R. v. L.J.D., 2022 MBPC 48

CITATION: R. v. L.J.D., 2022 MBPC 48 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) C. Anderson ) ) for the Crown - and – ) ) ) L.J.D. ) ) Z. Kinahan for the Accused ) ) ) Judgment delivered: ) October 13, 2022 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. HARVIE, P.J.

INTRODUCTION [ 1 ] The accused has entered guilty pleas to charges arising from two distinct events separated by a number of years. The first is a charge of sexual interference committed between January 1, 2015 and November 6, 2019 and the second is a charge of aggravated assault committed on August 12, 2021. Crown counsel seeks a sentence of 5 years respecting the sexual interference and 10 years respecting the aggravated assault, reduced for totality to 13 years.

Defence counsel seeks 3 years on the sexual interference and 5 years on the aggravated assault, with the 8 year recommendation reduced for totality to 7 years. THE FACTS [ 2 ] Counsel filed an Agreed Statements of Facts with respect to the sexual interference charge and relied on the details contained in the police

summary respecting the aggravated assault charge. [ 3 ] In April of 2020, the victim disclosed to her counsellor that she had been previously sexually assaulted by the accused who is the victim’s uncle. At the time of the assault, the victim would have been 5 or 6 years old and the accused would have been between 19 and 20 years old. The victim says that the accused took her into a private building on the family’s property where she was compelled to perform

an act of fellatio on him. Following this disclosure, the accused was arrested and ultimately granted judicial interim release. [ 4 ] Crown counsel acknowledges that there were a variety of issues with respect to the prosecution of this offence and agrees that the Court should factor in those issues when assessing the appropriate sentence. He contends, however, that despite her young age, the victim is a willing and relatively articulate complainant.

As such, he argues that the guilty plea must be assessed in light of what he argues was a relatively strong case for the prosecution. [ 5 ] The aggravated assault occurred on August 12, 2021 on the Sandy Bay First Nation. The victim was the accused’s 17 year old girlfriend. They were at his mother’s house when they became involved in a verbal argument after the victim had received text messages from the accused’s brother. Because the accused suspected that she was cheating on him, he grabbed the victim’s phone, threw a drink on her and pushed her to the ground.

He repeatedly kicked her in the arm, picking her up and throwing her on the floor again, stomping on her head while yelling threats that he would take her to the lake and kill her. The victim was screaming that she could not move, but the accused picked her up and placed her on the sofa, despite being told by a woman who witnessed the incident not to move her. The witness described the accused as being in “a rage”. [ 6 ] The witness unsuccessfully attempted to contact an ambulance.

The accused himself then called an ambulance, later telling EMS attendees and the police that he and the victim had been in a dirt bike accident. Prior to their arrival, the accused told the victim to confirm his story about the dirt bike accident. Given her condition, the victim was unable to counter his elaborate but contradictory story. It did not appear that the accused was under the influence of drugs or alcohol at the time of the assault. [ 7 ] It was not until October, 2021 that the victim had recovered sufficiently to speak to police, when she provided a sworn

statement as to the actual version of events. The accused was arrested and charged accordingly. In speaking to police, he acknowledged the argument, losing his temper, throwing her on the ground and stomping on her head. He told officers that he has a short temper and cannot control his anger and further stated that the victim caused him to do this to her because she knew that he was unable to control himself when he gets mad.

Officers confirmed that the accused displayed a range of emotions during his statement, at times angry and raging, then crying, recognizing that his actions had caused significant injury to the victim. The accused was also observed to be emotional and crying on the day of the assault. [ 8 ] As a result of the assault, the victim suffered significant spinal cord injuries which have rendered her paraplegic. She has had to have multiple medical procedures including a tracheotomy. She remains confined to a wheelchair and requires a significant amount of assistance with her daily living.

VICTIM IMPACT Sexual Interference [ 9 ] The victim did not provide a written Victim Impact Statement but Crown Counsel provided information to the Court, having met with the victim several times. He confirmed that the victim continued to struggle with the impact of this incident. Along with other issues she has difficulty trusting family members. She is too young to understand the concept of incarceration but she is grateful that she does not have to prepare for and testify at a trial.

Aggravated Assault [ 10 ] I acknowledge at the outset that the extremely serious nature of the victim’s injuries cannot be allowed to overwhelm the sentencing process. Having said that, however, it is important to recognize the extraordinary and long-term effects of this assault. Despite the emotional challenge, various family members as well as the complainant herself provided Victim Impact Statements which identify the serious, overwhelming, and long lasting impact of this incident.

Their statements are not determinative of the matter, but they do represent an important piece of information to be considered as part of the sentencing process. I am grateful for the efforts they made to attend Court and share their experiences. [ 11 ] The physical impact of this assault cannot be overstated. As indicated, the victim is paralyzed as a result of this incident. She provided a moving Victim Impact Statement which outlines both the physical and emotional effects this has had on both her and her family. She was hospitalized on August 12, 2021, having been airlifted to the Health Sciences Centre.

She underwent significant spinal surgery and a second operation for a tracheotomy. She has struggled with medical complications and remains a patient at the Health Sciences Centre. She has very limited movement in her upper body and suffers from on-going neck spasms and dizziness when she is able to sit in a wheelchair. She has no control of her bladder or bowels and will need lifelong assistance for her basic care. Not surprisingly, the emotional impact of this incident is equally significant.

She continues to suffer from depression and anxiety attacks. [ 12 ] The complainant’s mother provided and read a Victim Impact Statement. She was initially unable to visit her daughter after the attack due to COVID restrictions at the hospital. She now attends to her daughter on a daily basis acting as her caregiver and providing on-going physical and emotional support. She described her own feelings of pain and helplessness as she watches her daughter’s ongoing physical and emotional struggles.

Victim Impact Statements were also provided by the victim’s grandmother, grandfather and sister, all of whom continue to feel anger at the senseless injuries inflicted on the victim. THE BACKGROUND OF THE ACCUSED AND HIS RESPONSE TO THE OFFENCES [ 13 ] The accused, now 26 years old, grew up on the Sandy Bay First Nation, the youngest of seven children. He reports a mixed upbringing, with his young childhood being “happy” with “fond memories of growing up in his family.” He maintains a close relationship with his mother and two of his brothers. Several incidents seem to have significantly impacted the accused.

The first was the loss of his father to a heart attack at age eleven or twelve. The second was the end of his relationship with the mother of his children due to infidelity. Some time after this, the accused turned to using methamphetamines, with his addiction impacting “every aspect of his life.” According to his mother, addictions impact “almost everyone” in their home community. [ 14 ] A Pre-Sentence Report (PSR) was prepared and filed. The accused comes before the Court with one previous conviction for assault from June 21, 2016 for which he received a one-year Suspended Sentence with Supervised Probation.

The accused completed his probationary order without issue, attending all Court ordered programs and satisfying all conditions. He has been in custody since October 25, 2021 and has not been the subject of any formal sanctions. He has had some issues respecting his in-custody employment, but appears to get along with other inmates on his unit. He has expressed his desire to continue to participate in programming while in custody. [ 15 ] He has expressed remorse for both incidents.

The accused was emotional when discussing the sexual interference, apologizing for his actions and reporting that he had been under the influence of methamphetamines at the time.

Other than the effect of his drug use, he could offer no other explanations into his actions, indicating that he has never had thoughts or desires respecting minors, nor has he acted on any non-consensual sexual urges prior to or since this incident. [ 16 ] The PSR confirms that the accused completed a Static 99R assessment, which placed him in the 66 th percentile of sexual offenders, making him an “Average Risk” to reoffend after 5 years in the community.

This relates only to the risk of offending sexually, as it was noted in the PSR that the accused is assessed as being a “High Risk” to reoffend generally. [ 17 ] Crown counsel very fairly acknowledged the accused’s Gladue factors, based on the information in the PSR and his own experience prosecuting matters in the Sandy Bay First Nations area. Issues related to substance abuse, intergenerational trauma and sexual offending are, sadly, not uncommon in the accused’s home community.

The accused disclosed to the PSR author that he was the victim of sexual abuse as a child. [ 18 ] The PSR also confirms through the accused’s mother that drug addiction and abuse have adversely impacted the family as a

whole. While it is positive that she has continued to support her son and that she has made past efforts to help her family “break the cycle” of drug addiction and abuse, it is worrisome that she expressed suspicion about the accused’s responsibility for both offences.

Respecting the sexual offences, the PSR notes that she “denied the subject’s responsibility for the matter and noted that it was “highly unlikely” the charges were correct.” While the accused cannot be held responsible for the views of others, these comments help to contextualize the ongoing impact of the offence on the young victim and her difficulty trusting family members. [ 19 ] The accused also demonstrated significant emotions when discussing the aggravated assault. He took responsibility for the offence and expressed regret that it had occurred.

The PSR notes that the accused “appeared to have a hard time articulating his wording and was difficult to understand due to his physical reactions to the writer’s questions. He was unable to speak, at times, through his tears.” THE CASE LAW [ 20 ] Both counsel provided the Court with helpful casebooks outlining the sentencing ranges for each offence. I propose to deal with each offence separately, addressing the principle of totality at the conclusion of the sentencing. Sexual Interference [ 21 ] Crown counsel relies on the now well-recognized decision in R. v.

Friesen , 2020 SCC 9 , which he aptly describes as a “call to action” for sentencing courts when dealing with offences involving sexual violence against children.

In Friesen , the Supreme Court overturned the Appellate Court’s sentence of four and a half years, restoring the six year sentence imposed by the sentencing Judge, describing it as being “on the lenient end of the spectrum of fit sentences.” The Court clearly stated that while all sentencing factors must be considered, sexual offences against children should be punished severely. [ 22 ] Crown counsel fairly conceded that the accused was not in a classic position of trust with respect to the victim.

Having said that, taking into account the age of the complainant and the nature of the assault, he argues for a sentence of five years. [ 23 ] Defence counsel provided the Court with a number of authorities, decided post- Friesen , where Courts have seen fit to impose sentences ranging from 15 months: see R. v. D.S . , 2021 ONSC 3972 ; 24 months: see R. v. T.J, 2021 ONCA 392 ; 31.5 months: see R. v. T.S ., 2022 ONCJ 181 ; 3 years: see R. v. J.N.P ., BCSC 570.

Counsel emphasizes the guilty plea, the fact that this involves a single incident with no evidence of threats, his client’s remorse, his addictions issues and other Gladue factors which demonstrate intergenerational trauma and he urges the Court to consider a sentence of three years. Aggravated Assault [ 24 ] Both counsel provided authorities outlining the range of sentences for aggravated assault. Each case is very fact specific and cover a broad range of sentences depending on the specific circumstances of the offence and the offender. Recently, in R. v.

Kravchenko , 2020 MBCA 30 the Court declined to impose a “general range or starting point” for aggravated assault sentences. Instead, the Court encouraged sentencing judges to consider such traditional factors as the moral culpability of the accused, the foreseeability of the harm caused, the nature and degree of the injuries and consequences for the victim. At the same time the Court must be mindful of the specific mens rea for the offence of aggravated assault as opposed to other offences such as attempted murder, which requires proof of a higher degree of intent and therefore carry a higher maximum sentence.

All of the foregoing must be considered in light of the sentencing provisions set out in Criminal Code s. 718 - 718.2 (the “ Code ”). THE AGGRAVATING AND MITIGATING FACTORS [ 25 ] The aggravating factors regarding both offences are numerous. As is now well recognized, sexual offences against children must attract a significant and deterrent sentence. The harm done to children as a result of these offences is uncontroverted. The concerning aspects of this case include the victim’s very young age at the time of the offence and the ongoing and understandable distrust the victim now has for family members.

It would, however, be an error to ignore the accused’s Gladue factors, including the intergeneration trauma, abuse and addictions issues which have contributed to his offending behaviour.

I am mindful of his guilty plea, which is signficiant given the nature of the charge and his expression of remorse. [ 26 ] Having taken all of the foregoing into account I am satisfied that a sentence of four years is warranted for the charge of sexual interference. [ 27 ] Respecting the aggravated assault, I am satisfied that the accused has a high level of moral culpability and that given the extreme degree of violence directed towards the victim the injuries were easily foreseeable.

As noted earlier, it is important to take into account the tremendously serious injuries sustained by the victim without allowing them to overwhelm the sentencing process. I am taking into account as well the statutorily aggravating facts that this was an incident of domestic violence and, as stated in Code s.718.04, that it was committed against someone who was “vulnerable because of personal circumstances - including because the person is Aboriginal and female”. As with the sexual interference, the background of the accused must be considered, along with his guilty plea.

His expression of remorse must be balanced against his initial dishonesty and the steps he took to hide his involvement. While he has a limited criminal record, he does have a previous assault conviction and he clearly has difficulty controlling his emotions. [ 28 ] Taking into account all of the foregoing, I am satisfied that a sentence of 10 years is warranted for this offence, to be served consecutively to the sexual interference sentence of four years. TOTALITY [ 29 ] The sentences must now be considered in total, with consideration given to whether a reduction is warranted.

Both counsel agree that some reduction is warranted.

[ 30 ] The Court of Appeal has clearly stated that any mitigating factors are used to determine a fit sentence, not to determine whether the totality principle requires the reduction of a combined sentence: see R. v. Charlette (JJ) , 2015 MBCA 32 ; R. v. JMO, 2017 MBCA 59 . [ 31 ] In R v GJM , 2015 MBCA 103 the Court adopted the list of factors articulated in R. v. Hutchings, 2012 NLCA 2 to be considered when taking a “last look” and assessing the totality principle (the Hutchings factors) (at para 10): . . . (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. [ 32 ] Taking into account all of the foregoing, I am satisfied that given the length of the combined sentences, the number of offences involved and the offender’s limited criminal record, a reduction is warranted. Given all of the circumstances, that reduction should be related to the sexual interference charge.

I am therefore reducing that sentence from four to three years to be served consecutively to the ten year sentence for the aggravated assault which will not be reduced, for a total of thirteen years or 4745 days. [ 33 ] The accused presently has 356 days of time in custody.

It is agreed that he should be given credit for that time at 1.5:1, for a total of 534 days, leaving a total of 4211 days, or the rough equivalent of just under 11 and a half years. [ 34 ] As both are primary designated offences, I am ordering that the accused provide a sample suitable for DNA analysis. [ 35 ] I am ordering that he be the subject to Code s. 109 weapons prohibition for 10 years. [ 36 ] Pursuant to Code s. 743.21, I am ordering that while he is in custody the accused is to have no contact or communication with the victims A.S and J.D. [ 37 ] I am ordering that the accused be subject to a Sexual Offender Information Registry Act Order for a period of 20 years. [ 38 ] Given the length of the sentence I am waiving costs and surcharge. “Original signed by” Harvie, P.J.