R. v. V., 2022 MBKB 190

Date: 20221012 Docket: CR 20-01-37912 (Winnipeg Centre) Indexed as: R. v. V. (R.) Cited as: 2022 MBKB 190 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING - and - ) Counsel : ) ) CAROLYN G. REIMER ) for the Crown ) ) GERRI F. WIEBE R.V., accused. ) for the accused ) ) JUDGMENT DELIVERED: ) October 12, 2022 Restriction on publication : By court order made under

section 486.4(1) of the Criminal Code , information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. KROFT J. INTRODUCTION [ 1 ] On May 13, 2021, I found the accused guilty of one count of each of the following charges under the Criminal Code , R.S.C. 1985, c. C-46 : sexual interference (

section 151 ); sexual assault (

section 271 ); invitation to sexual touching (

section 152 ); and uttering threats (

section 264.1(1) (a)). [ 2 ] The offending conduct took place over the period April 2012 to March 2017. The complainant is the accused's niece, whose age over that period ranged from three to eight years. [ 3 ] This decision is in respect of sentencing. MATERIAL Considered at THE Sentencing Hearing [ 4 ] In addition to hearing the parties' oral submissions and the victim impact statements of the complainant and her mother, I have read the accused's sentencing material and both parties' books of authorities. The sentencing material included a report of Dr.

Laura Jakul, Registered Psychologist, dated October 4, 2021, and letters written in support of the accused. Also, I have reviewed my reasons for decision delivered orally on May 13, 2021.

SUMMARY OF FACTS [ 5 ] As noted, the accused is the complainant's uncle. He is married to the complainant's aunt (i.e., her mother's sister). All the assaults against the complainant took place in the accused's home. The accused's family shared the home with the complainant's grandmother, another aunt, and a cousin. Especially in the early part of the April 2012 to March 2017 period, the complainant regularly

attended the home to be babysat by one of her aunts and/or her grandmother and for family visits, sleepovers and celebrations. In hervictim impact statement, the complainant expressed that early on, she "adored" the accused. "Every time he came home from work hestill had energy to play with me and with my cousins…. I thought he was a cool uncle who [spent] time with us by playing and takingcare of us, while my mom [was] not around…." The accused assaulted the complainant on ten to twenty occasions.

The locations of theassaults were either an upstairs room in the home or the laundry room area in the home's basement. [6] The nature of the sexual assaults varied. At times the accused performed oral sex on the complainant, and at other times thecomplainant was made to perform oral sex on the accused. There was one incident when the accused touched the complainant's vagina,putting his finger in "a little", and another when he squished her breasts while roughhousing with her and her cousin.

The assaults lastedbetween seven and ten minutes with no other adult present. [7] The accused told the complainant he would hurt her family if she spoke about the assaults. Because of that, the complainantwas afraid to tell anyone about them. She also was afraid that if she came forward, her aunts and cousins would hate her and her parentsmight put her up for adoption. [8] The complainant first disclosed the sexual assaults in 2018 to an educational assistant working at her elementary school.

Theeducational assistant testified that the complainant was "a wreck" at the time of disclosure and that the complainant expressed fearsconsistent with those mentioned in the previous paragraph. [9] At the sentencing hearing, I heard evidence that consequences of the accused's assaults on the complainant include recurring baddreams, lack of trust in people, tendency to be easily frightened, and apprehension about walking alone or going outside.

The aftermathof disclosing the assaults has included severe damage to the complainant's previously close relationships with her aunts, grandmotherand cousins. [10] The assaults also have negatively affected the complainant's mother who described experiencing nightmares, anxiety, self-blame,and ongoing concerns about the complainant's safety even when the complainant goes out with her own father. [11] Some facts about the accused. [12] At the time of the assaults, the accused was in his thirties. He came to Canada from the Philippines in 1994 at the age of fourteenyears.

He has been married to the complainant's aunt for approximately fifteen years and they have two children. The accused has ahigh school education with post-secondary certificates in auto body repair and welding. There is no evidence suggesting the accusedsuffers from psychological or cognitive impairment, or that he was a victim of, or witness to, physical, psychological or sexual abusewhen he was growing up. [13] Since at least 2013, the accused has been the sole income source for his family, and at all material times, he has maintainedsteady employment often for more than one employer.

He also provides financial assistance to certain family members living in thePhilippines. The accused has no prior criminal record. [14] As mentioned earlier, the accused has tendered letters of support, which describe, among other things, he is a person who iscommitted to his family and faith, charitable, community-minded, and a dependable employee. A letter from his wife describes him asthe bedrock of the family. It also speaks to the negative impact the accused's conviction has had on their two young children and familyat large. [15] In her report dated October 4, 2021, Dr.

Jakul opines the accused is at low risk to reoffend. As a result of his conviction, theaccused no longer resides in the family home. POSITIONS OF THE CROWN AND THE ACCUSED [16] The Crown asks me to impose on the accused a custodial sentence of twelve years in aggregate, broken down as follows: • sexual interference – twelve years • sexual assault – conditionally stayed as per Kienapple v.

R., (SCC), [1975] 1 S.C.R. 729 • invitation to sexual touching – twelve years concurrent • uttering threats – five years concurrent [17] The Crown also seeks ancillary orders, which, for the most part, are not opposed. [18] The accused submits an aggregate custodial sentence of six to seven years is appropriate given the facts in this case. SENTENCING PRINCIPLES [19] The purpose and principles of sentencing are set out commencing at

section 718 of the Criminal Code: • The objectives of sentencing may include one or more of denunciation, deterrence, separating offenders from society,rehabilitation, effecting reparations, and promoting responsibility (section 718). • When a court imposes a sentence for an offence involving abuse of a person under the age of eighteen years, the objectives ofdenunciation and deterrence are primary considerations (section 718.01). • A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (section 718.1).

• A sentence shall be increased or reduced to take into account aggravating or mitigating circumstances (section 718.2). • A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (section 718.2(b)). • Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (section 718.2(c)). • Liberty shall not be deprived, if less restrictive sanctions may be appropriate (section 718.2(d)). • All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders (section 718.2(e)). [ 20 ] It also is relevant to note that in the case of sexual interference, sexual assault, and invitation to sexual touching where the victim is under the age of sixteen years, there are statutory prescribed minimum and maximum sentences of one year and fourteen years respectively. [ 21 ] All the aforementioned purpose and principles of sentencing should be read in conjunction with the Supreme Court of Canada's recent decision in R. v.

Friesen , 2020 SCC 9 , which has been relied upon in almost all the decisions to which I have been referred. I will not quote passages from Friesen .

However, I will summarize what I believe to be some important points articulated by the Court: • Sexual offences against children are violent crimes that wrongfully exploit children's vulnerability (para. 5). • The harm flowing from sexual violence against children may spill over to parents, caregivers, family members, and society as a whole (para. 5). • 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 (para. 5). • The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children (para. 51).

Personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults (para. 52). • Courts are to focus their attention on emotional and psychological harm, not simply physical harm (para. 56). • The harm caused by sexual violence against children manifests itself in damage to family and other relationships. Where the perpetrator is a family member, the violence is often accompanied by breach of a trust relationship (paras. 60–63). • There is a power imbalance between children and adults that enables adults to violently victimize them (para. 65).

Children are most vulnerable and at risk at home and among those they trust such that sexual violence against children may go unnoticed by society (paras. 66–67). • The wrongfulness and harmfulness of sexual violence impact the gravity of the offence and the degree of responsibility of the offender.

Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle (para. 75). • Sentences must be commensurate with the gravity of sexual offences against children and reflect the inherent wrongfulness of the offences, the potential harm to children that flows from the offences, and the actual harm that children suffer as a result of the offences (para. 76). • Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.

It will be a rare case where an offender is not aware of the profound physical, psychological, and emotional harm their actions may cause the child. (para. 88) • By increasing maximum sentences for sexual offences against children, Parliament has expressed its intention that such offences be punished more harshly and that primary consideration be given to the objectives of denunciation and deterrence.

Courts should give effect to that intention. (paras. 95–105) • Mid-single digit custodial sentences for sexual offences against children are normal and upper-single digit and double-digit custodial sentences should be neither unusual nor reserved for exceptional cases (para. 114). • When arriving at a fit sentence for sexual offences against children, courts must consider, among other things, the likelihood of the perpetrator to reoffend; the presence and abuse of a trust relationship; the duration and frequency of the sexual violence; the age of the victim; the degree of physical interference, mindful to not attribute intrinsic significance to the occurrence or non-occurrence of certain sexual acts based on traditional notions of sexual propriety, or assume there is any clear correlation between the type of physical act and the harm to the victim (paras. 121–142). • While the degree of physical interference is clearly relevant, there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference (para. 146). [ 22 ] Despite Friesen 's clear message that sentences in sexual assault cases involving children must reflect the true seriousness of the offence and may well require recalibration going forward, Friesen also makes clear that the Court cannot disregard relevant facts that may properly reduce the offender's moral culpability.

Proportionality still requires that a punishment be just and appropriate, nothing more. The offender's conduct will be less morally blameworthy in some cases than in others. In addition, personal circumstances of the offender may have mitigating effects. ( See Friesen at para. 91 .)

DECISION [ 23 ] After considering the facts, the parties' submissions, and the principles articulated in the previous

section of these reasons, I conclude a fit and proper custodial sentence for the accused is ten years in aggregate plus certain ancillary orders set out at the end of these reasons. [ 24 ] More specifically, I arrived at ten years after balancing, among other things: • The sexual interference occurred over five years and on ten to twenty occasions. • The significant nature of the sexual interference as described in paragraph 6 hereof • The complainant was only three years old when the sexual interference began and was approximately nine years old when she came forward. • The sexual interference took place in the home of close family where the complainant was supposed to be and feel safe. • The accused was a respected uncle who, while not a parent, occupied a position of trust and authority. • The accused threatened to harm the complainant if she told anyone about his wrongful actions. • The accused does not suffer from cognitive impairment nor did he experience abuse growing up.

There is no evidence he did not fully appreciate the power imbalance between him and the complainant, or that his actions would cause harm to the complainant. • The degree of the accused's moral culpability and responsibility for his actions is high. • The Criminal Code requires the sentencing objectives of denunciation and deterrence to be primary considerations. • A custodial sentence is mandated in the circumstances such that effect cannot be given to the accused's wife's plea in her letter of support for a non-custodial sentence.

Moreover, such a sentence or even a custodial sentence in the low-single digits would run contrary to the case law given the facts in this particular case. • The analysis and direction articulated by the Supreme Court of Canada in Friesen as referenced in paragraphs 21 and 22 hereof • In addition to inherent harm and harm that may yet manifest itself outwardly, there is evidence of actual harm to the complainant, the complainant's mother, and the entire family unit. • Mitigating factors, including: - Dr.

Jakul opined the accused poses a low risk to reoffend. - The accused is the sole provider for his wife and children, and some family members overseas.

He has been employed steadily throughout his adult life. - The accused has abided by all conditions imposed on him pending sentencing. - The accused has no prior criminal record. - Subject to the important limitation expressed in the next paragraph, the accused has demonstrated the pro-social behaviour reflected in the letters of support filed in these proceedings. [ 25 ] As for the limitation to which I just referred, the weight of the letters of support is undermined very significantly by the serious nature of the crimes committed by the accused.

The moral and legal culpability associated with sexually assaulting the complainant in the relative privacy of the accused's home, and the widespread damage inflicted thereby, cannot be offset materially by the accused engaging in pro-social behaviour in more public aspects of his life or by being supportive of his immediate family. All offenders and potential offenders of major sexual assaults must hear the message of denunciation and deterrence, regardless of who they are and despite displays of pro-social conduct in other spheres of their lives ( see R. v.

Shrivastava , 2019 ABQB 663 at para. 93 ). [1] [ 26 ] A custodial sentence of ten years in aggregate is in line with the majority of the post- Friesen cases provided to me, particularly those from this Court, bearing in mind no two cases are the same. Those cases are set out in

Schedule A to these reasons. At the risk of repeating myself, and to avoid any misunderstanding, a ten-year sentence takes into account the mitigating factors identified by the accused in his submissions. In other words, those factors [2] contributed to my decision to sentence the accused to something less than the twelve years suggested by the Crown. CONCLUSION [ 27 ] In all the circumstances, I impose the following custodial sentence: • sexual interference – ten years

• sexual assault – conditionally stayed as per Kienapple • invitation to sexual touching – ten years concurrent • uttering threats – five years concurrent [ 28 ] I also impose the following ancillary orders: • a DNA order under

section 487.051(1) of the Criminal Code • a lifetime SOIRA order under

section 490.013(2.1) of the Criminal Code • an order under

section 161 of the Criminal Code prohibiting the accused, for a period of twenty years, from: - attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre, unless the accused is in the presence of an adult who is aware of his conviction - being within two hundred metres of the location where the complainant ordinarily resides, works or worships - seeking, obtaining or continuing any employment, whether or not it is for remuneration, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority in respect of persons under the age of sixteen years - having contact with a person under the age of sixteen years, unless he is in the company of another adult person who is aware of his conviction _________________________J.

SCHEDULE A CASES REFERRED TO BY THE CROWN - R. v. Friesen , 2020 SCC 9 - R. v. McLachlan , 2022 MBPC 13 - R. v. K.D.M. , 2021 MBQB 107 - R. v. S. (D.) , 2020 MBQB 163 - R v O , 2020 ABQB 497 - R. v. R.D.S. , 2021 MBQB 264 - R v AAJT , 2022 MBCA 47 CASES REFERRED TO BY THE DEFENCE - R. v. G.J.K. , 2020 MBQB 130 - R. v. Meisterhans , 2021 MBQB 80 - R. v. T.J. , 2021 ONCA 392 - R. v. R.A. , 2022 ONSC 1161 - R. v. Marsden , 2020 MBPC 57 - R. v. Zoldy (23 March 2021), Winnipeg CR 16-01-35463 (Man. Q.B.)