2014 MBPC 31, 2014 MBPC 31

Cite: 2014 MBPC 31 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen, ) Scott Cooper, ) for the Crown - and – ) ) Gerald Anderson, ) ) Ted Mariash, for the Accused Accused ) ) ) Judgment delivered: July 9, 2014 ) R. L. Pollack P.J. [ 1 ] This is a last-minute quid-pro-quo joint-recommendation sentencing case. Gerald Anderson has pled guilty to sexually assaulting a victim whose capacity to consent was overcome by intoxication. The recommendation is for a sentence of two years less one day followed by probation for three years.

There were two sentencing hearings and the version of the facts upon which this offender is to be sentenced changed at the second sitting. [ 2 ] The matter was set for a preliminary inquiry on the day that I was given the first version. Neither the victim nor either of two eye-witnesses had complied with a subpoena to attend and, as often happens in our Assignment Court, lengthy courthouse corridor conversations delayed the start of the case. When counsel finally appeared, Mr. Anderson and a co-accused entered pleas of guilty. The co-accused was remanded pending preparation of a pre-sentence report but Mr.

Anderson’s hearing began without further delay. The first version: [ 3 ] The seventeen-year-old victim was at the home of the offender at about 10:00 p.m. on May 26, 2012 where they began drinking. The evening and early morning hours found them at several parties, the last of which they left between 4:00 and 5:00 o’clock in the morning. The victim is said to have consumed sixty ounces of forty per cent alcohol during that time.

These are the words of the prosecutor describing her condition: So what happens, by the time they leave the last party and they’re walking the street together in the dark, she is, by all concession now, blotto, drunk, just could barely stand up drunk. [ 4 ] They stopped at a school yard where the offence took place. The prosecutor’s description continued: What happens is they get to the school yard of this school, and there is a play structure on there, you know, one of these plastic things that the kids climb on, with slides and so on. And she, at that point, passes out and loses consciousness. At that point Mr.

Anderson takes the opportunity to remove her clothing while she is laying on her back on this play structure. Specifically, she’s wearing these pink spandex pants, your Honour, and he takes off one leg of her pants and then her panties, then proceeds to have vaginal intercourse with her while she’s passed out. [ 5 ] The eye-witnesses are a couple who lived nearby. From their window, they watched as the offence took place and one of them called 911. I was not told what was said in that call. [ 6 ] While the emergency was being reported, the second offender (who will be sentenced separately) appeared.

This man did not know Mr. Anderson. When he finished satisfying himself, Mr. Anderson took a condom from his pocket and threw it to him. That next offender chose to have intercourse with the unconscious victim as well but without using the condom. [ 7 ] Police were able to arrive in time to arrest the offenders in close proximity. The two witnesses came over to find the victim passed out. Police found a phone on Mr.

Anderson and it contained a short video of someone having intercourse with the victim although apparently the detail is not of very good quality. [ 8 ] In defending the joint recommendation, defence counsel pointed out that his client had made a statement to police in which he claimed that sexual relations between the victim and him were consensual. He said that “she had been very forward with him prior to the incident in the park” and his client denied having intercourse with her while she was unconscious. Clearly this position was capable of raising a valid defence but, as his counsel put it, “Mr.

Anderson elected not to roll the dice and to take the Crown’s offer on this matter”. I took that to mean that there were no findings to be made because the defence accepted the prosecution’s version of the facts. When I

said that the facts did not seem to be in issue, neither counsel disagreed. When offered the opportunity to speak, Mr. Anderson did not talk about that early morning. [ 9 ] I reserved, indicating that I would let counsel know if I wished to hear further from them. Request for further submissions: [ 10 ] A few days later I advised counsel that I was unable to say that the joint recommendation was acceptable and that I required further submissions in support of the recommended sentence, including:

a) the weight to be given the decision of the offender to plead guilty, given the availability of bench warrants and Khelawon applications to enable the prosecution to perfect its case;

b) the relevance of the circumstances of this aboriginal offender;

c) Manitoba case law relevant to the joint recommendation;

d) the weight to be given time spent in pre-sentence custody. [ 11 ] A second hearing date was arranged but I was assured by both counsel that day that a development necessitated a further adjournment. At their urging, and without hearing more about the development, I granted the request. I did so, in part, due to the late arrival of a prosecution brief two hours before the hearing while I was in court on another matter. The second version: [ 12 ] At the next hearing the defence opened by filing a letter from the victim dated “Tuesday, May 28, 2013 at 6:03 a.m.”.

The letter is entitled “Sexual Assault Victim” and its theme is that the writer does not wish to see either offender prosecuted. Written the day after she was taken from that playground to hospital in her inebriated state, the letter makes some things clear and others unclear. I had heard something about the letter at the previous hearing when the prosecutor stated: Now, this is a plea bargain, I can tell you. We were prepared to proceed to prelim today. The complainant was not prepared to participate in the process. She actually, shortly after the investigation, provided a letter to Mr.

Mariash essentially providing evidence that was contrary to what was indicated in her statement. Mr. Mariash of course turned that evidence over to the Crown Attorney at the time, I believe Mr. Smith. Mr. Smith, of course, as obligated to do so, disclosed that to Mr. Gladstone, counsel for (co-accused). Perhaps, unsurprisingly, the complainant did not attend, although subpoenaed for today. That was not entirely unexpected by myself, your honour, as the information I was getting from Victim Services was that she was not interested in participating. [ 13 ] With respect to Mr.

Anderson, this is part of what the victim wrote (with all syntax left intact): It is very stressful, Mr. Anderson is always supportive of me, he gives me the strength I need I believe that this Sexual Assault changed my life around for the best.

I choose to start going to Sexual Assault Therapy, and get counselling for my addiction of Alcoholism, I do believe he should be released out of this place I care about this man a lot even though he did do this to me but he did admit to have sex with me, I do remember giving my consent to him and he asked me repeatedly over and over are you sure, and I said yes, I am more than sure he was just worried about me just because we were both very intoxicated that night.

I do know that I did get Sexually Assaulted, and even though this happened to me I do want these two suspects to get back in the community, because I want to find a way to cancel these charges. I am 100% sure about that choice that I am about to do. No more changing my mind. [ 14 ] Defence counsel then made two evidentiary statements contradicting the first version of the sexual assault:

a) Although Mr. Anderson acknowledged her lack of capacity to give consent, at no time during the act of sexual intercourse was the victim unconscious.

b) The two missing witnesses would have corroborated the claim that the victim was indeed conscious and speaking during the act of intercourse. The first submission was disquieting because it was not what I heard earlier but - and this is the benefit of reserving judgment – that the victim was incapable of making the decision to consent is the important aggravating factor, regardless of her degree of insobriety. I do not know what to make of that latter submission because whatever the witnesses saw and heard, it prompted them to call police.

Therefore I am not sure where that takes the defence. [ 15 ] Of greater concern and, therefore, weight is the callous disrespect for the sexual integrity of his victim as Mr. Anderson invited the other man to take similar advantage of the victim and then somehow obtained the trophy video which, although cinematically deficient, was in an easily reproducible format. [ 16 ] The victim was present at the second sentencing hearing. I am not sure why she chose to attend but she made it clear to me that she was no longer interested in following the proceedings.

The prosecutor did not seek the opportunity to prove the first version beyond a reasonable doubt nor did he seek leave to examine the victim about her letter. Major sexual assault: [ 17 ] At the first hearing the prosecution was on firm footing in characterizing the offence as a major sexual assault and the defence did not attempt to persuade me that it was anything else. Indeed, Mr. Anderson’s counsel submitted that: ....there are exigencies in the Crown case which call for the appropriateness of a sentence below the standard range.

[18] At the second hearing both counsel relied upon this statement by Kerans J.A. on behalf of a unanimous panel in R. v.Sandercock, 1985 ABCA 218 , [1985] A.J. No. 817 (C.A.): 16. The other aspect which creates a major sexual assault is the effect on the victim. Notwithstanding statements in some authorities tothe contrary, the tradition is to assume, in the case of a rape for example, that the victim has suffered notable psychological or emotionalharm aside entirely from any physical injury. Of course, once this assumption is brought into question, the Crown must prove it.

Nevertheless, harm generally is inferred from the very nature of the assault. This harm includes not just the haunting fear of anotherattack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingeringsense of powerlessness.

What we mean by this last is that, while we are all aware in an intellectual way about the fragility of normalexistence, to experience a sudden and real threat to one’s well-being, a threat so intense that one must beg to be spared, tends to destroythat sense of personal security which modern society strives to offer and humanity so obviously wants. Against that background, they urged me to find that this was not a case of psychological or emotional harm. [19] Notwithstanding that this was a guilty plea at the last moment, there are two sources of victim impact in this case.

The first isfound in the letter from the victim addressed, interestingly, to the Court. The second is the presence of the victim at the second hearing. Both the document and some words spoken from the gallery by the victim demonstrate her feeling of alienation from the process. Whatprompted the letter is not known but it is clear that she wanted it to be given attention by the justice system.

The letter is unequivocal;she wants no proceedings taken and clearly feels that she must not be seen to be causing the incarceration of either offender. [20] In my opinion, her sense of powerlessness follows from the sexual assault and the manner in which no one seems to havelistened to her. The prosecutor has always had the letter but he has forged ahead with the case.

The defence lawyer has always had theletter yet he proceeded to conduct a plea comprehension inquiry, so that I would accept a plea of guilty that she does not want, withoutreference to the letter. [21] More than once she walked out on the proceedings at the second hearing and, although she did return, it was apparent that I wasdoing nothing to relieve her alienation from the court system.

It must have been terribly confusing for her to see that only then, after Ideclined to accept the sentence recommendation summarily, was the letter delivered to its addressee. [22] This victim is still being victimized and it is naive to think that the letter and her frustration with the hearing are not indicia ofpsychological harm. And the only inference to draw from the public narrative of how Mr.

Anderson violated her, how he handed thecondom to the other offender and how he left with that video in his pocket is that the victim now realizes, or perhaps is reminded, thatshe was treated with contemptuous disregard for her personal integrity, to borrow a phrase from Laycraft J.A. in R. v. F, 1982 ABCA148 , [1982] A.J. No. 731 (C.A.). [23] At the second hearing the prosecutor submitted that it was not productive, in the circumstances of this case, to dwell uponwhether Mr. Anderson committed a major sexual assault.

That is quite different from what I heard initially but, in my view, havingconsidered the letter written by the victim as well as her appearance in the gallery, a submission that this was a major sexual assault is oneven stronger footing today. Some aggravating and mitigating factors: [24] Mr. Anderson is a 27 year old offender who was born in the northern Manitoba city of Thompson. He was raised by his motherwithout a father present. Part of his childhood was spent in Tadoule Lake where a tiny Dene First Nation sadly finds itself in what mustbe its fourth or fifth decade of poverty, addiction and violence.

The formality of a Gladue report is not required to prompt considerationof the circumstances of this aboriginal offender. In the First Nation Community in Nelson House his three children live with theirmothers. If he wishes to do so, it will be difficult for Mr. Anderson to equip himself to provide them with the guidance and support of afather. [25] He has a grade ten education and reports through his lawyer a work history beginning in his teenage years until about threeyears ago when he suffered a permanent mobility injury after being struck by a vehicle.

During those same years he accumulated acriminal record, having been sentenced four times as a youth and ten times as an adult. In 2005 he was sentenced to two counts ofassault with a weapon, one carrying a youth sentence of probation for two years and another carrying an adult conditional sentence ofnine months. That conditional sentence was terminated after six months.

He has been jailed for assault in 2006, 2008, 2010 and 2012and also received a jail sentence for robbery in 2012. [26] It is interesting that this offender has only one conviction for breaching a probation order as a youth but he has been to jail fivetimes as an adult for probation breach. The longest sentence he has received was for the robbery count: five months followed byprobation for three months. [27] On May 29, 2014 Mr. Anderson had been detained for ten months awaiting his preliminary inquiry. It was impossible for himto have his hearing that day because the witnesses did not attend.

That makes this unlike many last-minute guilty pleas where thedefence strategy was to wait and see if prosecution witnesses arrived and, if they did, to enter a guilty plea. He arrived ready to explorehis defence at a hearing. Therefore it cannot be said that the timing of his guilty plea disentitles him to consideration. The joint recommendation: [28] As the case stood in Assignment Court, if the prosecutor wished to proceed then he would have been required to apply forwarrants for each of his missing witnesses and an adjournment to enable the witnesses to be arrested.

There is no reason to think that ashort adjournment would not have been granted, particularly because the following day had also been set aside for the preliminaryinquiry. The prosecutor assured me that he was confident that he could justify seeking an order that the accused stand trial based onlyupon the evidence of the eye witnesses and in the absence of the victim. While he found the failure of the victim to attend unsurprising,there was no indication why the witnesses were not there.

[ 29 ] The value proposition for the prosecutor, in offering the bargain to the defence, was that a conviction would be secured without delay, bench warrants, hostile witnesses or the danger of the case collapsing. For Mr. Anderson, the value proposition is obvious: upon conviction, he would be facing a lengthy penitentiary term. In deciding not to roll the dice, he avoided some of the long odds in a trial. [ 30 ] In determining whether to honour the sentence agreement, I have considered this passage by MacInnes J.A. on behalf of a unanimous panel in R. v. Sharpe , [2009] M.J. No. 173 (C.A.) : 62.

While it is critical that sentencing judges respect the experience of counsel and what is normally their more intimate knowledge than that of the judge as to the facts and the various factors that have gone into crafting the plea bargain and resulting joint recommendation, counsels’ experience per se is not sufficient.

It is counsels’ experience plus their exposition of the circumstances underlying the plea agreement, including the quid pro quo for it, that will assist in persuading the sentencing judge that his/her reliance upon counsel is well placed and that the sentence proposed is fit and proper in the circumstances. This is also critical to public confidence in the administration of justice, as it will ensure sufficient transparency in the plea bargaining process to satisfy community concerns as to the sentencing of criminals.

Earlier in the judgment, just as in several other cases, the Court pointed out that the decision to depart from the joint submission can only be made for cogent reasons, including (at paragraph 19): ....where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest. [ 31 ] There is an aspect to this case that, in my opinion, would bring the administration of justice into disrepute. The victim’s letter demonstrates elements of guilt and remorse that are not due from her or from any victim.

The submissions in favour of the sentence agreement leave an impression that it is her fault that someone with this offender’s criminal record, who committed this kind of sexual assault, should receive a sentencing windfall. The prosecutor is of the view that her evidence is not vital to the case.

His judgment not to pursue the evidence of the eye-witnesses has little to do with the frailties of her evidence or potential contradictions. [ 32 ] Counsel have provided me with some examples of major sexual assault sentences that approach the low sentence recommended here and I am not ungrateful for their efforts in attempting to provide me with a comfort zone within which to accept the recommendation. The essence of my task is that I have to sentence an offender who, after being jailed for offences of violence, is not entitled to leniency.

He committed a major sexual assault followed immediately by incredible displays of disrespect and disregard for his victim. Assuming that the starting point for sentencing is still three years as specified in the 1985 Sandercock case, surely a starting point for the offence described here is four or five years. [ 33 ] But if I accepted that starting point in this case then my sentence would fail to show regard for the circumstances of a still relatively young aboriginal offender who accumulated most of his criminal record in northern Manitoba, whose childhood was not so stable and who has a limited education.

Similarly, such a high starting point would not demonstrate the significance of the decision by the offender on May 29, 2014 to plead guilty when he knew that the victim was not prepared to cooperate with the prosecution and that neither she nor its witnesses had obeyed their subpoenas. That said, the two-year sentence advocated by both sides would constitute an unfit sentence. In my opinion, such a sentence would be devoid of the deterrence and denunciation necessary to promote respect for the criminal law.

It would be disproportionate to the nature of the sexual assault, the invitation to a second offender and the captured image of the victim in the perpetrator’s phone. And it would leave dangling the inference that it is the fault of the victim that the offender should be given an unfit sentence. [ 34 ] The time spent in pre-trial custody by Mr. Anderson is just two weeks less than a year. In my opinion, the appropriate sentence for this offence is three years. If I was to impose a three-year sentence today then the remnant would be more than two years and a probation order would not be available.

The availability of a three-year probation order is an opportunity for me, and for this offender, not to be ignored. Accordingly I am deeming Mr. Anderson to have served one year and the sentence going forward will be two years less one day, to be followed by probation for a period of three years. These are the conditions of probation in addition to the Criminal Code requirements: 1. If you have not done so while in custody, report within one working day of your release to your probation officer to make your first appointment and thereafter report where and when your probation officer directs. 2.

Do not attempt to contact the victim by any means, directly or indirectly. Stay two hundred metres away from wherever she may live, attend school, worship or be employed. 3. Enroll in, attend and complete all assessments, counselling or programs as directed by your probation officer. 4. Do not have or use any offensive weapons and do not convert anything into an offensive weapon. [ 35 ] Because the prosecution elected to proceed by indictment, pursuant to Criminal Code, s. 490.013(2) (

b) Mr. Anderson is required to comply with the Sex Offender Information Registry Act for a period of 20 years. [ 36 ] Because sexual assault is a primary designated offence, pursuant to Criminal Code, s. 487.051 Mr. Anderson is required to provide a sample of his DNA on demand by an authorized peace officer for entry in the National Database. [ 37 ] Because of the continued incarceration of Mr. Anderson, there will be no costs or surcharges imposed. “Original signed by”

R.L. POLLACK P.J.