2018 MBPC 49, 2018 MBPC 49

Citation No. 2018 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Manoja Moorthy ) ) for the Crown - and – ) ) Joshua Peter Catcheway Accused ) ) Laura Robinson for the Accused ) ) Judgment delivered: ) December 10, 2018 Mary Kate Harvie, P. J. INTRODUCTION [ 1 ] On November 22 nd , 2016, the accused was charged with assault with a weapon contrary to Criminal Code s. 267(a). Following the initial appearances, discussions between counsel necessitated a series of remands until the matter was set for trial.

Prior to the trial date, the accused entered a guilty plea and a Pre-Sentence Report with a Gladue component was completed. Submissions on sentencing were heard on October 5 th , 2018, almost two years after the offence date. The matter was adjourned further for counsel to provide the Court with further information and submissions. [ 2 ] The very difficult issue in this case is the appropriate sentence to be imposed.

Crown counsel argues that the seriousness of the facts coupled with the significant impact of this offence on the complainant calls for custodial disposition in the range of nine months, followed by a substantial period of supervised probation. Defence counsel submits the totality of the circumstances, including the background of the offender and his rehabilitation since this offence means that a suspended sentence with supervised probation is warranted. THE FACTS [ 3 ] As is often the case, the facts of the offence, as outlined in the prosecutor’s information sheet, were appended to the Pre- Sentence Report.

In this instance, the facts were very brief, and counsel expanded considerably on those facts at the time of the sentencing. [ 4 ] The accused, who was nineteen years of age at the time of the offence, had been dating a cousin of the thirteen year old complainant. Due to a series of personal events, including struggles with addictions issues, the accused found himself without a place to live, and the family of the complainant agreed to take him in.

He had been residing with the complainant’s family in Selkirk, Manitoba for approximately two weeks prior to the incident. [ 5 ] On November 22 nd , 2016 at approximately 2:00 a.m., after ingesting a quantity of cocaine, the accused went into the complainant’s basement bedroom with a knife he had taken from the kitchen. He placed the handle side of the knife to the back of the complainant’s neck, and using a disguised voice told her not to scream or call out.

After a period of time, the accused panicked, and used a large pillow from the bedroom to block the complainant’s face while he exited the room. [ 6 ] Despite his attempts to hide his identity, the complainant immediately recognized the accused. Once he left the room, she texted her parents for assistance, and her father confronted the accused, who denied involvement. Police were contacted and the accused was interviewed, initially maintaining his denial, but eventually admitting his actions, saying they were part of an elaborate practical joke committed with the intention of “scaring” the complainant.

The accused claims that prior to this incident he had jokingly told the complainant that he would do something to scare her, although the complainant does not confirm any such conversation. [ 7 ] Although the incident resulted in only minimal physical injuries, the psychological impact on the complainant is significant and ongoing. Both she and her mother filed Victim Impact Statements confirming that the complainant has experienced Post Traumatic Stress Disorder, depression and anxiety as a result of this assault.

Prior to this incident the complainant was outgoing and athletic, and involved in school activities and enjoyed socializing with friends. Since this incident, she has secluded herself from family and friends and has quit all school and other extracurricular activities. She is presently on medication and is participating in counselling. [ 8 ] The stress associated with her condition has also had a tremendous affect on the members of the complainant’s family.

The mother’s Victim Impact Statement describes both the ongoing affect that this matter has had on the complainant, and the stress and struggles experienced by family members during their journey of support for the complainant. What is of concern is the fact that there

does not appear to be an end in sight. THE BACKGROUND OF THE OFFENDER AND GLADUE FACTORS [ 9 ] The accused, now twenty one years of age, was nineteen at the time of the offence. He has no prior criminal convictions. He was released after spending a night in custody. He has complied with all bail conditions, and applied several times throughout the period of his release to amend the conditions to ensure compliance. [ 10 ] The Pre-Sentence Report identifies a significant number of Gladue factors. The accused is one of either six or seven biological siblings, most of whom he does not know.

He has a very limited relationship with his father who has a history of alcohol abuse and domestic violence, including being imprisoned for stabbing the accused’s mother. Until age five he was raised in a supportive environment by his biological grandparents with whom he continues to have a good relationship. His grandfather attended a residential school, although the accused has little information about his grandfather’s experience.

While residing with his grandparents in Fisher River, the accused had some exposure to Indigenous culture. [ 11 ] Much changed for the accused in 2003 when health problems impacted the ability of his grandparents to care for him and he began residing with his mother in Winnipeg. He remained with his mother until age twelve or thirteen, when he contacted Anishinaabe Child and Family Services to request shelter due to his mother’s inability to care for him.

He remained in the care of the agency from age thirteen onward, with support continuing until he was approximately twenty one years of age. [ 12 ] While in care he resided at a group home, where he was described as being sociable and athletic but with a tendency to bully the younger and more vulnerable children residing in the group home. He was described as being capable of being “deceptive and manipulative” and was suspected of thefts from the home.

He was ultimately asked to leave the group home because, to use the accused’s own words, he “did some things without thinking about the consequences”. [ 13 ] Sometime after this incident, the accused became involved in a positive relationship with a young woman with whom he now resides in a rented condominium in the Transcona area of Winnipeg. Both the accused and his partner are employed.

They chose to reside in Transcona to support his efforts to distance himself from previous negative peers, to avoid a relapse into substance abuse, and to be away from the emotional problems associated with his biological mother. PROFESSIONAL ASSESSMENTS AND THE OFFENDER’S BEHAVIOUR [ 14 ] After his apprehension by Child and Family Services, the accused was the subject of several professional assessments. As both counsel and the Pre-Sentence Report referenced some of these assessments, the sentencing was adjourned for the Court to be provided copies.

Defence counsel ultimately provided a psychological assessment from February 2016, although the Pre-Sentence Report also references a series of earlier reports and assessments which have not been provided to the Court. [ 15 ] At issue is the relevance of the findings in these various assessments and the nexus, if any, between the findings and the accused’s offending behaviour. It is accepted that the Court must assess these professional findings in light of the tests outlined by the Manitoba Court of Appeal in R. v. Friesen , 2016 MBCA 50 and in R. v J.M.O , 2017 MBCA 59 .

In Friesen , Monnin J.A. considered the effect of an FASD diagnosis on the moral culpability of an offender charged with manslaughter, as well as the role of rehabilitation in the sentencing process.

Noting that the accused’s “ conduct on the day in question and the nature of the attack that took place suggests impulsivity, lack of control and a failure to recognize the consequences of his actions”, Monnin J.A. concluded that “these factors should have led the sentencing judge to consider a diminished moral culpability.” (para. 32) In order to reach such a conclusion in a case where cognitive deficits are asserted, the Court noted that “the sentencing judge must have evidence of the diagnosis and its impact on the accused in order to draw the nexus between that diagnosis and the accused’s conduct relating to the offences.” (para. 26) [ 16 ] Similarly, in J.M.O. , Manilla J.A. discussed the evaluation of a diagnosis confirming cognitive limitations and the moral blameworthiness of an offender (para. 73) : Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise.

Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender’s mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation.

It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 17 ] In this case, the accused does not come before the Court with a confirmed diagnosis of FASD. However, a number of cognitive and related behavioural issues are discussed in the assessments. As early as 2003, the accused was assessed as having “emotional attachment” and “separation issues” resulting from the move from his grandparents.

A variety of concerns were identified, including Attention Deficit Disorder, and a behavioural plan was adopted and followed, albeit with some challenges. The Pre-Sentence Report references the various reports which confirm the efforts made over the years to assist the accused. In 2011, the accused became involved in therapy to address some of the issues flowing from his traumatic family upbringing. The accused was identified as having particular difficulty expressing emotions and regulating them.

After therapy, which lasted approximately eight months, the accused enrolled in a community project which involved a series of workshops. The experience was described as “valuable”.

[ 18 ] Throughout his high school years, efforts to modify and address his behaviour resulted in a mixed level of success. The accused has almost completed his grade twelve credits, albeit over time and with some assistance. More recently, the case worker from his high school years commented that “the subject’s diagnosis of Attention Deficit Disorder affects him such that he has the emotional maturity equivalent to age fifteen or sixteen years old.” In light of this, she finds his recent employment and residence accomplishments to be “impressive”.

She advised the author of the Pre-Sentence Report that “she has seen an incredible amount of personal growth in the subject…” having made “good decisions recently and taken steps to stabilize himself.” [ 19 ] Crown counsel notes that the 2016 assessment was prepared to assist the accused in the school environment and argues that the findings are of limited assistance establishing a nexus between any deficits and the accused’s offending behaviour. I disagree.

Despite the focus, the report does contain some helpful information, confirming a diagnosis of Attention Deficit Disorder and identifying specific concerns related to the accused’s executive functioning, including challenges related to “the ability to inhibit, resist or not act on impulse”, “emotion control”, “behaviour regulation”, “lack of reflective thought prior to action”, and “poor social judgement”, amongst others . His Full Scale IQ was assessed as being in the Low Average Range.

These finding are consistent with the accused’s own comments that he has “a problem not thinking about consequences before he acts.” It is important to recognize that the type of deficits identified in the report would affect the accused’s decision making and conduct outside the classroom and in his daily life. It is not always the case that the Court has available reports and assessments prepared in relation to the matters before the Court.

That does not mean that the contents of any of the expert reports which are available should be disregarded. [ 20 ] I am satisfied that the assessments identify behavioural concerns which help to frame his offending behaviour. I am satisfied that there is a nexus between the findings and the offences.

I recognize that the assault itself is described by the accused as a “prank gone wrong.” The failure to consider the consequences of his actions has been an ongoing issue for the accused for some considerable time, as confirmed by the 2016 psychological assessment filed with the Court. [ 21 ] The assessments also assist in understanding the accused’s attitude towards this offence, and more specifically his struggle to properly articulate both his remorse for his actions and their impact on the complainant and her family.

I am satisfied that the statements made by the accused in the Pre-Sentence Report demonstrate an awareness that the victim and her family experienced trauma, and that his inability to describe any effects of trauma is directly related to his cognitive deficits rather than a lack of remorse. [ 22 ] However, the cognitive and behavioural issues identified cannot be considered in isolation, but must be evaluated along with the accused’s addictions issues.

By his own account, the use of drugs was directly related to his participation in this offence, advising the writer of the Pre-Sentence Report that “he would not have committed the offence if he had abstained from drugs.” According to the Pre- Sentence Report, in 2016 after this incident the accused was angry, depressed and at times suicidal. On one occasion he cut his wrists, and on another took an intentional overdose of pills. He has never had formal addictions counselling, despite being urged in the past by family members to seek help.

To his credit, the accused reports abstaining from drug use since this incident, although acknowledges “moderate alcohol consumption.” During his leisure time he now associates with his co-workers, avoiding former peers from the time he abused drugs and alcohol. APPLYING THE CRIMINAL CODE SENTENCING PRINCIPLES [ 23 ] The sentencing principles set out in Criminal Code sections 718- 718.2 are well known and require a sentencing judge to balance principles of denunciation, deterrence, and rehabilitation, amongst others. As the accused is of Indigenous heritage, Gladue factors must be considered.

As is well recognized, Criminal Code s. 718.2 (

e) states “ all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [ 24 ] Although well known, it is at times helpful to be reminded of the comments of the Supreme Court of Canada in R. v. Gladue, [1991] 1 S.C.R. 688 : In our view, s. 718.2 (

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. It should be said that the words of s. 718.2 (

e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non- aboriginal offenders. What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender.” (para 75) [ 25 ] However, the Court recognized that “it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending,” noting (para. 83) Furthermore, the operation of s. 718.2(

e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [ 26 ] With respect to this offender, I am satisfied that there are significant Gladue factors present which must be taken into account in order to craft a sentence which is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Pre- Sentence Report references a family history which includes “the intergenerational effects of Indian Residential School” and noted that his “family of origin experienced significant dysfunction. Both his parents have emotional and substance abuse issues.” These issues and the resulting trauma, along with the cognitive issues identified in the assessments, must be taken into account when assessing the moral blameworthiness of the accused.

[ 27 ] Sentencing requires an assessment and balancing of the aggravating and mitigating factors. In considering the aggravating factors, it is important to recognize the seriousness of this offence. While relatively brief in duration, the offence was clearly terrifying for the complainant. The long term affects of this incident cannot be overstated. The complainant, and by extension her family, continue to suffer the emotional impact of the accused’s actions.

It remains unclear when she will recover. [ 28 ] It is also aggravating that this offence occurred because the family of the complainant offered the accused a helping hand and a place to stay, knowing he was struggling with addictions issues. As such, this offence represents a breach of trust on the part of the accused. [ 29 ] I am satisfied that a nexus has been established between some of the cognitive challenges faced by the accused and his offending behaviour. However, I remain concerned about the role illicit drugs had in the commission of this offence.

While the accused is to be commended for the steps he has taken in abstaining from the use of illegal drugs and his steps to limit his involvement with this former associates, I remain concerned that he has not had any formal addictions assessment or treatment. His self reported limited use of alcohol needs to be assessed by a professional in this area. [ 30 ] The delay between the commission of this offence and the sentencing hearings has been significant.

During the two years which have passed, the accused has established that he is able to follow his bail order and further, to make positive lifestyle decisions that demonstrate that rehabilitation is a realistic sentencing principle. [ 31 ] Having taken all of the foregoing into account, while the recommendation of Crown counsel reflects the seriousness of the offence and its lasting impact on the complainant and her family, I am not satisfied that it sufficiently takes into account other sentencing principles, including the Gladue factors and the cognitive deficits, identified by the reports, which contributed to the accused’s offending behaviour. [ 32 ] However, the recommendation of defence counsel for a community based disposition fails to recognize several important factors, including the role of substance abuse and his failure to seek formal counselling for substance abuse issues.

While the accused is to be credited for his abstinence from drugs, albeit based on his self reporting, his change in lifestyle supporting that decision confirms his efforts. Having said that, the admittedly direct role that cocaine played in the commission of this offence requires a sanction beyond a period of probation.

I am also satisfied that a community based disposition fails to adequately take into account the seriousness of the offence, that its commission represents a breach of trust and that the impact on the complainant is signficiant and lasting. [ 33 ] Taking into account all of the foregoing, I am satisfied that a custodial sentence is required to address the sentencing principles of denunciation and deterrence.

The length of the sentence must be tempered by the Gladue factors present, the cognitive issues which contributed to the offending behaviour and the realistic rehabilitative prospects, some which have been demonstrated during the significant delay between the commission of the offence and the sentencing. I am mindful of the fact that the accused has requested that the Court consider the imposition of an intermittent sentence, if the length of the sentence permits such a disposition.

I am aware that the accused will be bound by a probation order on those days he is not serving his sentence, and that the completion of his sentence will be extended considerably by such a disposition. He will, however, be able to continue his employment and maintain his present residence. [ 34 ] I am therefore sentencing the accused to a period of 45 days in custody.

He is allowed to serve that sentence on weekends, commencing Friday December 14, 2018 until Sunday, on each weekend until its completion. [ 35 ] Upon the completion of the sentence he is to serve a period of two years of supervised probation on the following conditions (along with the statutory conditions): • Keep the peace and be of good behaviour; • Report within 48 hours to probation services and thereafter as directed by probation services; • Attend, participate and complete an addictions assessment as directed to do so by his probation officer; • Attend, participate and complete any counselling or programming as directed to do so by his probation officer; • No contact or communication with the complainant or her mother or father; • Not to own, possess or carry any illegal drugs; • Not to use any prescription drugs unless he has a prescription for those drugs. [ 36 ] The accused is to be subject to a weapons prohibition pursuant to Criminal Code S. 109 for a period of 10 years.

He is to provide a sample suitable for DNA analysis within 30 days. Court costs are waived. He is given one year to pay the mandatory surcharge. [ 37 ] During the period when he is serving the intermittent sentence he is to be bound by a probation on the following conditions: • Keep the peace and be of good behaviour; • No contact or communication with the complainant or her mother or father; • Not to own, possess or carry any illegal drugs; • Not to use any prescription drugs unless he has a prescription for those drugs.

_______________________ Harvie, P.J.