Her Majesty the Queen - v. -, 2012 SKPC 99

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 099 Date: June 28, 2012 Information: 31082113 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - N.B. Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Michael D. Nolin For the Accused SENTENCING DECISION D.J. KOVATCH , J Background [ 1 ] The accused, N.B., has entered a guilty plea to a charge that between July 1, 2006 and August 31, 2009, he committed a sexual assault on E.B. The victim of the assault is the accused’s daughter.

At the time of these assaults, the daughter was approximately ten to thirteen years of age. It is important to note that the Crown has proceeded by indictment. [ 2 ] The accused was not in custody with respect to this matter until March 15, 2012. On this last mentioned date, with the

assistance of counsel, he elected trial by a Provincial Court Judge and entered a plea of guilty to the charge. By consent, he was immediately remanded into custody. A pre-sentence report was requested as were psychiatric and psychological assessments. These reports were prepared and counsel made sentencing submissions on May 14, 2012, following which I reserved my decision and adjourned until June 28, 2012, for that decision. The Argument [ 3 ] The arguments presented by counsel may be succinctly summarised. Mr. Hendrickson referred to a series of cases from the Saskatchewan Court of Appeal, including: R. v.

J.L.S., 2006 SKCA 95 and R. v. Revet, 2010 SKCA 71 . (These two cases refer to numerous other sentencing decisions.) The Crown argued that these cases clearly establish that three years is the starting point for offences such as this. Further, that deterrence and denunciation are the primary factors for the Court to consider in assessing a sentence. The Crown asked for a sentence of three years in this case. [ 4 ] Defence counsel began his submissions by conceding that Crown counsel had fairly referred to the various Court of Appeal decisions, and correctly summarised the effect of those decisions.

He conceded that, on the basis of the Court of Appeal decisions, three years is the starting point sentence in cases such as this. Defence counsel then referred the Court to R. v. Ipeelee, 2012 SCC 13 . Counsel argued that this decision has “cast doubt upon” the approach taken by the Saskatchewan Court of Appeal. Further, that this Court should seize the opportunity to craft a better and more imaginative sentence, more fundamentally based upon the rehabilitation of the accused.

This could be accomplished by the imposition of a provincial sentence, followed by a lengthy probation order that included participation in a sexual offender treatment program. I will refer to the facts and argument in greater detail in my analysis. Analysis of the Ipeelee Decision [ 5 ] First, it must be noted that in Ipeelee the Court was not concerned with sentencing on the substantive offence of sexual assault. Rather, Mr. Ipeelee had previously been convicted of several offences, including sexual assault, had been designated a long-term offender and placed under a long-term supervision order. Mr.

Ipeelee was charged with breach of that order by drinking. [ 6 ] While this is a distinguishing feature, the Supreme Court made a number of broad based statements applicable to sentencing overall and the Ipeelee decision cannot be simply distinguished on the basis that it was a breach of a long-term supervision order. The Court stated: [59] The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ( Gladue , at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders ( Gladue , at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66).

Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84). [60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte , 2000 SKCA 27 , 189 Sask. R. 190).

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 (

e) of the Criminal Code .

Further, at paragraph 84: The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious theoffence the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close toeach other or the same, even taking into account their different concepts of sentencing” (Gladue, at para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to seriousoffences (see, e.g. R. v.

Carriere (2002), (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.)). [7] The Court also emphasizes that many of these same factors must be considered in sentencing non-Aboriginal offenders. Atparagraph 77, the Court states: Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be takeninto account for other, non-Aboriginal offenders. Quite the opposite. Cory and Iacobucci JJ. specifically state, at para. 69, in Gladue,that “background and systemic factors will also be of importance for a judge in sentencing a non-Aboriginal offender”.

Also, at paragraph 79:

Section 718.2(

b) simply requires that any disparity between sanctions for different offenders be justified. To the extent that Gladue willlead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances – circumstanceswhich are rationally related to the sentencing process. Courts must ensure that a formalistic approach to parity in sentencing does notundermine the remedial purpose of s. 718.2(e). [8] Having stated these general principles, however, the Court also emphasized that:

Section 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period ofincarceration, simply because the offender is Aboriginal. [9] The Court also makes it clear that the sentencing judge must examine and determine the systemic and background factorsthat bear upon the culpability of the particular offender and his or her level of moral blameworthiness.

The Court directs the sentencingjudge consider these factors and consider whether a restorative justice approach is more applicable to the unique circumstances of theoffender than adherence to principles like denunciation and deterrence, met through a term of incarceration. (Ipeelee at paragraphs 73-75.) [10] In my view, this decision has not fundamentally altered all of the law of sentencing in Canada.

It has placed a renewedemphasis on the systemic and background factors relating to the offender, and mandated the sentencing judge to strongly consider arestorative or rehabilitative approach that specifically addresses the background factors related to that accused. The Court must considerand balance these factors against the factors and principles in sentencing, as set out in

section 718 of the Criminal Code and in the caselaw. Analysis of the Situation Regarding this Accused [11] First, it must be noted that there is no indication in any of the material before this Court that this accused is an Aboriginalperson. Consideration of systemic or background factors generally applicable to Aboriginal persons is not relevant regarding thisaccused. There are, however, some background factors which are properly before the Court and must be considered. N.B. is thirty-twoyears of age at present, his date of birth being November 4, 1979. He was born in Calgary, Alberta.

He has one sister, two yearsyounger than he. While he was a baby, his parents moved to Toronto. Shortly thereafter they separated, due to his father’s alcohol anddrug problems. Both of his parents later moved to Winnipeg, Manitoba. [12] There is some indication that the accused may have been a victim of child sex abuse, although this has never been investigatedor ascertained.

[ 13 ] The accused was considered an outcast at school. At age nine, he was placed in foster care, where he remained until he was eighteen years of age. [ 14 ] When the accused was sixteen years of age, his girlfriend gave birth to their daughter, who is the victim in this matter. When his daughter was six years of age, his ex-girlfriend advised that she could no longer care for the daughter. The ex-girlfriend was prepared to have the child placed in foster care.

The accused applied for custody and was eventually awarded custody. [ 15 ] The Court was advised that as a youth N.B. suffered from A.D.H.D. and dyslexia. [ 16 ] The reports indicate that drugs or alcohol are not presently a problem for this accused. However, he does suffer from chronic dysthymia.

The Court was advised that this was chronic low-grade depression. [ 17 ] N.B.’s record is not severe, and he is at medium to low risk to re-offend, either generally or sexually. [ 18 ] The psychological assessment makes the following statements regarding N.B.’s present offence: He has admitted to repeated sexual contact with his daughter, contact including touching, showering with her, oral contact, and intercourse. This information I have about his sexual contacts with his daughter come from documentation provided by the criminal justice system and by [N.B.].

I have not accepted the information he has given me as fact. It is my opinion that his sexual assaults on his daughter were self-serving, self-gratifying actions to fill in for what was emotionally lacking in his own life. He felt alone and isolated with no real support from the community and no real academic or vocational achievements.

He was teased, bullied, and belittled throughout his school years, was rejected by his mother and placed in foster care at the age of nine or ten, for a while lived with his father who was a drug user, and was separated from his family and then he took on the task of raising his daughter as a single parent. In my opinion, his sexual contact with his daughter was entirely selfish to meet his own emotional needs and was not because of an intimate/emotional, romantic, and sexual attraction to his daughter. Most

definitions of paedophilia specify that the paedophile must have a sexual attraction through fantasy or emotion. Child molesters are defined by their acts; paedophiles are defined by their desires. Generally, paedophilia is described as a sustained sexual orientation to a particular group or groups. For examples, a paedophile might have an orientation to girls or to boys, to 8 to 10 year-olds, or to 9 to 13 year-olds. Most

definitions require that there is a sexual preference for a group , even though the paedophile might only offend against a family member (because of availability and safety). Sometimes that preference is exclusive to that group, and sometimes it is non-exclusive such as when there is an attraction to age- appropriate partners as well as to an age-inappropriate group. Paedophilia is, nevertheless, an egosyntonic experience. The Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition-Text Revision is the diagnostic manual adopted for use in Saskatchewan.

This diagnostic manual does not specifically require a sexual preference or even a sexual attraction or orientation; sexual activity with a prepubescent child meets the diagnostic criteria. It does, however, say that, “Individuals who had a paedophilic arousal pattern and act on these fantasies or urges with a child qualify for the diagnosis of paedolphilia”.

From my examination, my opinion is that [N.B.] engaged in self-gratifying sexual behaviour. [ 19 ] I interpret this psychological assessment as saying that this accused’s childhood and background, while not being particularly good or pleasant, did not result in this accused having psychiatric or psychological conditions that led him to behave in this fashion. When confronted with his sexual desires, he chose to abuse his position of trust with his daughter for his own personal gratification.

Simply stated, viewed in this light, there is little to distinguish this accused from those dealt with in various sentencing cases cited by the Crown. [ 20 ] The psychiatric assessment confirms that the accused’s act was

an act of self-gratification. Both assessment reports indicate that incest offenders tend to have low rates of recidivism. Both reports indicate that incarceration may be counterproductive as the accused is easily led and swayed and could learn more deviant behaviours in jail. The psychological and psychiatric reports, and the pre- sentence report, all indicate that the accused should be involved in relapse prevention programs. Further, such programs are available in the Regina Health Region, but are not available in the Moose Jaw Health Region.

Further, such programs are not available in the provincial correctional centres but are available in the federal correctional system, and in particular through the Regional Psychiatric Centre in Saskatoon. Conclusion and Orders

[ 21 ] A number of decisions from the Saskatchewan Court of Appeal indicate that the starting point for sentencing on a charge such as this is three years. The factual similarities between the J.L.S. case and this case are striking. In J.L.S. , the father was charged with repeated sexual assaults on his daughter. At the time of these assaults, the daughter was between eight and a half and twelve years old. In J.L.S. , the sentencing judge sentenced the accused to two years less a day in order to combine that sentence with a three year probation order.

In this case, counsel for the Defence requests a very similar kind of sentence. However, in J.L.S. , the Court of Appeal expressly rejected that sentence as being inadequate and unfit for the purpose. It substituted a sentence of three years in a penitentiary. [ 22 ] As a result, I ask the following questions: Has the Defence established systemic or background factors that bear upon this accused’s culpability or moral blameworthiness, thereby affecting the sentence?

Has this accused put in place an imaginative restorative or rehabilitative program that requires this Court to move away from the three year sentence previously set out as a guideline by the Court of Appeal? It is true that this accused suffered an unpleasant childhood. He may have been a victim of child abuse. He was in foster care from age nine to age eighteen. He suffered some difficulties in school where he had difficulty learning and was bullied. However, these problems have not led him to addiction problems. These problems have not led him to paedophilia.

To the contrary, the psychologist and psychiatrist say that this accused is not sexually attracted to children. His actions were those of self-gratification. [ 23 ] In addition, in my view, Defence counsel has not advanced a superior restorative or rehabilitative approach. Mr. Nolin has suggested that I can require the accused to participate in such a program through the entire three year period of probation. However, no rehabilitative treatment would be available to the accused for his period at a provincial correctional centre. Programming is available through the federal penitentiary system.

In addition, N.B. would normally be entitled to statutory remission and/or other early release programs, where no doubt the officials involved would require that he participate in appropriate rehabilitative programming. As part of this rehabilitative programming, or even following rehabilitative programming, the accused may voluntarily participate in a program offered by one of the health regions that Mr.

Nolin is advocating be required under a probation order. [ 24 ] As a result, I am of the view that the rehabilitative programming available to the accused is better under the federal penitentiary system than under the provincial correctional system. I am of the view that there is no basis to depart from the presumption of penitentiary time as set out in cases such as J.L.S. and Revet. In the J.L.S. case, at paragraph 29 , the Court stated: These latter factors bring what otherwise might be a more severe sentence to three years, not two.

A sentence of three years, having regard for the aggravating and mitigating features of this case, is proportionate to the gravity of the offence and the degree of responsibility of this offender as stipulated for in s. 718.1 of the Criminal Code . A sentence of three years recognizes that these were repeated offences of a serious nature. When such offences are committed on one’s own child, s. 718.2 (a)(ii) makes this an aggravating factor. Such a sentence acknowledges that the offender, in committing the offence, abused a position of trust in relation to the victim (see s. 718.2 (a)(iii)).

Finally, while it takes into account the mitigating factors mentioned, a three year sentence gives effect to the principle that the “sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances” as required by s. 718.2 (b). [ 25 ] In my view, a sentence of three years in a penitentiary is appropriate in this case. I note that N.B. has been in custody since the guilty plea was entered on March 15, 2012. According to my calculation, as of this date, he has been in custody for a period of 106 days.

An accused person is generally entitled to one-third statutory remission of his sentence, unless he does something to disqualify himself from that remission. By serving 106 days, he would normally have served 159 days of his sentence. As a result, I propose to give him five months credit for time served. The net result is that N.B. is sentenced to 31 months in custody, to be served at a federal penitentiary, commencing on today’s date.

I strongly recommend that he be allowed to serve some or all of his sentence at the Regional Psychiatric Centre in Saskatoon where he may avail himself of sexual offender programming. [ 26 ] This is a primary designated offence within the meaning of

section 487.04 of the Criminal Code . Accordingly, I authorize a warrant in Form 5.03 authorizing the taking of bodily samples suitable for forensic DNA analysis from this accused. [ 27 ] This is also a designated offence within the meaning of

section 490.011 of the Criminal Code . Accordingly, there will be an order in Form 52 requiring the accused to comply with the Sex Offender Information Act for a period of 20 years. [ 28 ] There will also be a mandatory firearm prohibition order under

section 109 of the Criminal Code , such order to be in existence for a period of 10 years. [ 29 ] This is a case where the Court may make an order under

section 161 of the Criminal Code . In this case, Crown counsel

advised that it was not requesting such an order. Accordingly, I decline to make an order under

section 161 . [ 30 ] I do waive the criminal victim’s surcharge. [ 31 ] I express my thanks to both counsel for their comprehensive and helpful submissions in a difficult case. Dated at Moose Jaw, Saskatchewan, this ________ day of June, 2012. _____________________________________________ D.J. Kovatch, J