Her Majesty the Queen - v. -, 2016 SKPC 112

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 112 Date: August 24, 2016 Information: 39124349 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - V. J. S. Appearing: Ms. Maureen Longworth For the Crown Mr. Evan Strelioff For the Accused Note: Sections 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify a child or young person who is a victim or a witness in relation to an offence alleged under the Code. DECISION ON SENTENCE F.M.

DAUNT, J [ 1 ] V.S. was originally charged by indictment for one count of sexual assault contrary to s. 271 and four counts of sexual touching of a person under the age of 16, contrary to s. 151. On the date scheduled for preliminary inquiry, the Crown re-elected to proceed by

summary conviction. The accused entered a guilty plea to a single count alleging that between July 25 and 28, 2015, he did, for a sexual purpose, touch, directly or indirectly, with a part of the body or with an object, to wit: his penis and his hands, a part of the body of A.B., a person under the age of sixteen, contrary to s. 151 of the Criminal Code of Canada .

[ 2 ] Mr. S. entered his plea on the basis of an honest but mistaken belief that the victim was over sixteen years old, but that he failed to take all reasonable steps to ascertain her age. [ 3 ] He was charged and released on an undertaking on November 19, 2015. [ 4 ] The Crown seeks one year in custody followed by 12 to 15 months’ probation. Defence seeks the mandatory minimum 90 days custody, to be served intermittently, accompanied by a rehabilitative probation order. FACTS [ 5 ] At the relevant time, the offender was 21 years old and lived with his parents. The victim was 14 years old.

The offender attended a barbeque or rehearsal supper a few days prior to his uncle’s wedding in July of 2015, where he met the victim for the first time. People had gathered from far and wide to attend this wedding. After supper, there was a get-together at the S. house, attended by the victim and her family. The next day, the victim’s grandparents brought her to the S. house again. The victim, the offender and his brother watched a movie in his bedroom. The victim left with her grandparents. The offender believed her to be 17 or 18 years old.

His parents formed the same impression. [ 6 ] The following day, both the victim and the offender attended the wedding. The offender had been consuming alcohol. They walked around the golf course, where the victim says they discussed her birthday. Mr. S. does not dispute this, but says he has no memory of it because of his level of intoxication. In any event, they flirted during the course of the day and evening. [ 7 ] The day after the wedding, the victim returned to the S. house with her grandparents. Everyone was “hanging out” and eating pizza.

Again, the offender had been drinking, and had taken some over-the-counter sleeping pills. He went to his room and started watching Guardians of the Galaxy. The victim came in and asked what he was watching. She had never seen the movie, so he invited her in to watch it. They flirted, telling each other how attractive they found each other. They started kissing. She asked him if he “wanted it.” He put his fingers on and then in her vagina, and they discussed intercourse. The victim said she wanted to have sex with him.

He asked, “Are you sure?” According to the victim, she responded, “I’m, like, ‘Yeah.’” [ 8 ] She took off her clothes and his. He used a condom, and they had intercourse. [ 9 ] Afterward, they chatted about tattoos and piercings. The victim said she wanted to pierce her nipple, but that she was not old enough to have it done. The offender discovered she was 14 years old. [ 10 ] Immediately remorseful, he considered suicide. The next day, he had further contact with the victim because of the wedding festivities, but there was no further sexual contact or talk of sex.

He called her once afterward to see how she and her family were doing. The victim tried to call him on multiple occasions, but he declined her calls. [ 11 ] A week or two later, the victim’s mother found some texts on the victim’s phone. She thought them to be “somewhat sexual” in nature. On August 11th, her mother confronted her and the victim disclosed what had happened. Her mother then took her to the police to report the assault. [ 12 ] After the fact, the victim and the offender discovered that they were third cousins. At least part of what upset the victim’s mother was this familial relationship.

As a result of these events, a rift formed between these two branches of the family. IMPACT ON THE VICTIM [ 13 ] Sadly, the author of the Pre-Sentence Report did not speak with the victim directly, but only with her mother. In the immediate aftermath of the assault, there was no noticeable impact on the victim. After her mother found out and took her to the police, however, the victim started to go downhill. Her marks dropped. She began cutting herself. She contacted a suicide hotline in the spring

of 2016 and was missing for several hours. Her mother cannot attribute these effects solely to the assault. [ 14 ] In her own Victim Impact Statement, the victim says: My lifestyle has been affected because my family has no trust in me anymore and my family is mad at me because of what I did. I cannot do anything without having my families [sic] doubts of me on my shoulders. I was surprised when I found out we were related. [ 15 ] As his third cousin, the victim could legally marry the offender, both civilly and in most – if not all – religions.

This is not incest. [ 16 ] The Victim Impact Statement continues, under “Physical Impact”: There is no ongoing physical pain. I did have to go for an STD test which included blood test & urin [sic] test. It did not affect me in any way. I have been suggested to counselling. [ 17 ] She was not physically hurt in the assault. The offender wore a condom, yet the victim was made to undergo medical testing. The victim now sees a counsellor regularly. [ 18 ] Under “Fears for Security” she states: I am a little concerned that he would be angry at me.

I have a fear that my little sister will grow up like me. [ 19 ] It is normal and natural for a 14-year-old girl to explore her sexuality. Even so, the victim thinks she has done something wrong. I conclude that the negative impact on the girl stems not from the assault, where she exercised full physical and sexual autonomy, but from her family’s reaction to her

part in it, and from being made to participate in a criminal justice system that removes her autonomy. PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 20 ] A thorough Pre-Sentence Report paints a well-rounded picture of Mr. S. [ 21 ] The oldest of three children, the offender lives with his parents. His father is Chilean, and the S’s participate in a culture rich in family gatherings. The offender has a Grade 12 education and a steady work history.

His mother describes him as immature, more like a 17 year old than an adult. [ 22 ] He had some health problems in his life, and struggled with a learning disability as a child. He battles depression and has made several suicide attempts. He has trouble sleeping, therefore he used over-the-counter cold medication as a sleep aid since Grade 12. [ 23 ] He has a close, supportive family, as well as pro-social community support. He has had one serious relationship which began when he was about 18. He dated a group home resident. She became pregnant and moved in with the S’s.

When the baby was about two months old, she took the baby and moved to Alberta. Mr. S. sent her money to help with the baby, even though she would not allow access. Losing his child devastated him and he started drinking heavily. [ 24 ] The offender is shy and does not like sharing his problems. At his parents’ urging, however, he has started to open up to his priest about his current troubles. He has reasonable insight into his offence and reasonable plans to prevent future offending. From the Pre-Sentence Report:

He appears to accept full responsibility for his offence and does not engage in minimization or rationalization towards his offences. The subject admits he did not take the necessary precautions to check the [victim’s] age prior to having sex with her and should have been more diligent in that regard. He states he was attracted to her and made an assumption regarding her age which ultimately [led] to the charge. [V.] denies he knew her age ahead of time; however, states it does not matter that he did not find out her age until after they had sex, because he still committed the crime.

He identifies a high risk situation for him would be being attracted to a girl and he is not sure of her age. The subject identifies a number of intervention strategies to deal with high risk situations in the future. He feels before he is intimate with anyone, he must be absolutely sure of her age. If a female is in a bar using alcohol, has tattoos, owns her own vehicle and license or lives on her own, he notes these should be indicators she is likely at least 18 years of age.

He plans to ask to see the identification of anyone he is going to be intimate with, if he is not completely sure of her age. [ 25 ] The author of the Pre-Sentence Report assessed the offender for his risk to re-offend generally, as well as his risk to commit further sexual offences. His general risk was low, which translates into 20% over three years. His risk for reoffending sexually was moderate-low, which translates into 3.6% over one year and 6.6:% over three and five years.

The “moderate-low” category risk for sexual offending is much lower than the “low” category risk for general offending; it is highly unlikely that Mr. S. will commit a future offence, sexual or otherwise. [ 26 ] His general risk to reoffend can be reduced by targeting his family or marital relationships and his drug and alcohol use. His treatment needs for sexual recidivism are: capacity for relationship stability, impulsivity, poor problem solving skills, and sex as coping. [ 27 ] From Mr.

S’s relationship history, he may want personal counselling to explore why he is attracted to romantic partners who are vulnerable. The mother of his child lived in a group home, which suggests a troubled background. Although he believed her to be older, the victim of his current offence was, in fact, only 14 years old. This suggests the offender was attracted to some vulnerability in her. [ 28 ] The author of the Pre-Sentence Report recommends several intervention strategies to assist rehabilitation. There is a 13-week psycho-educational sex offender program offered in the community.

Given his struggle with alcohol, a referral to addictions services would help him develop healthy coping strategies. He needs to see a doctor to discuss medication for anxiety and depression, accompanied by personal counselling. These resources are available in the community. [ 29 ] Sex offender programs are not offered in the provincial correctional centres in this province. ANALYSIS [ 30 ] Crown filed two cases in support of their position, both from our Court of Appeal, and both sentencing for the indictable offence of sexual assault contrary to s. 271 of the Criminal Code .

R v Whiting , 2013 SKCA 101 and R v Miller , 2016 SKCA 32 both stand for the proposition that the starting point for a major sexual assault on a child is three years in a penitentiary. [ 31 ] Here, the offender entered a guilty plea to a

summary conviction offence contrary to s. 151 of the Criminal Code . The minimum punishment for this offence is 90 days in jail, and the maximum is two years less a day. To apply Whiting and Miller would result in an illegal sentence. There can be no starting point of three years, to be reduced only by mitigating factors. Furthermore, in those cases, the offenders were fully aware of the age of their victims. The offences had elements of luring and grooming. Moreover, the “consent” was at best acquiescence. In the present case, on the other hand, the consent was express and voluntary. Where Miller and Whiting apply, they can be distinguished. [ 32 ] The range of sentence for s. 151 by

summary conviction is 90 days to two years less a day. The Court must construct a proportionate sentence within the range Parliament allows. According to s. 718.01, the sentence must primarily denounce the conduct and the harm done to the victim and deter the offender or others from committing similar offences. Ideally, the sentence also achieves the other goals of sentencing, such as rehabilitation and reparation. [ 33 ] For this offence, Parliament has removed the defence of honest but mistaken belief in age, unless the accused takes all reasonable steps to ascertain the age of the complainant. Normally, where knowledge of a fact is an element of the offence, an honest but

mistaken belief of fact is a complete defence to the charge. Wilful blindness can substitute for knowledge, but any lesser form of mens rea will not suffice. For the offence contrary to s. 151 , however, Parliament has substituted a negligence standard, offering, in effect, a due diligence defence. It is closer to a strict liability standard than a true criminal standard.

Where an accused is guilty as a result of this reduced mens rea requirement, the “degree of responsibility of the offender” is reduced as well. [ 34 ] Citing s. 718.2(a)(ii.1), the Crown urges this Court to treat the victim’s age as an aggravating factor. Defence submits that, as an element of the offence, the age of the victim cannot be an aggravating factor for sentencing purposes. I agree. If the victim were not under 18, there would be no offence.

An element of the offence required to establish guilt cannot also serve to aggravate the seriousness of the offence or the degree of responsibility of the offender [ R v Merkuratsuk, 2012 NLTD (G) 11]. It is akin to the victim’s death in the offence of manslaughter. The fact of a death, while tragic, is an element of the offence. The manner of death can be aggravating, but the death itself is a prerequisite to conviction. For s. 151, the age of the victim is a prerequisite to conviction. A large gap between the age of the victim and the age of the offender, however, can be aggravating.

Here, the age difference is not so great as to elevate the seriousness of the offence or the degree of responsibility of the offender. [ 35 ] The impact on the victim was not a result of the commission of the offence, per se , but the result of her mother’s treatment after disclosure, and as a result of becoming a justice system participant. [ 36 ] Here, there was no luring, grooming, or exploitation.

The offender honestly believed the victim was over the age of consent but failed to take all reasonable steps to ascertain her age. [ 37 ] In short, I find no aggravating factors in this case. [ 38 ] Defence submits that the victim’s consent is a mitigating factor. Crown disagrees. The Saskatchewan Court of Appeal in R v Revet , 2010 SKCA 71 , answers the question.

Per Sherstobitoff J.A. at para 12: There is certainly a difference between an assault against a child that involves force, violence, intimidation, or trickery and an assault against a child where the child actually consents to the activity or simply does not resist it. That being said, the whole purpose of the legislation is to protect children, who are not sufficiently mature to appreciate all of the consequences of sexual activities. We agree that a child’s willing participation is not, per se , a mitigating factor in the imposition of a sentence for sexual assault upon that child.

It means nothing more than an absence of aggravating factors such as the use of force, violence, intimidation or trickery. [ 39 ] While consent is not a mitigating factor, it is not irrelevant to the process of arriving at a fit sentence. While the acquiescence of a seven-year-old is meaningless, a 14-year-old has more agency. In this case, consent places this particular offence somewhere at the lower end of the spectrum of seriousness. [ 40 ] In mitigation, the offender took positive steps to ascertain consent. That consent was not implicit or passive.

It was not a failure to say “No.” It was an explicit “Yes.” When he discovered her age, he stopped all sexual contact. [ 41 ] The offender has shown genuine and sincere remorse. He pleaded guilty before any evidence was taken, thereby saving the victim the stress of testifying against him. Given his greater jeopardy before Crown re-election – he faced a mandatory minimum one year in prison – it is understandable that he did not offer a guilty plea at an earlier stage of the proceedings. [ 42 ] He is at low risk to reoffend. He needs no deterrence from committing a similar crime.

He has realistic strategies to keep himself from reoffending. The evidence suggests he is not a pedophile. He is amenable to treatment, available only in the community. He has strong family and community support. He comes before this court with no criminal record. [ 43 ] The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. Here, although there was intercourse, the offender went out of his way to ascertain consent. He used a condom. There was no coercion or even persuasion. The victim actively participated.

The offender believed her to be 17 or 18 years old. He thought she had the capacity to consent. He did not give her alcohol to lower her inhibitions. She was not intoxicated or otherwise incapacitated. She appeared fully in charge of her faculties. His degree of responsibility is therefore lower than in cases where the offender is fully aware of the age of the victim and proceeds regardless. The sentence should reflect this lower moral blameworthiness.

[ 44 ] Normally, when sentencing a youthful first offender, the primary sentencing goal is rehabilitation. According to s. 718.01, however, the primary sentencing goals for this offence are denunciation and deterrence. Specific deterrence is not required in this case. As for general deterrence, criminological studies show that lengthy sentences do not deter others from committing similar offences. A longer sentence, therefore, is unlikely to achieve the objective of general deterrence. However, the sentence must denounce the unlawful conduct and the harm done to the victim that is caused by the unlawful conduct, according to recent amendments to s. 718 (

a) of the Criminal Code . The magnitude of the denunciation required, therefore, is linked to the amount of harm done. Here, the victim said she suffered no impact from the assault itself, that is, the unlawful conduct. The harm she has suffered stems, not from the assault, but from her family’s treatment of her and the fact she was made to give samples to test for sexually transmitted diseases, though the condom would likely have prevented this. She has been made to feel like the offender, and not the victim. [ 45 ] Denunciation and deterrence are the primary – but not the only – goals of sentencing.

Rehabilitation remains a desirable objective, especially with a youthful first offender. If rehabilitation were the primary goal, incarceration would be counterproductive. The Court must impose at least the mandatory minimum sentence, but no further denunciation is required. The offender also must live with the stigma of being a registered sex offender for the next ten years. Since no appropriate programming is offered in the provincial system, a longer sentence will actually interfere with Mr. S’s rehabilitation, thus detracting from the long-term protection of the public.

For the same reason, I direct that those 90 days be served intermittently. [ 46 ] To achieve the goal of rehabilitation, that jail sentence will be accompanied by a lengthy probation order. [ 47 ] The sentence is as follows: [ 48 ] Ninety days in jail, to be served intermittently, accompanied by two years probation on the following conditions: 1. Keep the peace and be of good behaviour. 2. Abstain from communicating, directly or indirectly, with A.B. until her sixteenth birthday, except for the purpose of delivering a letter of apology. 3. Appear before the court when required to do so by the court. 4.

Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. 5. Surrender into custody at the Prince Albert Correctional Centre no later than 6:00 p.m. on Friday, August 26, 2016, and remain in custody until 6:00 a.m. on Monday, August 29, 2016. Thereafter, again surrender into custody at the Prince Albert Correctional Centre no later than 6:00 p.m. on each and every Friday thereafter and remain in custody until 6:00 a.m. on the Monday following until this sentence has been fully served. 6.

Not consume any alcoholic beverages, intoxicating substances, or mind-altering drugs not prescribed by a medical doctor within the 24 hours immediately preceding his surrender into custody for the service of his sentence. 7. Report to a probation officer within two working days and after that as told to do so by the probation officer or designate. 8. Participate in an assessment and complete programming for addictions as told to do so by the probation officer. 9. Participate in personal counseling as told to do so by the probation officer. 10.

Participate in assessment and complete programming for sexual offending as told to do so by the probation officer.

11. Prepare a written apology to A.B. approved by the probation officer and deliver that apology as told to do so by your probation officer by September 30, 2016. [ 49 ] There will also be a warrant in Form 5.03 authorizing the taking of a DNA sample for the national database. [ 50 ] There will be a SOIRA order for a period of ten years. [ 51 ] As required by the Criminal Code , I have considered whether an order of prohibition under s. 161 is necessary. I have concluded, in the circumstances of this case, it is not. This is an appropriate case in which to apply the doctrine of restraint, codified in s. 718.2(d).

There is no suggestion that the offender is a sexual predator or a pedophile, or that he is a danger to children so as to restrict his liberty in such a way. [ 52 ] There is also a victim fine surcharge of $100.00. There will be time to pay this by December 1, 2016. Dated this 24 th day of August, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ F.M. Daunt, J