R. v. Sandercock, 2019 MBPC 77

Cite 2019 MBPC 77 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Klein, ) ) for the Crown - and – ) ) ) Arnez Goodman ) A. Libman, ) ) for the Accused ) Judgment delivered: November 22, 2019 Restriction on Publication: Identification Ban – See Criminal Code

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. L.M. Martin, P.J. Introduction [ 1 ] Sentencing is often described as more of an art than a science. This is because although the Criminal Code sets out sentencing principles, the Court must still balance them in light of the circumstances of the offence and the offender.

This task becomes particularly complex when dealing with offenders with a diagnosis of Fetal Alcohol Spectrum Disorder (FASD) who commit very serious offences. [ 2 ] On October 24, 2018 Arnez Goodman (Goodman), an eighteen year old indigenous man suffering with an FASD diagnosis sexually assaulted a woman who was walking on the Harte Trail in Winnipeg, Manitoba. Counsel agree that the assault was a major sexual assault, as defined by the Alberta Court of Appeal in R. v. Sandercock, 1985 ABCA 218 .

They also agree there is a nexus between the cognitive deficits Goodman suffers from as a result of his FASD diagnosis and his offending. However, they differ as to their assessment of Goodman’s deficits and Gladue factors and how they impact his moral blameworthiness, and as a result, the sentencing principles that ought to be emphasized in determining the appropriate sentence. [ 3 ] The Crown submits that the appropriate sentence is a term of three years of imprisonment, whereas defence counsel recommends fifteen months of imprisonment.

Both counsel agree that the sentence should be reduced by enhanced pre-sentence custody, followed by three years of supervised probation. The Offence [ 4 ] At approximately 6 p.m. on Wednesday, October 24, 2018, the victim was walking alone on the Harte Trail. Goodman, who was walking in the opposite direction suddenly became sexually aroused with an uncontrollable urge to put his penis in the victim’s vagina. He ran towards the victim while undoing his pants, pushed her to the ground and began opening her pants while covering her mouth and telling her to be quiet as she fought back and screamed “rape”.

Just as suddenly, Goodman ceased the sexual assault and ran away. Victim Impact [ 5 ] The victim has suffered significant emotional trauma-based sequelae as a result of the sexual assault. Although little information was provided to the Court and she declined to provide a formal victim impact statement, she did tell the victim services worker that she continues to experience heightened anxiety and fight or flight impulses and that her sense of community has been deeply impacted. The Offender

[ 6 ] Several reports that detail Goodman’s life and level of functioning were filed as exhibits at the sentencing hearing. These include: • March 5, 2002 Clinic for Alcohol and Drug Exposed Children FASD Report; • December 10, 2015 and January 29, 2016 youth forensic assessments; • March 1, 2016 psychological assessment; • August 18, 2018 Child in Care Social History (Social History); • January 22, 2019 fitness assessment; • July 22, 2019 pre-sentence and Gladue report (PSR); and • August 21, 2019 FASD Court Docket

Summary. [ 7 ] Some remarks about these reports are necessary. First, though generally consistent, there are some discrepancies in the information contained in the reports, such as, Goodman’s biological father’s home community or the specifics of Goodman’s community supervision plan when he committed this offence. Where there are such discrepancies, I have relied on the Social History as it is firsthand information. Next, the Social History contains some commentary by the social worker about Goodman’s level of functioning which appears to be at odds with the medical reports.

I have considered that commentary as being made within the context of Goodman’s medical diagnosis, and not as an opinion as to his actual level of functioning. For example, when the social worker writes that Goodman is “a problem solver”, I read that statement contextually bearing in mind his severe impairment in the social adaptive and executive functioning brain domains. Finally, some of the reports elicit Goodman’s self-reported information which appears to be inherently unreliable, such as his information that his grandmother supplies him daily with marijuana.

Once again this information must be considered in the context of his medical diagnosis. [ 8 ] Notwithstanding these remarks, it is abundantly clear from all of the reports that Goodman’s life has been mired in trauma and limitations.

FASD and Other Diagnoses [ 9 ] Goodman has been diagnosed with FASD (formerly referred to as pFAS or Partial Fetal Alcohol Spectrum disorder), as well as a host of disorders: global developmental delay, attention deficit/hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), psychosis not otherwise specified (probable schizophrenia), emerging features of conduct disorder and fear of attachment. [ 10 ] His cognitive abilities are assessed in the extremely low range, meaning that his cognitive functioning is in the bottom two percent of the population with a Full Scale IQ between 55 and 65.

He has severe impairments in six out of the eleven brain domains, specifically, cognitive, social adaptive, language, memory, academic and executive functioning. On a measure of executive functioning, he has impairments in problem-solving, organizational skills, working memory, sequencing, transitioning from one task to another and emotional control. He has a tendency to act out impulsively and has difficulty linking cause-and-effect and learning from past experiences. Regarding his social adaptive impairments, he has difficulty properly reading social cues.

His affect is often described as flat or non-emotional, his level of comprehension as rudimentary and his perception of reality, inaccurate. Overall, he suffers from an intellectual disability, which renders him a vulnerable person as defined in The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c. V90 . He is unable to live independently. [ 11 ] He is described in the reports as reserved but personable, polite, cooperative and compliant.

However, he can become physical when he loses patience, feels provoked or the need to protect someone, or perceives someone is planning to sexually assault him. As noted by one of his care workers, Goodman can become confused because of his low IQ, which may be a “recipe for exploding”. Gladue Factors [ 12 ] Goodman’s family comes from Sandy Lake First Nation. Unfortunately, there is no information about this First Nation community in the PSR.

However, it is patently clear that there are significant Gladue factors given Goodman’s family history, which includes residential schools, substance abuse and child welfare involvement. [ 13 ] Born two months premature, Goodman was apprehended at birth due to his mother’s abuse of alcohol and sniff and gang activity. Since then, Goodman has had little to no relationship with his parents or siblings. [ 14 ] He was placed with family members until the age of four when he became too difficult to manage despite the extra support provided in response to his FASD diagnosis at the age of two.

Between the ages of six and ten, he was placed in a home where he was sexually assaulted and neglected, and often locked in the basement for extended periods of time. He then spent three years in another placement. During this time, he was sexually assaulted by his sister and adult males. He too sexually offended when in that placement, once against an eight year old boy when he was eleven, and then against a six year old girl when he was twelve. He was never charged for this offending.

He was then placed in an emergency shelter before living with his grandmother for two years until he was ultimately placed in an Opportunity for Independence (OFI) group home where he was living at the time of the offence. The Social History reports Goodman displayed sexually assaultive behaviour towards a female staff in June 2018.

Criminal History [ 15 ] The October 24, 2018 sexual assault is Goodman’s first adult conviction. There are eight entries on his youth criminal record. His youth offending began at the age of thirteen and occurred while he was living at his third placement and his grandmother’s. Of particular concern is a robbery committed with co-accused against a stranger and two assaults with a weapon committed against his cousins. It appears Goodman did not like how his cousin was treating their grandmother and thought he had stolen from him.

After asking his grandmother if he should stab him with a knife and being told no, he did so anyway, twice in the upper body and twice in the lower body. He received short custodial sentences and probation for these latter offences. After being placed in the OFI group home in 2016, there was no further offending or breaches of his probation order.

Risk Factors [ 16 ] The ability to adequately support Goodman in the community and address his risk factors is mentioned frequently in the reports. [ 17 ] The PSR notes that the LS/CMI (Level of Service/Case Management Inventory) places him at a medium risk to re-offend generally, and at an above average risk to re-offend sexually, noting, however, that the Static-99 sexual risk assessment tool does not measure all relevant risk factors and that Goodman’s risk might be higher than indicated. [ 18 ] Though he has received some programming, including counselling for his own past trauma and offending, it appears Goodman may have difficulty receiving the full benefit of such programming given his limitations.

It is clear that support and supervision are key to controlling and limiting his behaviour. [ 19 ] Many professionals express concern about Goodman being in the community without constant supervision. His prior placement with OFI appears to have largely offered this level of supervision though it seems there may have been some gaps. The PSR indicates that Goodman was under constant eyesight supervision and that he snuck out of the residence and committed the October 24, 2018 sexual assault.

However, Goodman’s lawyer suggests that a respite worker was pre-occupied with their cellphone and not attentive to Goodman’s whereabouts whereas the Social History indicates Goodman was allowed out of the placement unsupervised for very short walks. The PSR writer understandably recommends that Goodman only be released once CLdS (Community Living disAbility Services) is able to secure appropriate 24-hour staffed housing and additional outreach support.

The PSR writer recommends that all support staff be fully apprised of Goodman’s history and challenges with impulse control and the seriousness of his offending because although Goodman’s behaviour suggests he has the ability to present as stable, he still presents a level of risk to the community. [ 20 ] Unfortunately, at the time of the sentencing hearing on August 21, 2019, CLdS had not yet formulated such a plan.

This is unfortunate and unfair to the accused and the Court, as this type of information can inform the sentencing process, both in terms of the sentence itself and any appropriate probation conditions. The Court heard that planning typically takes six to twelve months. Although a referral was made when the offence occurred, little work had been done as CLdS was waiting for the sentencing decision. Realistically however, it is clear that there are little, if any, appropriate placements in this Province for offenders like Goodman.

Several days before rendering this decision, the Court was advised that CLdS arranged for a residential placement through Life’s Journey and that line of sight supervision will be arranged between Life’s Journey and CLdS. Sentencing Principles [ 21 ]

Section 718 of the Criminal Code sets out the purpose of sentencing, its objectives and principles. Fundamentally, proportionality is the cardinal principle in crafting a sentence. ( See: R. v. Lacasse , 2015 SCC 64 at para. 12 ). The severity of a sentence depends not only on the seriousness of the offence and its impact on the victim, but also on the moral blameworthiness of the offender. Seriousness of the Offence [ 22 ] A major sexual assault is undoubtedly a very serious offence. In this case, the offence has had a significant impact on the victim.

While a starting point of a three year penitentiary sentence enunciated in Sandercock has been endorsed in Manitoba, it is subject to consideration of other sentencing principles. As noted in Lacasse , at paras. 75 and following, starting points or ranges of sentences reflect the principles and objectives of sentencing and are nothing more than summaries of the minimum and maximum sentences imposed in the past.

They “should not be considered “averages”, let alone straight jackets, but should instead be seen as historical portraits for the use of sentencing Judges, who must still exercise their discretion in each case.” Moral Blameworthiness [ 23 ] Goodman’s moral blameworthiness is significantly reduced as a result of both his cognitive deficits and Gladue factors which are in many ways intertwined. FASD [ 24 ] The Manitoba Court of Appeal has noted on several occasions that there must be a nexus, or connection, between an offender’s FASD diagnosis and the offence for which he stands charged. ( See: R. v.

Friesen , 2016 MBCA 50 ; R. v. Okemow , 2017 MBCA 59 ; R. v. J.E.D. , 2018 MBCA 123 ). [ 25 ] In Okemow , at para. 73 , Mainella J. A. suggested the following approach when considering whether such a connection exists:

1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made asto the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking intoaccount whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [26] As for the impact cognitive limitations may have on the degree of moral blameworthiness, the Court in J.E.D. notes at para.72., in reference to R. v.

Ramsay, 2012 ABCA 257: Where the cognitive deficits experienced by the offender significantly undermine the capacity to restrain urges and impulses, toappreciate that his acts were morally wrong, and to comprehend the causal link between the punishment imposed by the court and thecrime for which he has been convicted, the imperative for both general deterrence and denunciation will be greatly mitigated (Quash [R vQuash, 2009 YKTC 54 ] at para 71; Harper [R v Harper, 2009 YKTC 18 ] at para 47).

We agree with the observationof the court in Quash that: That is not to say that the principles of general deterrence and denunciation have no place in sentencing FASDoffenders. In certain cases there may be a role, depending on the nature of the offence and the degree of moral culpability of the offender,based upon the extent of his or her cognitive difficulties” (at para 72). The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable toFASD.

The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded todeterrence and denunciation, all of which will serve to “push the sentence ... down the scale of appropriate sentences for similaroffences”…(Ramsay, at paras. 24-25) [27] While the Crown concedes Goodman’s FASD diagnosis played a role in his current offending, she submits that this particularoffence as well as his previous offending, demonstrates that Goodman has the ability to plan and control his impulsivity.

With respect,this submission is not consistent with the evidence before the Court. [28] FASD is a brain injury. Depending on the extent and location of the injury, cognition and behaviour may be affected to varyingdegrees. In this case, the medical reports and documented level of Goodman’s functioning clearly denote a severely impaired level ofimpulsiveness, emotional control, and ability to link cause and effect and learn from past experiences which are consistent with theimpulsive nature of Goodman’s criminal conduct.

The reports are also clear as to his level of risk and his constant and continuing needfor support and supervision. Further, a post offence expression of remorse, though positive, does not necessarily translate into an abilityto use that information to change future behaviour. As previously noted, Goodman is a poor historian and it is unclear how much hetruly understands.

While he did tell the PSR writer that the sexual assault “was the wrong thing to do”, that he regretted his actions, andthat he would control his urges and not reoffend in the future, not only was Goodman unable to explain how, he did not seem tounderstand simple questions the PSR writer asked about his sexual offending. In the end, the evidence suggests Goodman has littleability to either control his urges, consider potential consequences of actions, or learn from past experiences.

Gladue [29] The courts have long recognized that systemic and background factors may bear on the culpability of an offender, to the extentthat they shed light on his or her level of moral blameworthiness. Many indigenous offenders find themselves in situations of social andeconomic deprivation with a lack of opportunities and limited options for positive development as a result of the legacy of colonization,residential schools and government policies.

This legacy often translates into lower educational attainment, lower incomes, higherunemployment, higher rates of substance abuse, suicides and higher levels of incarceration. [30] As already indicated, Goodman’s Gladue factors are, in many regards, intertwined with his cognitive deficits. His family’shistory of residential schools, substance abuse and child welfare involvement has had a direct impact on Goodman.

Not only has hisbrain been affected by his mother’s alcohol and substance consumption during pregnancy, the loss of his family and communityconnections exposed him to a life of significant neglect and trauma, including victimization. These Gladue factors clearly reduceGoodman’s moral blameworthiness. Aggravating and Mitigating Factors [31] The aggravating factors in this case relate to the nature of the offence and the manner in which it occurred, the impact to thevictim and Goodman’s prior criminal record.

That said, given Goodman’s severe impairment to his executive functioning this latteraggravating factor needs to be tempered as his ability to learn from past experiences and be deterred is severely impacted. [32] The mitigating factors include Goodman’s guilty plea which has spared the victim from testifying. There is also his statedremorse, his young age, and significantly, his Gladue factors and FASD related cognitive limitations. Parity and Restraint

[ 33 ] Several cases were provided to the Court for their general principles. As already noted, the Crown submits that Goodman’s moral blameworthiness should not be heavily discounted. She also submits that general deterrence and denunciation and separation from society should be emphasised. [ 34 ] In Ramsay , the Court reviews the applicability of sentencing principles to FASD affected offenders. ( See: Ramsay at paras. 16 and following) Importantly, Ramsay notes that sentencing principles need to be commensurate with the offender’s cognitive deficits attributable to FASD.

However, Ramsay also notes that protection of the public also factors into crafting a sentence which includes pragmatically, the “feasibility of reintegrating the offender into the community through a structured program under adequate supervision.” ( Ramsay , para. 16 ). As noted, at para. 17, in reference to an

article by Kent Roach and Andrea Bailey (“The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from the Investigation to Sentencing” (2009) 42 UBC L Rev 1) …The determination of an appropriate sentence for the FASD offender is a challenging task for courts.

Although it is increasingly recognized that FASD is a disability that can have a profound impact on the level of an offender’s moral culpability, the mitigation that this consideration would normally have on the length of a sentence is frequently tempered by the practical need to protect the community. [Yet often] the programming available to an FASD-affected offender is inadequate and the resources to support and monitor such an individual in the community are severely lacking (at para. 85). [ 35 ] The paucity of appropriate housing and supervision for offenders like Goodman was made abundantly clear at the sentencing hearing.

A representative from CLdS testified at the sentencing hearing that there are very few community agencies equipped to adequately house and supervise Goodman. While protection of the public is a very important consideration in sentencing, it is a very disturbing statement to say that because of the lack of appropriate housing and supervision for individuals with cognitive deficits, jail is the only answer. Indeed, this pragmatism translates into incarcerating a cognitively impaired offender who would not otherwise have been incarcerated or for not as long but for adequate and appropriate community resources.

Decision [ 36 ] In balancing all of the relevant sentencing principles, I find that a two year sentence with three years of supervised probation is appropriate. Though Goodman has significant reduced moral blameworthiness, the offence is extremely serious. A sentence of fifteen months, as recommended by defence, would fail to recognize the need to respect the principles of denunciation.

The Crown’s recommendation of three years, fails to adequately recognize the significantly reduced moral blameworthiness. [ 37 ] As Goodman has been incarcerated prior to his sentencing, he is entitled to enhanced credit pursuant to Section 719 (3.1) of the Criminal Code . As of today, he has been in presentence custody for 394 days, which is the equivalent of 591 days enhanced. This time will be noted, going forward is a further one hundred and thirty nine days (roughly four months and nineteen days). This period of custody will be followed by three years of supervised probation with the following conditions: 1.

Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. Notify your Probation Officer or the Court before you change your name or address, and promptly tell your Probation Officer or the Court if you change your job or occupation; 4. You must report to the Provincial Director or designate by calling 1-800-334-8792 within 24 hours of release from custody. After you first report, you must continue to report and be supervised by your Probation Officer when and how you are told by your Probation Officer; 5.

You are to attend, participate and complete all assessments, counselling and programming as directed, including sexual offender counselling as directed; 6. You are to continue receiving all psychiatric care and taking all prescribed mediation as directed (condition imposed with the consent of Mr. Goodman); 7. You are not to be on the Harte Trail. [ 38 ] There are also several ancillary orders as follows:

Section 487.051 Criminal Code primary designated DNA order to be completed within thirty days of release from custody unless completed while in custody; 2. Twenty year Sex Offender Information Registration Act (SOIRA) Order pursuant to

Section 490.012 of the Criminal Code ; 3. Ten year Weapons Prohibition pursuant to

Section 109 of the Criminal Code . [ 39 ] Costs and surcharges will be waived pursuant to Section 737 (2.1) of the Criminal Code as such an order would cause undue hardship to Goodman. “Original signed” Martin, P.J.