Her Majesty the Queen - v. -, 2017 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 024 Date: February 24, 2017 Information: 90014107 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darren Glen Maurer Appearing: Jennifer Hiatt For the Crown Brian Smith For the Accused SENTENCING DECISION B.D. HENNING , J [ 1 ] Mr. Darren Maurer is charged with the offence of sexual assault, proceeded by

summary conviction, on V.B., contrary to

section 271 of the Criminal Code on October 15, 2015. A trial was held and the accused was convicted on October 12, 2017. Following conviction, Mr. Maurer obtained new legal counsel, and the matter was argued on January 30, 2017 and adjourned for sentencing decision to February 24, 2017. A detailed and thorough Pre-Sentence Report ( PSR ) was prepared and considered. Mr. Maurer has no record of criminal convictions and is 41 years of age.

Crown Submission [2] The Crown was cited a number of aggravating circumstances in the case, emphasizing that it involved intimate sexual touching of significance. It was characterized by the Crown with various terms not found in the judgmentof the Court, but it is beyond argument that it was a serious and intimate sexual assault upon a sleeping victim. The factual findings of the Court are set out in paragraphs five to seven of thewritten Judgement.

The Crown relied primarily upon the cases of R v Tuffs, 2012 SKCA 6, 385 Sask R 178 (Tuffs), R v Iron, 2005SKCA 84, 269 Sask R 51 (Iron) and R v M.J.H., 2004 SKCA 171, 257 Sask R 1 (M.J.H.) all decisions of the Court of Appeal ofSaskatchewan. The Crown argued for a sentence of incarceration in range of 12 to 18 months. The Crown did not recognize anymitigating factors or information in the PSR that should be considered mitigating. [3] The Crown argued that the case of Tuffs was the most similar to the present case as it involved a sleeping victim.

R v Tuffs, 2012 SKPC 6, Judgment extracts: [3] No issue is taken with the standard of review and the essential facts. The facts are fully canvassed in the conviction decision of thetrial judge but a brief review is in order. The parties, the complainant an off-duty RCMP police officer and the respondent abusinessman in a nearby community, were separately visiting the same friends in Kindersley. After an evening of socializing anddrinking, they eventually ended back at their mutual friends’ residence.

The complainant testified she was sleeping in the basement ofthe residence and the respondent, without her consent, got on the bed behind her (she being under the covers and the respondent on top)and placed one of his hands down her pants touching her vagina and said words to the effect “I know you say no, but I know you wantit”. She further testified the respondent grabbed her hair to force her head around in an attempt to kiss her.

She was able to push him offher and testified that at some point “something clicked in his head that, okay, well maybe I shouldn’t be doing this” and later said it justended after something clicked as if the respondent recognized it was something he should not be doing. She testified that there was nopenetration. [4] The complainant’s testimony as to the duration of the incident was uncertain and ranged from a couple of minutes to 30 seconds butshe was not sure of the exact length of time.

A sentence of one year was imposed for the following reasons: [12] However, we agree with the trial judge this was a case of sexual assault on the lower end of the scale. Although, there was a claimof bruising, the testimony of the investigating officer said it was slight and there was more of a “redness.” The duration of the incidentwas very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said hewas sorry and left.

This is not to minimize the effect on the complainant who filed a victim impact statement stating she was required totake time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep. She said she wasforced to see a psychologist and hated being left alone in the house.

She said she found it extremely hard to leave the house on her ownand she feared people around her, all as a result of the assault. [13] We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration andthe immediate reaction of the respondent that he had gone too far, a sentence of one year incarceration satisfies the sentencing principlesand, in particular, does not offend the principle of parity. See, for example, R. v. Iron, 2005 SKCA 84 , 269 Sask.

R. 51 wherethe accused, with a prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop untilthe victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having servedpart of the conditional sentence imposed by the lower court. [4] It is to be noted that there is similarity between this case and the present one, but the above case incident, though still relatively short, was more extensive and forceful than is so in the present case.

See paragraph three ofthe judgment above. [5] The case of Iron is referred to and is clearly distinguishable on its significantly more extensive nature of the assault.

[ 6 ] R v M.J.H ., involved a case where the victim was sexually assaulted while unconscious, and the report would suggest that it involved major sexual assault, but the circumstances are somewhat uncertain due to the state of the victim. A sentence of two and one-half years was imposed, and the accused’s cultural status as an Aboriginal person was considered. Defence Submissions [ 7 ] The defence argued that there were no precise parallels in the cases cited, some of which involved more aggravated facts, and pointed out that was so in the cases cited by the Crown.

The defence emphasized that the incident was brief, and not aggressively carried on, and was immediately terminated upon objection by the victim. The Court accepted the victim’s evidence that he did desist with a remark about having ‘misread the signals’. The defence concedes, as it must, that there was no consent, and the Court found no basis for confusion on that point. The defence argues that the incident, though of a highly intimate nature was at the lesser end of serious sexual assaults due to brevity and immediate termination of the sexual activity.

This is in contrast to the Crown cases cited, in the defence submission. [ 8 ] The defence pointed out that in the case of Tuffs there had been significant physical force used, as was the case of Iron . M.J.H. also involved a much more extensive incident on a comatose victim, and it continued until a third person intervened.

The case of R v Chrispin , 2009 SKCA 63 , 331 Sask R 212 ( Chrispen ) was cited as a survey of many sexual assault cases that illustrate a wide range of sentencing. [ 9 ] The defence pointed out that the accused has suffered sexual assault in his upbringing, with serious and abusive instability in his early life. He witnessed family violence that resulted in his mother’s hospitalization on more than one occasion. The accused did identify later more positive influences in his upbringing, particularly from his grandparents.

The accused had also identified major medical problems that are both physical and mental, and he is currently under treatment for same. Page five, and following of the PSR sets this out in considerable detail. The accused’s disadvantages in his upbringing, and ongoing mental and physical issues might in some cases be considered to militate against the most severe approach in sentence. [ 10 ] The accused has some Aboriginal/Metis ancestry that he was not aware of until later in life, but asserted that it has had an impact on him. This is discussed at page 10 of the PSR .

The applicability of ‘ Gladue ’ factors is somewhat unclear, but the accused has been affected, he states, by the fact that his mother was adopted and he was not aware of her, or his, cultural background. Nonetheless, his mother’s experience in a violent and abusive relationship that affected the accused is consistent with what are sometimes referred to as ‘ Gladue Factors’. His experience is somewhat removed from his mother’s experience in being placed for adoption, but it is not more removed than the recognized long-ranging effects of residential schools in Aboriginal families and culture.

It is therefore, in my opinion, a potential factor in this case. However, the cases cited by the Crown also involved some persons of Aboriginal background, and the Gladue case itself recognized that the special considerations for sentencing of Aboriginal persons were diminished when considering offences of a violent nature against persons. This area was not extensively argued by the defence or Crown, and I do not adjust the sentence imposed for that category of considerations.

However, those considerations were considered and reflected in the case of M.J.H . which is cited for consideration, and was undoubtedly a factor in other cases referred to. [ 11 ] The accused has an employment history, and has completed high school and significant University attendance but does not hold a degree. He has never been married, but has had significant relationships and has one child. [ 12 ] Defence relied on the case of Chrispen . It involved sexual touching in the breast area three times over clothing. The sentence was reduced from nine months incarceration to a nine month conditional sentence.

Hunter, J.A. noted the following considerations: [26] I note the offence for which the Appellant was convicted is at the lower end of the spectrum with respect to sexual offences that involve inappropriate touching. There was no violence and the touching was brief and took place over clothing. This was not an offence committed against a child, and the Appellant was not in a position of trust in relation to the complainant. This was a singular incident, between two individuals who had no relationship, previous, current or anticipated. There was no “abuse” in this case, historical or

otherwise. The Appellant’s criminal record is dated and includes over 40 break, enter and theft convictions, which appear to have occurred in a narrow time period, and he was sentenced to a significant period of incarceration in 1994 with respect to the same. He has no prior record involving sexual offences. [ 13 ] In the present case some of these factors are also present, but the offence was of a much more serious and intimate nature, though that accused person had an extensive, but dated and unrelated, criminal record. The accused in the present case has no criminal record whatsoever.

At paragraph 28 to 31 of Chrispin, the Court cited a number of cases from within Saskatchewan where non-custodial sentences were imposed, each of which had more serious and extensive sexual touching than the Chrispin case itself, but less intimate than the touching in the present case. Other cases were cited from outside of the jurisdiction to similar effect, as well as some where custodial sentences of less than two years were imposed in situations of more serious and multiple assaults that are significantly and egregiously more serious than the present case.

The Court then went on to consider the appropriateness of a conditional sentence, which is no longer a possibility due to legislative changes incorporated by Parliament into

section 742.1(f)(iii) of the Criminal Code . Conclusions [ 14 ] The Court must consider a range of factors set out in the cases above, and in particular, in the case of M.J.H : [31] . . . In fashioning an appropriate sentence we have had regard to the relevant principles and considerations including, in particular, (

a) the gravity of this offence the necessity of deterring similar offences, (

b) the various aggravating factors noted above, (

c) the applicable precedents, (

d) the respondent’s limited criminal record, and (

e) the respondent’s personal history and the difficult realities of life in his community. In considering those factors, it is apparent that a term of imprisonment is required in this case. [ 15 ] In addition, it must be kept in mind that the present case has facts and circumstances less egregious than any of the cases cited by the Crown, and in particular, less so than in Tuffs . This does not minimize the seriousness of the offence or the impact it had on the victim. A term of imprisonment is required in this case, and I am influenced by all of the case law cited, but particularly by the case of Tuffs .

In considering that case, I have concluded that the circumstances of the offence were more aggressive and longer, so far as that is ascertainable, than the present case. As in that case, the accused has no record of convictions. I therefore conclude that an appropriate sentence is a term of incarceration of eight months, to be followed by a term of probation of one year with conditions as recommended in the PSR , subject to further submissions by counsel. Dated this 24 th day of February, A.D. 2017, at the City of Regina, in the Province of Saskatchewan. _____________________ B. Henning. J