Her Majesty the Queen - v. -, 2022 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 34 Date: July 21, 2022 Informations: 90441213 & 90411985 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.W.C. Appearing: Ms. Gail Douglas For the Crown Ms. Rebecca Crookshanks For the Defence Note: Sections 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify a child or young person who is a victim or a witness in relation to an offence alleged under the Code . _____________________________________________________________________________

DECISION ON SENTENCE F.M. DAUNT , J _____________________________________________________________________________ [ 1 ] This is the sentencing decision for A.W.C., who pled guilty to a charge of sexual touching on his step-granddaughter, contrary to

section 151 of the Criminal Code , occurring between January 1 and December 31, 2018, at his home on Little Red River First Nation (Little Red). The Crown proceeded by indictment. [ 2 ] He is also to be sentenced on two charges of breaching his release conditions, between December 27, 2021, and January 3, 2022, for failing to comply with the rules of the Electronic Monitoring Program, and on January 4, 2022, by failing to report to a probation officer. [ 3 ] Ms. Douglas for the Crown seeks a sentence of five years minus appropriate remand time. Ms.

Crookshanks for the defence seeks a federal sentence of two years in addition to his remand time, followed by two years of probation. CIRCUMSTANCES OF THE OFFENCE [ 4 ] At the relevant time, A.W.C. was married to A.S.C. Her daughter, C., has a daughter, O.J., born in October 2012, making her five and six years old during 2018. A.W.C. was born in 1957, making him 60 and 61 years old on the relevant dates. [ 5 ] When O.J. was eight years old, she told her mother that the accused had touched her and licked her.

In her statement to police, O.J. says the incidents occurred when she was five years old and living at the accused’s residence on Little Red, where the accused, his wife, as well as his daughter T. and her family all lived. She says A.W.C. did it about ten times. She says he touched her vagina, which she describes as a “ding-dong.” He took her to the bathroom with pink walls. He took her by the hand to the bathroom, got on top of her, and she tried to push him off. He licked her vagina. He spread her legs open and tried to get her to go up to the sink. She tried to kick him in the head.

She tried to leave the bathroom but did not succeed. He tried to take off her panties. She knew it happened at Little Red but was unsure of the address. This happened when she was five years old. A.W.C. had done this about 10 times. He wanted her to learn how to kiss, she said. Her little brother, who is two years younger than she, was in the house.

She said she had seen the accused without his pants on and he had taken off her pants. [ 6 ] Neither O.J. nor her mother provided a victim impact statement, but clearly, this event will have serious and permanent repercussions in their lives. [ 7 ] When A.W.C. was arrested, he was intoxicated. The next day, he gave a warned statement, at first denying the allegations and offering several reasons for why O.J. might be saying such things. He confirmed that her mother lives on and off with the family, and that she leaves O.J. with them sometimes.

Upon further questioning, he said he would plead guilty to the offence. He said O.J. was about six or seven years old when it happened. He said, “Maybe I have a sick mind and need help. Maybe it was the alcohol that did it.” He says he stopped because he knew it was wrong. “I don’t know what my chances are, but I’m going to plead guilty. I’m going to make my family happy if I did something wrong.” He said, “I touched her some places. She didn’t like it. I didn’t like it, too. She told me to stop. I touched her in the privates.” He denied inserting anything inside her.

He says he touched her mostly with his hands, most of the time over the clothes, but he did it too under the clothes on her vagina. He said it happened once or twice. He said he needed help with alcohol and his “bad thoughts.” [ 8 ] Because A.W.C. has admitted to sexually touching the victim “once or twice,” I will sentence him on that basis. The allegation that it happened “about ten times” is an aggravating fact that would have to be proven beyond a reasonable doubt unless the accused admits it. ( Criminal Code section 724(3) (e)).

The Crown did not call evidence to prove these incidents, and so the Court is bound by his admission to committing one or two acts. [ 9 ] After an extensive show cause hearing, on November 25, 2021, A.W.C. was released onto the Electronic Monitoring (EM) program with a surety and a promise to pay $500.00. On December 16, he failed to attend court and a warrant was issued for his arrest. On December 27, he was to report to a probation officer pursuant to his release conditions. He failed to do so. On December 28 at 9:50 a.m., the EM system warned of an unauthorized leave.

A curfew check revealed that A.W.C. was absent. A.W.C. says he was concerned about drinking in the home, and so went to stay at his friend Frank’s house on Little Red. He was AWOL for eight or nine

days, then returned to his authorized residence. He did not remove his ankle bracelet. [10] On January 4, at 1:30 p.m., he was to report to the probation office. Instead, he made a voluntary appearance in Courtroom#1. The warrant issued on December 16 was cancelled at that court appearance, and his charges were adjourned so he could seekcounsel. On January 8, 2022, Smeaton RCMP swore an Information alleging the breaches from December, as well as a new one forfailing to report to the probation officer on January 4, 2022. A.W.C. was arrested on that warrant at his approved residence on January15, 2022.

He did not seek bail again and entered his guilty plea on February 28. He has remained in custody since January 15, 2022. CIRCUMSTANCES OF THE OFFENDER [11] A.W.C. has lived at Little Red reserve for most of his life. He was born into an alcoholic home. He witnessed his mothersuffer domestic abuse. He himself was physically disciplined with a belt. He was sexually assaulted by an adult male twice when hewas eight years old. At age 10, he went to live with his grandparents, who lived a traditional lifestyle, and cared for horses.

At age 15,around the same time his parents separated, he was placed in foster care, but ran away back to Little Red. [12] A.W.C. began drinking at age 12 or 13. Since then, he has had one significant period of sobriety when he was on parole in2008-2009. [13] He achieved no higher than a grade eight education, although he worked steadily throughout his adult life. He worked firesuppression and was the Water Hauler for the community. He was trained as a Heavy Equipment Operator, but employment in this areawas limited due to his lack of a driver’s licence because of impaired driving convictions.

He did mechanical work for cash or trade. Forthe last number of years, he has collected social assistance. He would be eligible for Canada Pension and Old Age Security, but he didnot complete the paperwork before he was held in custody on these charges. [14] A.W.C. has a long history of alcohol abuse and domestic violence. His criminal record is littered with spousal assaults. Significantly, in 2007, he was convicted of sexually assaulting his adult daughter T. and was sentenced to 30 months in a federalpenitentiary.

On appeal, that sentence was increased to 36 months. [15] His daughter has forgiven him for his assault on her. She now lives with her children in his home on Little Red. A.W.C. alsoenjoys the support of Bishop Adam Halkett, who maintains contact with him in jail. He also garners pro-social support from his friendGordon Forest, who provided a residence and surety when A.W.C. was on judicial interim release. PURPOSE AND PRINCIPLES OF SENTENCING [16] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Because thevictim is a child, Aboriginal, and female, and because the accused abused a position of trust, denunciation and deterrence become theprimary sentencing goals. The Court must take into consideration any aggravating and mitigating circumstances. The Court shouldconsider parity with other sentences and restraint in imposing sentence. Because the accused is Indigenous, R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] applies. Gladue factors may lessen A.W.C.’s degree of responsibility to some extent or serve tomandate an alternative type of sentence.

Despite A.W.C.’s age and extensive criminal record, alternatives to lengthy incarceration mustbe considered and rehabilitation remains an important sentencing goal. RANGE OF SENTENCE (PARITY) [17] One of the principles of sentencing is parity; a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. Out of this principle, through multiple court decisions, a range of sentence for aparticular offence will emerge.

In child sexual abuse cases, that range has shifted upward in recent years. [18] In R v LV, 2016 SKCA 74, 480 Sask R 181, our Court of Appeal refused to set a starting point for sentences involving thesexual abuse of children, although they directed sentencing courts to consider the real gravity of these offences and the long-lasting harmthey cause to victims, their families, and their communities. Before LV, the typical sentence for such an offence was three years, which

was Mr. V.’s original sentence. Although he had no criminal record, that offender committed hundreds of sexual assaults on his adolescent daughter over a three-year period. His actions included coercion and grooming behaviour, resulting in an almost-constant torment to the victim. Even after the victim put a lock on her bedroom door, the assaults continued. He took pictures of her bare body and surreptitiously installed a video camera in her bedroom. He was convicted after trial.

The Court granted the Crown’s sentence appeal and increased his sentence to four years, acknowledging its length might seem harsh in the sentencing environment as it existed at the time. [ 19 ] In R v Friesen , 2020 SCC 9 , 391 CCC (3d) 309 [ Friesen ], the Supreme Court notes that in 2015 Parliament increased the maximum sentence for these offences from 10 to 14 years. As a result, sentencing courts should increase the range of sentence for sexual offences against children.

If the offender is Indigenous, according to Friesen , the sentencing court must still undertake a Gladue analysis. [ 20 ] In Friesen , a sentence of six years for sexual interference on a four-year-old was ultimately upheld by the Supreme Court. However, Mr. Friesen’s crime was particularly repugnant, including grooming the mother and attempted extortion to force her to facilitate his offence on her four-year-old child.

Friesen is important, not for the six-year sentence, but for the Court’s comments on how to arrive at an appropriate sentence for a crime of sexual violence on a child. [ 21 ] The Supreme Court in Friesen directs sentencing judges to acknowledge the wrongfulness of sexual offences against children and the profound long-term harm that they cause. Courts must focus their attention on emotional and psychological harm, not simply physical harm.

The wrongfulness and harmfulness of sexual offences against children impacts the proportionality principle, as these factors inform both the gravity of the offence and the degree of responsibility of the offender. Understanding this is necessary to arrive at a proportionate sentence. [ 22 ] Regarding the offender’s degree of responsibility, the Court states that intentionally applying force of a sexual nature to a child is highly morally blameworthy. The offender knows or ought to know that this action can profoundly harm the child. The act involves the wrongful exploitation of a vulnerable child by the offender.

Courts must also give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim is a child increases the offender’s degree of responsibility. [ 23 ] Because of this shift in how the courts treat sexual offences against children, sentencing precedents prior to the 2015 amendments to the Criminal Code may not be helpful in establishing an appropriate range of sentence.

In this case, as well, Gladue considerations are very much in play, and will affect how the Court arrives at a fair sentence. AGGRAVATING AND MITIGATING FACTORS [ 24 ] It is aggravating that the victim was only five or six years old at the time of the offence. She was living with A.W.C. who was in a position of trust and authority. He was essentially her grandpa. She is Aboriginal, female, and a child, all categories of vulnerable people specifically protected under the Criminal Code . [ 25 ] A.W.C. has a related and serious criminal record, including a previous sexual assault on his adult daughter.

His record reveals a pattern of abusing the women and girls in his life, including numerous convictions for spousal assault. Even after he had offended against his granddaughter, but before he was charged, he was convicted of assault with a weapon on his wife. [ 26 ] Although he has repeatedly hurt the people around him, according to the pre-sentence report, A.W.C. has done little or nothing to address his risk factors over the years. He is in the “contemplation” stage of change. His actions reveal an underlying attitude that women and children are his property to do with as he will.

He blames alcohol, but the problem lies much deeper than a simple addiction. It is unfortunate that after raping his own daughter, although he participated in alcohol abuse treatment, he did not receive programming related to sexual offending. The pre-sentence report is similarly disappointing, as the risk assessments again focus on his alcoholism, not on his repeat sexual offending. [ 27 ] In mitigation, A.W.C. stopped the abuse long before he was caught. Furthermore, apart from a brief denial to a police officer, he never disputed the charge. His guilty plea and his comments to the police indicate remorse.

A guilty plea is always mitigating, but in these kinds of cases, it truly does save the victim and her family the trauma and uncertainty of a trial. A conviction is never assured. The case may have been difficult to prove with such a young witness. A.W.C.’s statement to police may not have been admitted into

evidence. The fact he almost immediately confessed also shows remorse. His confession foreclosed any family disputes about the victim’s truthfulness, which are common in these situations, and thus mitigated the harm done to her. [ 28 ] Prior to his remand, A.W.C. accessed pro-social support in the community, accepting help from his friends Bishop Adam Halkett and Gordon Forest.

He complied quite well with community supervision and did not re-offend in any substantial way. [ 29 ] Also somewhat mitigating, A.W.C. appears to have been offered no sex offender treatment or domestic violence counselling while serving his penitentiary sentence for sexually assaulting his daughter. He says he received programming only for alcohol addiction. If true, the correctional system failed him and society. He has now sexually assaulted a more vulnerable victim.

Even so, while on parole he maintained the longest period of sobriety in his life and did not re-offend for several years. [ 30 ] Defence submits that the 13-year gap between sexual offences – the first in 2005, the second in 2018 – is mitigating. I do not agree. It is true that from his conviction in May of 2007, there is a gap in his record until June of 2013, so he did well for quite some time after his release from the penitentiary. In 2014, however, he assaulted his spouse. In 2016, he served 15 months for another spousal assault and a refusal to provide a breath sample.

In 2019, after he sexually abused his step-granddaughter but before he was charged, he was convicted of assaulting his spouse yet again, this time with a weapon. Although he was not charged with any sex offences, he certainly engaged in domestic violence. Child sexual abuse is domestic violence. A.W.C. has a pattern of dominating the women and girls in his life. That pattern has continued unabated. I do not find this gap mitigating. GLADUE ANALYSIS [ 31 ] R v Ipeelee , 2012 SCC 13 , 280 CCC (3d) 265 mandated two stages to a Gladue analysis: (

a) systemic and background factors which played a

part in bringing the Aboriginal offender to court, and (

b) the types of sentencing procedures and sanctions that may be appropriate for the offender in light of his or her Aboriginal heritage.

a) Systemic and Background Factors [ 32 ] Regarding the systemic and background factors which played a

part in bringing A.W.C. to court, I take judicial notice of the history of colonialism, displacement, and residential schools. The effects of this history are multi-generational and continue to translate into lower educational attainment, lower incomes, higher unemployment, substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. Although A.W.C. never attended residential school, he was beaten for speaking Cree in school. Moreover, residential schools affected not just those who attended, but their families and communities.

Children were physically and sexually abused, and that affected how they lived their lives when returned to their homes, leading to intergenerational violence and addictions. A.W.C. was sexually assaulted by an adult relative when he was a child. It is not difficult to understand how that experience led to his offending as an adult.

Churches and residential schools also introduced the idea that the man is the head of the family, with women and children subservient, an idea that drastically affected family dynamics in Indigenous communities. [ 33 ] A.W.C. grew up in an atmosphere of addiction, another legacy of colonization. He is a product of intergenerational substance abuse and violence. His family was fractured, with his siblings in foster care. He, too, was in foster care, but ran away, an all-too- familiar story.

His criminal record is alcohol-related, consisting mostly of impaired driving and spousal assaults. [ 34 ] Because some of A.W.C.’s behaviour is a direct result of colonization, I find his moral blameworthiness somewhat lowered. Nothing in Cree culture condones the sexual abuse of children. Rather, its prevalence in some communities may be a result of the abuses of colonialism, such as sexual abuse in residential schools. This is certainly relevant when sentencing an Indigenous offender for a sex offence on a child. [ 35 ] On the other hand, A.W.C. is not a young man.

He has had decades to deal with his issues but has never taken it upon himself to get help with managing his risk for violence. He has shown little motivation to address his addiction or his propensity to harm those around him.

b) Type of Sentence Appropriate in Light of Indigenous Heritage

[ 36 ] A.W.C. has community support. He succeeded under supervision in the community before. His plan is to serve a short federal sentence, followed by parole, followed by a lengthy probation period including sex offender treatment, which is available in the community. He would not return to Little Red but would live in another location. A similar sentence was imposed in R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110, but in that case, the custodial portion of the sentence was provincial time. As a result, the probation order commenced immediately upon his release from custody.

Sex offender treatment is not available in the provincial correctional centres. It is available in the penitentiary and in the community. [ 37 ] Given the comments in Friesen about the gravity of the offence and the degree of responsibility of the offender in these types of cases, I find that this plan is not proportionate to the gravity of the offence and the degree of responsibility of the offender. It is less likely to achieve the goals of sentencing, including rehabilitation. A probation order is not inherently more rehabilitative than parole supervision.

Both have the same goals: rehabilitation, reintegration into the community, and protection of the public. A.W.C. experienced his longest period of sobriety upon his release from the penitentiary on parole. He remained crime-free for several years. His best chance of rehabilitation will be on parole, and not on probation. [ 38 ] Denunciation and deterrence are the primary sentencing objectives in this case. While I have yet to see evidence that lengthy sentences deter crime, they do express society’s abhorrence of the criminal act, thereby denouncing it.

Nothing short of a lengthy penitentiary sentence would be proportionate to the gravity of this offence and the degree of responsibility of this offender, even considering the mitigating effect of A.W.C.’s Gladue factors. CONCLUSION [ 39 ] On balance, I find the appropriate sentence for A.W.C. is four years in a penitentiary. I recommend he receive sex offender and domestic violence programming. He will be given appropriate credit of 1.5 to 1 for his remand time. He has been in custody for a total of eight months, for a credit of 12 months or one year.

The sentence left to be served is three years in a federal penitentiary. The Court orders a lifetime firearms prohibition pursuant to

section 109 of the Criminal Code and authorizes a warrant in Form 5.3 to obtain a DNA sample for the national database. As well, he will be subject to a lifetime SOIRA [1] order. [ 40 ] As for the breaches of his release order, A.W.C. lost his liberty pending the outcome of his charges. His substantive matter is now concluded. Under the circumstances, no further punishment for the breaches is warranted. I grant him an absolute discharge. [ 41 ] Surcharges will be waived for financial hardship.

Dated this 21st day of July, A.D., 2022, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ F.M. Daunt. J Appendix A Ancillary Orders 1. Firearms Prohibition Pursuant to

section 109 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life. You are also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

2. SOIRA Order Within seven days of your release from custody you must report to a Registration Centre (i.e. police station) and provide them: • your name(s), address, phone number(s), date of birth and gender, • the name, address and phone numbers of employer or school, • your height, weight, and distinguishing features, • your driver’s licence, registration for any vehicles you own, and • your passport if you have one. • they may take your picture. Then, for the rest of your life, you must report each year between 11 and 12 months after your first reporting.

You must also report any change in your information within seven days. If you are going to be away from your home for more than seven days, you must report where you will be staying when you are away from home. You can apply to the Court to terminate the order after 20 years. You would have to establish that the impact of the order on your privacy and liberty is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature. 3.

DNA The Court will issue a warrant in Form 5.03 authorizing the taking of a DNA sample for the national database.