R. v. Bueckert, 2023 ABCJ 108

In the Alberta Court of Justice Citation: R. v. Bueckert, 2023 ABCJ 108 Date: 20230510 Docket: 220830020P1 Registry: High Level Between: His Majesty the King Crown - and - Abram Wiebe Bueckert Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Sentencing Judgment of the Honourable Justice S.P. Hinkley Introduction [ 1 ] Mr. Bueckert entered a guilty plea to sexual assault contrary to s. 271 of the Criminal Code on October 17 th , 2022. [ 2 ] An Agreed Statement of Facts was tendered and the matter adjourned for the authoring of a Presentence Report. [ 3 ] I passed sentence with oral reasons on May 8 th , 2023 with detailed written reasons to follow. The Offence

[ 4 ] An Agreed Statement of Facts is before the Court, which outlines the circumstances of the offence. It has been reviewed, signed and accepted by Mr. Bueckert. The circumstances are briefly outlined below; (

i) On the date of the offence, Mr. Bueckert attended a local department store in High Level to purchase clothing. (ii) During that attendance, he noticed the victim, whom he had not met before that date. (iii) Upon noticing the victim bend over, Mr. Bueckert became aroused, and entered a changing room. (iv) While in that changing room, Mr. Bueckert masturbated to achieve an erection. (

v) Mr. Bueckert then exited the changing room, approached the victim, and asked for her assistance. (vi) When the victim attended him, Mr. Bueckert pulled his pants down, revealing his erect penis, and grabbed the victim by the buttocks without her consent. (vii) The victim screamed and Mr. Bueckert fled the store immediately. (viii) Mr. Bueckert was found via a combination of his licence plate being recorded and being identified via a photo line-up. The Offender [ 5 ] Mr. Bueckert is a 33 year old Mennonite man without prior criminal convictions.

He has the support of his family and has had their support throughout his life. He pled guilty at an early opportunity, and was cooperative with authorities on arrest, including confessing his actions to the police during an interview. [ 6 ] Mr. Bueckert has been on a number of bail conditions since his arrest. There have been no reported breaches. [ 7 ] I have the benefit of a fulsome and thorough Presentence Report. It details the history of this Defendant, his current employment and the challenges he has faced throughout his life.

Multiple collateral contacts were interviewed and were quite consistent in the information given. [ 8 ] It also details, in unvarnished form, the thought process and actions of Mr. Bueckert on the day of the offence from his point of view. This includes his use of pornography in the days leading up to and immediately before the index offence. Moreover, it articulates Mr. Bueckert’s naïve view of the impact of this offence, with Mr. Bueckert believing the victim “probably having forgotten about it”. [ 9 ] This view appears to have been genuinely held by Mr.

Bueckert and was not seen by either the report author or this Court as an attempt to decrease his culpability. Instead, it has been assessed by collateral contacts, the report writer and this Court as an indication of the depth of deficit of insight into his own behaviours held by this Defendant. [ 10 ] During sentence, this Court and counsel for Mr. Bueckert brought home to him in no uncertain terms the effect his behaviour had on the victim. When articulated to him in simple terms he could understand, Mr.

Bueckert demonstrated genuine remorse and understanding. [ 11 ] In terms of educational and vocational attainment, Mr. Bueckert has been limited by cognitive challenges. He did not finish high school. These struggles have in some ways been compounded by English not being his first language, although his family do not believe this is the majority of the problem. [ 12 ] His current adult level of social and cognitive development is simply but aptly expressed by his family as Mr. Bueckert being “in some ways normal, and in some ways like a little kid”.

Issues around not understanding social cues were also articulated. Mr. Bueckert is currently employed with a very rigid routine, and his income is used with other members of his extended family to maintain a mortgaged home which they all live in and contribute to. [ 13 ] No issues around substance or alcohol abuse were noted at this time, although the family does continue to worry Mr. Bueckert requires a very simple and set job and life routine in order to succeed, noting employers or situations requiring more of Mr.

Bueckert than he is currently and repeatedly doing will likely result in failure for him. [ 14 ] Mr. Bueckert has been sent to Mexico as a part of his religious faith for mental health counselling around depression and inappropriate sexual verbal interaction with his sister-in-law. However, Mr. Bueckert gained little insight as to what that counselling was for, simply noting he went to “receive the word of God”. [ 15 ] From both the observations of the report author and Mr. Bueckert’s family, this person has limitations in his processing of complex and abstract concepts.

For him to succeed in learning new skills or behaviours, simple and repeated instructions over time and linked to specific outcomes are required. There is also consensus between those who know him best and the report author regarding the limits of the level of comprehension this defendant has about the impact of his behaviour. While not articulated in these words, the issue is that while Mr. Bueckert knows he has done wrong (and is remorseful for it), he lacks deep insight into how and why it was wrong.

The Victim [ 16 ] The victim participated fully in the sentencing process, both via input to the author of the Presentence Report, and in a Victim Impact Statement. Both are exhibits before me and accepted in their entirety by counsel. [ 17 ] These documents paint a picture of a deep impact on the victim, who still feels the effects of this offence. She has undergone counselling, commenced taking medication, and experienced a full anxiety attack upon randomly seeing (and not interacting with) Mr.

Bueckert in a local store. [18] In addition, the victim left her employment at the location the offence occurred and has been unable to bring herself tobecome fully employed again. Her victim impact statement speaks to a loss of trust in men in general, and of experiencing anxiety anddepression. [19] While the act of the assault itself may have been brief in duration, the effects on the victim demonstrate why, in the words ofthe S.C.C. in R. v.

Ewanchuk (SCC), [1999] 1 S.C.R. 330, there must be a criminal sanction for this conduct. 28 …Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Havingcontrol over who touches one’s body, and how, lies at the core of human dignity and autonomy. [20] In the present case, the loss of this control felt by the victim lies at the very core of the psychological damage this event hasinflicted on her. Potential Sentences [21] The Crown proceeded by

Summary Conviction in this matter. There is no mandatory minimum sentence. On the factsaccepted by this Court, this is not a “major sexual assault” as defined by R. v. Arcand, 2010 ABCA 363 and subsequent jurisprudence. [22] In these circumstances, sentences ranging from a conditional discharge to a substantial gaol sentence are available to thisCourt. Position of Counsel on Sentence [23] Crown counsel, upholding the terms of a plea agreement, took no position on sentence.

During submissions, Crown counseldid point the Court to a demonstrated need for this Defendant to receive counselling and assistance with their offending behaviour. [24] Counsel for Mr. Bueckert urged the Court to consider a non-custodial disposition, requesting 18 months suspended sentenceand probation, and provided R. v. Saffarpour, 2022 ABPC 243 in support of their position. In the alternative, if the Court was inclined toincarcerate Mr. Bueckert, counsel requested the Court consider a Conditional Sentence Order pursuant to s. 742.1 of the Criminal Code.

Principles of Sentencing [25] Parliament has outlined the purpose and principles of sentence in s. 718 and following of the Criminal Code. I will reproducethe relevant sections below. 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including

their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providinghealth services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, includingpersonal care services, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Relevant Case Law [26] In balancing all of the relevant factors in crafting a sentence for this particular offender in these particular circumstances, thisCourt has to attempt to balance the values of retribution for the harm done to the victim, denunciation/deterrence of the offender andrehabilitation.

The application of these considerations for a sentencing Court are outlined by the S.C.C. in R. v. M. (C.A.), (SCC), [1996] 1 SCR 500 (locus paragraph 82), As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustivejustification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate inconjunction with one another to provide a coherent justification for criminal punishment.

As Gonthier J. emphasized in Goltz, supra, atp. 502, the goals of the penal sanction are both "broad and varied". Accordingly, the meaning of retribution must be considered inconjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation,rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles.

And as La Forest J.emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on the nature of thecrime and the circumstances of the offender.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all thelegitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed andthe moral blameworthiness of the offender. [27] Moreover, even where appellate guidance directs a court to turn its mind to deterrence and denunciation as primary principlesin a sentence, and gives starting point sentences as a result, this does not limit or absolve the court of its ultimate duty to craft a fit andappropriate sentence which will attempt to address all of the proper considerations for the offence and offender before it, as the S.C.C.outlines in R. v.

Parranto, 2021 SCC 46; [45] Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles. The principles ofdenunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives “cannot be allowed toobliterate and render nugatory or impotent other relevant sentencing objectives” (R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225,at para. 90). When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencingobjectives, including rehabilitation and restraint.

Indeed, this Court has held that the 1996 sentencing reforms were intended to bothensure courts consider restorative justice principles and to address the problem of over-incarceration in Canada (Gladue, atpara. 57; Proulx, at paras. 16-20). Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, atpara. 43; Lacasse, at para. 54) and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives likedenunciation and deterrence.

Appellate courts should not lose sight of these principles — nor the deferential standard of review — whenreviewing sentences that depart from a starting point or range. [28] I have distilled from this guidance a requirement for this court to undertake a rigorous review of this offence and offender toensure a sentence where each of the relevant factors is given the appropriate weight.

Sentence [29] The Crown has taken no concrete position on sentence. [30] Defence asks I suspend the passing of sentence and impose 18 months of probation. [31] I am required to craft a sentence which is proportional to the gravity of the offence and the responsibility of the offender.Here, Mr. Bueckert is absolutely responsible for the offence in question. Everything which happened that day was a result of his choices.In terms of gravity, while the offence itself was brief in duration and not grossly physically damaging to the victim, the psychologicalimpact of it has been great.

[ 32 ] In assessing the mitigating factors, I note the early plea of guilty and the expression of genuine remorse. In terms of aggravating factors, I note the substantial effect this offence has had and continues to have on the victim. While neither aggravating nor mitigating factors, in terms of assessing the appropriate sentence, I note Mr. Bueckert has been subject to bail conditions for a substantial period of time without allegation of breach and has not been in conflict with the law before this offence.

Finally, I remind myself of Parliament’s directive I consider any and all alternatives to address the offending behaviour before resorting to imprisonment. [ 33 ] I do not believe the principles of sentence for this offence and offender would be met with the imposition of a suspended sentence with 18 months of probation.

I am mindful of the mitigating factors, the guidance of Parliament and the Supreme Court, and the fact this is a first offender with genuine cognitive challenges who has expressed authentic remorse, but do not believe this sentence would be proportional. [ 34 ] Conversely, for this offender, long term physical incarceration will serve to divorce him from his familial support, cause substantial upheaval in both his and his family’s financial status, and on the basis of the information I have from both the family and the presentence report, do nothing to assist him further in understanding either the reason what he did was wrong, or serve to decrease his risk to reoffend.

He has been deterred by his participation in the Court process to date and has had to come to grips today with the impact this had on the victim. A lengthy period of gaol would add nothing to this.

Instead, the interests of the public and the victim are best served by this offender, and anyone else, understanding this behaviour will not be tolerated, and even those without prior record will be subjected to lengthy and intrusive supervision and re-education to bring their behaviour back into line with what society demands of them. [ 35 ] Considering all of the above, understanding who this offender is and the offence they have committed, I am of the view a sentence reflecting a brief incarceration with a substantial and lengthy period of supervised probation will best preserve the safety of the victim and the public at large in the long term.

The imposition of a nominal term of incarceration will serve to demonstrate the abhorrence of society for the actions of Mr. Bueckert, but mitigate its impact on his long-term rehabilitation, which is ultimately the best choice for this offender to ensure his actions are not repeated. [ 36 ] My sentence is as follows; 1) Mr. Bueckert will serve one day in gaol, deemed served by his attendance in Court today. 2) Mr.

Bueckert will thereafter be bound by a supervised probation order for a period of 30 months (or 2- and one-half years), with the terms as prescribed by s. 732.1 (2) of the Criminal Code and the following additional terms: 3) During the term of his probation, Mr. Bueckert will report as and when directed to his probation officer. 4) During the term of his probation, Mr. Bueckert will have no contact with the named victim directly or indirectly. This is to ensure her peace of mind and protect her mental health. 5) During the term of his probation, Mr.

Bueckert will not be within 25 meters of the named victim, or within 25 meters of any known residence, place of employment, or place of worship of the named victim. 6) During the term of his probation, Mr. Bueckert will not be within 25 meters whatsoever of the victim. This term is to make clear to Mr. Bueckert the requirement to immediately absent himself from her presence should he encounter her at random in the small Northern community in which they both reside. 7) During the term of his probation, Mr.

Bueckert will attend psychological, psychiatric counselling and treatment, and in particular for sexual boundaries and the use of pornography. This term is to get for Mr. Bueckert the long term and specific help he needs to address his behaviours. Because of his challenges in learning, compounded by English not being his first language, the probation order is of sufficient length to ensure adequate time for these needs to be addressed. 8) During the term of his probation, Mr. Bueckert will execute any consents required for his probation officer to ensure he is compliant with the counselling ordered above.

This is to ensure full and fulsome engagement by Mr. Bueckert in the process and allows objective monitoring of same. Ancillary Orders [ 37 ] Mr. Bueckert will be required to provide his DNA to the High Level RCMP detachment before May 22 nd , 2023 pursuant to

section 487.051 of the Criminal Code . [ 38 ] Mr. Bueckert will be required to register pursuant to SOIRA for a period of 10 years. [ 39 ] No orders were sought or granted pursuant to

section 110 of the Criminal Code . [ 40 ] The imposition of a victims of crime surcharge is waived. Heard and delivered orally on the 8 th day of May, 2023 Dated at the town of High Level on the 10 th day of May, 2023

___________________________________ S.P. Hinkley A Justice of the Alberta Court of Justice Appearances: Ryan Foran for the Crown Dallas C. Gelineau for the Defendant