R v JM, 2024 MBPC 10

CITATION: R v JM, 2024 MBPC 10 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) Brett Rach ) ) for the Crown – and – ) ) ) J.M. ) ) Saul Simmonds, K.C. for the Accused ) ) Judgment delivered: ) January 25, 2024 Restriction on Publication – of victims and witnesses: Pursuant to s.486.5 of the Criminal Code Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. BRIGHT, P.J. INTRODUCTION [ 1 ] J.M. has pleaded guilty to one count of sexual interference. The victim is his biological daughter, A.M.

The Court’s task is to determine the appropriate sentence. THE CIRCUMSTANCES OF THE OFFENCE [ 2 ] Prior to being charged with the offence before the court, the accused was living with his wife and their two children. A.M. is his oldest child. [ 3 ] An agreed statement of facts was filed at the sentencing hearing in which the accused admits to at least five occasions where he sexually abused A.M. over the course of approximately three-and-a-half years when A.M. was between 12 and 15 years old. [ 4 ] The first incident took place in the accused’s bedroom while A.M. was on his bed.

The accused approached her, removed his clothing, and began touching her body. A.M. told him to stop, but he continued. She attempted to leave, but he prevented her from doing so. The accused took hold of A.M.’s hand and rubbed it on his penis while he continued to touch her body with his other hand. The incident ended when A.M. pulled away and ran to the washroom. [ 5 ] The second incident again took place in the accused’s bedroom on his bed. A.M. was on the bed and the accused approached her without pants on. The accused forced digital penetration on A.M.

A.M. told the accused to stop but the accused ignored her and continued. She thought he was going to force penile penetration. She managed to push him off of her and ran to the bathroom. A.M. said that her vagina was bleeding and it hurt to use the washroom after this incident. [ 6 ] There was at least one more occasion where the accused forced digital penetration on A.M. Further details with respect to that incident were not provided. [ 7 ] A fourth incident took place when the family was camping at West Hawk Lake. A.M. was inside a trailer watching a movie on a bed when the accused entered.

He closed the blinds, removed his clothing, and got into bed with her. He began to touch A.M.’s lower body and then took her hand and rubbed it on his penis. A.M. managed to get away from him and left the camper. She said that she felt threatened by his words and actions at that time. [ 8 ] The fifth incident took place in April of 2021. A.M. was getting out of either a shower or a hot tub, and the accused approached her and began touching her lower body on her hip and thigh. A.M. fled to her bedroom before the touching escalated.

[ 9 ] On July 19, 2021, A.M. disclosed what was happening to a friend’s mother. Child and Family Services was contacted. A.M. spoke to her mother that day and told her about the sexual abuse. A.M.’s mother contacted the accused by telephone as he was working out of town at the time. When confronted, the accused apologized and admitted that “multiple incidents” had taken place. He was arrested by Winnipeg Police in August of 2021. THE CIRCUMSTANCES OF THE OFFENDER [ 10 ] The accused is 46 years old. He has no prior criminal record. In a report prepared by Dr.

Lawrence Ellerby, which I will address in further detail later in my reasons, the accused spoke of wanting to reconcile with his wife. While the current circumstances of his marriage were not completely clear at the sentencing hearing, the Crown advised that the accused’s wife is not interested in reconciling with him. [ 11 ] A number of support letters were filed by the accused’s family members. The accused has a lengthy work history, and letters of support were also filed by a number of his former and current co-workers.

All of his supports spoke of how out of character they perceived the offending to be, and that the accused is an otherwise law-abiding, contributing member of society who is dedicated to his family. THE IMPACT ON THE VICTIM [ 12 ] A.M. read her victim impact statement in court during the sentencing hearing. Her words were powerful and haunting. It is safe to say that the impact of the accused’s offending has been, and likely will continue to be, life-altering. Her sense of self-worth, safety, and trust in other people has been shattered.

She described feeling “trapped and unsafe” in her own home, and that instead of loving her father, she felt afraid of him, so much so that she would often stay awake all night for fear that he would come into her room and abuse her while she was asleep. She became “closed off and insecure.” She lost friendships because she was unable to trust other people. She became overwhelmed by her emotions which caused her to engage in self-harm and attempts to end her life. She had to go to the hospital on more than one occasion when she was harming herself.

She was prescribed anti-depressants and sleeping pills by a psychiatrist who diagnosed her with depression and anxiety, but not knowing the reason for it. She was too terrified to disclose what was happening to her, worried that no one would believe her and about the impact on her family.

In short, what she described is an adolescence destroyed by the accused’s offending. [ 13 ] It is not lost on this Court how often children who are victims of sexual abuse by family members in particular, are reluctant to disclose the abuse being perpetrated on them because they are concerned about what disclosure will do to their families. It is a sad irony that the child takes on that feeling of responsibility, when the impact on the family is always the responsibility of the offender, not the victim. THE TREATMENT PROGRESS REPORT [ 14 ] The accused filed a “Treatment Progress Report” prepared by Dr.

Lawrence Ellerby of Forensic Psychological Services, which was compiled in August 2023. The accused’s first intake appointment was October 28, 2021. At the time the report was prepared, the accused had attended 35 sessions with Dr. Ellerby. I was advised during the sentencing hearing that the accused continued to attend for therapy up until the time of his sentencing. [ 15 ] Dr. Ellerby reported that when the accused first began attending to treatment, he struggled to engage in any meaningful way.

Progress was described as “slow and arduous.” To his credit, the accused continued to attend sessions and eventually began to open up and provide further self-disclosure, including that he had been sexually abused as a child by two older male cousins. By the time the report was prepared, Dr. Ellerby noted that the accused had gone from having no insight into his offending to making significant gains in that area, and that he had “gained a good level of accountability for his behaviour” (Treatment Progress Report at p. 8). [ 16 ] Dr.

Ellerby conducted a number of psychometric tests with the accused in order to assess his risk for future offending. Based on the tests conducted and the therapy the accused engaged in, Dr. Ellerby’s opinion is that his risk to re-offend is somewhere between a low and very low risk (see pp. 13-14). [ 17 ] The accused’s explanation for the offending, as outlined in the report, demonstrates an extremely concerning level of distorted thinking he engaged in to justify the sexual abuse of his daughter. Dr.

Ellerby noted the following: “Prior to his inappropriate and criminal sexual behaviour, [the accused] experienced a change in his marriage, noting a decrease in their level of sexual activity and him perceiving his wife to be less interested in him, less connected in their relationship, and believing he was being rejected and was not wanted, needed or desired… He began to distort his perceptions of his daughter who was physically maturing and whose body he noticed and saw developing.

He saw [A.M.] as a means of meeting his attention, closeness, connection, and sexual needs and developed distorted perceptions and beliefs in relation to her.” Dr. Ellerby concluded that the accused’s offending was “a distorted and dysfunctional attempt to meet this host of emotional and sexual needs” (at p. 15). [ 18 ] The distortions referenced by Dr. Ellerby can be seen in the “Inappropriate Sexual Pathway Version 7”, completed in November 2022, attached to the report. For example, in the

section labeled “Unhealthy Life Cycle” the accused indicates “not getting sex from my wife so I will get from the next best place, my daughter” (at p. 20). [ 19 ] In the

section labeled “Crime Cycle” he indicates: “A sexual contact with my daughter seemed less wrong and hurtful than having an affair”; “After the first incident I began to think my daughter wants me sexually”; “There is no harm in touching her, I am not hurting her”; “Everything will be ok if no one finds out”; “I need to feel normal so I seek sexual gratification. I don’t want to have an affair as I did not think I was good enough and did not want to hurt my wife.

I thought that approaching my daughter would be easier, less rejection or being hurt, and she would be more likely to show me affection” (at p. 22). [ 20 ] The accused also described engaging in grooming behaviour and boundary testing before the abuse began by doing things such as being naked in his bedroom with the intent of A.M. seeing him and trying to make that seem normal; talking “dirty” in front of her to see how she reacted, and touching her in a non-sexual way to see if she pushed him away (see p. 23).

[21] I will briefly mention the portion of Dr. Ellerby’s report in which he urges this Court to impose a non-incarceratory sentence.He opines that incarceration will not assist in the accused’s rehabilitation and that the accused may not receive treatment in custody as aresult of being assessed as a low risk to re-offend (see p. 16). Given the accused’s therapeutic efforts and Dr. Ellerby’s assessment of hisrisk to re-offend, this opinion is unsurprising, particularly given the patient-therapist relationship.

However, the considerations in astrictly therapeutic relationship are very different than those that the Court must consider. THE POSITION OF PARTIES [22] The Crown seeks a seven-year sentence. In arriving at that recommendation, the Crown says that it has factored in the nature ofthe offending, the significant breach of trust, the impact on A.M., the accused’s lack of prior criminal record, his efforts at rehabilitation,and his assessed low risk to re-offend. [23] Counsel for the accused did not provide me with a specific sentencing recommendation. He proposes that I can consider threeoptions: 1.

A conditional sentence order; 2. A two-year less one day custodial sentence followed by three years probation; 3. A two- to four-year penitentiary sentence. THE PRINCIPLES OF SENTENCING IN CHILD SEXUAL ABUSE CASES [24] In R v Friesen, 2020 SCC 9, the Supreme Court of Canada changed the landscape of sentences imposed for offenders whosexually abuse children by directing sentencing judges to “bring sentencing law into line with society’s contemporary understanding ofthe nature and gravity of sexual violence against children” (at para 50).

The Court held that “[s]entences must accurately reflect thewrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society atlarge,” and was explicit in its instructions to sentencing judges that sentences for these crimes must increase (at para 5). [25] The primary sentencing principles in sentencing offenders who sexually abuse children are denunciation and deterrence.

TheSupreme Court elaborated on what a denunciatory sentence means in R v (M)CA, (SCC), 1996 1 S.C.R. 500 atparagraph 81: [A] sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished forencroaching on our society’s basic code of values as enshrined within our substantive criminal law. [26] Deterrence in the context of sentencing for child sexual abuse offences requires the Court to consider both specific and generaldeterrence.

Specific deterrence means that the sentence must send a message to the offender which deters him from offending again.General deterrence is about the message that the sentence sends to the community about the potential sentence that could be imposed onother offenders who engage in similar behaviour with a view to deterring such behaviour. [27] Courts have also made clear that when the primary sentencing principles are deterrence and denunciation, the focus is on theoffender’s conduct.

While personal factors relating to the offender remain relevant, they necessarily take on a lesser role (see R vMcMillan, 2016 MBCA 12 at para 12). [28] The fundamental sentencing principle is proportionality – that is, the sentence imposed must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.

When considering proportionality in the context of sentencing for childsexual abuse offences, judges must focus their attention on the wrongfulness and harmfulness of sexual violence against children, as theyimpact both the gravity of the offence and the degree of responsibility of the offender. In Friesen, the Supreme Court observed that“proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of the offenderswill frequently require substantial sentences” (at para 114).

It is not enough for courts to say that child sexual abuse is serious: thesentence imposed must reflect that seriousness (see para 76). [29] There remains some debate in this jurisdiction over the application of the Manitoba Court of Appeal’s decision in R v Sidwell,2015 MBCA 56, which until the release of Friesen was the leading case in Manitoba on sentencing child sexual abuse offences. Some ofthe principles in Sidwell remain relevant; in particular, the factors that a sentencing judge should examine in determining an appropriatesentence for an offender (see para 53).

Much of the decision focused on the application of starting points for sentencing offenders whohad committed what was then categorized as a “major sexual assault” on a child under 18 and were in a position of trust.

The Courtdetermined that the starting point in sentencing such an offender at that time was between four and five years (Sidwell at para. 49). [30] In Friesen, the Supreme Court examined the established starting points across the country and noted that some jurisdictions,including Manitoba in Sidwell, placed considerable emphasis on the degree of physical interference in defining a sentencing range orstarting point.

The Supreme Court acknowledged that the degree of physical interference is a recognized aggravating factor, but stronglycautioned provincial appellate courts about the dangers of defining a sentencing range based on penetration or the specific type of sexualactivity at issue (see Friesen at paras 137 and 140).

The Court emphasized that any sexual offence against a child is serious, noting thateven mild non consensual touching of a sexual nature can have a profound impact on the victim, and emphasized that “[t]he modernunderstanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only onbodily integrity” (Friesen at para 142).

[ 31 ] Since the release of Friesen , the Manitoba Court of Appeal has acknowledged that the Supreme Court pushed the reset button on sentences for child sexual abuse offences and that an upward departure from prior sentencing precedents is required in order to bring sentencing in line with society’s current understanding of the gravity of child sexual abuse offences (see Friesen at paras 108-114 ; R v KNDW , 2020 MBCA 52 at para 2 ; also see R v Sinclair , 2022 MBCA 65 at para 61 ). THE AGGRAVATING AND MITIGATING FACTORS [ 32 ] There are a number of statutory aggravating factors in this case:

Section 718.2(a)(ii.1) abuse of a person under the age of 18 years.

Section 718.2(a)(iii) evidence that the offender abused a position of trust.

Section 718.2(a)(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances. [ 33 ] The Crown has asked me to apply Criminal Code s. 718.04 and find that the offence involved abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female. I am not of the view that s. 718.04 applies in this case. However, I note that the vulnerability of children generally, and girls specifically, is recognized by sentencing judges.

Sexual violence has a disproportionate impact on girls and young women, and adolescent girls in particular are disproportionately impacted by sexual violence. [ 34 ] I want to elaborate further on some of the statutory aggravating factors and address some additional aggravating factors in this case: 1. Abuse of position of trust [ 35 ] Courts have made clear that the more significant the abuse of a position of trust, the higher the degree of moral blameworthiness. There is no trust relationship more significant than that between a parent and child.

Children who are abused by trusted caregivers will often disclose long after the offending takes place, and many never disclose at all. They worry about being believed, about the impact on their families and the people around them. The breach of trust in this case resulted in significant additional harm to the victim and results in an elevated degree of moral blameworthiness on the part of the accused. 2. The duration and frequency of the offending [ 36 ] The accused sexually abused A.M. for more than three years and on at least five occasions.

A.M. described the fear and distress she experienced during that time, constantly worried about being alone with her father or even falling asleep if he was nearby. The accused had opportunity after opportunity to stop, to reconsider what he was doing and to get help, but he did not stop until she disclosed, and he was confronted. 3. The impact on the victim [ 37 ] The impact on A.M. during the offence and in the aftermath is tremendous. Her bodily autonomy and sexual integrity were violated throughout the time she was being abused.

She was not able to obtain the psychiatric help she needed because her treatment team was not aware of the reason for her anxiety and depression. The long-term effects of the offending are yet to be seen. Not only has she been impacted, but the entire family has been impacted by the accused’s offending. In Friesen , the Supreme Court discussed the ripple effect of sexual violence against children which makes the child’s parent, caregivers and family members secondary victims who also suffer profound harm as a result of the offence, as evidenced in this case. 4.

The age of the victim [ 38 ] The offending against A.M. began when she was 12 years old and still a young child. A.M.’s age and circumstances made it impossible to protect herself or remove herself from the situation. At that age, she was completely dependent on both of her parents to provide for her everyday needs. She was obliged to continue living with the person who was abusing her. The offending continued until A.M. was nearly 16, during what should have been a time in her life where she could rely on her parents to help her transition from childhood into adulthood. 5.

The degree of physical interference [ 39 ] While some of the offending amounts to sexual touching, the repeated and ongoing nature of it increases its severity. In addition, there were two incidents of digital penetration, which caused physical pain and injury on one occasion. A.M.’s right to develop to adulthood free from sexual interference and exploitation by adults was taken away from her. The fact that the offender was her biological father increases the degree of severity. [ 40 ] There are a number of mitigating factors to take into account in this case, including: 1.

The accused has entered a guilty plea, which I accept as a sign of remorse and an acceptance of responsibility. I note that when addressing the court, the accused acknowledged the impact of his offending on his daughter. He was emotional, apologetic and contrite. I accept that having gained insight into his offending, he is genuinely remorseful for what he has done. 2. The accused has no prior criminal record. 3. The accused has strong support in the community including family and friends who have provided letters of support for him. He has

a significant employment history and has been a contributing member of society prior to the time the offending began. 4. The accused has undertaken significant rehabilitative efforts since his arrest. He has participated in a fulsome manner in his therapy and has gained significant insight into his offending. I accept Dr. Ellerby’s conclusion that the therapy he has engaged in has served to mitigate his risk to re-offend, and that he is a low risk to re-offend.

The accused’s participation in therapy is a sign of remorse in addition to the guilty plea. [ 41 ] While the post-offence therapy is a mitigating factor, when I consider the extent to which it impacts the accused’s moral blameworthiness, I find that it does not reduce it in a significant way. The time to reach out for help was when the accused first started thinking that sexually abusing his own child was a better alternative to having an extra-marital affair with an adult in order to satisfy his sexual needs.

The thought process he engaged in at the time, to justify his behaviour and ignore the serious harm that he was causing to his child, is exceptionally alarming. Despite all of the obvious signs that A.M. was suffering, the abuse did not stop. By the time the accused sought help, the harm had already been done. CONCLUSION [ 42 ] A parent’s job, from the moment their child is born, is to keep their child safe. A child’s home should be a place of refuge – a place that a child knows that she can go to when things in the world are frightening, overwhelming, or confusing.

Instead of keeping A.M. safe, the accused made her home a terrifying prison throughout her adolescence by repeatedly sexually abusing her. A.M. experienced thoughts of suicide and engaged in self-harm as a result of the accused’s abuse. She was medicated and diagnosed with mental health injuries while the abuse was ongoing and was unable to be truly helped because the reason for the problems she was having remained a secret.

The accused’s moral blameworthiness is extremely high. [ 43 ] With respect to the proposal that I sentence the accused to a conditional sentence order, no authority was provided in support of such a sentence from either party, nor was it strenuously argued that it would properly address the principles of sentencing that I need to consider. In order for me to impose a conditional sentence order, I must be satisfied of three things: 1. That there is no mandatory minimum sentence; 2. That the appropriate sentence is less than two years; 3.

That serving the sentence in the community would not endanger the safety of the community and would be consistent with the purposes and principles of sentencing set out in Criminal Code sections 718 and 718.2 . [ 44 ] A conditional sentence order is not available in this case because I am not satisfied that a sentence of less than two years is appropriate, nor am I satisfied that a sentence served in the community would be consistent with the purposes and principles of sentencing for the reasons I have outlined above.

I am similarly not satisfied that a provincial term of incarceration is appropriate, nor does my review of the authorities post- Friesen support the imposition of such a sentence. [ 45 ] When I consider the nature of the offending, the duration and frequency, the tremendous breach of trust, the impact on the victim, the high degree of moral culpability, and the offender’s personal circumstances including the therapy that he has engaged in since his arrest, nothing short of a lengthy penitentiary sentence will satisfy the principles that I have set out.

In Friesen , the Supreme Court made clear that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” (at para 114). [ 46 ] The sentence is seven years. [ 47 ] Pursuant to Criminal Code s. 490.013(2) (b), I am making an order that the accused comply with the Sex Offender Information Registration Act (SOIRA) for a period of 20 years. [ 48 ] Pursuant to s. 161(

b) of the Criminal Code I am making an order that the accused will not seek, obtain or continue any employment, whether or not that employment is remunerated, or become or be a volunteer in any capacity in which he will be in a position of trust or authority over anyone under the age of 16 for a period of 15 years. [ 49 ] Pursuant to s. 743.21 of the Criminal Code I am making an order that while the accused is serving his sentence that he will have no contact or communication directly or indirectly with A.M. [ 50 ] Sexual interference is a primary designated offence and I am making an order that the accused provide a sample of his DNA suitable for analysis to be kept on the national data bank.

The order will be carried out while he is serving his sentence. [ 51 ] Pursuant to s. 109, there is a 10-year mandatory weapons prohibition. [ 52 ] Given that I have imposed a custodial sentence, there will be a waiver of costs and surcharge. “Original signed by:” MICHELLE BRIGHT, P.J.