2019 NBPC 14, 2019 NBPC 14

2019NBPC14 File: 05841210 CANADA PROVINCE OF NEW BRUNSWICK CAMPBELLTON PROVINCIAL COURT B E T W E E N: HER MAJESTY THE QUEEN - and - C.M.S.M. DECISION ON A MOTION PERSUANT DU

SECTION 12 OF THE CHARTER BEFORE: The Honourable Judge Brigitte Sivret AT: Campbellton, NB DATE OF HEARING: October 31, 2016, and May 30, 2017

DATE OF DECISION: July 19, 2017 APPEARANCES: Yves Duguay, for the Attorney General of New Brunswick Mikaël H. H. Bernard and Steve M c Nair, for the defendant 1 . The accused, C.M.S.M., is a 23-year-old residence of Dalhousie who pleaded guilty to the following offences: 1 – Between the 31 st day of August, 2014, and the 1 st day of October, 2014, he did commit the indictable offence of sexual assault on A.R., in violation of

section 271 (

a) of the Criminal Code of Canada . 2 – Between the 31 st day of August, 2014, and the 1 st day of October, 2014, he did commit the indictable offence of having sexual intercourse with A.R. while knowing that A.R. was his sister, in violation of section 155(1) of the Criminal Code of Canada (incest). 3 – On June 1, 2015, he failed to attend Court as required by the said Court, in violation of section 145(2) (

b) of the Criminal Code of Canada . 2 .

Section 271(

a) provides as follows: 271. “Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year”. 3 . The relevant subsections of

section 155 of the Criminal Code provides as follows: 155.

(1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, as sexual intercourse with that person.

(2) Everyone who commits incest is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.

(4) In this section, “brother” and “sister”, respectively, include half-brother and half-sister. 4 . Finally, section 4(5) of the Criminal Code is relevant as it sets out the definition for “sexual intercourse”. It reads as follows: 4(5) For the purpose of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted. 5 . Up until June 13, 2016, every time that Mr. C.M.S.M. appeared in Court, he did so either alone or with the assistance of the Legal Aid lawyer on duty.

He pleaded guilty on November 9, 2015, and for various reasons, sentencing hearing was adjourned on a few occasions. On June 20, 2016, the accused was finally represented by a private lawyer who informed the court of his intention to file a Motion under

section 12 of the Charter . Up until then, it seemed that Mr. C.M.S.M. did not have a full appreciation of the minimum mandatory punishment provided by section 155(2) of the Criminal Code for an offence of incest of a person under the age of 16. In any event, from the time that Mr. C.M.S.M. benefited from the legal services of the actual law firm, he has chosen to bring a challenge under

section 12 of the Charter and abandoned any potential request to have his guilty pleas withdrawn with the Court’s approval. 6 . On August 6, 2016, solicitors for Mr. C.M.S.M. filed a proper Notice of Application, submitting that section 155(2) infringes

section 12 of Canadian Charter of Rights and Freedom (the “ Charter ”) in that its application in this case would result in a grossly disproportionate sentence if applied to him.

ISSUES 7. The issues to be determined are : 1 – What constitutes the appropriate and proportionate sentence for the offences committed by this offender? 2 – Whether the mandatory minimum sentence of five years imprisonment for the offence of incest is grossly disproportionate to the fitand proportionate sentence when applied to the accused in this particular case? 3 – Whether the mandatory minimum sentence of five years imprisonment is a grossly disproportionate sentence as applied to reasonablehypothetical situations? 8. If the answer to the question No. 2 and/or No. 3 is affirmative, then the next step to the analysis would be: Can the infringementof

section 12 of the Charter be saved by the application of

section 1 of the Charter? This last step is not part of this decision as theparties had reserved the opportunity to make additional representations to the Court if needed to. 9. Therefore, I must first determine the appropriate and proportionate sentence for the offences committed by Mr. C.M.S.M.. Beforedoing so, I will first deal with the issue of whether one of the two charges of sexual misconduct should be conditionally stayed, based onthe Kienapple principle. 10. According to the well-known principle established by the Supreme Court of Canada in R. v.

Kienapple, (SCC),[1975] 1 S.C.R. 729, the Court must decline to enter convictions for more than one offence when, in substance, only one crime has beencommitted. This principle would be applied where the charges arose out of the same set of facts and the offences constitute a singlewrong or a single crime. 11. This issue has not been raised by the parties but it seems obvious that sexual assault on A.R. has provided for by

section 271(

a) isimpacted by the Kienapple principle and it should be conditionally stayed. The Crown presented facts that support one incident of sexualmisconduct committed by Mr. C.M.S.M. on his half-sister who was 13 years of age at the time. The crime took place on one occasion inthe victim’s bedroom during one night and it lasted approximately 30 minutes. It seems that the misconduct amounted to a series oftouching of the victim’s sexual body parts which led to the accused’s attempt to have intercourse with her. 12.

It’s not contested by the accused that a slight and short penetration took place which, according to the definition found in section4(5) of the Criminal Code, constitutes “sexual intercourse”, an essential element of the offence of incest. 13. It’s clear that the sexual assault committed by the accused on A.R. is included in the offence of incest as defined by

section 155 ofthe Criminal Code. Therefore, I must determine the appropriate sentence for the offence of incest – section 155(1) – in the circumstanceof this particular case and the offence of sexual assault will be conditionally stayed. FACTS 14. The facts relevant to the committing of the offence of incest and to the offender as presented by both parties are not contested. 15. The accused is the half-brother of the victim, A.R. They both have the same mother, C.G. At all material time – that is betweenAugust and September 2014 – the accused was 20 years old and his younger sister, A.R. was 13 years old. 16.

In August 2014, the accused, who was living in Moncton at the time, came to Dalhousie to visit his family, as they were celebrating A.R.’s 13th birthday. Shortly after that visit, the accused moved in Dalhousie to live with his family.

17 . One night, in the month of September 2014, the accused, drunk, entered his young sister’s room while she was sleeping, he slipped into her bed under the blankets and started to touch her body. He touched her vagina over and under her underwear. He then pulled down her cloths and tried to get her to have sex with him. He moved on top of her, holding her with one hand and pulling his pants and underwear down with his other hand. 18 . Although A.R. was resisting, the accused was able to force his penis into her vagina. According to A.R., the assault lasted approximately 30 minutes. 19 .

The accused does not deny the above-mentioned circumstances but claims that he has limited recollection of what happened the night in question since he was heavily intoxicated, having consumed alcohol and drugs. ANALYSIS AND DECISION 20 . The application of

section 12 of the Charter has been considered by the Supreme Court of Canada on numerous occasions, some of which involved challenges to mandatory minimum sentences. 21 .

Section 12 of the Charter reads as follows: 12. Everyone has a right not to be subjected to any cruel and unusual treatment or punishment. 22 . In R. v. Nur, [2015] SCC 15, at paragraph 46, the Supreme Court of Canada sets out the procedural steps a sentencing Court must follow when faced with a challenge to a mandatory minimum sentence in these words: 46. “To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under

section 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with

section 12 and will fall unless justified under

section 1 of the Charter” . 23 . Chief Justice M c Lachlin then considered whether or not a sentencing Court faced with

section a 12 Charter challenge should consider only the current offender or also other reasonable foreseeable situations where the minimum sentence might apply, concluding the following at paragraph 65: 65. “I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less.

In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons”. 24 . Then, Chief Justice M c Lachlin added, at paragraph 68: 68. “The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise.

It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz , at p. 515 . Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M .

The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter . To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books”. 25 . In the recent decision rendered on April 15, 2016, Chief Justice M c Lachlin of the Supreme Court of Canada in R. v. Lloyd, 2016

SCC 13, [2016] at paragraph 23, confirmed the procedural steps to be taken upon an application under

section 12 Charter to have amandatory minimum sentence unconstitutional: 23. “A challenge to a mandatory minimum sentencing provision under

section 12 of the Charter involves two steps: Nur, atpara. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectivesand principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point,particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly,the rough scale of the appropriate sentence.

Second, the court must ask whether the mandatory minimum requires the judge toimpose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship betweenthe sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73.

Thequestion, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grosslydisproportionate to the offence and its circumstances? If so, the provision violate

section 12”. 26. In determining what would be a just and appropriate sentence for Mr. C.M.S.M., I must first consider the purposes and principles ofsentencing as outlined in

section 718 of the Criminal Code, which reads as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law andthe 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; (

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 and to the community. 27. A sentencing Court must also consider a number of factors such as the gravity of the offence, the personal characterising of theaccused and the circumstances surrounding the commission of the crime. The Court must also take into account any relevant aggravatingand mitigating factors and the principle that similar sentences should be imposed on similarly situated offender for similar offences orcrimes. 28.

In order to determine an appropriate and proportionate sentence for the offence committed by Mr. C.M.S.M., I have reviewed, indetails, the following material: 1 – a Court ordered Pre-Sentence Report dated February 23, 2016; 2 – a Victim Impact Statement signed by A.R. dated December 19, 2015; and 3 – a Court ordered Risk Assessment Psychological Evaluation Report prepared by Kimberly Wilson, L. Psych, Forensic and ClinicalPsychologist dated May 6, 2017. 29. I have also reviewed, in detail, the sentencing authorities submitted by counsels and many others from the courts of New Brunswickand other jurisdictions.

I have considered uncontested statements of facts provided by both the Crown and defence counsel as well astheir respective written and oral submissions. 30. The Crown submits that a broad range of sentences has been imposed by the Courts in similar situations for similar offenders. Itseems that in particular cases involving incest from brother to sister, half-sister or step-sister, the Crown is suggesting the starting pointat 3 years. 31. The Crown also suggests that the circumstances of the offence warrant a sentence that would emphasize the objective ofdenunciation and deterrence.

Crown relies on the following cases: R. v. C.J.S., [1994] 3411; R. v. M.D.L., [2007] NBQB 300; R. v. V.M., [2010] NBBR 200 ; R. v. C.L., [2010] ONSC 3792 ; and R. v. P.K., [2012] MBCA 69 .

32 . Therefore, the Crown submits that the five-year mandatory minimum is not necessarily grossly disproportionate for the offence committed by Mr. C.M.S.M.. 33 . Defence counsel submits that the appropriate and proportionate sentence for an offence of incest on a sister under the age of 16, similar to the case at bar, varies from an 18-month Conditional Sentence to 18 months of imprisonment. Defence counsel relies on the following cases: R. v. M.J.W., [2011] NSPC 33; R. v. E.R.H., [2001] NFLD-PEIR. 349; and R. v. E.W.F., [2006] NLTD 91. 34 . Mr. C.M.S.M. is a first-time offender.

He is a 21-year-old man who had a very difficult upbringing. He pled guilty to two serious offences of sexual nature. He committed sexual misconduct on his 13-year-old half-sister knowing she was, by blood relationship, his sister and knowing that she did not want to have sex with him. 35 . The offence of incest involves the prohibited act of sexual intercourse with penetration between individuals with blood relationship. The act is prohibited whether it was consensual or non-consensual.

However, it ’ s recognized in law that a non-consensual act is an aggravating factor that renders the offence far more reprehensive. 36 . In this particular case, it seems obvious that Mr. C.M.S.M. bared a high degree of criminal responsibility. He was 20 years old at the time of the offence, he knew that the victim was his half-sister and he knew that she had just turned 13 years of age and that she absolutely did not want to have sex with him. 37 .

The mitigating factors present in this case are an early guilty plea without the necessity of a preliminary inquiry or a trial and avoiding the additional pain of testifying for the victim, his remorse for what he did, his cooperation with the police and his desire to avoid any additional harm to the victim. 38 . I also consider his very difficult upbringing and violent family history as mitigating factors. The accused was sexually assaulted by his mother and four other males at the tender age of 4. He was a victim of extreme physical violence and verbal abuse by his former stepfather.

He was removed from his family and placed into the foster care system at the age of 8. 39 . Shortly thereafter being sexually abused by his mother at 4 years of age, his family moved to Newfoundland. He continued to be victim of sexual assaults committed by members of his family and others. During his childhood, sexual acts between his grandparents, parents and siblings were frequent and commonplace. 40 . At the age of 10, he returned to his mother and siblings who were living in a transition house where the family’s security could be monitored.

The year he was returned to his mother, he attempted suicide twice; once with a rope and another time with razor blade. He was admitted at a Psychiatric Unit on two occasions following these incidents, where he stayed for approximately six months. 41 . At the age of 14, Mr. C.M.S.M. was once again placed in a foster home and a full guardianship was obtained by the Minister. He remained with that foster family until his College graduation at the age of 19. He obtained a diploma in Industrial Mechanics.

He is on good terms with his foster family but decided to move back with his mother and siblings at the age of 20. His mother had moved back to New Brunswick and was then living in Dalhousie with her two daughters, a young son and her common-law spouse. Unfortunately, Mr. C.M.S.M.’s family was still experiencing sexual misconduct and reprehensive behavior. 42 . Shortly after moving back with his family, Mr. C.M.S.M. committed this act of incest toward his sister, A.R. He then attempted suicide a third time by consuming over-the-counter sleeping pills and attempting to hang himself.

He was discovered by a friend. 43 . During that same period of time, his mother and stepfather were arrested and charged with sexual assault on her children, possession of child pornography and fabrication of child pornography, which involved her son of 12 years of age. They are both presently serving a penitentiary term of 8 years after pleading guilty to those offences. 44 . Needless to say that when Mr. C.M.S.M. decided to move back with his family in September 2014, he reintegrated a dysfunctional family that had never stopped having reprehensive sexual misconducts and incestuous behavior.

45 . This horrible family history prompted me to order a psychological assessment of Mr. C.M.S.M.. The purpose of that assessment was to better understand the mental health effects of past severe abuse on Mr. C.M.S.M.’s actual misconduct and his risk of re-offending in the future. 46 . The assessment was conducted through March, April and May of 2017 and a report was filed on May 10, 2017. 47 . With regard to Mr.

C.M.S.M.’s mental health, the report revealed the following relevant information: “On the basis of a psychological test data, a Major Depression seems to characterize the daily life of this melancholic and mood man. The clinical profile reveals also a Generalized Anxiety Disorder, severe. As per the symptoms, an untreated Post-Traumatic Stress Disorder related to multiple childhood traumas would be very possible and could explain the continuous symptoms since a young age. This individual feared for his life on many occasions and was exposed to extreme violent situations as a child.

Furthermore, a pattern of some dysfunctional personality traits that can influence his daily living and relationship toward others is present. The personality configuration is composed of the following: Depressive Personality Disorder, with Avoidant Personality Traits and Dependant Personality Features ”. 51. As for the risk of re-offending, the report concludes as follows: “Based on the information available, Mr. C.M.S.M.’s risk to re-offend as a sexual offender is estimated to be in the low range”. 52.

I have also noted the overall conclusions contained in the report, which read as follows: “After considering the validity of the information received, psychometric tool results, interviews, and written documentation, the examination of Mr.

C.M.S.M.’s intellectual, cognitive, affective, and behaviour therefore revealed: • An intellectual efficiency in the average to high average. • Major depression; severe with suicidal risk, moderate. • Generalized Anxiety Disorder, severe. • Post-Traumatic Stress Disorder related to multiple childhood traumas, severe, would be very possible and could explain the continuous symptoms since a young age. • Depressive Personality Disorder, with Avoidant Personality Traits, and Dependant Personality Features. • Based on the information available, Mr.

C.M.S.M.’s risk to re-offend as a sexual offender is estimated to be in the low range. However, very important related to a relapse prevention plan in his situation is specialized mental health services. The results of the present evaluation do support a Post-Traumatic Stress Disorder, severe. Consequently, specialized psychiatric and psychological services are highly recommended in order to help this man understand his past, manage his symptoms related to the severe abuse and therefore to be able to handle present and future stressors appropriately. Mr. C.M.S.M. will become a father in the near future.

Having a baby does change the dynamic of any family. Consequently, he needs to break the cycle in order to become a good father.” 53. Now, turning into the determination of an appropriate sentence to this offender for the offence he committed in the circumstances of this case. I retain that Mr. C.M.S.M. has an average to high average range of intellectual abilities and that he is most likely suffering from a severe Post-Traumatic Stress Disorder due to multiple childhood traumas.

As mentioned in the psychological assessment, “This individual feared for his life on many occasions and was exposed to extreme violent situations as a child”. Mr. C.M.S.M.’s risk to re- offend as a sexual offender is in the low range and specialized psychiatric and psychological services are highly recommended as part of a relapse prevention plan. 54. It’s well settled law that the primary objective aimed to achieve in sentencing an offender who committed sexual assault and/or incestuous act are denunciation and deterrence. However, in this particular case, I strongly believe that rehabilitation is also a must.

Mr. C.M.S.M. has the intellectual ability to learn, understand and comprehend acceptable social demands that we, as society, expect from him. He needs professional help to achieve full rehabilitation. The risk of re-offending is low but specialized psychiatric and psychological services are needed to prevent relapse.

55. It is difficult to imagine how imposing a jail term to a first offender like Mr. C.M.S.M. will serve any of the objectives provided for in the Criminal Code , except maybe the denunciation. 56. Mr. C.M.S.M. has been a victim of sexual abuse and severe violence by members of his family from childhood (at least from 4 years of age) up to the age of 14, at which point the Minister obtained full guardianship and he was located to a stable foster home. Nothing in the evidence presented leads me to believe that Mr. C.M.S.M. received proper care and treatment for all the sexual and violent abuse he suffered. 57.

His unacceptable sexual behavior toward his half-sister in September 2014 seems to be related to his upbringing in a serious sexual dysfunctional family. This does not obviously excuse Mr. C.M.S.M. for his wrong doing and the pain and suffering he caused to A.R. This is a rare case where sexual abuse and extreme violence suffered at a young age deeply damaged the offender’s health and behavior. However, to the evidence convinced me that there is a real likelihood of rehabilitating this offender.

I understand that incest is a serious sexual misconduct that is reprehensive and that our society wishes to eliminate. 58. I am concerned, however, that a jail term would victimize Mr. C.M.S.M. again and achieve very little in terms of deterrence and rehabilitation. Unfortunately, a Conditional Sentence Order is not available for this type of offence. I am convinced that Mr. C.M.S.M. is sincerely remorseful for what he did and never had any intentions of hurting his younger half-sister. He was simply acting as did his parents, grandparents and siblings. He is not a threat to society.

He needs professional help to heal from his past and manage his new life. 59. This is a case that reveals special circumstances which warrant, in my opinion, a departure from the minimum mandatory five-year imprisonment imposed by Parliament. This is a good illustration of the difficulties that front-line judges encounter when legislators believe that categorization of crime as well as offenders is an adequate approach to sentencing. 60. In fact, in some instances, minimum mandatory sentences are in conflict with principles and objectives of sentencing as established by the Criminal Code .

Those principles and objectives are, as a whole, one of the pillars of our criminal justice system. The Supreme Court of Canada has repeatedly confirmed that the primary principle of sentencing remains “that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” as opposed to “a range”, “a starting point” or any other approach developed in the course of time. 61.

The offence of incest has been committed in so many different degrees of gravity and the impact on victims is very much case specific, that a minimum mandatory five-year jail term is often not an appropriate sentence. 62. For example, a first-time offender committing one act of incest on a consensual sibling without any aggravating factors would be facing the same minimum five-year jail term than the father who committed incest on his very young daughter during many years. 63.

Therefore, it is my opinion that having regard to all of the circumstances of this very particular case and the objectives and principle of sentencing contained in the Criminal Code , a proportionate sentence would be a three-year supervised probation with treatments, provisions and freedom restrictions. If it was not for the mitigating factors already discussed and the real potential for rehabilitation, I would conclude that a one to three-year jail term could be considered in this case. 64.

I therefore conclude that the mandatory minimum five-year penitentiary term required by section 155(2) of the Criminal Code is grossly disproportionate to the fit and proportionate sentence when applied to the accused in this particular case. The application of section 155(2) of the Criminal Code in this case is inconsistent with

section 12 of the Charter , unless justified under

section 1 of the Charter . 65. Because of the above-conclusions on the first two issues, as stated in paragraph 7, it is not necessary to answer the third question. However, I must then decide if this infringement of

section 12 can be saved by the application of

section 1 of the Charter . I am now prepared to set a hearing date to allow the parties to make representations on the application of

section 1 of the Charter to this case, if needed. Date in Campbellton, New Brunswick on the 19 th day of July, 2017.

Brigitte Sivret Provincial Court Judge