Her Majesty the Queen - v. -, 2011 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 017 Date: January 13, 2011 Information: 45248074 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - L.(J.J.) Appearing: Mr. Jerome Tholl For the Crown Mr. Don Findlay For the Accused Note:

Section 486.4 of the Criminal Code respecting the non-publication of the identity of the complainant or of a witness and any information from which they might be identified applies to this judgment. JUDGMENT B. TOMKINS , J [ 1 ] J.J.L. is charged that he did, between November 1, 2007 and May 1, 2009, commit the offence of sexual exploitation against K.S. contrary to section 153(1) (

a) of the Criminal Code . Specifically, he is charged that he, being in a position of trust or authority, did touch K.S., a person under 16 years, directly or indirectly with his genitals. He pleaded guilty to the charge and the matter came before me for sentencing on January 5, 2011.

FACTS [ 2 ] The accused is stepfather to K.S. who was 13 and 14 years old at the time the events subject of this charge occurred. Through the Crown's submissions, K.S. described a number of incidents including at least three times that he laid with her while both were fully clothed. The accused humped her, simulating sexual activity. On each occasion, he ejaculated into his underwear.

The incidents of humping occurred once while both lay on the parent's bed watching television, once when the accused tucked K.S. into bed and once on the couch. [ 3 ] In addition, on a number of occasions he fondled her breasts and vagina. She estimated that he fondled her vagina on three occasions but says no penetration took place. She estimated that he fondled her breasts on five occasions. [ 4 ] On the other hand, K.S. alleged that the incidents of sexual touching occurred as many as six times each month during the 18 months covered by the charge.

If so, there must have been more incidents than those specified in submissions and set out above. [ 5 ] In the course of an argument with her mother, K.S. disclosed that her step-father had abused her. The accused admitted his guilt to his wife and also to his pastor, to whom he disclosed his offences and sought counsel. He then attended to the Regina Police Service and again admitted his behaviour.

This occurred before K.S. or her mother contacted the police; in effect, he reported his own offence. [ 6 ] Since he was charged, the accused has been subject to conditions preventing him from residing with his family. Nonetheless, he has managed to support himself and give half of his income to his partner for the support of the family. THE ACCUSED [ 7 ] The accused is 42 years old and one of four children born to parents who have been married for approximately 40 years. Both parents maintained employment until his father's was lost due to disability; after that, the family struggled financially.

Nonetheless, the accused described his family home as "great" and he did well socially, at school and in sports. He remained in the family home until he was 30 years old. [ 8 ] During his years in the family home, he became involved in the use and sale of drugs. He also abused alcohol. Drugs and alcohol use compromised his education and his life until early 2005 when he ceased using both.

After that, he and his partner - (who is K.S.'s mother) - were able to regain custody of her children - including K.S. - and a child of theirs, all of whom had been removed from their care due to their parents drug and alcohol addictions. [ 9 ] It appears that after that time, the accused and his partner maintained a stable relationship and created a stable home for their family. He has been steadily employed, currently working at Littlemore Express who report that he is a good employee who is good at his job and works diligently.

He provides well for his family and knows that it will be difficult for them financially while he is incarcerated. He regrets this. [ 10 ] The accused has an adult criminal record as follows: Dec 1988 Mischief Suspended sentence and

6 months probation Jul 1989 Traffic in narcotic 6 months incarceration and (2 charges) 12 months probation Feb 2005 Traffic in Sched. 1 Substance 15 months CSO Possn. Proceeds of Crime 9 months CSO concurrent VICTIM IMPACT [ 11 ] Unfortunately, I have not been provided a victim impact statement on behalf of K.S. but her mother - the accused's partner - did provide her perspective in the Pre-Sentence Report.

She said the K.S. was exhibiting some behavioural problems prior to the incidents now before the court and that she finds it difficult sometimes to determine whether her current "acting out" behaviours relate to the matters before the court or to issues which troubled her prior to these incidents. K.S. attends counselling and finds it very beneficial. She says K.S. is anxious to put this matter behind her but her mother ensures that K.S. knows that the matter is open for discussion whenever she is ready to discuss it. [ 12 ] The accused's partner says she is also affected.

Of course, she must deal with the repercussions to her daughter and in addition, must always be aware of warning signs for inappropriate behaviour by the accused and must be diligent to protect her family. [ 13 ] She has forgiven the accused and will support him through his treatment. She is optimistic that the family can be healed and reconciled. [ 14 ] The accused's partner also spoke at court during his sentencing hearing. She disclosed that she also had been a child victim of sexual abuse which, she believes, gives her some insight into the healing necessary.

She sees the accused's guilty plea as very positive as her daughter's difficulties would necessarily be compounded if she had to also deal with a denial of what she knows to be true. [ 15 ] She said incarceration will cause hardship to the family since they will lose the accused's significant contribution to the family income. She encouraged me instead to impose a community-based sentence. She said that what the accused needs is programming and treatment that will give him long-term tools to deal with his challenges.

She believes a community-based sentence would be in the interests of the accused's rehabilitation and the reunification and health of the family. POSITIONS OF THE PARTIES [ 16 ] The Crown submitted that a sentence of 18 months incarceration is appropriate, followed by a period of 18 months probation. [ 17 ] In addition, the Crown requests a weapons prohibition under

section 110 of the Criminal Code , an order for provision of a DNA sample under

section 487.051 and an order for 20 years compliance with the Sex Offender Information Registry Act (" SOIR ") pursuant to

section 490.012. (The latter two of these are mandatory on conviction for an offence contrary to

section 153, while the order under

section 110 is discretionary.) [ 18 ] The accused submitted that a sentence of nine months incarceration is appropriate and that the authorities do not support a sentence of 18 months in the circumstances of this offence.

[ 19 ] He concedes, however, that the period of custody will be followed by 18 months probation. He also agrees that the ancillary orders requested by the Crown are appropriate and should be made. [ 20 ] The only dispute between the parties, therefore, is as to the length of the period of incarceration that will be imposed. ANALYSIS Principles, Objectives and Considerations [ 21 ]

Section 718 of the Criminal Code states that the fundamental purposes of sentencing are to contribute to respect for the law and to maintain a just, peaceful and safe society.

The objectives of sentencing are: ∙ denunciation of unlawful conduct; ∙ deterring the offender and others from committing offences; ∙ separating offenders from society, when necessary; ∙ assisting in the rehabilitation of offenders; ∙ promoting a sense of responsibility in offenders; ∙ providing reparations for harm done to victims or the community; and ∙ acknowledging the harm done to victims and to the community. [ 22 ] While these purposes and objectives guide the Court in sentencing in every case, there are specific sections that apply for an offence such as is before me today. These are: ∙

Section 718.2 which states that, in considering mitigating and aggravating factors, evidence that the offender abused a position of trust or authority in relation to the victim, shall be considered an aggravating circumstance. ∙

Section 718.01 which states that when sentencing for an offence that involves the abuse of a person under the age of eighteen years, I must give primary consideration to denunciation and deterrence of the conduct. ∙ Section 153 (1.1) which sets out a minimum penalty of 45 days incarceration for this offence. The fact that the Code requires a sentence of imprisonment in every case shows that Parliament views the offence as one that is very serious.

Mitigating Factors [ 23 ] The accused submitted that I ought to consider in his favour as mitigating factors that the touching occurred on most occasions while both he and K.S. were clothed, that his actions did not include violence or threats and that he stopped his behaviour immediately if K.S. objected. [ 24 ] However, I do not consider any of these as mitigating or, if they are, they are of very minor influence. Of course, the circumstances would be more serious if overt violence or threats were used.

But the actions are, in a sense, violent by nature; they are an assault in that they are unwanted touching. [ 25 ] That touching occurred to a very young person who was in a vulnerable position and who was, by reason of that vulnerability and the relationship between the parties, unable to resist significantly.

[ 26 ] I am also troubled by the suggestion in his submission that K.S. did not object to the touching and the implicit suggestion that she in sense consented to the activity. She did not. [ 27 ] Most significantly, the accused says that I should consider it mitigating that he did not by his conduct demean K.S. I am astonished by this submission and the lack of insight evident in it. In fact, the conduct was demeaning in its very nature and in every sense of the word. [ 28 ] I do not accept the accused's submission that the victim is doing well with support and that this is a mitigating factor.

If she is, it is through her own maturity, resilience and hard work, not the actions of the accused. Further, it is far too soon to know whether K.S. is doing well or, if she is, whether she will continue to do so. It is common knowledge that victims of sexual offences, especially child victims, suffer the consequences and impact of their abusers’ conduct for many years or for their lifetimes. It is naive to suggest that a young woman subjected to such abuse, now only sixteen years old, is doing well.

Her mother's discussion with the author of the pre-sentence report suggests otherwise. [ 29 ] I do consider the following to be mitigating factors for the accused: ∙ his submission, not disputed by the Crown, that he discontinued the conduct before K.S. disclosed it ∙ his early admission to his wife and pastor; ∙ his voluntary attendance to the police; and ∙ his guilty plea. All of these are indicative that his feelings of guilt and remorse are genuine; they indicate that he takes responsibility for his actions.

They are also, as his partner suggested, very important to K.S.'s recovery in that she does not have to manage her recovery in the face of a denial. [ 30 ] His attaining and maintaining sobriety from drugs and alcohol is a mitigating factor in showing him to be a man who can discipline his behaviour; this speaks to his potential for rehabilitation. [ 31 ] He has been, since his sobriety, a hard-working member of society and a good support - other than this criminal conduct - for his family.

The fact that he continues to support his family despite his separation from them suggests a man of otherwise good character who recognizes and values his responsibilities. [ 32 ] I also consider it mitigating that the accused's partner is supportive and interested in reconciliation. While this goes to the character of his partner and not to the credit of the accused, it also probably increases his potential for rehabilitation. [ 33 ] Finally, it is mitigating that he has been assessed as at low risk to re-offend sexually or otherwise.

Aggravating Factors [ 34 ] There are a number of aggravating factors that I must consider in fixing an appropriate sentence. These are: ∙ the fact that the accused was in a position of trust and authority in relation to K.S., his victim; ∙ the fact that the abuse occurred on a number of occasions over a lengthy period of time; ∙ his criminal record, including offences for which he served custodial sentences, both by incarceration and in the community; and ∙ the young age of K.S.

The Authorities [ 35 ] The Crown relies primarily on the cases of R. v. E.(J.S.) [1] and R. v. B.(K.D.) [2] . [ 36 ] The conviction in B.(K.D.) involved a number of incidents when the accused rubbed his daughter's breasts and vagina under her clothing and penetrated her with his finger on at least one occasion. He had no record, pleaded guilty and was assessed at low risk to re-offend. Judge Kovatch concluded that the range in these circumstances was nine months to two years less a day.

Considering sentences imposed in cases he thought most parallel to that before him, he imposed a sentence of 18 months incarceration followed by 18 months probation. [ 37 ] The facts in E.(J.S.) are less similar to those before me. The duration of the abuse was four consecutive evenings and involved four incidents only. The accused touched his step-daughter's breasts and vagina over and under her clothing on each occasion. He also ceased the conduct prior to her disclosing and pleaded guilty. He had no criminal record, pleaded guilty and was assessed at low risk to re-offend.

Judge Koskie, after reviewing the authorities, concluded that the range was nine months to four years. Considering cases most closely aligned to that before him, he also imposed a sentence of 18 months incarceration followed by 18 months probation. [ 38 ] The accused submits that a sentence on the lower end of the range is appropriate and argued for a sentence of 9 months incarceration. In this regard, he relies on a number of authorities, not all of which I will refer to directly. I do not find R. v. Elder [3] and R. v.

C.P. [4] particularly helpful, especially as they involve teachers and incidents of abuse that are significantly different than those admitted by the accused. [ 39 ] I also hesitate to rely on R. v. S.B [5] . , R. v. A.D.R. [6] and R. v. D.G. [7] as these decisions are very dated (as far back as 1991) before various amendments to the Criminal Code and evolving views of appropriate sentences for offences of this nature.

Also, all were made in other jurisdictions and I think more recent authorities from Saskatchewan are more persuasive in these circumstances. [ 40 ] I will consider the cases submitted on behalf of the accused in his supplementary brief. He relies on a recent decision of the Saskatchewan Court of Queen's Bench in R. v. Watt [8] . In that case, Mr. Watt was convicted under what is now section 153(1) for one incident in which he slid his hand down his stepdaughter’s pajamas, touched her vagina and digitally penetrated it. He had been drinking when the offence occurred. Mr.

Watt had one prior and very dated minor criminal conviction. He was well educated and fairly consistently employed. He admitted his guilt upon being accused and entered a guilty plea. Justice Gunn imposed a sentence of 9 months incarceration followed by two years probation. [ 41 ] He also suggests R. v. M.S [9] is instructive. In that case, M.S. sexually abused his seven year old daughter "several times" over a two year period. The abuse included humping while clothed, had her by hand or by body movement masturbate his naked penis and digital penetration.

He ended his offending behaviour well before his daughter disclosed the abuse. The consequences to his daughter were particularly severe, resulting in her separation and alienation from her family. While initially given a conditional sentence, the Court of Appeal concluded that such was not appropriate. Instead, the Court imposed a sentence of nine months incarceration. SENTENCE

[ 42 ] Considering these authorities, I have concluded that a sentence of 15 months is appropriate in this case. [ 43 ] Starting with the cases relied on by the accused, I note that in Watt , there was only one incident whereas the accused in this case engaged in repeated incidents with his step-daughter over an 18 month period.

Given this significant difference, I think Watt establishes that the accused must be sentenced to incarceration exceeding nine months. [ 44 ] M.S. was decided prior to the Criminal Code amendment that imposed a minimum sentence of 45 days incarceration for this offence; that amendment set new parameters for sentencing that I must consider. I also note that M.S. had served a portion of his conditional sentence before his appeal was heard and this may have influenced the court's decision. [ 45 ] I think that B. (K.D.) most closely parallels the circumstances before me in this case.

However, that case involved digital penetration which Judge Kovatch apparently considered significantly aggravating, while penetration does not form part of the facts found in this case. Further, Judge Kovatch was particularly concerned that the B.(K.D.) was not forthcoming as to his actions and backed away from earlier admissions; his admission of guilt was repeatedly minimized.

This influenced his decision as to an appropriate sentence. [ 46 ] For these reasons, I think a sentence someone lesser than that imposed in B.(K.D.) but significantly greater than that imposed in Watt is appropriate. [ 47 ] The sentence imposed takes into consideration the mitigating factors but also those that aggravate the offence. It also places greater emphasis on deterrence and denunciation than might be the case but for

section 718.01 and the implications of the 2005 amendment requiring a custodial sentence for this offence. [ 48 ] In determining an appropriate sentence, I must temper deterrence and denunciation – notwithstanding

section 718.01 – with compassion. But I must not lose sight of the egregious breach of trust committed by the accused. He and I would be wise to recall the words of Justice Cameron in M.S. when he wrote: What can one say of the extent of the moral blameworthiness of a thirty-eight year old man who, in a fatherly position of nurture, would do something such as this to an uncomprehending little person filled with affection and trust for him? It is not as though his facilities were somehow impaired. He was neither intellectually deficient, nor uneducated, nor even befuddled by alcohol or drugs.

He was clear- minded, knew what he was doing, knew it was wrong, and knew he was taking a risk. Perhaps the only thing he did not appreciate was the extent of the lasting harm he was visiting on this little girl. [ 49 ] For all of these reasons, a sentence of 15 months incarceration is fitting. [ 50 ] The period of incarceration, as reasonably agreed by counsel, will be followed by a period of 18 months probation. These are the conditions of the probation:

a) Keep the peace and be of good behaviour.

b) Attend court as required by the Court.

c) Report to the Probation Office, at 2nd Floor, 1942 Hamilton Street, Regina within 48 hours from your release from custody and thereafter as required by your Probation Officer or his or her designate.

d) Provide your address to the Probation Officer or his or her designate and not change that residence without first advising your Probation Officer or his or her designate.

e) Abide by all reasonable and lawful instructions of the Probation Officer or his or her designate, including those relating to specific programming which will include:

(

i) Substance abuse programming: You will participate actively in detoxification, assessments, education, counselling and/or treatment in an approved program or programs for substance abuse. You will not behave in any manner that might give cause for your dismissal from such programming. (ii) Sex offender programming: You will participate actively in counselling, assessments, education and/or treatment in an approved program or programs for sex offending. You will not behave in any manner that might give cause for your dismissal from such programming

f) Abide by all reasonable and lawful instruction of the Probation Officer or his or her designate which may include psychological and/or psychiatric treatment. If recommended, you will enroll in and successfully complete any assessments and courses for treatment regarding personal, psychological and psychiatric counselling that may be arranged and approved for your by your Probation Officer or his or her designate.

g) You will abstain absolutely from the consumption of alcohol or other intoxicating substances.

h) You will not consume or possess any controlled substances as defined by the Controlled Drugs and Substances Act , except for prescription medications prescribed by a licensed health care professional.

i) If medications are prescribed for you by a licensed health care professional, you will ingest such medications only as directed by the health care professional.

j) You will not have contact or communication directly or indirectly with any person under the age of 16 years unless that child is in the continuous company of his or her parent or guardian. [ 51 ] In addition, there will be an order under

section 110 of the Criminal Code prohibiting you for ten years from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibit device, ammunition, prohibited ammunition or explosive substance or all such things. [ 52 ] There will be an order under

section 487.051 requiring you to provide the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. [ 53 ] Finally, there will be an order for 20 years' compliance with the Sex Offender Information Registry Act pursuant to

section 490.012. _____________________ B. Tomkins, J

[1] 2008 CarswellSask 470, 2008 SKPC 97, 319 Sask. R. 280 [2] 2008 CarswellSask 31, 2008 SKPC 1, 309 Sask. R. 246 [3] 2010 AKQB 120 [4] 2007 SKPC 150 [5] [1998] O.J. No. 6216 (Ont. C.J. - Prov. Div.) [6] [1991] N.J. No. 154 (Nfld. S.C. - Trial Div.) [7] [1995] N.B.J. No. 569 (N.B. C.J.) [8] 2011 SKQB 3 [9] 2003 SKCA 33 , 2003 SKCA 033