HIS MAJESTY THE KING - v. -, 2022 SKKB 213

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 213 Date: 2022 09 23 Docket: CRM-SA-00101-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - T.V. RESTRICTION ON PUBLICATION: By court order made under subsection 486.4(1)of the Criminal Code, information that may identify the person described in thisjudgment as the complainant or any information that could identify the complainantwithout limitation may not be published, broadcasted or transmitted in any manner. Counsel: Lana E.

Morelli for the Crown Dwayne Z. Braun for the accused ___________________________________________________________________________ SENTENCING DECISION BARDAI J.

September 23, 2022 ___________________________________________________________________________ Introduction [1] On April 8, 2022, I found T.V. guilty of sexual assault and sexual interference of the complainant, C.K. [2] The Crown agrees that as no offender should be convicted twice for the same cause; that as there is asufficient factual nexus between the two charges; and an adequate relationship between the offences themselves, one of the convictionsshould be stayed under the Kienapple principle. See R v Kienapple, (SCC), [1975] 1 SCR 729.

I agree. [3] Accordingly, there will be a formal conviction entered on count 2 being sexual interference and a conditionalstay will be entered in relation to count 1, sexual assault. [4]

Section 151 of the Criminal Code, RSC 1985, c C-46, provides: Sexual interference

151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year … [ 5 ] The Criminal Code has been amended slightly since the date on which the offence occurred. At that time, the minimum range for this offence was 1 year and the maximum range was 10 years. Accordingly, T.V. is entitled to the benefit of the lower maximum sentence pursuant to s. 11(

i) of the Canadian Charter of Rights and Freedoms . See also R v Poulin, 2019 SCC 47 , [2019] 3 SCR 566. That said, in this case, on these facts, the maximum range would not be engaged in any event. [ 6 ] At trial, I found that when the complainant was 13 and visiting T.V. at his home in [redacted], Saskatchewan, T.V. sexually assaulted her. Specifically, he entered the bathroom where the complainant was naked except for a towel and about to shower. T.V. removed the complainant’s towel and pressed the complainant against the wall while she was naked and he was only partially clothed.

The complainant saw T.V.’s penis through the hole in his underwear and it was hard. T.V.’s penis was close to her but did not touch her. She could feel T.V.’s round stomach on her, touching her, skin to skin. The complainant was ultimately able to push T.V. off and make her escape. [ 7 ] In a second incident, the complainant was in her bedroom in Saskatoon doing her homework when T.V. came into the room, used his beard to tickle the complainant on her neck, before progressing to kiss her neck. T.V. put his hands under the complainant’s shirt, under her bra and squeezed her breasts.

T.V. left the room when others could be heard entering the home. [ 8 ] The pre-sentence report [PSR] indicates that T.V. grew up in [redacted] before moving to live with his maternal grandparents due to conflicts between his parents in the home. T.V. never got along with his father and has no real relationship with his brother. T.V. describes a difficult childhood where going to school was his holiday. His father was very strict and used a belt on him to discipline.

T.V. grew up closer to his maternal grandparents than to his parents. [ 9 ] T.V. has never been married though he was previously in a common-law relationship. He is not in a relationship now and the most significant person in his life now is his friend, [redacted]. [ 10 ] According to the PSR, T.V. has a number of health issues. He is diabetic, suffered a stroke, has high blood pressure, high cholesterol and gets headaches. He does not suffer from any mental health issues. [ 11 ] The PSR indicates that T.V. was not employed at the time of the offences but was off on disability due to having suffered a stroke.

He was receiving Saskatchewan Assured Income for Disability at the time of the offence and until September 2021. This information is inconsistent with T.V.’s sworn testimony at trial wherein he indicated that the incident in [redacted] could not have occurred because he was rarely in [redacted] that summer on account of the fact that he was working out of town in Estevan for virtually the entire summer. The testimony at trial and the information in the PSR are completely irreconcilable.

As the information in the PSR amounts to hearsay and T.V. gave evidence under oath at trial, I have placed no weight on the information in the PSR to the extent that it conflicts with the trial evidence. [ 12 ] T.V. has completed a General Educational Development grade 12 equivalency and has held a number of different jobs over the years, including construction, working in a hospital and cooking in a restaurant. He worked with Kelly Panteluk Construction in Estevan for seven years and his last job was with Unger Construction which he quit for health reasons in 2017.

He presently lives on his pension. [ 13 ] T.V. is 65 years old and has one previous criminal conviction. He maintains that the offences with which he has been convicted are fabricated and he therefore shows no remorse. He says the complainant is just looking for attention. He is described in the PSR as having a poor attitude towards his current offences. T.V. continues to blame the victim. [ 14 ] The victim reports that she continues to be impacted by these offences. Specifically, she gets anxiety when she sees older men and she is triggered by intimacy with her partner.

The Crown advised that the victim declined to provide a victim impact statement having already re-lived the experience at trial and as part of the interview conducted by the author of the PSR. [ 15 ] T.V.’s risk factors include family relationships, his attitude and self-management. T.V. says he “has no remorse” because he did nothing wrong. He says he is “Fed up with the Bullshit” of going through a process that is a “Witch Hunt”. [ 16 ] T.V. is assessed to be a medium risk to reoffend. He has been assessed in the 17 th percentile which means that 83% of Saskatchewan offenders have more risk factors.

That said, T.V. lacks insight into his behaviour, according to the PSR. [ 17 ] The offence with which T.V. has been convicted carries a minimum sentence of one year. [ 18 ] The Crown’s position on sentence is that T.V. should be sentenced to 24 months’ incarceration, followed by 30 months’ probation, together with the standard DNA, SOIRA conditions ( Sex Offender Information Registration Act , SC 2004, c 10 ), weapons prohibitions and a number of ancillary orders. [ 19 ] The defence does not take issue with the 24-month period of incarceration or 30-month probation order but instead, takes issue with some of the conditions of the probation proposed by the Crown.

The Crown suggests that T.V. perform 150 hours of community service and further, that he not attend places where children may be present without being in the presence of a sober, responsible adult. [ 20 ] The leading case when it comes to the sentencing of offenders in sexual assault matters involving children is the decision of the Supreme Court of Canada in R v Friesen , 2020 SCC 9 , 444 DLR (4th) 1 [ Friesen ]. A number of principles emerge from that case, in particular:

(

a) The protection of children from wrongful exploitation and harm is the overarching objective of the Criminal Code (see para.42); (

b) Courts must impose sentences that recognize the wrongfulness of these offences, the potential harm that flows from theseoffences and the actual harm that children of these offences suffer (see paras. 75-86); (

c) Deterrence and denunciation must be prioritized in these cases which is reflected by recent increases in the maximum sentenceauthorized by Parliament. The result is that departure from dated precedents and ranges should occur in cases of sexual offencesinvolving children. These offences should be punished more severely than the same offences committed against adults (see paras. 110-118); (

d) Sexual interference is no less serious than sexual assault (see paras. 119-120); (

e) Consideration must be given to the likelihood to reoffend, abuse of any position of trust or authority, the duration and frequencyof the sexual violence, the age of the victim, and degree of physical interference (see paras. 116, 131, 134-147); (

f) Although increases in the degree of physical interference increase the wrongfulness of the sexual violence, we need to recognizethe serious harm and wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. Sexualtouching without penetration is not inherently less harmful than other forms of sexual violence.

There is no hierarchy of physical acts.Simply put, there is no “ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio andcunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale… Similarly, it is an error to assume that anassault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. Forinstance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even morephysically intrusive than

an act of fellatio, cunnilingus, or penetration.” See paragraph 146 of the decision; and (

g) Focussing on the degree of physical interference can lead to ignoring and underemphasizing the serious emotional andpsychological harm to the victim that can occur when there may be no penetration, genital contact or physical scarring but when thesexual violence leaves lasting trauma emotionally and psychologically, nonetheless (see paras. 134-147). [21] Ultimately, we need to recognize the inherent wrongfulness of sexual violence against children, the potentialharm that arises from these types of crimes and the actual harm that children suffer from sexual violence. [22] In arriving at a just sentence, the Court must have regard to certain basic sentencing principles as set out ins. 718 of the Criminal Code, namely: denunciation, deterrence, rehabilitation, reparation, promotion of a sense of responsibility and theseparation of an offender from society where needed.

As noted by the Supreme Court of Canada, there must be particular emphasis ondenunciation and deterrence in cases involving sexual offences against children. [23] When examining these sentencing principles in a case such as this, due regard must be given to both aggravatingand mitigating factors, including: (

a) Gladue considerations (R v Gladue, (SCC), [1999]1 SCR 688); (

b) The moral blameworthiness of the accused; (

c) The motivation for the offence; (

d) The relationship between the victim and the offender; (

e) The vulnerability of the victim; (

f) Whether an offender accepts responsibility and shows remorse; (

g) The manner in which the offence was committed; (

h) Parity (similar offences should result in similar sentences); (

i) Proportionality; (

j) Degree of planning in relation to the offence; and (

k) Any other relevant consideration. [24] At the end of the day, a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

As suggested by the criteria, sentencing requires a careful balancing of relevant considerations, especiallyin cases involving sexual interference where the range is between 1-14 years pursuant to the Criminal Code. [25] Sentencing is also very fact specific and considers the offence, the offender, the victim and the broader public.For example, there is consideration of Gladue factors, the age of the complainant (the younger the age, the greater the harm), the natureof the offence (did it occur multiple times or not), the level of connection between the offender and the victim, the motivation for thecrime, and the need for denunciation.

The result is that it is possible to have two cases where the level of physical interference may besimilar but the sentences may differ. [26] In this case, in terms of the level of physical interference and violence, there was no contact between T.V.’spenis and the complainant, and there was no penetration. While this may distinguish this case from those where the level of physicalinterference was more pronounced, it should not be viewed in any way as minimizing the seriousness of T.V.’s conduct or the severity of

the violation he perpetrated. This offence has had a marked impact on the psychological and emotional wellbeing of the victim. It is a crime that has left deep scars, even if those scars are not visible. [ 27 ] During the sentencing hearing, defence suggested that there is a spectrum when we look at the connection between an offender and the victim. For example, an offence of sexual violence on a child committed by a parent will have a different impact than the same offence with the same level of physical interference committed by a stranger.

I agree. [ 28 ] The defence suggests that while T.V. is the complainant’s biological grandfather, the two did not have a typical grandfather and grandchild relationship. They were not as close as may be the case in other families. While there is some truth to this observation, T.V. and the complainant were close enough that she felt comfortable going to his home alone and having a shower in his bathroom. That is not something strangers or mere casual acquaintances typically do. [ 29 ] This was a relationship of trust. T.V. took advantage of his position of trust.

He abused that trust in the most fundamental of ways. T.V. committed physical and sexual violence against his granddaughter. I accept the defence’s argument that this was not a premeditated crime but rather one of proximity and opportunity. [ 30 ] The violation occurred on two occasions, once in the complainant’s bedroom, the place where she was supposed to be safest, and once in T.V.’s bathroom. This offence has had a deep impact on the psychological and emotional wellbeing of the complainant. She stopped going to [redacted] to see her baba and did not see her baba before her baba’s death.

The complainant suffers from anxiety to this day when she sees older men, and she is triggered by intimacy with her partner. [ 31 ] As the complainant’s grandfather, T.V. was supposed to nurture his granddaughter and to protect her. The complainant was particularly vulnerable, especially when the first incident occurred. She was far from home, in [redacted], and did not have her mother with her.

She was not in her normal environment, and away from friends and family who she may otherwise have turned to for help and support. [ 32 ] In short, T.V.’s moral blameworthiness is high given that his crime was perpetrated on his grandchild. His motivation was his own self-gratification, and his granddaughter was an easy target. The complainant was particularly vulnerable.

The offence, while it did not involve the level of physical intrusion that might be seen in other sexual assault cases was nonetheless, violent and has left clear and deep emotional and psychological trauma on the young victim. [ 33 ] T.V. has a criminal record, but it consists of a single conviction decades ago and was for a financial crime, not one of sexual violence. I do not see T.V.’s criminal record as relevant in the analysis.

T.V. has not shown remorse for his actions, but as he maintains his innocence, I have not considered this to be either aggravating or mitigating. [ 34 ] In terms of parity, the Court was provided with a number of decisions from both the Crown and the defence. The decisions were of limited utility because many of them pre-date the direction of the Supreme Court of Canada in Friesen which set the new standard for sentencing in cases where there is sexual violence perpetrated against children.

The cases that I was provided post Friesen involved facts that were simply too dissimilar from the facts of this case to be of much assistance. The Friesen decision is relatively recent, and so it is not surprising that there are not a lot of sentencing decisions dealing with similar circumstances post Friesen . That said, I would like to commend counsel for their well researched and reasoned submissions. [ 35 ] The Crown and defence both agree that a 2-year period of incarceration followed by 30 months’ probation is appropriate. To that extent, the parties say this is a joint submission.

Joint recommendations should only be departed from where it would bring the administration of justice into disrepute or where the sentence proposed would be contrary to the public interest. See R v Anthony-Cook , 2016 SCC 43 , [2016] 2 SCR 204. Such is not the case here. [ 36 ] In this case, there is minor disagreement on the amount of community service to be performed, the time to complete such service and the s. 161(

a) conditions sought by the Crown. [ 37 ] Given T.V.’s ailing health and his age, I am prepared to reduce the hours of community service from 150 to 100 hours and allow him 29 months, instead of 26, to complete such community service. [ 38 ] In terms of the s. 161 orders, I agree with the Crown. This was a crime of opportunity and proximity, and so, restricting the opportunity and proximity between T.V. and children only makes good sense.

I am prepared to grant the s. 161 orders subject to the change that T.V. not only be in the presence of a sober adult when having contact with young persons or attending areas where young persons may visit, but that he also be sober and not consume any drugs which are not prescribed to him by a physician licensed to practice medicine in Saskatchewan in the 24-hour period prior to attending at these areas. [ 39 ] I therefore sentence T.V. to: 1. Serve 24 months’ incarceration; 2. Be on probation for 30 months, subject to the following conditions; (

a) Statutory Conditions; (

b) That he report to probation services within 48 hours of release from custody and thereafter in the manner as directed; (

c) That he maintain a residence as directed by probation services; (

d) That he have no contact, direct or indirect, with C.K. or A.N.; (

e) That he not be at C.K. or A.N.’s place of education, employment or residence as they may be known to him;

(

f) That he attend for/participate in sexual offender programming as directed by probation services and not give cause to be discharged; (

g) That he attend for/participate in personal counselling as directed by probation services; (

h) That he perform 100 hours of community service work by the end of the 29 th month of this order. 3. Ancillary Orders: (

a) There shall be a DNA order pursuant to s. 487.051; (

b) There shall be a SOIRA order pursuant to s. 490.012 (20 years pursuant to s. 490.013(2)(b)); (

c) There shall be a s. 109 order prohibiting T.V. from possessing any weapons for a period of 10 years; (

d) There shall be an order of prohibition pursuant to s. 161(a), (a.1), (

b) for four years in the following form: T.V. is prohibited from: (

i) Attending a public park, public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, except while sober and in the physical presence of a sober, responsible adult who is aware of this order.

T.V. shall not consume any drugs not prescribed to him by a physician licensed to practice medicine in Saskatchewan in the 24-hour period prior to any attendance. (ii) Having any contact, direct or indirect, with C.K. or be at her residence, place of employment or place of education as it may be known to T.V.; (iii) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years; and (iv) Having any contact with a person who is under the age of 16 years, except with the informed consent of the parent/guardian of the child who is aware of this condition; and except while sober and in the physical presence of a sober, responsible adult who is aware of this condition.

T.V. shall not consume any drugs not prescribed to him by a physician licensed to practice medicine in Saskatchewan in the 24-hour period prior to any such contact. J. N. BARDAI