victim of past trauma.

I cannot take judicial notice that individuals who sufferchildhood sexual abuse necessarily have diminished moral culpability. No evidence was presented to me to suggest that people who werevictimized sexually as children are thereby psychologically programmed to sexually abuse others as adults. Most victims of childhoodsexual abuse do not go on to sexually abuse children or anyone else. I have, however, considered Mr. Mattess’ personal history as avictim in determining his sentence.

Lack of additional violence [56] In support of the joint sentence submission, Crown counsel submitted that the court should find as mitigating that, unlike hisprior sexual offences, Mr. Mattess had left the home of Ms. F. when she resisted, rather than using violence, choking, or threats of deathas he had against his other victims in the past. I cannot accept that submission. The use of violence, choking, or death threats, orcontinuing an offence in the face of resistance are aggravating factors on sentence. The absence of such aggravating factors cannot betransformed into a mitigating factor: R. v.

Friesen, 2020 SCC 9 at para. 150. Mr. Mattess’ circumstances as an indigenous offender [57]

Section 718.2(

e) requires the court to consider all available sanctions other than imprisonment that are reasonable in thecircumstances, with particular regard to the circumstances of aboriginal offenders. As Judge Doulis said in B.M.W. at para. 89: [89]

Section 718.2(

e) imposes on a sentencing judge a statutory duty to consider the unique systemic and background factors which

may have played a

part in bringing a particular offender before the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender's particular indigenous heritage. R. v. Gladue … and R. v. Ipeelee … establish the principles and framework for sentencing indigenous offenders. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentence judge.

Judges may take judicial notice of the broad systemic and background factors affecting indigenous people generally and case-specific information from the offender and the presentence reports. In R. v.

Ipeelee , Lebel J. states at para. 60 : To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples … [ 58 ] I take into account that Mr. Mattess is an indigenous person whose people have been negatively impacted by the history of colonialism and residential schools inflicted upon them.

I am very well aware of the impact of these factors on members of Mr. Mattess’ home community generally. I take into account that Mr. Mattess was sexually abused by extended family members as a child. [ 59 ] However, he was raised in a supportive home without violence or alcohol or drug misuse. The Crown submits that Mr. Mattess is a person to whom "all Gladue factors apply,” but neither counsel made submissions regarding any factors beyond that provided in the presentence report and the psychological report.

Other than his history of sexual abuse, there is nothing in the information provided to me to indicate anything about Mr. Mattess’ upbringing or indigenous heritage that would reduce his moral culpability for this offence beyond sociological factors applying to indigenous offenders generally. [ 60 ] I accept that Mr. Mattess is an indigenous person and subject to the legacy of colonialism and residential school attendance that has produced intergenerational trauma on indigenous people. Mr. Mattess was himself the victim of sexual abuse and a violent assault which resulted in his brain injury.

The legacy of community dysfunction and violence is a mitigating factor that I take into account. On the other hand, for Mr. Mattess’ life specifically, he says that his family was supportive and non-violent and sober, so it appears that he did not suffer from the severity of dysfunctional upbringing that some other indigenous offenders do. Supportive family [ 61 ] Crown counsel argued that Mr. Mattess benefits by the support of his family. I accept that his family members have attended court appearances on various occasions. They expressed a willingness to transport Mr.

Mattess to Vancouver to attend a 90-day alcohol treatment program. Crown counsel suggested that such ongoing support will be a protective factor in the future. On the other hand, it was submitted to me by counsel and Mr. Mattess’ mother that the family would prefer that Mr. Mattess reside in future in the Lower Mainland, some 800 kilometres from where his family resides. I must also take into account that Mr. Mattess was in the company of his family members, visiting [omitted for publication] for a funeral, when he committed this offence.

However stable and supportive his family is, they are clearly incapable of managing his behaviour in the community at all times. Rehabilitation and reintegration [ 62 ] Crown counsel submitted that the court must not lose sight of rehabilitation and reintegration of Mr. Mattess into society, noting that Mr. Mattess had managed to exist in the community for some periods of time without reoffending. She pointed out that those periods occurred while Mr. Mattess was housed at halfway houses following his last sentence of sexual assault and choking. While it is true that there is a gap in Mr.

Mattess’ record of convictions with respect to sexual offences since that sentence was completed, it is also true that Mr. Mattess committed this offence while in the company of his family while visiting his indigenous community for a funeral. [ 63 ] Crown counsel submitted that in order to protect the public it would be necessary to have external enforcement and monitoring in place wherever Mr. Mattess resides in future. However, counsel admitted they have no knowledge whatsoever of the availability of any such resources in the places Mr. Mattess might reside.

I am aware there are no mechanisms, in the community where this offence was committed, to externally monitor and restrain Mr. Mattess’ behaviour. The submission to me from counsel was that the proposed Salvation Army resource in Vancouver might serve that function for a 90-day period. [ 64 ] I later received further submissions from counsel regarding the acceptance of Mr. Mattess into a residential treatment program in Prince George, at Integrity House.

It is a six-month program with a 90-day requirement to abide by a curfew. [ 65 ] I recognize that rehabilitation and reintegration are important principles of sentencing, because a rehabilitated offender is obviously less dangerous to the public and less likely to commit offences.

However, the proposed sentence put forward by counsel does not provide any specific methods by which such rehabilitation can be achieved, without external enforcement, in a 90-day treatment program or even a six-month program, when apparently a three-year penitentiary sentence failed to do so. [ 66 ] In any event, while rehabilitation is always a factor to be considered in sentencing, s. 718.04 requires me to give primary consideration to the principles of denunciation and deterrence, where, as here, the victim is indigenous and female. Aggravating factors Sexual assault was actually committed [ 67 ] Mr.

Mattess was not charged with committing a sexual assault, but that is in fact what he did. In cutting the crotch out of her leggings with his knife, he necessarily touched Mrs. F., in a sexual part of her body, for a sexual purpose. I find that is an aggravating factor with respect to the charge to which he pled guilty. Statutorily aggravating factor – s. 348.1 [ 68 ]

Section 348.1 of the Criminal Code provides that the court shall treat as an aggravating circumstance the fact that a dwelling house was occupied at the time of a break and enter, and that the offender knew or was reckless that the dwelling house was occupied

and used violence or threats of violence to a person. [69] In this case, Mr. Mattess broke into Ms. F.'s house and, according to him, he picked up a knife before going to her bedroom. Hecertainly knew the house was occupied when he found Ms. F. and her daughter there. He did in fact sexually assault her, with a weapon,by cutting the crotch of her tights out with his knife. All sexual assaults are inherently violent, but there can be no doubt that to use aknife in the course of such an assault is violent, even if injuries did not result. Use of a weapon [70] Mr. Mattess armed himself with a knife.

He intended to commit a sexual offence, and he used the knife to do it. He cut a hole inthe crotch of the tights Ms. F. wore. The use of a weapon in the commission of an offence is always an aggravating factor. Victim impact [71] I did not receive a victim impact from Ms. F. or her child. That is not surprising, given Ms. F. was suffering from her grief overthe death of her husband when Mr. Mattess committed this offence against her. I am told she is suffering from addiction, which again isnot surprising. Substance abuse is often an unfortunate side effect of trauma. Whether I have a statement from Ms.

F. or not, it is obviousthat such an offence would cause ongoing psychological harm and shatter whatever sense of safety and security Ms. F. might have had inher own home. This offence took place in the presence of a child in the child's own home [72] Mr. Mattess carried on with this offence with a six-year-old girl present in the room. He did not leave when the child noticed himwith his pants down and awakened her mother. He carried on until Ms.

F. confronted him and chased him off. [73] It is fair to assume the child will never again feel safe in her home, or in her bed, or even in the company of her mother in hermother's bed. Mr. Mattess destroyed that child's sense of safety and comfort in her own home forever. As the Supreme Court of Canadasaid in R. v. Friesen, 2020 SCC 9, para. 178: [178] … neither Judge Stewart nor the Court of Appeal mentioned the additional potential harm to both the mother and the child causedby the fact that Friesen's conduct took place in the mother’s residence.

While it is not clear to us from the record whether the child wasresiding with the mother full-time, the fact that the sexual violence took place in the mother's home was nonetheless aggravating. Aparent's home is a place where the child should feel safe and secure under the care and guardianship of the parent. … [74] It seems to me that the impact on the child of seeing a man violate her mother's sexual integrity would be as damaging to her as ifMr. Mattess had sexually violated the child herself. A person's home is the one place in the world where a person should be able to besafe.

It is the one place a person should be sure they can go to sleep and be safe from harm. Mr. Mattess destroyed that for Ms. F., and healso destroyed it for her daughter. Lack of insight or capacity to change [75] I have no idea why Mr. Mattess committed this offence. Mr. Mattess has no insight into his motivation for committing thisoffence.

Although he suggested that his substance abuse is the cause of his offending, he continues to approve of the use ofmethamphetamine because he thinks it makes him "smarter." In speaking to all report writers, he claimed to have "blacked out" regardingthe circumstances of this offence. He made similar claims with respect to his prior sexual offences. If Mr.

Mattess does not, in fact, haveany memory of his offences, then it is difficult to imagine how he could gain any insight into his motivation for sexual offending andprospects for a change in attitude. [76] These facts militate against emphasizing rehabilitation as a protective principle of sentencing, because the root of the offendingbehaviour is not identified, and prior attempts at substance abuse management have failed. He has taken sex offender treatment before inconnection with his prior offences and yet reoffended. These facts increase his risk to reoffend in a similar manner in the future.

Whilenot an aggravating factor per se, the fact that Mr. Mattess committed the offence impulsively against a victim who was mostly a strangerto him, without any real explanation, other than intoxication, raises concerns about managing his future risk of violence against women.

Section 718.04 - Offences against a vulnerable person [77]

Section 718.04 of the Criminal Code was enacted June 21, 2019, approximately a month before the offence at bar wascommitted. It requires that when the court imposes a sentence for an offence that involves the abuse of a person who is vulnerablebecause of personal circumstance - including because the person is aboriginal and female - the court shall give primary consideration tothe objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [78] This

section of the Criminal Code was enacted to address the concerns raised by the National Inquiry into Missing and MurderedIndigenous Women and Girls - that indigenous females are victimized at a rate far surpassing that of other women in our society. Theyoften live in remote northern communities in which violence against females is both denied and normalized, and community pressure onwomen and girls to remain silent in the face of abuse is oppressive.

The inquiry also called for change to the indifference of thegovernment and justice institutions to the suffering of indigenous females. [79] As Judge Doulis noted in R. v. P.M.M., 2019 BCPC 276, at para. 39: [39] In R. v.

Barton, 2019 SCC 33 , at paras 198-201, the Supreme Court of Canada recognizes that Indigenous females havebeen historically victimized, continue as victims of cultural and social biases that manifest in the justice system, and have endured highrates of sexual violence. [80] Judge Doulis noted, at para. 38, that it has always been a principle of sentencing that the vulnerability of the victim is an

aggravating factor on sentence. The vulnerability of indigenous victims ought to have been, and was, a proper consideration in the sentencing process long before the enactment of s. 718.04 . [ 81 ] However, it is a principle of statutory

interpretation that any enactment should be read to have remedial intent. In my view, had sentences previously imposed by the courts for offences inflicted upon indigenous women adequately addressed the need to deter and denounce those who offend against them, there would have been no need to enact s. 718.04 . This enactment now makes it mandatory for the court to give primary consideration to denunciation and deterrence where the victim is vulnerable, and in particular where the victim is aboriginal. [ 82 ] Ms. F. and her daughter are aboriginal females.

They were sleeping in their own bed, in their own home, in their indigenous community. That should be a safe place for them. Unfortunately, to read the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls is to understand that indigenous women and girls are not safe in their beds. [ 83 ] It is important to recognize that the indifference to the suffering of indigenous women and girls can take many forms in the criminal justice system. Sometimes it manifests in the lack of, or substandard, investigations on the part of investigating bodies, such as the police.

But where a complaint is investigated and the matter is referred to the Crown for charge approval and prosecution, institutional indifference to the plight of indigenous women can take the form (from the point of view of an indigenous woman, or any informed member of the public) of inadequate charges or very lenient sentencing positions in the face of a strong case for the Crown. [ 84 ] For example, with respect to Mr. Mattess' first conviction for sexual assault in 2007, the circumstances as presented to me by the Crown include that Mr.

Mattess manipulated a 13-year-old girl into his car, drove her to a secluded spot, put his hands on her throat, threatened her life, and forcibly raped her. Such facts would support charges of kidnapping, which carries a maximum life sentence, as well as choking under s. 246, which carries a maximum life sentence, in addition to sexual assault. Given the age of the victim, Mr. Mattess could have been charged with sexual interference with a child, which carried a mandatory minimum jail sentence, even at that time.

Instead, it was charged simply as a sexual assault. [ 85 ] Offences such as kidnapping with sexual assault attract lengthy sentences, from six to 18 years. [ 86 ] In R. v. Abrosimo , 2007 BCCA 406 , a little more than two months before Mr. Mattess was sentenced on that case, the B.C. Court of Appeal upheld an 18-year global sentence, which included a 12-year sentence for the kidnapping of an 11-year-old child, and an eight-year concurrent sentence for sexually assaulting her. Sentences for similar offences perpetrated by aboriginal offenders range from nine years ( R. v. Cook , 2014 MBCA) to 12 years ( R. v.

Manyshots , 2018 ABPC 17 . In Manyshots , the court reviewed many cases ranging from six to 18 years' imprisonment.) However, in the face of the well-known decision of the B.C. Court of Appeal in Abrosimo , Mr. Mattess received a community-based sentence for sexually assaulting a 13-year-old girl in circumstances that factually involved a kidnapping, choking, and rape. [ 87 ] The Crown provided no explanation for the extraordinarily lenient community sentence granted to Mr. Mattess for that offence.

Perhaps there were mitigating circumstances that justified a sentence which was a marked departure from the expected range on those factual circumstances, but if that is the case, no mention of such was made to me. [ 88 ] On the other hand, perhaps that sentence was a reflection of the indifference of the criminal justice system to the suffering of indigenous females. What is clear, at least in retrospect, is that the lenient sentence imposed at that time did not serve to rehabilitate Mr. Mattess, nor did it appear to meet the sentencing principle of protection of the public, given that Mr.

Mattess has continued to sexually reoffend against indigenous females. [ 89 ] I have served in Northern British Columbia as a prosecutor and a judge for over 20 years. I can confirm that the accounts given by indigenous women to the Inquiry are absolutely consistent with my experience. As a sitting judge, I have had before me many cases for sentencing which involve men sexually assaulting indigenous women as they sleep in their own homes.

The prevalence of this sort of offence in northern communities cannot be overstated - nor can the devastating impact on indigenous women and girls. [ 90 ] I find that the fact that Mr. Mattess chose to commit this offence against a vulnerable indigenous woman, in the company of her child, is an aggravating factor. It is also a factor which requires me to give paramountcy to the principles of denunciation and deterrence. Crown submissions regarding the wording of the information [ 91 ] The submission of the Crown made January 30, 2020, was that the offence Mr. Mattess intended to commit was sexual assault.

The defence admitted at the time that Mr. Mattess’ intention was to commit a sexual assault. At no time has any dispute been taken with the fact that Mr. Mattess broke into Ms. F.'s home and intended to commit a sexual assault. The circumstances as admitted indicate that, of course, in fact a sexual assault was committed - Mr.

Mattess cut a hole in the crotch of the clothing of the victim, she was wearing, and he had his own pants down while he did that. [ 92 ] However, during submissions made on November 5, 2020, in support of the joint submission from counsel, Crown counsel submitted that the court must remember that Mr. Mattess was not charged with committing a sexual offence; rather, he was charged with committing a break and enter "with intent to commit an indictable offence." Crown instead submitted at that time that I could only sentence Mr.

Mattess for having the intention to commit an "unidentified" offence, not for having the intention to commit a sexual offence. [ 93 ] It seems to me that if the Crown had specified the intention in the information, then the court would be bound by the particulars stated in the information. But if the intention is unspecified in the information, the court must have an admission or make a finding as to the intention, in order to address the fundamental objectives of sentencing.

No authority was provided to me to support the contention that a court must, or even can, sentence a person for break and enter with an intention to commit an "unidentified" offence, particularly in the face of an admission as to the nature of the offence actually intended. [ 94 ] As a matter of law, among the factors the court must consider in order to impose a fit sentence is the gravity of the offence and

the moral culpability of the offender; without a finding or admission as to the intention in question, there would be no way to fulfill that obligation. For example, the gravity and moral culpability involved in a break and enter of a dwelling house with the intention to eat cookies sitting on the kitchen counter is vastly different from a break and enter with the intention to commit murder. But on the submission of the Crown, the court would have to treat those vastly different circumstances as if they were the same. Such an

interpretation would also render the obligation of the court to impose similar sentences on similar offenders for similar crimes (the parity principle) impossible. With respect, such an

interpretation would be contrary to the purpose and principles of sentencing and would render the sentencing process untenable. The parity principle [ 95 ]

Section 718.2 further provides as follows: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [ 96 ]

Section 718.2(b), known as the "parity principle", requires the court to impose similar sentences, as I have said, on similar offenders who have committed similar offences. It is not possible to comply with this objective of sentencing to arrive at a fit sentence from first principles alone; it is necessary to consider sentences imposed by other judges on other similar offenders for similar offences. A review of sentencing decisions by other judges assists the court with that principle of sentencing.

Range of sentence [ 97 ] At the first day of submissions on sentence, the Crown provided me with two case authorities in support of the Crown position. The Crown candidly admitted that these cases were of little assistance to the court, being distinguishable from the case at bar. Those cases are: 1. R. v. Omilgoituk , 2011 NLCA 77 [ 98 ] … in which a sentence of 12 months' incarceration was upheld on an aboriginal offender with no prior criminal record, for break and enter and assault. In that case, the offender believed something was going on between his girlfriend and the victim.

He quarrelled with the victim, who returned to his own home, followed by Mr. Omilgoituk. Mr. Omilgoituk beat on the victim's door until he broke in and punched the victim, who was able to push Mr. Omilgoituk back outside. [ 99 ] The Crown in that case sought a two to three-year sentence, and Mr. Omilgoituk sought a conditional sentence, which was not an available legal sentence. The Court of Appeal considered the range of sentence appropriate for break and enter of an occupied dwelling house, otherwise known as home invasion, and reiterated, at paragraph 23, the comments of Rowe, J.A. in R. v.

Harris , 2000 NSCA 7 , as follows: These types of offences (home invasion) require denunciation by society, deterrence of the accused and others from committing this type of offence, and protection of the public as the primary considerations of sentencing those who choose to invade the sanctity of the home of another and do violence through intimidation, terrorism or actual assault. [ 100 ] The court noted that the low end of the range for home invasion started at 18 months' incarceration, and further noted at paragraph 27 that, "It is clear from the caselaw that Mr.

Omilgoituk's sentence of 12 months is low and could be said to be below the range." This is not a case that involved a man breaking into a home for the purpose of sexually assaulting a sleeping female, which, in my view, is a substantially aggravating circumstance. 2. R. v. Maisonneuve , 2014 NBCA 32 [ 101 ] In R. v. Maisonneuve , the offender was a co-worker of the victim and was romantically involved with the victim's niece. He was 21 years old with no prior criminal record.

One night, after consuming marihuana and "speed", he broke into her home through a window, went into her bedroom where she slept with her young son. She awakened to find him fondling her breasts. She told him to leave and he did. The appellate court overturned the suspended sentence with probation imposed by the sentencing judge and substituted a nine-month sentence of incarceration followed by probation.

The court noted that this offence was a home invasion and stated, at paragraph 22 that: … In fact, a custodial sentence of more than nine months might have been appropriate if the Crown prosecutor had not suggested the aforementioned range of custodial sentences (six to nine months)… [ 102 ] Despite repeated requests by the court and multiple adjournments for that purpose, neither counsel provided me with any authorities to assist the court on range of sentence.

It was submitted to me that there were no authorities sufficiently on point, a submission I found to be surprising, in the face of the following published authorities: 1. R. v. Courtoreille , 2017 ABPC 231 [ 103 ] The victim in that case was 15-year-old girl asleep in her bedroom. Mr. Courtoreille went into her home, into her room, and sexually assaulted her. The sexual assault included fondling, oral sex, and digital penetration. Eventually the offender told her where he lived, got dressed, and left. The offender was aboriginal. He had been sexually abused by his siblings as a child.

He had been addicted to alcohol and other substances since he was 12. He functioned intellectually at the borderline range. He had four prior convictions for sexual interference, the last of which drew an 18-month custodial sentence. He then had a gap in his record for 12 years. Taking his guilty plea and Gladue factors into account, the sentence imposed was 7.5 years, less time served. [ 104 ] I note that this case involved a break and enter and a prolonged sexual assault, which is more aggravating than the case at bar. On the other hand, it did not involve the use of a weapon.

The background of the offender was otherwise similar to that of Mr. Mattess.

2. R. v. Macindoe , 2020 ABPC 120 [ 105 ] The victim was a co-worker of the offender. He broke into her home as she slept at night. She awakened to find him hovering at the end of her bed, doing something that sounded like the clicking of plastic. She feigned sleep. She was able to surreptitiously text her boyfriend who called police, who attended and interrupted the offender. They found a bag containing zip ties that had been formed into makeshift handcuffs, condoms, lubricant, bondage straps, a buck knife, tin snips, etc.

The investigation included surveillance video which revealed that the offender had broken into the apartment building on previous occasions as well. He pleaded guilty to break and enter with intent to commit a sexual assault, as well as to the other break and enters in relation to the same residence on different dates. For the offence of break and enter with intent, he was sentenced to 7.5 years' incarceration, less time served. [ 106 ] In that case, like Mr. Mattess, he pleaded guilty, but without the comfort of a joint submission.

The circumstances of that case indicate that the offender engaged in more premeditation than Mr. Mattess, but on the other hand, unlike Mr. Mattess, he did not actually use a weapon or touch the victim at all. Unlike Mr. Mattess, Mr. Macindoe had no criminal record at all. Mr. Macindoe was not aboriginal. 3. R. v. Pete , 2019 BCCA 244 [ 107 ] A two-year sentence was imposed on a young indigenous man for a break and enter and commit sexual assault (touching on the thigh of a 13-year-old indigenous girl who considered him like a brother). He had no prior convictions.

I find this case is considerably less aggravating than the case at bar. The offender in that case had no criminal record, and did not arm himself with or use a weapon, unlike Mr. Mattess. 4. R. v. McMillan , 2009 BCPC 416 [ 108 ] A 12-year sentence was imposed on a 33-year-old man who broke into a home intending to rob the place, but who sexually assaulted a woman he found within the home.

The circumstances in that case were more aggravated than the case at bar, in the sense that the sexual assault was prolonged and degrading, but on the other hand the circumstances of the offender were less serious, as he had only a minor criminal record, and was clearly very remorseful. However, he was unable to say why he committed the offence and claimed he had no memory of it. In that regard, Judge Gulbransen's remarks at para. 20-21 are particularly apposite: [20] Secondly, I must consider protection of the public. Now, I say that because McMillan does not know why he did this.

I do not expect that he should right now, but he does not know why. He has trouble facing up to what he has done, other than pleading guilty, but actually talking about it or coming to terms with what he has done. He cannot say how this urge to commit this horrible crime arose. It was clearly spontaneous and impulsive. The very fact that he was able to commit such a crime means he could do it again. Moderate risk or not, that is an obvious point. He has no way of knowing when or where he might do it. [21] So he must be incarcerated for a period of time to protect the public.

In the state he is in now, not knowing why he could do this and when it could occur again, he is a danger to all women, so that requires a lengthy prison sentence… 5. R. v. Mehmoodi , 2015 PECA 17 [ 109 ] In R. v. Mehmoodi , the facts were that in the early morning hours of January 9, 2015, in downtown Charlottetown, a young girl aged 12 years awoke in her bed to a man threatening to have sex with her. He said he was carrying a knife and threatened to kill her. He had broken into her home, heavily impaired by drugs, and left with electronics.

He was charged with "break and enter with intent to commit an indictable offence" and sexual interference, as well as possession of stolen property, and he changed his plea to guilty on the morning of trial. The trial judge imposed a sentence of 24 months for the sexual interference and 11.5 months for the break and enter with intent. The Prince Edward Island Court of Appeal substituted a sentence of four years on the "break and enter with intent" stating at para. 7: [7] The sentence needs to denounce unlawful conduct and it needs to deter the offender and other persons from committing offences.

In this case the offender broke into an occupied home in the middle of the night and violated a young girl. The impact of that crime will dwell with this girl for a long time - maybe for life. The Criminal Code directs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence...

The Code also states that the court shall consider as an aggravating circumstance the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing the offence, knew that or was reckless as to whether the dwelling house was occupied and used violence or threats of violence to a person or property… Having found that the trial judge made an error in principle resulting in an unfit sentence, I would vary the sentence to a sentence I consider appropriate. [8] Parliament has seen fit to prescribe that a home invasion offence may carry a sentence of life imprisonment.

Many courts have stated that the offence represents a violation of the sanctity of one’s home and of the sense of security people feel in their homes. It is one of the most cherished values in our society. It is even more serious when the crime is coupled with sexual interference of a young girl. In the circumstances of this case, it is a violent crime. 6. R. v.

T.O ., 2015 MBQB 143 [ 110 ] In this case, the offender was sentenced for two sets of offences: firstly, sexual offences committed against his stepdaughter over several years, and secondly, break and enter with intent, and aggravated assault of different victims. With respect to the break and enter with intent, he received an eight-year sentence, with the aggravated assault counts attracting concurrent sentences. He received an eight-year sentence for the sexual offences against his stepdaughter, for a global sentence of 16 years.

The offender in that case had no criminal record. [ 111 ] The facts were that the offender had driven a 13-year-old friend of his stepdaughter home one evening. He broke into her home later that evening and told her to go to her bed. He was armed with a metal pry bar. The child screamed and her mother came running. He grievously assaulted each of them, before running away. The court stated, "While [it was] not specified in the count, Mr. T.O. conceded

in court that he broke into the home intending to sexually assault the young girl." [ 112 ] With respect to the range of sentence, the court noted the range of sentence of other "home invasion" scenarios was seven to 10 years for home invasions with intent to commit robbery, and noted that there was "no logical reason why that should not also be a suitable range" where the intention of entering a home was to assault the victim.

The court also noted that no explanation was given for why the offender in that case did what he did, and concluded at paragraph 37: [37] …Thus, despite his being in custody almost three years, I am unable to suitably assess the degree of risk upon his eventual release or the prospect for meaningful rehabilitation, including how long that might take. In fact, I have no cogent information from which I can even infer that at some point Mr. T.O. will cease to be a danger. [ 113 ] I find the court's remarks regarding the primary sentencing objectives to be particularly useful and apposite to the case at bar.

Additionally, although Mr. T.O was not aboriginal, he had led a difficult childhood marred by domestic violence and alcohol abuse, and lived in a series of foster homes. By comparison, Mr. Mattess’ home life as a child was relatively benign. Unlike Mr. Mattess, Mr. T.O. had no criminal record when he was sentenced for these offences. But like Mr. Mattess, he provided no explanation for his behaviour and showed no insight. The court in that case found that the separation from society was of paramount importance. 7. R. v.

R.H.B., 2012 BCPC 499 [ 114 ] A three-year sentence was imposed on an offender who broke into a home occupied by the victim, while carrying a knife. The offence occurred in the context of a landlord-tenant dispute and it appeared the offender was attempting to bully the victim on behalf of the landlord, who remained outside. The court convicted the offender of common assault because of the brandishing of the knife. The court convicted the offender of breaking and entry with intent, and characterized the event as a "home invasion" at the lower end of the range of seriousness for this sort of offence. 8. R. v.

Gladue , 2011 ABCA 378 [ 115 ] The Alberta Court of Appeal upheld a seven-year sentence, less credit for time served, which was imposed on a 23-year-old Métis offender who broke into a woman's home after arming himself with a pointed stick. He went to her bedroom where she slept with her three-year-old granddaughter and threatened her with the stick. He led her outside the home and sexually assaulted her. The court noted that the starting point for a home invasion was, in that jurisdiction, eight years. 9. R. v.

L.L.G., 2011 MBQB 269 [ 116 ] A 10-year sentence was imposed on an aboriginal offender who broke into a woman's home (she was also aboriginal) and sexual assaulted her while she was unconscious. The event was witnessed by her two daughters, aged eight and 10. The offender had a lengthy criminal record, but no prior convictions for sexual assault. The court took into account as a mitigating factor that the offender was aboriginal, but also noted at para. 36: [36] All three of these victims lost a place of security in their lives. They should be able to feel safe and secure in their homes.

Certainly, young children should feel safe and secure while sleeping in their beds at night with their parent. It is because of this loss of home and security that home invasions and analogous offences are treated seriously. 10. R. v. Betsidea , 2018 NWTSC 8 [ 117 ] The offender was convicted of a break and enter with intent, and sexual assault. He went into the home of a woman who awakened to find him tugging at her pants saying, "please." She told him to leave, and she thought he did, but when she came out of the bathroom he was there in the living room again, asking for a cigarette.

She told him to leave again, and he did. He had a criminal record, but none for sexual offences. [ 118 ] He was sentenced to two years less a day, less time served, followed by probation. 11. R. v. L.P. , 2020 QCCA 1239 [ 119 ] In this case, the offender had repeatedly, violently assaulted his wife, culminating in a very serious aggravated sexual assault.

The Quebec Court of Appeal imposed a sentence of 44 months, replacing the sentencing judge's sentence of two years less one day, on the basis that the trial judge had minimized the seriousness of the offence, the risk of further reoffending, and had failed to address the need to denounce the behaviour and protect the indigenous victim of these offences.

While recognizing the offender's indigenous heritage, the court said at para. 122: [122] This being said, Gladue and Ipeelee do not suggest that, "as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation". [123] There are some serious offences and some offenders for which and for whom the aforementioned goals of deterrence, denunciation, and separation remain fundamentally relevant.

In cases of sexual violence against Indigenous women, the Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context, the whole to meaningfully achieve the fundamental purposes of sentencing and the protection of the public. [ 120 ] On my review of these cases, the bottom end of the range of sentence, at about two years, appears reserved for those offenders with no criminal record, who did not use a weapon, and did not use any violence.

The upper end of the range involved cases in which the offender carried out prolonged, egregious sexual assaults, using a weapon, in addition to breaking into the house.

[ 121 ] In this case, Mr. Mattess entered the home of a sleeping woman, armed himself with a knife, entered her room with the intention to sexually assault her, and the circumstances include that he did in fact sexually assault her using the knife. He has a record for two serious prior sexual assaults against other indigenous females. [ 122 ] In my view, the closest cases, given the actual charge before the court, "break and enter with intent", are R. v. Macindoe , in which a sentence of 7.5 years was imposed, and R. v. T.O. , in which a sentence of eight years was imposed.

As mentioned earlier, the Macindoe case was less egregious than the case at bar, because there was no actual touching of the victim and the offender had no criminal record. Ancillary orders DNA [ 123 ] Under s. 487.04, breaking and entering of a dwelling house is a primary designated offence for the purpose of collecting a sample for retention in the DNA offenders' database. I make the following order: I make an order in Form 5.03 authorizing the taking of bodily substances from you, Mr. Mattess, for the purpose of registration in the DNA National Data Bank.

Firearms prohibition [ 124 ] The Crown sought a firearms prohibition order pursuant to s. 109. This

section of the Code makes such an order mandatory where the offender is convicted of an indictable offence "in the commission of which violence against a person was used, threatened or attempted" and for which the person could be sentenced to imprisonment for 10 years or more. The offence at bar qualifies with that definition. Mr. Mattess is therefore prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life.

SOIRA [ 125 ] Pursuant to s. 490.011(b)(x), break and enter is a designated offence for the purpose of Sex Offender Information Registry, if, pursuant to s. 490.012(2)(b), the break and enter was committed for the purpose of committing a sexual assault. It is admitted that this offence was committed with the intention of committing a sexual assault. [ 126 ] I asked Crown counsel more than once if the Crown was seeking a SOIRA order. Crown counsel expressed the view that SOIRA did not apply to this offence, despite the clear wording of s. 490.011(b)(x).

I asked Crown counsel to make submissions on the point and she agreed to do so at a subsequent appearance, but did not. At the next appearance, I asked again and no submissions were made. [ 127 ]

Section 490.012(2) obliges the court to make a SOIRA order "on application of the prosecutor." Since the prosecutor has not made an application under s. 490.012(2) I have no jurisdiction to make the order, although I would certainly have done so had the prosecutor made such an application. [ 128 ] All right, I am going to take the afternoon break at this point before carrying on with this sentencing. [ 129 ] THE CLERK: Order in court, all rise. Court is adjourned for the afternoon break.

Reconvene in 15 minutes. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 130 ] THE CLERK: For the record, recalling the matter of Arlen Mattess [ 131 ] THE COURT: Thank you. Joint submission on sentence [ 132 ] At the initial appearance for sentencing on this matter in January 2020 - is Ms.Payne there? [ 133 ] THE CLERK: Ms.Payne is there, she's just not sharing video. [ 134 ] THE COURT: Oh, she is not on video, okay. [ 135 ] Crown counsel informed the court that Crown and defence had a joint submission to present to the court on sentence.

The sentence proposed was nine to 12 months' incarceration, followed by probation. No mention was made at that time as to the length of the probation order. As time passed and Mr. Mattess’ presentence time in custody increased, counsel have submitted that the sentence should reflect time served, followed by probation. Crown counsel continued to maintain that the initial proposal of nine to 12 months was appropriate, and that time served simply reflected the reality of Mr. Mattess’ custodial time. [ 136 ] Defence counsel suggested that the mounting time in custody was resulting in a more appropriate sentence.

Today, Mr. Reed for the defence submitted than an appropriate sentence would be three years, less time served, followed by two years' probation. Crown counsel today confirmed the Crown supports whatever the defence submits as appropriate, whether time served or 36 months. [ 137 ] I recognize that joint submissions are valuable to the administration of criminal justice because they offer a degree of certainty and efficiency to the administration of justice. In the ordinary conduct of criminal court, joint submissions are rarely questioned and are routinely followed by the court.

But occasionally, the sentencing judge receives a joint submission that wildly departs from the principles of sentencing appropriate to the case and, in my view, this is such a case. [ 138 ] In R. v. Anthony-Cook , 2016 SCC 43 , the court instructed that, at para. 32:

[32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean?

Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. [33] In Druken , at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”. And, as stated by the same court in R. v.

B.O2 2010 NCLA 19, at para. 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts". [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

This is an undeniably high threshold — and for good reason, as I shall explain. [ 139 ] When faced with a joint submission that the sentencing judge finds unacceptable on its face, specifically when the joint submission appears too lenient, Anthony-Cook instructs judges to inquire about the circumstances that led to the joint submission at para. 53: [53] Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused.

The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown's case, a very lenient sentence [position] might not be contrary to the public interest.

On the other hand, if the joint submission resulted only from the accused's realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system. [54] Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge.

As trial judges are obliged to depart only rarely from joint submissions, there is a "corollary obligation upon counsel" to ensure that they "amply justify their position on the facts of the case as presented in open court" (Martin Committee Report, at p. 329). Sentencing — including sentencing based on a joint submission — cannot be done in the dark.

The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted"… … [57] A thorough justification of the joint submission also has an important public perception component.

Unless counsel put the considerations underlying the joint submission on the record, "though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred"… [58] Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the … judge's concerns before the sentence is imposed"...

The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case. [59] Fifth, if the trial judge's concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here.

However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable. [60] Finally, trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.

History of proceedings before the court in this case [ 140 ] Mr. Mattess was arrested the night that the offences were committed and has remained in custody ever since. He pleaded guilty to these offences on August 26, 2019. The matter was adjourned for the preparation of reports to assist the court with sentencing. The psychological report was filed with the court on October 8, 2019. The presentence report was completed November 22, 2019. [ 141 ] The matter came before me on January 30, 2020, for submissions on sentence.

On that date, I heard submissions from Crown counsel regarding the circumstances of the offences, Mr. Mattess’ criminal record, and a brief account of the circumstances of Mr. Mattess’ prior convictions for sexual offences. I was informed that the Crown position on sentence, joined in by the defence, was nine to 12 months' incarceration followed by probation. [ 142 ] I requested that counsel provide me with case law to support that position. Crown counsel provided two case authorities that she candidly admitted were unhelpful.

I expressed to counsel that I had concerns regarding the sentence position proposed by counsel. Defence counsel sought to adjourn in order to obtain and provide case law to assist the court. That adjournment was granted. [ 143 ] The matter was adjourned from time to time by the defence, and finally came before me for continuation on September 16, 2020. By that time, Mr. Mattess had been in custody 432 real days and was therefore entitled to enhanced credit for presentence custody at 648

days, or approximately 21 months and 18 days. The Crown maintained the fitness of a nine-to-12-month sentence and submitted that Mr. Mattess should receive time served. On that day, I heard submissions on sentence from the defence, who joined the Crown in seeking a time-served sentence, plus three years' probation. I was not provided with any law, by anyone, to support t

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