R. v. J.H., 2023 MBPC 67

CITATION: R. v. J.H., 2023 MBPC 67 IN THE PROVINCIAL COURT OF MANITOBA Minnedosa Centre BETWEEN: Her Majesty the Queen ) D. Carlson and J. Allard ) For the Crown -and- ) ) J. H. ) N. Sims and M. Jenin ) For the Accused Accused ) ) ) ) Reasons for Decision ) Delivered December 5, 2023 ) at the Town of Minnedosa, ) in the Province of Manitoba ) ) S.

Hewitt-Michta J Introduction [ 1 ] I convicted the accused after trial for sexually interfering with his adolescent stepdaughter by touching her breasts and buttocks over her clothing on four to five occasions spanning one year when she was twelve to thirteen years of age (see R. v. J.H ., 2022 MBPC 50 ). The Crown proceeded summarily. [ 2 ] At issue now is the appropriate sentence. The Crown asks me to incarcerate the accused for eighteen months.

The defence urges me to conclude the applicable minimum mandatory ninety-day sentence is unconstitutional and asserts either a jail sentence shorter than ninety days or a conditional sentence order is proportionate. [ 3 ] I find the constitutionality of the minimum mandatory sentence is a moot issue in the circumstances of this case and, as a matter of judicial economy, I decline to adjudicate it.

A fit and proportionate sentence for this accused having committed this offence substantially exceeds the minimum mandatory sentence identified by Parliament and a conditional sentence order is inconsistent with the fundamental purpose and principles of sentencing set out in

section 718 of the Criminal Code [the Code ] . Circumstances of the Offence [ 4 ] The complainant lived with her mother and the accused, her stepfather, from ages three to sixteen. The couple’s three younger biological children lived there as well. The complainant initially enjoyed a close relationship with her stepfather. When her mother was working at night, the accused often put the children to bed. Sometimes he got into bed with them before they went to sleep. [ 5 ] The complainant had a bedroom in the basement and did not initially mind the bedtime ritual.

The accused would ask if he could lay down and they would talk; the accused sometimes touching her stomach or “writing” on her back with his finger. The touching changed when she was twelve to thirteen years of age. The accused began making comments about the complainant getting older and growing up. This made her uncomfortable. There was an incident where she believes he was peeking at her while she was getting dressed. He began touching her breasts and buttocks over her clothing while laying in her bed at night.

She remembers feeling his lower body against her, including what she thought might be his penis against her buttocks. She could not be sure whether it was his penis or his hand. She was afraid. It happened several times. She was scared to go to bed and nervous when she heard his footsteps approaching her room. [ 6 ] The allegations finally surfaced when the complainant was sixteen years old after arguing with the accused and leaving home. She was reluctant to report the sexual interference to police for fear of damaging family relationships and did so only after

encouragement from her sister and assistance from her mother. Circumstances of the Offender [ 7 ] I had the benefit of a Pre-Sentence Report [PSR]. The accused is a middle-aged Indigenous man from the Rolling River First Nation community. He is unremorseful and continues to deny the offence. [ 8 ] The accused had employment in his community, but it is compromised by his conviction for this offence. He was suspended with pay at the time of the PSR interview. He has some dated experience working as an addiction worker in his community. He has his General Education Diploma.

Some of his children are currently in the care of a child welfare agency. [ 9 ] The accused is interested in and connected to his Anishinaabe heritage, participating in Sweat Lodge and Sun Dance ceremonies as well as picking medicine in the summer. [ 10 ] The accused grew up witness to substance abuse and domestic violence. He suffered physical abuse at the hands of his parents, was apprehended at age two, and spent time in a foster home outside his community.

After struggling with substance abuse himself, he attended a residential treatment center following which he was able to reconcile with his parents and enjoy some positive time together before their passing.

He came to recognize that his parents were negatively impacted by experiences in residential school which in turn compromised their capacity to parent him. [ 11 ] Though not charged with any breach, the accused admitted during the trial, and again during the PSR interview, that he breached the bail-ordered no contact condition with the victim three times. [ 12 ] Probation assesses the accused at low risk to reoffend generally and at below average risk to reoffend sexually. These assessments are predictive tools and actual risk may be higher or lower.

The PSR author opines the accused, notwithstanding his seeming low risk to reoffend, is not a suitable candidate for community supervision in part because he refuses to take responsibility for the offence and has been non-compliant. I am concerned that his denial of responsibility and lack of remorse do not bode well for his rehabilitative prospects. Victim Impact [ 13 ] I had the benefit of a Victim Impact Statement. The abuse happened years ago but the impact is ongoing. The victim has contemplated suicide. She experiences depression and struggles with feelings of anger and lack of control.

She attended counselling and took medication to mitigate the impact. She grieves a loss of connection and sense of closeness with her mother who seems to have stayed with the accused in the aftermath of her disclosure and with her siblings who remain in relationship with the accused. She fears running into the accused in the community because it revives feelings she had during the abuse; the feeling of being small and helpless. [ 14 ] The victim was eighteen years old when she testified at the trial. Her distress while reliving the abuse was palpable.

Her evidence was poignant in many respects, including the fear and anxiety she experienced at the sound of the accused’s footsteps approaching her bedroom at night. She testified the accused’s actions “ made me feel like I was gross .” Aggravating and Mitigating Factors [ 15 ] The accused’s lack of prior criminal record is the only mitigating factor. [ 16 ] There are several aggravating factors. It is statutorily aggravating the accused victimized a person under the age of eighteen years and abused a position of trust and authority in relation to the young victim.

She was twelve to thirteen years of age and dependent on him as one of her caregivers. He was middle-aged and a parental figure. There were multiple incidents spanning approximately one year. The incidents of abuse occurred in the victim’s bedroom in the family home, a place she should have felt safe.

Principles of Sentencing [ 17 ] Sentencing is an individualized process aimed at protecting society and fostering respect for the law. [ 18 ] Sections 718.01 and 718.04 of the Code both mandate an emphasis on denunciation and deterrence when sentencing the accused because the victim in this case was particularly vulnerable as an Indigenous female under the age of eighteen years. Courts across the country recognize deterrence and denunciation as the predominant sentencing objectives in sexual interference cases.

The prevalence of sexual violence against children; the disproportionate sexual victimization of females; the heightened risk for Indigenous females; and the inherent wrongfulness and harmfulness of sexual victimization of children are all factors that justify denunciatory and deterrent sentences generally, and in this case specifically. [ See R. v. Friesen, 2020 SCC 9 ]. [ 19 ] As such, the paramount objectives in this case are denouncing the accused’s harmful conduct and deterring he and others from committing sexual offences against children in future.

The sentence imposed here must communicate to J.H. and others who might contemplate this type of behavior that it is wrong, harmful, and serious consequences attach. [ 20 ] The court’s sentence should also aim to promote a sense of responsibility in the accused who continues to deny the offence; acknowledge the harmfulness and wrongfulness of sexual offences that victimize children; and encourage the accused to take meaningful steps to rehabilitate himself given this is his first criminal conviction. [ 21 ] The overarching principle of sentencing is proportionality.

The sentence must be proportionate to the seriousness of the

offence and the degree of responsibility of the accused. The Supreme Court of Canada’s decision in Friesen is instructive to the court’sassessment of seriousness and moral culpability. [22] This offence is serious. Sexual violence against children is wrongful and profoundly harmful, particularly emotionallyand psychologically. [23] This mature offender exploited his position of trust and authority to sexually abuse a vulnerable child in his care severaltimes over a significant span of time with devastating impact to her then and now, as evidenced by her Victim Impact Statement.

Sexualvictimization generally has a deep effect on young victims not just in the short term but often continuing long into adulthood impactingtheir ability to experience healthy personal relationships; to feel safe and capable of trusting others. [24] The court in Friesen underlined the reality that sexual violence against children not only harms victims and theirfamilies but it damages the community as well – it tarnishes important communal values and contributes to costly social problems in thefuture. [25] This court sentences offenders for sexual offences involving more invasive sexual acts committed with greaterfrequency over longer periods than in the case at bar, but it is wrong to assume a correlation between the type of act and the harm.

Thebreach of a trust relationship compounded the seriousness and the harmfulness of this sexual offence. [26] The accused’s degree of responsibility is high, reduced but not significantly, by Gladue considerations. [27] The Supreme Court of Canada reminded sentencing judges in Friesen, that the intentional application of sexual force toa child is highly morally blameworthy. [28] The accused had access to the victim by virtue of his intimate relationship with the victim’s mother. He occupied aparental role vis a vis the victim and abused the trust associated with that position for his own sexual gratification.

The accused exploitedthe victims’ vulnerability to abuse her in her bedroom at night while her mother was away working. [29] The accused repeated the behaviour on several occasions. [30] The accused takes no responsibility for the offence. [31] Sentencing Judges have been specifically instructed by Parliament to pay particular attention to the circumstances ofIndigenous offenders and to be mindful of their history, experiences, and challenges. Indigenous peoples are vastly over-represented inthe criminal justice system and in jail populations. This is certainly true in Manitoba. [See

section 718.2(

e) of the Code and R. v. Gladue(1999) (SCC), 1 SCR 688] [32] While I am persuaded that there are Gladue considerations in this case, which I detailed earlier in this decision, I find they donot significantly reduce this offender’s high degree of responsibility for the offence.

Parity [33] The Supreme Court in Friesen directed that sentences for child sexual offences needed to increase and affirmed that mid-singledigit penitentiary terms are normal; upper single and double-digit penitentiary terms should not be unusual or exceptional; and maximumsentences should be imposed when circumstances warrant. [34] The Crown did not file any caselaw in support of its recommended sentence. [35] The cases filed by defence counsel are all distinguishable on their facts and mostly unhelpful in the assessment of anappropriate sentence in this case. In R. v.

C.B.A., 2021 BCSC 2107, the court was dealing with a single incident of brief touching wherethe accused and victim were twenty and fifteen years old respectively. There was no breach of trust element. [36] R. v. Drumonde, 2019 ONSC 1005 predates Friesen and involved a tutoring relationship wherein the twenty-one-year-oldaccused kissed on the forehead, held hands with, and hugged the fourteen-year-old victim. [37] In R. v.

Gargan, 2021 NWTTC 9, the twenty-three-year-old accused with no criminal record, entered an early guilty plea for asingle incident in which he attempted to hug and touched the buttocks of the thirteen-year-old victim at a community event. The courtsaid there was no apparent impact on the victim. [38] In R. v.

Meisterhans, 2021 MBQB 80, the court upheld an eighteen-month sentence imposed following a conviction at trial.The accused, a respite worker, twice interfered sexually with the six to seven-year-old victim, once squeezing his penis under his clothesand on a second occasion rubbing his penis on the victim’s bare back. The victim was younger in Meisterhans than the victim in thepresent case. There are more incidents, and the breach of trust is arguably worse in the case at bar than in Meisterhans.

Sentence [39] The eighteen-month sentence proposed by the Crown is a measured recommendation that gives effect to the paramountprinciples of denunciation and deterrence. It addresses the seriousness of the offence as well as the high degree of responsibility of theaccused for the offence.

I might have seriously considered a sentence closer to the maximum given the multiple incidents, the particularsof the breach of trust, and the profound impact on this victim, but I will give the accused the benefit of the Crown’s inclination towardssome leniency particularly considering the Gladue factors and the lack of any prior criminal record. [40] While a conditional sentence is technically available, imposing such a sentence would be wholly inconsistent with thefundamental and paramount principles of sentencing at play in this case.

A period of actual incarceration is required to give effect to theprinciples of denunciation and deterrence and considering the Supreme Court’s direction in Friesen.

[ 41 ] I am sentencing J.H. to an eighteen-month period of incarceration. A sentence of that duration provides time for the completion of sexual offender programming in a custodial setting.

I will respect the probation officer’s assessment that the accused is not a suitable candidate for community supervision and direct that he be subject to a two-year period of unsupervised probation following his release from custody, requiring that he have no contact or communication with the named victim; that he not attend or remain within 100 meters of the victim, and not attend or remain within 100 meters of anywhere she is living, working, attending school, and her place of worship.

He is not to be alone with any children under the age of 16 years, nor is he to provide childcare remunerated, or volunteer to any child under the age of 16 years, including his own. [ 42 ] I make the following ancillary orders pursuant to the Code : - DNA (Primary),

section 487.051(1) - SOIRA for a period of 10 years,

section 490.012 - That J.H. have no contact or communication with the named victim while he is in custody,

section 743.21(1) - 10-year prohibitions pursuant to section 161(1): - 161(1) (a.1) Not to attend within one kilometer of the victim’s residence and two blocks from her school, employment, place of worship - Not to seek, obtain, or continue employment, become a volunteer in a capacity that involves being in a position of trust or authority over a person under the age of sixteen years. Costs and surcharges are waived. “original signed by Judge Hewitt-Michta” S. Hewitt-Michta, J.