Her Majesty the Queen - v. -, 2012 SKPC 143

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation 2012 SKPC 143 Date: October 10, 2012 File: 24441073 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - L. (T.T.) Mr. Glen Herman, Q.C. For the Crown Mr.

Adrian McBride For the Defence Note: An order pursuant to s. 48.4 of the Criminal Code of Canada has been made directing that the identification of the complainant and any information that could disclose the identification of the complainant or witness shall not be published in any document or broadcast in any way. ____________________________________________________________________________________________ SENTENCING REASONS L.A.

MATSALLA , J ____________________________________________________________________________________________ [ 1 ] L. has pleaded guilty to the offence of sexually assaulting the complainant - a 10 year old girl. The offence is an offence contrary to section 271(1) of the Criminal Code . The Crown proceeded summarily and the maximum penalty that can be imposed cannot exceed 18 months in jail. There is no minimum period of incarceration. [ 2 ] The incident occurred on November 18, 2011 and was reported in early January of this year. L., who was 29 years of age at

the time, spread the legs of the complainant and touched her by rubbing her vagina over her bed clothing for a few minutes.

After initially denying his involvement, and then, only after a failed polygraph test, he admitted that he had touched the young girl. [ 3 ] The victim is the daughter of a man who is the friend of L.’s father. [ 4 ] L. takes the position that one hour earlier he had seen the complainant, who was his step-daughter’s friend and who was spending the night at the residence, simulating sexual behaviour with the daughter by straddling her and encouraging her to place her mouth near the girl’s breast.

He saw his contact with the girl as a way to discipline her. [ 5 ] He is a valued employee and he does not have a criminal record. According to the Pre-Sentence Report, the application of the Saskatchewan Primary Risk Assessment has concluded that he is generally a low risk to re-offend and it was determined that 92% of Saskatchewan offenders have more risk factors. The application of a tool to determine sexual recidivism indicates that he is a low risk. He has, however, minimized his actions and he appears to have little, if any, empathy for the victim who is taking counselling as a result of the incident.

Although the extent of the trauma that she has experienced is not clear, it is evident that she is troubled by the incident. The complainant’s mother filed a Victim Impact Statement in which she described the effect that the incident has had on her family. [ 6 ] The Crown argues that the range for sentencing in this case is between six and nine months in jail. The defence submits that a significant fine can be imposed. [ 7 ] The offence before the Court is a “serious personal injury offence” as defined by

section 752 of the Code and consequently a conditional sentence cannot be considered by the Court. The purposes and principles as set out in sections 718 to 718.2 must be applied to any sentence that is to be imposed upon an individual.

Section 718.2(a)(ii.1) provides that the Court must consider evidence that the offender abused a person under the age of 18 years as an aggravating factor. When imposing a sentence,

section 718.2(a)(iii) requires that if an accused abused a position of trust or authority in relation to the victim then that circumstance is to be considered an aggravating factor.

Section 718.01 states that when a sentence is imposed in a case in which there is an abuse of a person under 18 years of age, the objectives of denunciation and deterrence are to be given primary consideration. [ 8 ] While L.’s relationship to the complainant was in the nature of a parent to the child of another, I cannot conclude that he abused a position of trust or authority in relation to the victim. I base my conclusion upon the analysis of the Supreme Court of Canada in R. v. Audet [1] . In that case the defendant was a teacher and the victim had been his 14 year old student.

The Court concluded that the word “trust” refers to a confidence in or a reliance on some quality or attribute of a person and “authority” refers to a power to influence the conduct of others. The Court went on to state that the meaning of the term need not be restricted to cases in which the relationship of authority arises from a role of the accused but must extend to any relationship in which the accused actually exercises such a power. On the evidence before me, it is evident that

section 718.2(a)(iii) does not apply to the accused. [ 9 ] L. argues that he was angry at the complainant because of the simulated sexual act that she was performing with his step- daughter. He committed the offence one hour after witnessing the act and so it appears that he did not act spontaneously but rather there may have been some premeditation. Certainly if he was concerned about the conduct of the complainant he could have separated the girls and/or taken other steps to deal with the matter.

Committing a sexual assault in order to punish a 10 year old is peculiar and, of course, unacceptable. [ 10 ] A review of the cases demonstrates that certain major factors influence the direction of sentencing in cases such as this. Major sexual assaults including those involving forced intercourse will attract a sentence of three years or more. A criminal record is a factor especially if an accused has been convicted of similar offences in the past. Penetration is significantly more serious than touching or fondling.

The abuse of a position of trust, in particular the abuse of a child by a family member, will attract a greater penalty. An assault in which there is a disparity in age between the victim and the accused is considered a significant factor. Multiple sexual assaults committed against one or more complainants is serious. The extent of violence used or threatened to be used is an important consideration. Many of the above noted factors have been taken into account in specific instances in which the courts have given weight to the need for denunciation and deterrence - even before the enactment of

section 718.01.

[ 11 ] When sentencing options are considered in this case, there are no mitigating factors such as the mental state of the accused that could justify a discharge as in R. v. Tillman [2] or R. v. Ingrey [3] . The nature of this offence involves more than transitory contact and therefore a fine (as was imposed in R. v. Hayko [4] and R. v. Ashby [5] ) would not be an appropriate sentence. [ 12 ] Prior to the exclusion of a community based disposition for

section 271 offences a conditional sentence was an available disposition. Clearly in each of the cases in which such a sentence was imposed, the Court was of the view that a jail sentence was appropriate.

Since a custodial sentence served in the community can be longer than a sentence served in an institution, it is difficult to compare the length of the former with the length of the latter, nonetheless the response of the Court to the facts in these cases is helpful. [ 13 ] The Supreme Court of Canada in a trilogy of cases [6] considered whether a conditional sentence was a fit sentence for certain sexual offences.

In R.A.R. , the accused employer was in a position of trust or authority vis-a-vis an adult victim who was an employee and he committed a sexual assault upon her that consisted of placing his hands in the victim’s pants and pulling her pubic hair. He was also convicted of two other common assaults upon the same victim.

The Court concluded that a sentence of six months in the community should be set aside and that a one year jail sentence ought to be imposed for the sexual assault due to the abuse of the position of trust or authority that the accused held and the demeaning and violent nature of the assault (paragraphs 32 and 33). In R.N.S. , the accused fondled the vagina of a young step-daughter on two to three occasions over a four year period. The girl was between five and eight years of age. The Court set aside a six month conditional sentence and held that an appropriate sentence would be a nine month jail sentence.

Finally, in L.F.W. , the accused was convicted of one count of indecent assault and one count of gross indecency both of which were committed over a six year period and in which the victim was between six and twelve years of age. The offences involved forced masturbation and fellatio. The Court was split in upholding a 20 month conditional sentence. In each of the cases, the Supreme Court of Canada emphasized that denunciation and deterrence must be given significant weight - an approach that is now largely codified in

section 718.01. [ 14 ] The Court of Appeal of this province in R. v. Chrispen [7] dealt with an incident in 2006. The complainant had advertised her car for sale and the accused expressed interest. He met her and took the vehicle for a drive but, while applying the brakes twice, he touched her upper chest and later he brushed a breast and he then squeezed both breasts over her t-shirt as she reached for her cell phone. He had a dated criminal record albeit a lengthy one consisting of over 40 break and enter and theft convictions and he was a low risk to re-offend. A nine month jail sentence was imposed at trial.

The Court of Appeal said that the offence was on the lower end of the scale and a conditional sentence of nine months was substituted after the Court, at paragraph 46, held that a three to 12 month conditional sentence was the appropriate range. At paragraph 55, the Court concluded that a nine month custodial sentence was not within the range of fitness. The Court referred to the case of R. v. L.T.W. [8] in which an adult store owner grabbed the breasts of a 13 year old and asked her if she would like to go upstairs to make money implying that

an act of prostitution be performed. The accused did not have a criminal record, he had health and other unique personal issues and the incident was an isolated one. A three month jail sentence was replaced by a three month conditional sentence order. The Court also referred to the case of R. v. Mebrate [9] in which a six month conditional sentence and a 30 month probation order were imposed in a case in which an elderly man kissed the complainant on the face and neck and fondled her breasts and the case of R. v.

Calnen [10] in which an accused touched a child and, even with a dated criminal record for gross indecency and sexual assault, a four month conditional sentence was upheld. [ 15 ] The defence has referred to a decision of our Court of Queen’s Bench in R. v. Tuffs [11] in which an off-duty female police officer was asleep when the accused placed his hand down her pants and touched her vagina and then grabbed her hair in an attempt to kiss her. The incident could have been ongoing for 30 seconds to a couple of minutes.

At trial, a suspended sentence was imposed with an 18 month probation order, however on appeal the Court of Appeal (at paragraph 10) concluded that the case should draw a period of incarceration [12] . The use of physical force was a significant aggravating factor and a one year jail sentence was imposed. [ 16 ] Our Court of Appeal in R. v. M.S. [13] has reviewed the range of the sentences that ought to be considered in certain circumstances.

In the case of single acts of non-consensual intercourse between drunken adults, sentences in the area of three years have been imposed and in cases of sexual offences against children the Court has concluded that neither a suspended sentence nor a conditional sentence was a fit sentence. Cameron J.A. referred to cases in which a range of sentences of six months to one or two years to three years was applicable. In the case of R. v.

V.M.W. [14] , an accused without a criminal record was sentenced to nine months in jail followed by a period of two months on probation for sexual assaults upon his seven and eight year old step-daughters and his 12 year old niece that were committed on a number of occasions and included digital penetration. The children suffered serious psychological effects from contact with the accused.

[17] I have not found nor have I been referred to cases that bear a close resemblance to the case before me but after examining theauthorities and applying the purposes and principles of sentencing, it seems to me that, after considering the comments the SupremeCourt of Canada in R.A.R., supra and examining the Court’s decision in R.N.S., supra and after considering the comments of the Court ofAppeal in R. v. Chrispen, supra, the sentencing range for an offence such as the offence before me ought to be less than nine months incustody but greater than the sentence imposed in L.T.W., supra.

The sentencing range is likely a narrow one that, I would suggest, isbetween three months and six months in jail depending on the circumstances. In this case, it seems to me that the significant factors arethe accused’s lack of any criminal record, the age of the complainant, the nature of the touching as well as the accused’s lack ofremorse. Conclusion [18] I impose a sentence of six months in custody followed by a probation order for one year. The offence is a “primary designatedoffence” and, therefore, I am required to make an order pursuant to

section 487.051(1) authorizing the taking of samples of bodilysubstances from the accused and, furthermore, the offence is a “designated offence” under

section 490.011(1) and I am required to makean order pursuant to

section 490.012(1) requiring the accused to comply with the provisions of the Sex Offender Information RegistrationAct for a period of 10 years. Counsel will be invited to make further submissions as to the terms of the probation order and to makeapplication for such other orders as they may consider appropriate. __________________________ L.A. Matsalla, J [1] (SCC), [1996] 2 S.C.R. 171, paragraphs 33 - 45 [2] 2010 SKPC 2 , 2010 SKPC 002 [3] 2003 SKQB 300 [4] 1998 SKCA (SentDig) 58. The accused was developmentally delayed as well. [5] 2011 SKQB 369 [6] R. v. L.F.W., 2000 SCC 6 , [2000] 1 S.C.R. 132, R. v.

R.N.S., 2000 SCC 7 , [2000] 1 S.C.R. 149, R. v. R.A.R., 2000 SCC 8 , [2000] 1 S.C.R. 163 [7] 2009 SKCA 63 [8] 2006 SKQB 9 [9] 2007 NSPC 17 [10] 2007 CarswellNS 626 (Prov. Ct.), appeal dismissed 2008 NSCA 6 [11] 2011 SKQB 441 [12] (2012), S.J. No. 30 [13] 2003 SKCA 33 , [2003] S.J. No. 185, paragraphs 29 and 30. [14] [1989] S.J. No. 10