R. v. C.L., 2021 MBPC 24

Citation: R. v. C.L., 2021 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) D. Queau-Guzzi for the Crown ) ) - and – ) ) ) C.L., Accused ) ) ) A. Braun for the Accused ) ) Sentencing Decision delivered: ) June 2, 2021 There is a publication ban in place, pursuant to sections 486.4(1) and 486.4(2.1) of the Criminal Code , prohibiting publication of any information that could identify the victims Carlson, P.J. INTRODUCTION [ 1 ] C.L. was found guilty after trial of nine offences.

But for one offence, all took place in the family home, in Winnipeg, Manitoba, between February 18, 2019 and April 21, 2019.

The victims were his common law partner, T.E., their baby C.E., and T.E.s’ two children, A.E. and D.E. [ 2 ] C.L. was convicted, as against T.E., of assault cause bodily harm, assault, sexual assault with a weapon, uttering threats, and sexual assault. [ 3 ] As against his infant son C.E., C.L. was convicted of assault and aggravated assault. [ 4 ] As against each of D.E., then age four, and A.E., then age two, C.L. was convicted of assault. [ 5 ] This is the court’s decision as to sentence for C.L.

ISSUES [ 6 ] The court must ultimately decide what sentences are to be imposed on C.L. for the offences of which he was convicted. [ 7 ] That decision requires determination as to the appropriate length of sentence for each offence; whether some or all of the sentences should be consecutive or concurrent; if any are consecutive, what, if any reduction there should be for totality; and what credit C.L. should receive for his time in remand custody. POSITIONS OF THE PARTIES [ 8 ] There is not a joint recommendation as to sentence.

The parties are far apart in their respective recommendations. [ 9 ] Crown counsel recommends sentences that total 22.25 years imprisonment, with reductions for totality, for an effective overall sentence equal to 15 years imprisonment. Crown counsel prepared a Sentencing Table, marked as an exhibit in the sentencing hearing that sets out the sentences recommended by the Crown for each offence, the proposed concurrent or consecutive nature of each sentence, and the proposed reductions for totality. The Crown seeks ancillary orders.

[ 10 ] Defence counsel recommends a combination of consecutive and concurrent sentences that result in a total sentence equal to five years imprisonment. Defence counsel submits that if a higher overall sentence is found to be fit, that sentence should be reduced for totality to an effective sentence equal to five years. Defence counsel does not take issue with the ancillary orders requested by the Crown. FACTS [ 11 ] The facts found based on the evidence are set out in the trial decision. A brief synopsis follows.

Overview [ 12 ] C.L. and T.E. cohabited in Winnipeg, in a bungalow residence at M[...] Avenue, from just after their baby, C.E., was born on [...], 2019, until April 20, 2019. The residence belonged to C.L. `s father, who lived, with his girlfriend, on the main floor. T.E., C.L. and the three children, C.E., D.E. and A.E., lived in the basement. Late on April 20, 2019, T.E. took C.E. to emergency at Health Sciences Centre in a cab, because C.E.s` arm and leg were twitching. A.E. and D.E. stayed with C.L. in the residence.

Once C.E. was examined at the hospital and T.E. spoke to hospital staff, to Child and Family Services representatives, and to police, officers attended the parties’ residence and brought A.E. and D.E. to the hospital where they were examined. C.L. was arrested on charges on or about April 22, 2019. The parties did not resume cohabitation. Facts underlying offences against T.E. Assault cause bodily harm [ 13 ] The assault cause bodily harm on T.E. happened between June 1, 2018 and June 30, 2018, when she was seven or eight weeks pregnant with C.E., and before the parties were cohabiting.

C.L. punched T.E. repeatedly in the ribs and midsection, hitting her three or four times, using both of his hands with closed fists. Medical records filed from the Health Sciences Centre, confirmed T.E. was admitted to hospital on June 22, 2018, suffering from h emoperitoneum . This condition was described in the records as the presence of blood in the peritoneal cavity. She was discharged on June 26, 2018 four days later. Assault [ 14 ] T.E. was assaulted by C.L. on a regular basis during the time the parties cohabited, between February 18, 2019 and April 21, 2019.

She was kicked, at least once punched in the mouth, and on occasion, C.L. pushed down on her chest, forcing her head and neck forward so she felt like she could not breathe. On at least one occasion, T.E. had bruises resulting from being assaulted by C.L. Sexual assault with weapon [ 15 ] Between February 19, 2019 to April 21, 2019, C.L., more than once, held a pocket knife beside T.E.s` vagina or buttocks, while she was clothed, and said “this is mine”. While doing this, he threatened to stab her with the blade.

Utter threat [ 16 ] Between February 18, 2019 and April 21, 2019, on at least several occasions, C.L. told T.E. he would kill her and kill the kids, and said he would make her children motherless. Sexual assault [ 17 ] C.L. regularly accused T.E. of cheating and would put his hand into her underwear to check. On April 20, 2019, when she was waiting for a cab to take C.E. to emergency, she was lying down. Although T.E. said “no” and resisted when C.L. said “let me see it”, C.L. bit T.E.s` hand and pulled her pants and underwear down to right above her knees, and he checked her vagina.

He elbowed her in the face and kicked her. One of the police officers observed bite marks on T.E.s’ hand shortly after the incident. Facts underlying offences against C.E. Assault [ 18 ] Between February 18, 2019 and April 21, 2019, from just after he was born until he was two months old, there were four behaviours that C.L. did that constituted assaults on C.E. T.E. said C.L. did these when C.E. was crying and C.L. seemed frustrated. First he sometimes grabbed C.E.s’ face with his hand and shook C.E.s’ head back and forth.

Second, he sometimes picked C.E. up, with his hands under C.E.s’ armpits, and shook C.E. back and forth. Third, he sometimes shook the bouncer seat while C.E. was in it. Finally, he on occasion would hold C.E. upside down by both ankles and shake him, and then drop him on the bed. Aggravated assault [ 19 ] The conviction on aggravated assault was made out based on the four types of assaultive behaviour witnessed by T.E., set out above, in conjunction with evidence about what happened when she was out of the house a couple of weeks prior to April 20, 2019. On that day, C.L. was home alone with the children.

When T.E. arrived home, C.L. advised her that something had happened to C.E., that

C.E. had looked lifeless, that he was so panicked that he took C.E. upstairs to ask his father’s girlfriend what was wrong. Within a couple of weeks of that date, and a few days before April 20, 2019, T.E. noted C.E.s’ foot twitching. The foot twitching continued every few hours. Then his whole leg began twitching. She ultimately took C.E. to the hospital late on Saturday, April 20. The court accepted Dr. Bodnarchuk’s expert medical evidence that C.E. presented with seizures, and that a MRI test confirmed that the cause of the seizures was bleeding of the brain.

Because there were no broken bones and no skull fracture, the doctor’s opinion was that the brain bleed was caused by trauma, which could result from the rapid shaking of an infant with poor neck control, such that the infant’s head goes back and forth repeatedly causing the brain to rotate and blood vessels to rupture which causes bleeding. The brain bleeding could be life threatening especially in young infants. C.E. was discharged on April 26, 2019, with medication for seizures and instructions to T.E. for follow up. Dr.

Bodnarchuk opined that it is unlikely C.E. will suffer long term effects that were not observable then. C.E. did not require surgery. Although the exact incident that led to the seizures was not observed by anyone, the court accepted based on the all evidence, that C.L. shook C.E., which led to the seizures, caused by bleeding in the brain. Facts underlying assaults against D.E. and A.E. [ 20 ] Between February 18, 2019 and April 21, 2019, C.L. kicked D.E., then four years old, in the chest after D.E. took off his diaper and left some feces on the floor. Dr.

Bodnarchuk did not note any external injury on D.E. when he examined him on April 21, 2019. [ 21 ] Between February 18, 2019 and April 21, 2019, C.L. hit A.E., then two years old, with a closed fist on the side of her head by her ear when A.E. was crying for her cup. Dr. Bodnarchuk did not note any external injury on A.E. when he examined her on April 21, 2019. CIRCUMSTANCES OF THE OFFENDER [ 22 ] A Pre-Sentence Report, with a Gladue component, (the “PSR”), dated February 1, 2021, was marked as an exhibit at the sentencing hearing. [ 23 ] C.L. is a 28 year old Indigenous man.

He was raised in Winnipeg by his biological parents. He reported that his mother struggled with alcoholism and was emotionally and physically abusive to him. His mother died of cancer when C.L. was 16 years old. He described his mother’s death as the pivotal event in his life. He has not had any counselling to address his grief. He advised that his father also struggled with alcoholism, and described his father as neglectful, but not violent. He described his parents disappearing on weekends when he was young, leaving him and his sister alone.

He said his family has a history of residential school involvement. [ 24 ] C.L. has six older maternal half siblings, many of whom he says grew up in foster care, and one biological sister, B.L. He says she is his closest family member. [ 25 ] C.L. advised that when his mother died, his family disintegrated. His father and sister moved to Camperville. He was not invited. From that time, at age 16, he was homeless. He couch surfed, joined a gang and got involved in drug trafficking. [ 26 ] C.L. has an alcohol addiction. He said he remembered violent drinking parties at his home when he was five years old.

He started drinking at about age 12 and by age 15, his use was problematic. He reported that he drinks near constantly to avoid emotions around the traumatic experiences in his life. His sister, B.L., described him as being “very violent” when intoxicated. C.L. said he is open to accessing treatment. He has had addictions assessments at the Addictions Foundation of Manitoba. Although each assessment concluded he did not have an alcohol addiction, all of the collateral information, including his own reporting, makes it clear that he does.

He also said that he uses cocaine. [ 27 ] He left school at age 16, to take care of his mother before she died. C.L. reported that he tried to return to school around 2017, to complete a high school upgrading program. But he said, due to homelessness and his alcoholism, he left school. File information suggests he has not attended school since 2008, and had a cognitive disability, although there is no formal diagnosis. [ 28 ] He has never held stable employment. When he has worked, it has been in temporary day labour. He said he relied on crime for money.

He reported that he has not been gang involved for some time and has relied on Employment and Income Assistance. [ 29 ] He has had several long term relationships. He has five children. He does not appear to have any contact with any of them. [ 30 ] One of his former partners, and mother of two of his children, described their seven year relationship as unstable. She described C.L. as being physically and emotionally abusive toward her and an entirely absent father to their two children.

She advised she does not feel safe around him. [ 31 ] C.L. is currently in a relationship with another partner, and has been since August 2019. Defence counsel advised, and Crown counsel did not dispute, that the comments in the PSR about his current relationship are not accurate, in that he has no convictions related to his current partner. [ 32 ] C.L. disclosed he was sexually abused by a male babysitter when he was six.

He says he was also sexually molested by an adult male when he was 13. [ 33 ] C.L. told the author of the PSR that he wants treatment to process grief and trauma and to deal with his anger. [ 34 ] The author of the PSR assessed C.L. as a very high risk to re-offend generally. C.L. was assessed by the Static 99R test, as an above average risk to commit a sexual offence. The significant misstatement by the author of the PSR that C.L. has been convicted of being abusive to his current partner, may have played into these assessments.

Accordingly, the court does not rely on the risk assessments in the PSR, and will come to its own conclusions about C.L. `s risk. [ 35 ] There are a number of apparent inconsistencies in the PSR between what C.L. told the author of the PSR, and what collateral contacts reported – about their mother, the nature of his peers, and how he acts when intoxicated. It is noted that C.L. says that

fatherhood is the most important role in his life. However, he has, it appears, no contact with any of his five children. His former partner described C.L. as an entirely absent father; he agreed he has little contact with the two children from casual relationships with their mothers; and he has C.E. with T.E. His probation officer said C.L. chose not to work with family services in order to visit his oldest child. It seems that C.L. perhaps does not see himself the way others do, and is not realistic in his self-assessments. [ 36 ] C.L. has a criminal record, though it is limited and not related.

His record does not have any convictions for violence or sexual offending, or offending against domestic partners or children. He has received several probation orders, and some short stints of custody, with the longest being equal to five months, in 2017 for a forcible entry. SENTENCING PRINCIPLES [ 37 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. Courts must structure sentences that achieve that purpose by addressing a number of objectives.

These include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community, and promotion of responsibility of offenders and acknowledgement of harm [ 38 ] When considering sentences for offences of the type committed by C.L., the primary sentencing principles are denunciation and deterrence.

Section 718.01 of the Criminal Code provides this is the case for offences involving abuse of children.

Section 718.04 of the Criminal Code states this is the case for offences involving vulnerable persons, including persons who are Aboriginal and female, into which categories T.E. falls. Although for these offences, rehabilitation takes a back seat, it is still a principle to be considered. C.L. is still a relatively young man.

His alcohol addiction and normalization of domestic violence, in the court’s view, put him at a high risk to re-offend in the same way unless and until he receives, and accepts, assistance to address those, and related, issues, in order to keep the public, especially his intimate partners and any children he may be caring for, safe. That rehabilitation will have to take place in a penitentiary. [ 39 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The offences are all serious as they involve violence against a domestic partner and vulnerable children to whom C.L. was in a positon of trust. The maximum sentence for both aggravated assault and sexual assault with a weapon is 14 years imprisonment. As to moral blameworthiness, C.L.’s is high. He made an ongoing series of decisions to assault his domestic partner, and his baby.

Although there was some evidence about drug use, there was no real suggestion that C.L. was intoxicated by substances at the time of the offences. There is no evidence that he suffers from any diagnosed cognitive or other deficits that impacted his repeated and ongoing decisions to behave as he did. As to Gladue factors, the Court recognizes the nexus between systemic impacts of colonialism and the specific challenges C.L. faced growing up, in particular his lack of parenting role models and normalized inter familial violence, and his offending behaviour.

His moral blameworthiness is impacted by Gladue factors, but is still high for these offences. [ 40 ]

Section 718.2 of the Criminal Code provides that the Court has to consider mitigating and aggravating factors of the offender and the offences, in sentencing. [ 41 ] There are no mitigating factors as to the offences. As to the offender, there are some mitigating factors: • There are Gladue factors. Although the PSR raises a lot of questions, it is clear that C.L.’s childhood was one of neglect, some abuse and exposure to alcohol addicted parents. Despite his mother’s challenges, he was clearly close to her and her death sent him into a mode of living – homelessness, addiction, gang life and crime.

The intergenerational impact of colonialism is clear in this family, and linked to C.L.’s addiction and normalization of domestic violence. Given how he was raised, and abuse he says was inflicted on him, it is perhaps not surprising, though still not excusable, that he abused his own domestic partner. The manner in which he treated C.E., D.E. and A.E. is also perhaps not surprising given how he described his mother treated him. • While C.L. has a record, it is relatively limited.

He has no prior offences of domestic violence, violence against children or violence at all. • While in custody, his behaviour has been admirable. He is described in the PSR as being a quiet, respectful inmate, and not involved in any institutional incidents. He has worked in the laundry at Headingly Correctional Centre. He has accepted resources offered to him, including doing workbooks.

He has done the limited programming available, including a program delivered by Teen Challenge. • He is amenable to receiving counselling for grief and trauma, recognizes he needs assistance and says he is willing to take help. • The fact that much of his time in custody has been served during the COVID-19 pandemic requires consideration. This situation has come with restrictions in custodial institutions, including limited programming, most time spent in cells, lack of control over surroundings, anxiety about the virus, and living through an outbreak of COVID-19 at the institution.

His sentence going forward will continue for at least some time, to be served, under some form of pandemic related restrictions. The only way to take this into consideration in a sentence as to remand time, beyond the normal 1.5 credit, and going forward, is to consider it as a mitigating factor. [ 42 ] There are many aggravating factors: • The offences against T.E. and the three children were all incidences of domestic violence.

Section 718.2 (ii) of the Criminal Code provides that abuse of one’s intimate partner or family members is statutorily aggravating. A person is entitled to feel safe with her intimate partner. T.E. was anything but safe with C.L. Likewise, children are entitled to feel safe and cared for by their parent or parent figure. C.E., D.E. and A.E. were not safe with C.L. • The abuse toward T.E. and C.E. was repeated, over a two month period. • C.L.’s conduct toward T.E., especially the sexual assault and sexual assault with weapon, was demeaning and humiliating for her.

• The assault of T.E. in June of 2018 took place while she was pregnant, was vicious and resulted in her hospitalization. • T.E. was scared by C.L.’s conduct toward her. In her evidence, she several times mentioned that she was afraid to do things for fearof C.L. attacking her or the children. • T.E. did not file a formal victim impact statement. However, her testimony made it clear that she was terrified of C.L. It is certainlyclear that T.E., besides being physically hurt by C.L., was emotionally impacted.

As to impact on the children, it is hoped they will haveno memory of C.L.’s actions toward them or their mother. It must have been very scary for A.E. and D.E. not just to be physicallyassaulted by C.L., but to see both their baby brother C.E., and their mother, treated the way they were. A.E. and D.E. had to be taken tothe hospital by police officers. That must have been confusing and frightening for them. C.E. required ongoing follow up due to hisseizures and brain bleed.

It is easy to say that all four victims sustained impact from C.L.’s actions. • The potential gravity of the offending against C.E. cannot be overstated. C.L.’s actions caused injury to C.E. that could have beenlife threatening. The fact C.E. appears to have not suffered ongoing collateral effects is just lucky. C.E. did have to go to the hospital,and be subject to testing and examination. • It is statutorily aggravating pursuant to s. 718.2(ii.1) of the Criminal Code that C.L. abused persons under 18 years. In fact, he hadthree child victims.

They were extremely young – a newborn, a two year old and a four year old - all far too young to remove themselvesfrom the situation or resist C.L.’s aggression. • All the offences during cohabitation happened in the victims’ home, a place they were entitled to feel safe. The children were tooyoung and vulnerable to leave. • S. 718.2(a) (iii) of the Criminal Code provides it is statutorily aggravating that C.L. abused a positon of trust in relation to thevictims. He was their father, father figure and intimate partner. • He has a criminal record. While not related, his record disentitles him to leniency.

CONSIDERATION OF APPROPRIATE SENTENCES [43] Section. 718.2(

b) of the Criminal Code provides a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. Both counsel provided some case law, which the Court has reviewed. While eachcase is offender and offence specific, a consideration of what courts have imposed as sentences in cases with similarities is helpful. [44]

Section 718.2 (

d) of the Criminal Code provides that an offender should not be deprived of liberty, if less restrictive sanctionsmay be appropriate in the circumstances. In this case, given the seriousness of the offences, no sentence other than imprisonment isappropriate to address the sentencing objectives. [45]

Section 718.2(

e) of the Criminal Code provides that all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particularattention to the circumstances of Aboriginal offenders. In this case, there is no sentence appropriate other than imprisonment that isreasonable in the circumstances. CASELAW ADDRESSING THE APPROPRIATE LENGTH OF SENTENCES FOR CERTAIN TYPES OF OFFENCES Sentences for aggravated assault on an infant [46] In R. v.

P.H., 2010 MBQB 8, an offender was convicted of aggravated assault after trial. He dropped his four month old son onthe floor causing the baby to stop breathing temporarily and bleed in the brain, and on eight occasions he also vigorously shook his son.This caused other brain injuries and bleeding in the retinas of the eyes. The infant appeared to have recovered from his injuries. Theoffender had no prior record. He was sentenced to 18 months jail and probation. [47] In R. v. H., 2014 BCSC 600 (BCSC), after trial, a mother was convicted of aggravated assault upon her infant son aged sevenmonths.

In a fit of anger and frustration, she committed a single serious act of violence on the child causing him life threatening injuries. She violently and repetitively bounced the infant up and down on an air mattress with steadily increasing ferocity until the baby stoppedbreathing. The force applied was found to be sustained and extreme. She called for assistance right away. The baby had a full seizureand suffered brain injury. His prognosis for the future was guarded, although at age three, he had made a strong recovery. The offenderhad no criminal record at the time of the offence.

The offender minimized responsibility for the offence. The judge, in imposing asentence of two years imprisonment and three years of probation, said at para. 49: “The authorities are unanimous that offences of aggravated assault upon defenceless infants merit severe sentences. I think it is safe tosay that it will be the exceptional case in which a penitentiary term is not imposed. The principles of denunciation, deterrence,retribution and promotion of a sense of responsibility in offenders are the preeminent concerns here.

The fact the offender is the baby’snatural mother is a significant aggravating feature, as a more drastic breach of trust is impossible to imagine. “ [48] In R. v. MacDonald, 2009 MBCA 36, a father pleaded guilty to three counts of assault causing bodily harm to his infant tripletsons. The babies were less than six months old. One had eight fractured bones, one had four fractures and the third had seven fracturesas result of assaults by the father.

The Court of Appeal imposed a sentence equal to three years jail, setting aside an 18 monthsconditional sentence order (and credit for 18 months pre-sentence custody) and three years of probation. [49] In R. v. Marks, (1994), (NL CA), 91 C.C.C. (3d) 421 at 428, (referenced by the Manitoba Court of Queen’sBench in P.H.), the Newfoundland Court of Appeal stated that physical child abuse frequently falls into two distinct types:

(

i) The application of force, with, if not the intention, the expectation of causing injury or, an indifference as to whetherinjuries will result, and (ii) The application of force where a parent or other custodian of a child is immature and is unskilled in matters ofchild care, and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. [50] In the first situation, there is a high degree of culpability and, in most cases, a severe sentence will be imposed.

In the secondsituation, while punishment is warranted, a sentence will not ordinarily be a severe one and will usually be followed by a period ofprobation, a condition of which would be that the abuser receive training and counselling to the end that further acts of abuse will beavoided. [51] C.L. falls closer to the first situation set out in Marks, than the second. Although T.E. testified that C.L. seemed frustrated whenhe shook C.E. due to C.E.s’ crying, C.L., having four other children, surely must be expected to know the risk of shaking a baby.

Further, T.E. testified she specifically and repeatedly told C.L. that the baby’s head needed to be supported, and told him to stop theshaking, but he did not. C.L. is highly culpable as to his shaking of C.E. Sentences as to physical assaults on children [52] Defence counsel filed the case of R. v B.O., (NL PC). In that case, the sentencing judge set out a table ofcases, identifying the types of sentences imposed for assaults upon children by parents or caregivers, and a short

summary of thecircumstances of each case. None were as serious as shaking a newborn baby. Some are similar in circumstances to the assaults on A.E.and D.E. Some of the sentences referenced in the table are non-custodial sentences. A number fall within the range of two to six monthsjail. Longer sentences are indicated for more serious assaults. [53] Crown counsel urges the court, in assessing sentences for all the offences against the children in this case, to consider theSupreme Court of Canada’s comments in R. v. Friesen, 2020 SCC 9.

In that case, the Supreme Court of Canada dealt with offences ofsexual violence against children, and arguably re-set the bar for the length of sentences courts are to impose for sexual offending againstchildren.

The Supreme Court of Canada, in that case, made many comments about the protection of children being a fundamental valueof Canadian society, and commented at para. 66 that children are most vulnerable and at risk at home and among those they trust. [54] The question arises whether Friesen should be read to require sentences of non-sexual offending against children to be higherthan they have typically been in the past.

If so, then it would be reasonable to assume that the sentences relative to the offences againstC.E. would be higher than the sentences imposed in the cases of P.H., H. and MacDonald referenced above, and that sentences for theoffences against A.E. and D.E. should be higher than the ones imposed in the similar cases referenced in the B.O. case. [55] The B.O. case was decided in 2020, and does specifically reference the Friesen decision. B.O. cites Friesen relative to theproportionality principle.

It does not address whether Friesen requires an increase in sentences for physical, but non-sexual, violenceagainst children.

The B.O. case does not bind me, but it is fair to say that at least the judge in B.O. was of the view that, even afterFriesen, most assaults against children by parental figures, that are at the lower end of seriousness, would garner sentences of betweentwo and six months. [56] The Friesen decision specifically addresses how courts are to impose sentences that fully reflect and give effect to the profoundwrongfulness and harmfulness of sexual offences against children. [57] For the purpose of sentencing C.L. for his offences against C.E., D.E. and A.E., the court considers that they were allvulnerable children being assaulted by a father figure in their own home to be highly aggravating, and that denunciation and deterrenceare the primary sentencing objectives.

While bearing in mind the comments in Friesen, relative to the unique aspects of children beingvictims, especially in their own homes, it is not necessary in this case for this court to make a general statement that sentences for non-sexual offences of violence against children should necessarily be higher than they have been in the past.

Sentences as to multiple offences against children and domestic partners [58] Two Manitoba cases are particularly helpful because they address sentences for offending, physically and sexually against aspouse, and physically against several children, repeatedly over a period of time. [59] In R. v. M.B.M., 2002 MBCA 154, an offender was convicted after a month long trial of 20 offences.

These included assaultsagainst his three children; assault and assaults with weapon against his stepson; assaults, assaults with weapon, unlawful confinementand sexual assaults on his wife; administering a drug; and four counts of obstruction of justice. He was sentenced to a total of 25 yearsimprisonment, after reduction for totality. The offender had a long record including two prior convictions for rape. The judge describedhim as “close to the worst offender” and his acts as “amongst the worst imaginable”. The sentence was upheld by the Court of Appeal.

The Court of Appeal decision does not contain details of the offences, except to say that the offending against the wife had continuedduring an 11 year period, and that the crimes were horrendous and constituted brutal and destructive abuse over a long period of time,including subjecting his wife to acts of violent and brutal sexual degradation.

The sentencing decision is unreported, so that it is not clearwhat the offences consisted of, and what individual sentences were attributed to which offences. [60] Distinguishing the M.B.M. case from C.L.’s case are the facts the offender in M.B.M. had a prior record of violent sexualoffences, whereas C.L. has none; there were more victims and more offences in M.B.M.; offences in M.B.M. continued over a period of11 years as to the wife, and for a long time as to the children and stepson, whereas C.L. and T.E. and the children lived together for themuch shorter time of two months; and that as to assaults on the children, they were repeated in the M.B.M. case, whereas as to A.E. and

D.E., there was one assault proved as to each of them, which were toward the bottom of the seriousness scale. [ 61 ] In R. v. Karimi, (6 January 2020) Manitoba Provincial Court, an unreported decision of Judge Stewart, the offender was found guilty after trial of a number of offences over a two year or more time frame. The victims were Mr. Karimi’s wife of many years and four children. The assaults on the two children were frequent. One of the other children was a baby. The sentence was 12 months for assaults relative to each child, consecutive.

The wife was constantly assaulted – beaten about the face and body, pulled by the hair, choked and strangled and suffocated. Her hands and mouth were sometimes duct taped. The sentence for these assaults was 24 months consecutive. There was an assault cause bodily harm when the wife was struck with a machete and her hand was injured. The sentence for that offence was 18 months consecutive. For the sexual assault against the wife, when he forced sex on her and the children could hear her screams, the sentence was 36 months consecutive. There were threats to the children and threats to kill their mother.

The threats were daily. The sentence for making threats was 12 months consecutive to the others (but concurrent as amongst all victims). For forcibly confining all the victims the sentence was 24 months consecutive (but concurrent as amongst the victims). There were breaches given a 12 month consecutive sentence. The total sentence was 14 and a half years. The offender had no prior criminal record.

The sentence was reduced for totality to a total of 13 years. [ 62 ] Distinguishing this from C.L.’s case is that, in Karimi there were four children; the assaults and sexual assault were higher on the seriousness scale; the threats were made to the children as well as to the mother; there were the additional offences of breaches and forcible confinement; and the offending took place over a two year or more period of time, as compared with the two months in C.L.’s case. But Mr. Karimi had no record, whereas C.L. has one, though unrelated. Concurrent and consecutive sentences [ 63 ] In R. v. Arbuthnot ,

(2009) MBCA 106, the Court of Appeal said that the determination as to whether the sentences are to be served concurrently or consecutively is a fact driven analysis for each case. The general rule adopted by the Court is that sentences should be served consecutively when they arise “out of separate and distinct transactions”. [ 64 ] In R. v R.C.R.T ., 2017 MBQB 113 , Justice Greenberg stated, at para. 19: “While it is usual to impose consecutive offences where there are multiple complainants, multiple assaults on the same complainant can be addressed by concurrent sentences.

In fact, it is often the case where there are repeated assaults on the same complainant that the accused is charged and convicted of only one count. Of course the fact that there was more than one incident is an aggravating factor in determining the appropriate sentence”. [ 65 ] In Karimi , it was held that the conduct of the offender could not be lumped together against each child as one ongoing aggression deserving of a concurrent sentence. Consecutive sentences were imposed as to each victim.

There were also consecutive sentences imposed for specific incidences on the same victim for distinct and separate offences (as to the assault cause bodily harm and sexual assault on the wife). APPROPRIATE SENTENCES (before consideration of totality) [ 66 ] In all the circumstances, balancing all the factors present in this case, and considering all the authorities presented, the court has determined the following to be the appropriate sentence for each offence. Offences against T.E. [ 67 ] For the assault cause bodily harm, a one year sentence is fit. The offence was one distinct episode.

C.L. had no prior convictions for domestic violence, or violence at all. T.E. was pregnant and was his domestic partner. [ 68 ] For the ongoing assaults during the time the parties lived together, laid as one common assault charge, a sentence of one year is fit. There were multiple assaults and they continued over a two month period of cohabitation. These assaults were separate in time and location from the assault cause bodily harm in June 2018. The sentence is consecutive. [ 69 ] For the sexual assault with weapon, this happened more than once but there was conviction on one charge.

This offence was distinct and specific behaviour from the physical assaults. A two year sentence is fit, and is consecutive. [ 70 ] For the utter threats, a sentence of six months is fit. This sentence is concurrent to assaults since the threats accompanied the assaults. [ 71 ] For the sexual assault, although there were a number of instances of sexual assault, the conviction is for the one incident that took place right before T.E. took C.E. to the hospital. It was a distinct and specific incident.

A two year consecutive sentence is appropriate. [ 72 ] The sentences for offences against T.E. total six years imprisonment. Offences against C.E. [ 73 ] For the aggravated assault, a sentence of three years, consecutive to the prior sentences is fit. This is offending toward a different victim and is a specific incident. It is the most serious of the offences. [ 74 ] For the assault on Cassius, a sentence of two years is fit. This offence consisted of multiple assaults, distinct from the aggravated assault.

The sentence should be consecutive. [ 75 ] The sentences for offences against C.E. total five years imprisonment.

Offence against D.E. [ 76 ] A fit sentence for the assault on D.E. is six months, consecutive to the other sentences. The offending was against a separate victim. Offence against A.E. [ 77 ] A fit sentence is six months, consecutive. A.E. is a separate victim. TOTALITY [ 78 ] The sentences total 12 years incarceration. [ 79 ]

Section 718.2 (

c) of the Criminal Code provides where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. In R. v. Taylor , 2010 MBCA 103 , the Manitoba Court of Appeal made it clear that when the Court imposes consecutive sentences, it must apply totality principles. A “last look” must be taken to ensure the total sentence is a fit sentence and does not exceed the overall culpability of the offender, and so that it is a proportionate sentence. The Manitoba Court of Appeal, in R. v.

M. (G.J.) , 2015 MBCA 103 , set out the factors a court is to consider and balance in assessing totality. [ 80 ] For a 28 year old Indigenous offender, who has no violent nor sexual offending in his criminal history, a limited criminal record, whose longest sentence has been five months and has never been to the penitentiary, a sentence of 12 years would, in the court’s view, be a crushing one. Some reduction for totality is warranted. [ 81 ] A total sentence equal to nine years in the court’s assessment, is a fit and proper sentence for C.L. for these offences.

This sentence will be achieved by making the sentence for the common assault on C.E. concurrent to the aggravated assault on C.E., and by reducing the sentence for the sexual assault on T.E. on April 20, 2019 from two years to one year.

PRE-SENTENCE CUSTODY [ 82 ] C.L. seeks enhanced credit at time and a half for his pre-sentence custody time. [ 83 ] Crown counsel agrees he should receive credit for his time in custody and does not take issue with him receiving enhanced credit. [ 84 ] Reasons for giving enhanced credit for pre-sentence custody include that conditions in remand are often harsher than for sentenced prisoners, and that such time is not considered in determining parole eligibility or early release entitlement ( R. v. Summers, 2014 SCC 26 ).

The decision as to enhanced credit is discretionary. [ 85 ] Given C.L.’s positive conduct in custody outlined in the PSR, and the COVID-19 restrictions impacting the custodial conditions already outlined, the court is prepared to credit C.L. with his pre-sentence custody at time and a half. [ 86 ] C.L. had been in custody for 524 days as of the sentencing hearing on April 19, 2021 so as of today, he has been in custody for 568 days. At 1.5 credit, that is equal to 852 days.

SENTENCE BREAKDOWN AND IMPOSTION OF SENTENCES [ 87 ] On the assault cause bodily harm against T.E., 243 days of time in custody will be noted; at time and a half, that is equal to 364.5 days and the sentence is then 1 day court appearance today. [ 88 ] On the assaults against T.E., a consecutive period of 243 days will be noted at time and a half, equal to 364.5 days, and the sentence is one day court appearance today. [ 89 ] On the utter threats, a concurrent period of 120 days of time in custody will be noted, which at time and a half, is equal to 180 days, and the sentence is one day court appearance today. [ 90 ] On the sexual assault with a weapon, the remaining time in custody will be noted, consecutive, of 38 days at time and a half, equal to 57 days, so the sentence going forward is 673 days. [ 91 ] On the sexual assault against T.E., the sentence going forward is one year consecutive. [ 92 ] On the aggravated assault on C.E., the sentence going forward is three years consecutive. [ 93 ] On the assault on C.E., the sentence is two years going forward, concurrent to the aggravated assault; and [ 94 ] On the assaults on D.E. and A.E., the sentence is six months on each, consecutive to each other and consecutive to the other sentences, for a total of one year going forward. [ 95 ] So the sentence going forward is six years and 308 days.

Ancillary orders [ 96 ] The Court orders that C.L. have a sample of his bodily substances taken for submission to the national DNA bank. This order is made concurrently on the following offences – assault cause bodily harm, sexual assault with weapon, and sexual assault, and the

aggravated assault on C.E., as they are all primary designated offences pursuant to s. 487.04 of the Criminal Code and therefore the ordering of a DNA sample is mandatory. The DNA sample can be taken while C.L. is in custody. [ 97 ] The Court orders that pursuant to s. 490.012(1) of the Criminal Code that, concurrent on the sexual assault with weapon and sexual assault offences, C.L. be required to comply with the Sex Offender Information Registration Act . Pursuant to s. 490.013

(2.1) Criminal Code , that compliance must be for life, given the convictions for more than one of the designated offences. [ 98 ] The Court orders, pursuant to s. 109(1) (a.1) of the Criminal Code , that C.L. is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross bow, restricted weapon, ammunition and explosive substance for a period of 10 years from release from prison; and from possessing any prohibited firearm, restricted firearm, prohibited weapon prohibited device and prohibited ammunition for life.

This is a mandatory order and attaches concurrently to all the offences. [ 99 ] Costs and victim surcharge will be waived. Given C.L.’s lengthy pre-trial custodial time and his time going forward, the ordering of costs and surcharge would create an undue hardship for him. “Original signed by” Catherine Carlson, P.J.