R. v. B.(D.), 2013 ONCJ 389

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. DATE: 06/06/2013 COURT FILE No.: at London, ON Citation: R. v. B.(D.) , 2013 ONCJ 389 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND —

D.B. Before Justice J.C. George Heard on May 16, 2013 Reasons for Sentence released on June 6, 2013 J. Moser ................................................................................................... counsel for the Crown P. Downing .................................................................................. counsel for the accused D.B. GEORGE J.: [ 1 ] 40 year old D.B. pleaded guilty to and was found guilty of sexually interfering with 14 year old C.H., a close friend of his daughter. There is a mandatory minimum penalty which necessitates the imposition of a jail sentence.

As to length, there is considerable difference between the respective positions being advocated. [ 2 ] D.B. is an aboriginal person; a status Indian and member of the K[…] First Nation. I note - although it's of little relevance in terms of whether Gladue principles should be applied - that even though he spent time with and visited family members on the First Nation, as a youth he lived primarily off-reserve. [ 3 ] I received and reviewed a Gladue report and heard from the victim's father, who read to the court a powerful victim impact statement. [ 4 ] The facts are concerning.

D.B. began what essentially amounted to a relationship with young C.H., or at least that's how I think he viewed it. This relationship, which became sexual, was entirely inappropriate, certainly criminal in nature, and was committed in a breach of trust situation. [ 5 ] There was one incident of intercourse but other sexual acts as well, one where C.H. was penetrated with an object.

The troubling details include the placing of a gag ball in C.H.’s mouth, the use of other sex toys, and arrangements to meet in a clandestine fashion. [ 6 ] After some resistance initially, even the poor young girl appears to have started to feel as if she were in a relationship. All very troubling and disconcerting that a young person was ever put in a position like that to begin with, not to mention the, what I'll call emotional blackmailing that took place.

For instance, I was told that at one point D.B. communicated with C.H. indicating that he would kill himself if she didn't respond to his messages. [ 7 ] The victim impact is enormous. The sex was without a condom, which surely engendered fear and uncertainty respecting a potential pregnancy or disease. Although the most important consideration is the victim’s trauma, it must be noted that the impact was felt by her family as well.

This strain is apparent in the father’s victim impact statement. [ 8 ] The factors, principles and objectives of sentencing are as set out in sections 718 and 719 of the Criminal Code of Canada . I won't repeat them, but I have turned my mind to them all, recognizing that some are of more importance than others, given these facts and the age difference. [ 9 ] General deterrence and denunciation are at the forefront. That, however, doesn’t mean all other considerations are to be ignored.

The additional part of this piece is the application and consideration of what I'll call the Gladue principles, which refers to the Supreme Court of Canada's clear direction to sentencing courts in how to interpret and apply

section 718.2 (

e) of the Criminal Code .

[10] Sentencing courts are to consider all alternatives to custody that are reasonable in the circumstances, paying particular attentionto the circumstances of aboriginal people. With that, several factors come into play. First, if jail is to be imposed, the length of thesentence must be carefully considered. Second, I must take great strides to not only understand D.B’s background as an aboriginalperson, but to consider how that history has impacted his offending behaviour. Third, I'm to take notice of several more systemic factorswhich impact aboriginal people collectively.

For example, the impact of residential schools; the displacement from communities; higherincidents of suicide, substance abuse, family dysfunction; and of course, higher rates of incarceration, among other things. [11] The positions advanced by counsel are quite different. The Crown seeks a penitentiary sentence in the range of two to three years,while the defence suggests a lower reformatory jail sentence, perhaps even in the intermittent range.

I can't say that I agree with either. [12] I have for certain concluded that the Crown's position is excessive, and in no substantial way recognizes the clear direction fromthe Supreme Court. That said, one in the intermittent range is far too low, and I disagree with defence counsel's submission that thisbehaviour should be placed at the low end of the continuum for this type of offence. This was not a case of one act of penetration. Itwas far more involved and complex than that, for the reasons highlighted by the Crown. [13] Several cases were provided which set out a wide range of sentencing options.

I'm obviously not bound by what other courtshave done as there is great latitude given to a sentencing judge to fashion a fit and proper sentence. Even if, for example, the Court ofAppeal sets out a range of acceptable dispositions, there is always discretion to move below or beyond that, depending on the number ofaggravating and mitigating circumstances. [14] Having highlighted the several aggravating features of this case, there are some mitigating facts as well. There is no priorcriminal history. D.B. appears to have suffered a difficult and abusive childhood.

He was in a home, sadly, where his desire to involvehimself in aboriginal culture and practices was discouraged. He has, for the most part, been a productive member of society, havingmaintained gainful employment. He has, by all accounts, been compliant with his bail terms. Most importantly, he pleaded guilty whichavoided the need for a trial. If there had been a trial, it would obviously not be considered in aggravation, but it did here spare the younggirl from testifying, and a guilty plea is by its very nature an expression of remorse.

A guilty plea should, in most circumstances, result ina reduction in the length of sentence. [15] As to the application of R. v. Gladue (SCC), [1999] 1 S.C.R. 688, Justice LeBel makes it quite clear in R. v.Ipeelee 2012 SCC 13 , [2012] 2 C.N.L.R. 218 that the judge’s sentencing discretion is not unfettered. There is a strict duty toapply all principles of sentencing, including proportionality. This is intricately tied to Parliament's inclusion of

section 718.2(e), itself arecognition of the difficult history of aboriginal people, which, when one thinks about it, is a proportionality issue. It speaks directly tothe circumstances that may have led to offending behaviour, which in turn impacts moral culpability. Beyond Gladue and the sectionitself, this is a matter of common sense. [16] Next, regardless of whether denunciation and deterrence are paramount in a given case, a sentencing judge must still attemptto be remedial in imposing sentence for an aboriginal person. In accordance with Justice LeBel's comments, the

section and itselaboration in Gladue, does more than simply affirm the existing principles of sentence. I am being told to employ a different approach. The remedial aspect is the need for me, to the extent that I can, attempt to address the overrepresentation of aboriginal people in prisonand to encourage a more restorative approach to sentencing. The latter is not always achievable, but should still be a consideration. [17] Some courts have spoken to how

section 718.2(e), by virtue of its enactment, is an acknowledgment of the failure of Canadiancourts to take these issues into account. The suggestion being, they should always have been considered.

As well, I need to be mindfulof the fact that even though the more serious the offence the more likely the sentence will be the same as between a native and a non-native person; this is not a rule of general application. [18] I will consider D.B.’s particular circumstances as an aboriginal offender, as well as the unique systemic reasons for aboriginaloverrepresentation in our prisons, which will, as should the guilty plea, impact quantum. This doesn’t alter the need for me to discourageand condemn this kind of behaviour, and to, as well, be seen to be doing that.

In that respect, beyond the inherent harm in D.B. sexuallyviolating C.H., but also the despicable attempt to engage in a romantic, emotionally charged relationship with her, will impact sentencetoo. [19] In the result, having considered the authorities provided by counsel, their submissions, after considering the facts, and havingapplied the principles as they've been set out by the Supreme Court of Canada relative to aboriginal offenders, I conclude that an eight

month jail sentence is appropriate. [20] I believe this sentence will sufficiently deter D.B. from committing similar offences, while at the same time expressingsociety's condemnation of such behaviour. It also, being less than it could have been, takes into account the principles in Gladue, theguilty plea, and the positive report. [21] To the Crown’s position and submitted authorities, it is simply an unavoidable conclusion that the behaviour here, as horrible asit was, does not rise to the level of that described in any of, first, R. v. W.G.G. [2003] B.C.J. No. 2192 (Prov.

Ct.), where the offender hada significant record and the assaultive behaviour was repeated. It was essentially a rape. Respecting R. v. Arcand 2010 ABCA 363, [2010] A.J. No. 1383 (C.A.), it’s distinguishable in that that case involved the violation of a passed out young female. In R. v.P.B.K, [2013] O.J. No. 333(Sup. Ct.), being wildly different on the facts, involved several acts of incest occurring over a four yearperiod. They are all distinguishable, and being so different, are not all that instructive. [22] A two year probation order will follow. The statutory terms will apply.

D.B. will report to probation within two working daysafter his release and thereafter as required. He will undertake any assessment and take such counselling that’s recommended byprobation, including sex offender counselling or treatment. He will not associate or communicate directly or indirectly with C.H. or anymember of her immediate family. He will not attend at any known place of residence, education or occupation of C.H.

One last termwill require him to not be alone with anyone under the age fourteen unless in the presence of a responsible adult who is at least 21 yearsof age. [23] A 20 year SOIRA order is made, as is an order requiring D.B. to provide a sample of his DNA suitable for analysis and banking. [24] I have determined that an order under

section 161 of the Criminal Code is appropriate. It will be in effect for 10 years and ismade under subsections (

a) and (

b) only. Respecting (a), in addition to the standard language in the order, we will including thefollowing – “as it relates to public parks or community centres, he will be permitted to attend in the presence of a responsible adult whois at least 21 years of age.” I will not make an order under either subsections (

c) or (d). Released: June 6, 2013 Signed: “Justice Jonathon C. George”