Her Majesty the Queen - v. -, 2021 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 61 Date: December 16, 2021 Information: 90202578 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dean Hanson Appearing: Nathaniel Scipioni For the Crown Darren K. Kraushaar For the Accused Note: Pursuant to

section 486.4 of the Criminal Code the Court made an order directing that the identity of the victim, and any information that could disclose the identity of the victim, shall not be published in any document or broadcast or transmitted in any way. JUDGMENT N. EVANCHUK, J Introduction [ 1 ] Dean Hanson entered a guilty plea to the charge that he did sexually assault A(K), a young person under the age of 16, contrary to s. 271(1) (

b) of the Criminal Code [ Code ]. Sentencing submissions were presented on October 7, 2021. There is no common ground between the parties on sentence position. Hanson argues that the six month mandatory minimum jail sentence outlined in the

Code constitutes cruel and unusual punishment and therefore violates his rights under s. 12 of the Canadian Charter of Rights and Freedoms [ Charter ]. He submits that the court ought to impose a shorter period of incarceration or a community-based sentence in the alternative. The Crown submits that the appropriate sentence range for the offence in question is between six and twelve months and that the court ought to impose a period of incarceration of six months followed by a lengthy period of probation.

Issues [ 2 ] The primary issue before the Court is relatively straightforward, namely what is a fit and appropriate sentence. This analysis also addresses whether the mandatory minimum sentencing regime outlined in s. 271(1) (

b) is unconstitutional by virtue of s. 12 of the Charter . Facts [ 3 ] The offender Dean Hanson had been attending a gathering at his parent’s residence in Pilot Butte, Saskatchewan, on the evening of August 17, 2019. He commenced drinking beer and whiskey upon arriving and became significantly intoxicated. He had not made any other plans to join additional festivities that night but he nonetheless ended up attending a party hosted by J(

K) and her spouse C(K). The K family were acquaintances of Hanson, as the offender had attended high school with C(K). Understandably for a small community, Hanson knew of their daughter A(K), but had no material contact with her in the past. When he arrived at the K residence, he consumed additional alcoholic drinks, both whiskey and a concoction known as “jungle juice”. Further, he consumed marijuana from a vaporizer pen at some point in time. It is common ground between counsel that Hanson became grossly intoxicated. [ 4 ] At or near 2:45 a.m., after most of the party guests had left the K residence, Hanson entered the bedroom of the victim A(K), the daughter of C(

K) and J(K). She was asleep in her bed and the door to her bedroom had been closed. Hanson proceeded to climb into the bed while he was naked from the waist down. Hanson has no recollection of how or when his trousers and underwear were removed. A(

K) was wearing shorts and a t-shirt with no underpants beneath the shorts. The victim was lying asleep on her stomach with bedding covering just past her knees. Hanson placed his hand underneath the shorts of the victim, contacting her buttocks. The victim awoke, stated to Hanson that she was 13 years old and pushed Hanson away. Hanson attempted to touch the victim a second time, after which the victim defended herself with more force. A third effort at pushing Hanson resulted in the offender falling off the bed causing Hanson to hit his head on a nightstand. It was at this point that A(

K) could see the offender’s penis was exposed. Hanson then left the room and returned to his own residence. The next morning A(

K) reported the incident to her mother and police statements were provided. Impact on the victim [ 5 ] A victim impact statement written by J(

K) was filed and read into the record by the Crown. The statement underscored the catastrophic effect that the assault had on the victim, both in terms of acute mental trauma and lingering side effects. J(

K) noted that the events were a devastating bombshell in the weeks before A(

K) started high school, a time which is understandably stressful and one where young teenagers struggle to fit in. A(

K) was described as a girl who previously had rarely cried, but now a “black cloud” followed her around. Her mother described her decision to come forward with her story as a silent battle and a huge weight for such a young person. A(

K) felt that she had done nothing wrong, yet she was deprived of the life of a regular teenage girl, knowing that her disclosure would reverberate in her home community. In short, the assault had a profound and lasting adverse effect on the victim and her family that continues to this day. Circumstances of the offender [ 6 ] Dean Hanson comes before the Court with no prior criminal history. He is 38 years old and has three children with his ex- wife, with whom he shares parental custody and responsibilities. He is by all accounts an exemplary father and a contributing member of his community.

Both Hanson’s ex-wife and her new spouse provided meaningful character references that highlight how loving, responsible and caring Dean Hanson is towards their children. [ 7 ] Over forty individuals provided character references in support of the offender. All indicated that the offender had disclosed his criminal conduct; many expressing shock as the behavior was completely antithetical to the Dean Hanson they knew and respected. The letters show that Hanson has been a meaningful contributor to his workplaces, his children’s sporting and community activities, as well being a cherished friend, son and sibling.

It is apparent in reading through the character references that Dean Hanson has openly expressed remorse for his actions in private as well as public. He has clearly taken real steps to address his behavior outside of the court

process. While nobody could state with certainty that this individual will never re-offend, the volume and thoughtfulness of the character references lead to a reasonable conclusion that Hanson is a very low risk to re-offend. [ 8 ] Dean Hanson resides in Pilot Butte and prior to the offence was employed as a digital program analyst at a large Regina corporation for 15 years. A former hockey player in his own right, Hanson has been a coach and mentor for his children’s hockey and soccer teams, an activity that allowed him to establish strong relationships with his children.

The charges before the Court hastened an end to Hanson’s ability to coach and it is unlikely he will ever be certified to participate in this activity in the future. [ 9 ] The offender recognized immediately after the incident that the consumption of alcohol played an acute role in his actions on the day of the offence. Considering this, the offender has voluntarily prohibited himself from the consumption of alcohol and attended to treatment programming. His counsel states, and I accept, that he is mindful of the dangers inherent in excessive alcohol consumption.

Since the offence date, Hanson has been on unpaid leave and suffering from severe stress. He was previously earning a high level of income and now is unemployed. He has been on severely strict bail conditions without incident for a significant period. [ 10 ] In his own statement to the Court, the offender provided a lengthy and sincere apology for his actions. He noted he was solely responsible for his conduct and expressed a high level of insight into his behavior and the effect he had on the victim and her family. He was emotional and ashamed. I find without hesitation that the apology was sincere.

Analysis [ 11 ] The fundamental purpose of sentencing is to protect society, contribute to respect for the rule of law, and maintain a just, peaceful and safe society by imposing sanctions that: • denounce unlawful conduct; • deter the offender and others from committing offences; • separate offenders from society where necessary; • assist in their rehabilitation; • provide reparations for the harm done, and • promote a sense of responsibility and acknowledgement of the harm done to victims or to the community: Code , s. 718 . [ 12 ] It is also fundamental that a sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender [ Code , s. 718.1 ].

A fit sentence must demonstrate parity in that similar circumstances should attract similar sentences. A sentencing court must also follow the above principles and purposes of sentencing with restraint and common humanity. Any decision imposed should account for relevant aggravating or mitigating circumstances applicable to the offence and the offender. [ Code , s. 718.2 (a)]. [ 13 ] Additionally, s.718.01 of the Code provides that where an offence has involved the abuse of children, the primary concerns for a sentencing court must be denunciation and deterrence.

Section 12 of the Charter : Law [ 14 ] Counsel for Hanson argued that the mandatory minimum penalty in s. 271(

b) violates his rights under s. 12 of the Charter .

Section 12 of the Charter provides as follows: Treatment or punishment 12 Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.

[15] The analytical framework that applies to a s. 12 challenge flows from the Supreme Court of Canada’s decisions in R v Nur,2015 SCC 15, [2015] 1 SCR 773 and R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130 [Lloyd]. At paras. 22-24 of Lloyd, Chief JusticeMcLachlin explained: [22] The analytical framework to determine whether a sentence constitutes “cruel and unusual” punishment under s. 12 of the Charterwas recently clarified by this Court in Nur.

A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that isappropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para 39; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045 (S.C.C.), at p. 1073.

A law will violate s. 12 if it imposes a grossly disproportionate sentence on theindividual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others:Nur, at para 77. [23] A challenge to the mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para 46. First,the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code.

The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485(S.C.C.), at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.), at paras. 26-29; R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 (S.C.C.), at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between thesentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, putsimply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offenceand its circumstances? If so, the provision violates s. 12. [24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment.

To be “grosslydisproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680 (S.C.C.),at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate.

The impact of Friesen [16] My task is therefore to decide a fit and proportionate sentence for Hanson. In doing so, I must consider the sentencingobjectives in the Code in light of the Supreme Court’s decision in R v Friesen, 2020 SCC 9, 391 CCC (3d) 309 [Friesen]. In Friesen, theSupreme Court signaled to sentencing judges that sentences for child sexual abuse must increase: [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’svulnerability and cause profound harm to children, families, and communities.

Sentences for these crimes must increase. Court mustimpose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender,as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness ofsexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [17] The Supreme Court continued, outlining the analytical approach that sentencing judges must undertake when sentencingadults who commit sexual crimes against children: [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodilyintegrity, sexual integrity, dignity, and equality of children.

This Court recognized the importance of these interests in Sharpe in thecontext of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children andviolates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime(para. 92, per McLachlin C.J., and para. 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). Sexual violence against children is thuswrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see

Sharpe, at paras. 172, 174 and 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). … [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attentionon emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional andpsychological harm that, as this Court held in R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, "may often be more pervasiveand permanent in its effect than any physical harm" (p. 81). … [65] The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especiallywrongful because it turns this value on its head. … [74] It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children causeand the wrongfulness of sexual violence.

In particular, taking the harmfulness of these offences into account ensures that the sentencefully reflects the "life-altering consequences" that can and often do flow from the sexual violence (Woodward, at para. 76; see also,Stuckless (2019), at para. 56, per Huscroft J.A., and paras. 90 and 135, per Pepall J.A.).

Courts should also weigh these harms in amanner that reflects society's deepening and evolving understanding of their severity (Stuckless (2019), at para. 112, per Pepall J.A.;Goldfinch, at para. 37). [18] The Court also had occasion to explain the relationship between the gravity of the offence and the degree of responsibility ofthe offender in child sexual assault cases. Regardless of the nature of the conduct, the objective gravity of the offence flows from the factthat the victim must be a child: Friesen at para. 77.

The Supreme Court emphasized the long-term impact that sexual violence has onchildren, leading to problematic relationships and propensity towards harmful sexual proclivities in adulthood: Friesen at paras. 76-81,84. These effects are not always evident at the time of sentencing so courts must weigh the reasonable foreseeability of future harm thatflows from an offence at the time of sentencing.

Additionally, the Court noted that in terms of the second aspect of proportionality, thefact that the victim is a child increases the offender’s degree of responsibility (Friesen, para. 90). [19] When considering the appropriate sentence length for sexual offences against children, Friesen at para. 100 affirmed thatsentencing courts should generally impose higher sentences than those imposed in cases that preceded the imposition of the increasedmandatory minimum regime by Parliament.

The Supreme Court in Friesen echoed the reasoning of the Saskatchewan Court of Appeal inR v L.V., 2016 SKCA 74, 480 Sask R 181 that sexual assaults against children warrant “stronger sanctions”. In this case, I must take intoconsideration the age of the victim, the location of the offence, the fact that the victim was sleeping, as well the stated impact theconduct had on the victim and potential for future psychological harm. Accordingly, I find that in this case, the gravity of the offence issevere, and the degree of the offender’s responsibility is great.

Position of the Parties [20] Hansen submits that an appropriate sentence for the offence before the Court is either a carceral sentence in the range of 30 to90 days or a conditional sentence of some form or another. Both of those sentences are unlawful pursuant to the existing sentencingregime under the Code. Accordingly, Hansen urges me to find that his rights against cruel and unusual punishment have been violatedand that the violation cannot be saved under s. 1 of the Charter.

Hanson invites me to find the relevant sentencing provisions containedin s. 271 be found to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982. Hanson then asks the court to impose acarceral sentence in the range of 30 to 90 days. [21] The Crown asserts that there is no breach of s. 12. Further, the Crown suggests that an appropriate sentence considering theguidance from the Supreme Court in Friesen is a sentence in the range of six to twelve months of imprisonment. Aggravating and Mitigating Factors [22] Dean Hanson comes before the Court with no prior convictions.

He is by all accounts a productive member of hiscommunity, a good father and model citizen. His counsel submits, and I accept, that his actions were the product of excessive drinkingand a momentary lack of judgement that was entirely out of character for him. Moreover, he provided a meaningful apology before theCourt that did not attempt to minimize his conduct, and which showed mindfulness regarding the effect of his actions on the victim andher family. I accept his submission as sincere and his guilty plea is necessarily a mitigating factor by law.

In addition, Hanson wasbound by strict bail conditions for a lengthy period, during which time he did not re-offend. Finally, I find as mitigating that Hanson hassignificant supports in the community, which will assist him upon the conclusion of his sentence.

[23] I must also balance the above mitigating factors with those that are aggravating in the circumstances. It is plainly obviousthat this offence was a gross violation of a young person in the place that they should feel most safe, their bedroom. The victim in thiscase was asleep in her own room, with the door closed. The offender was an invitee into the victim’s home, where it is expected that hewould respect the sanctity of the home and the heightened privacy that the closed door to the bedroom implied.

The severity of the actwas increased by the offender entering this sanctuary uninvited and touching the victim under her clothes. In addition, I find itaggravating that the accused persisted in his unlawful attempts at touching the victim until such time as the victim used force to removehim. Additionally, I find it aggravating that the victim, having been awoken to a sexual assault, was in a position to see the offender’sexposed penis. The age gap between Hanson and the victim in this case is significant.

Finally, I take guidance from Friesen that thisoffence will most certainly have a lasting and painful effect on the victim in the future, both physically and psychologically. Parity [24] In arriving on a fit and proportionate sentence, consideration should also be given to parity of sentences. Section 718(2)(

b) ofthe Code states that sentences should be similar to sentences imposed on similar offenders, for similar offences, committed in similarcircumstances. As the Supreme Court observed in Friesen at para. 32, “parity and proportionality do not exist in tension; rather, parity isan expression of proportionality.” [25] In R c Labrecque, 2021 QCCQ 1613, the 53 year old first time offender pled guilty to touching a developmentally delayed 17-year old during a New Year’s Eve gathering. The offender had touched and fondled the victim while she was on a staircase.

Theoffender attributed his behavior to excessive intoxication. The incident had a profound impact on the vulnerable victim. Taking intoaccount the Friesen decision, Champoux J.C.Q. sentenced the accused to six months’ incarceration and two years of probation. [26] R v Mathurin, 2021 ABPC 215 involved an offender who was convicted under ss. 151 and 271, for which the latter was stayed on the Kienapple[1] principle, for conduct occurring over three days between a 63 year old and his six year old granddaughter. The Crown had proceeded summarily.

The offender had touched the victim’s groin area over her clothes to an extent that it causeddiscomfort to the victim. In rejecting the s. 12 challenge from the accused, Stevenson J. imposed a sentence of fifteen months’incarceration. [27] R v Bear, 2020 SKQB 140 was a successful Crown appeal of a sentence that had set aside the mandatory minimum sentencingregime under s. 271(b). In that case the offender, a 35-year-old man had sexually assaulted the 14-year-old victim in a vehicle.

At para.34, Justice Dovell rejected the Charter analysis of the original sentencing court and at para. 35 found that a six month mandatory minimum sentence to be “entirely appropriate”. The offender in that case presented with significant Gladue[2] factors which are notapplicable in the present case. [28] R v D. (E.), (NL Prov Ct) involved a 70 year-old offender who had pled guilty to a s. 151 offence againsthis six year old granddaughter. The facts of the case involved a brief period of exposure of the offender’s genitals to the victim.

Theoffender had challenged the mandatory minimum sentence of ninety days for that offence as a breach under s.12 of the Charter. Inconsidering the appropriateness of a jail sentence in the circumstances, the Court considered the ongoing COVID pandemic and theeffect of same on the offender, coming to the conclusion that the principles and purposes of sentencing required a sentence in excess ofthe minimum 90 days and imposed a sentence of five months with probation to follow. [29] In R v GH, 2020 NUCJ 33 the 42-year-old first time offender pleaded guilty to a s. 151 offence.

In this case, the offender wasextremely intoxicated, entered the bedroom where the victim was sleeping with his daughter in the middle of the night, and touched hersexually over her clothes. The Court found that the mandatory minimum sentence in s. 151 is unconstitutional. However, in thecircumstances, a sentence exceeding the mandatory minimum was appropriate. Accordingly, the offender was sentenced to four monthsimprisonment with a lengthy term of probation.

The offender had Gladue factors that are not relevant to the present case. [30] In R v Tuffs, 2012 SKCA 6, 385 Sask R 178 our Court of Appeal overturned a suspended sentence imposed on an offenderwho got into the sleeping adult complainant’s bed, put his hand down her pants and touched her vagina. The touching was brief,“perhaps as little as 30 seconds” (at para. 12). The 37-year-old offender came before the Court with no previous criminal record.

TheCourt imposed a 12-month jail sentence, writing that “sexual assault of this nature should draw a period of incarceration” (at para. 10).By virtue of s. 718.01 of the Code and the Supreme Court’s comments in Friesen, a conditional or intermittent sentence must be evenmore inappropriate in most cases involving the sexual assault of a child.

Is a conditional sentence appropriate? [ 31 ] I must also consider whether a conditional sentence is appropriate in the circumstances. In Friesen , the Supreme Court cautioned against disregarding relevant factors that may reduce an offender’s moral culpability: Friesen at paras. 91-92 .

Indeed, there is post- Friesen jurisprudence to the effect that offenders with significant mitigating circumstances may be sentenced to conditional sentence orders or other non-carceral sentences for sexual offences against children. [ 32 ] By way of example, in R v Kapolak , 2020 NWTTC 12 [ Kapolak ] , the offender was an 18-year-old Indigenous man with an intellectual disability who was found guilty of a sexual assault on a 15-year-old girl. Chief Judge Gagnon held that the six-month mandatory minimum sentence in s. 271(

b) was grossly disproportionate on a particularized inquiry and found it to be contrary to s. 12 of the Charter . The offender was sentenced to a 120 day conditional sentence, followed by a probation period of 18 months. [ 33 ] R v Prince , (September 1, 2021) Prince George 48001-1 (BC Prov Ct) [ Prince ] concerned three counts of sexual assault involving the accused touching three young children. In Prince , the offender touched the children around their buttocks area of their bathing suits at a public swimming pool. The offender was a 67-year-old man with significant Gladue factors.

The mandatory minimum sentence was found to be grossly disproportionate on a particularized inquiry, and a two-month Conditional Sentence Order was imposed on each count. [ 34 ] Kapolak and Prince dealt with offenders who presented with intellectual disabilities, mental health conditions related to their offending, or significant Gladue factors. These cases highlight the impact of such factors on a hypothetical offender’s moral culpability to the point that a six-month carceral sentence would be grossly disproportionate. [ 35 ] In my view, these cases are distinguishable from Mr. Hanson’s circumstances.

Although Hanson comes before the Court with no criminal history, he has pled guilty to an offence that has caused immense personal harm to the victim. A fit sentence must account for the Supreme Court of Canada’s direction in Friesen that sentences for sexual offences against children reflect Parliament’s legislative initiatives and society’s contemporary understanding of the gravity and harmfulness of this type of offence. I therefore find that a conditional sentence is not appropriate and that a period of actual incarceration is required.

Conclusion on the Charter challenge [ 36 ] Having reviewed the above cases and taking into consideration the seriousness of the present offence, I find that the appropriate sentence range for Hanson in the circumstances is between six and ten months of incarceration. Accordingly, there is no need for me to address the constitutionality of the mandatory minimum sentence because the mandatory minimum provision is not disproportionate to the circumstances of this case.

In Lloyd , the Supreme Court wrote at para. 18: [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide… [ 37 ] I therefore find that the mandatory minimum sentence does not offend s. 12 of the Charter . It can have no impact on Hanson’s sentence. The issue is moot.

Conclusion [ 38 ] Having considered the gravity of the offence, the moral blameworthiness of the offender, as well as the principles of parity and restraint, along with the above-noted aggravating and mitigating factors I find that the appropriate and fit sentence in this circumstance is a period of incarceration of six months. The Court does not impose a period of probation to follow as I am satisfied based on the submissions of counsel that there is limited social utility in further sanction after the carceral sentence, given the steps at rehabilitation the offender has taken since the offence.

There will of necessity be a SOIRA [3] order in the normal course for a period of 10 years. As the offender will be serving a period of actual incarceration I find that the imposition of the victim’s surcharge would cause undue hardship and I therefore waive the surcharge in the circumstances.

__________________________ Evanchuk, J