R v KNDW, 2020 MBCA 52

Citation: R v KNDW, 2020 MBCA 52 Date: 20200514 Docket: AR18-30-09152 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN : ) R. N. Malaviya and HER MAJESTY THE QUEEN ) P. K. Miniely ) for the Appellant ) Appellant ) G. G. Brodsky, Q.C. and ) Z. B. Kinahan - and - ) for the Respondent ) ) Appeal heard and K. N. D. W. ) Decision pronounced: ) December 6, 2019 ) (Accused) Respondent ) Written reasons: ) May 14, 2020 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ) . On appeal from 2018 MBQB 145 chartier cjm (for the Court) : Introduction [ 1 ] This is a Crown appeal against sentence. After trial, the accused was convicted of sexual assault and sentenced to two years less a day plus probation. At the end of the appeal hearing, it was clear to all of us that the sentencing judge made errors in principle that had an impact on the sentence. Given that conclusion and given that the accused had an early release date of January 3, 2020, we thought it important to give our decision with reasons to follow.

We granted leave to appeal sentence, allowed the appeal and increased the incarceratory sentence from two years less a day to five years. These are our reasons. [ 2 ] At the appeal hearing, it was also noted that, on October 16, 2019, the Supreme Court of Canada had increased a sentence where a child had been the victim of a sexual assault, from four and one-half years to six years, with reasons to follow. On April 2, 2020, those reasons were issued ( see R v Friesen , 2020 SCC 9 ).

In Friesen , the Supreme Court pressed the reset button with respect to the approach to be used in sentencing for sexual offences against children and directed that these sentences should better reflect both the gravity of the offence and Parliament’s intention in amending the Criminal Code (the Code ) provisions with respect to these offences. Factual Background [ 3 ] The facts surrounding this sexual assault are serious and troubling. The accused and the complainant had been in an on-and-off relationship for five years and had two children, aged four years and 18 months.

On the night of the incident, the accused and the complainant had been estranged for over two months. Both children were living with the complainant. In the early morning hours, the accused began repeatedly calling the complainant. He insisted that he needed to come over right away to talk to her about something important. She eventually relented. [ 4 ] The accused arrived soon thereafter in an intoxicated state. He requested that they get back together. When the

complainant refused, the accused became aggressive, beginning to yell and scream. Upon telling him to leave, the accused pinned the complainant against the wall and continued shouting. The commotion awoke the children, who began to cry. All four were now together. The accused became increasingly upset, stating that he would kill himself if she did not take him back. He then tried three times to jump out of a second-story window.

Each time, the complainant pulled him back and calmed him down. [ 5 ] The accused then suggested “let’s all go lay down.” After telling him she did not want him to stay, he said “if I can’t have you nobody is going to have you.” He then tried to drag her up the stairs. After a prolonged struggle, he eventually succeeded in carrying the complainant upstairs to her bed. The children followed. [ 6 ] The accused pinned the complainant down on the bed and pulled down her pants. She begged him to stop, reminding him of the presence of their young children who were on the bed crying. He said he did not care.

Despite her pleas for him to stop and her attempts to get away, the accused proceeded to sexually assault her, forcing oral, digital and penile penetration. The complainant’s testimony in regard to the children’s presence follows: And my kids are still sitting there, laying there, holding me, crying, calling me. And he still doesn’t stop and I’m -- through the whole thing, I’m, like, please stop. Just stop. Like, I don’t want this. My kids are here. They are watching, they’re crying. You’re not caring that they’re crying.

And he kept saying, Oh, I don’t care, let them watch. [ 7 ] Just as the accused was climaxing, the police were knocking on the door, responding to a neighbour’s noise complaint of people yelling and children crying. Despite being told not to answer, the complainant opened the door. She did not tell the police about the incident (other than she and the accused had been arguing), because she was in shock and scared. The police left with the accused. Soon thereafter, the accused called the complainant and said he was coming back. This caused her to take the children and go to her mother’s house.

Her mother took her to the hospital at which time the police were called. The accused was then arrested on one count of sexual assault. [ 8 ] At the sentencing hearing, the Crown asked for a six-year period of incarceration, while the accused sought a provincial jail sentence. The sentencing judge imposed a sentence of two years less a day imprisonment, followed by three years of supervised probation. Issues and Standard of Review [ 9 ] The Crown appeals, arguing, in essence, that the sentencing judge erred: 1) by underemphasising two aggravating factors, namely,

a) the brutal nature of the sexual assault; and

b) the risk posed by the accused given his prior related record; and 2) by failing to take into account the traumatic impact on the children. [ 10 ] Appellate intervention is only justified in cases where a sentencing judge makes an error in principle that has a material impact on the sentence or when the sentence is demonstrably unfit.

An error in principle includes an error of law, a failure to consider a relevant factor, or an erroneous consideration of an aggravating or mitigating factor ( see R v Lacasse , 2015 SCC 64 at paras 41 , 43-44, 49, 51; and Friesen at para 26 ). [ 11 ] When called to intervene, an appellate court will sentence afresh by performing its own sentencing analysis to determine a fit sentence ( see Lacasse at para 43 ; and Friesen at para 27 ).

However, when sentencing afresh, “the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle” ( Friesen at para 28 ). Motion for Further Evidence [ 12 ] The accused moves for the admission of further evidence. The new evidence consists of a variety of disclosures and progress reports received from Manitoba Corrections with respect to the accused.

The accused’s stated purpose for this evidence is to “assist the Court in considering [his] rehabilitative efforts as envisioned by the [sentencing] judge” and “to support the [sentencing] judge’s analysis that his prospects for rehabilitation are very good and that he is on a rehabilitative path.” [ 13 ] The Crown opposes the accused’s motion for further evidence, arguing that the evidence of behaviour subsequent to a sentencing is not relevant to the assessment of whether an error was made in arriving at the sentence itself. It relies on R v Sipos , 2014 SCC 47 , as its authority for its submission.

We agree. [ 14 ] On sentence appeals, appellate courts typically determine whether sentencing judges have erred and, if they did, determine what the fit sentences would be. Thus, there are two determinations. For the fresh evidence to be admitted at the first phase (error- determination), there must be a link between the sentencing judge’s alleged error and the proposed fresh evidence ( see Sipos at paras 36-40 ).

As the Supreme Court of Canada stated in Sipos , “where proposed new evidence has nothing to do with the possible impact of the legal error on the sentencing judge’s decision, it should not be considered” (at para 36). [ 15 ] The accused seeks to introduce his post-sentencing rehabilitative efforts. We fail to see the relevance of this further evidence as to whether the sentencing judge erred.

The alleged errors are that she 1) u nderemphasised aggravating factors such as the brutal nature of the assault and the risk posed by the accused given his prior related record; and 2) failed to take into account the traumatic impact on the children. In our view, there is no connection between the alleged errors and the proposed fresh evidence. As a result, we are not prepared to admit the fresh evidence with respect to our analysis as to whether the sentencing judge erred.

[16] Given that we allowed the appeal and increased the sentence, it is clear that we have concluded that the sentencingjudge erred. In light of this, we also need to decide whether we should admit the fresh evidence for the second phase (determination offit sentence). We are all of the view that, at this stage, the fresh evidence relating to the accused’s post-sentencing rehabilitative effortsis relevant and meets the Palmer criteria (see Palmer v The Queen, (SCC), [1980] 1 SCR 759).

Moreover, the interests ofjustice require that the fresh evidence be admitted. [17] In the result, while we are not prepared to admit the fresh evidence with respect to our analysis as to whether thesentencing judge erred, it will be admitted for the purposes of settling on a fit sentence in the circumstances. Analysis 1) Underemphasising the Aggravating Factors [18] The Crown submits that the sentencing judge unduly reduced the accused’s level of moral blameworthiness byunderemphasising two aggravating factors.

First, the brutal nature of the domestic violence associated with the sexual assault andsecond, the risk posed by the accused given that he had previously sexually assaulted a young woman in a similar way and had re-offended despite having previously taken sexual offender counselling.

a) The Brutal Nature of the Sexual Assault [19] As stated, the facts surrounding this sexual assault are troubling and upsetting. There is no value in repeating themagain, other than to say that the accused went to the home of the complainant who is the mother of his two young children and usedintimidation, threats of suicide and violence to try to convince her to take him back. When that did not work, he stated, “Well, if I can’thave you, nobody is going to have you.” One can only imagine the terror this must have instilled in the mother’s mind.

He thenproceeded to forcibly take her upstairs and to rape her in the presence of their children. [20] This offence not only involved the complete domination and control of the mother occurring in the context of adomestic relationship—it was also a violent, prolonged, degrading and humiliating attack on her. It was made that much more crushingbecause it occurred in front of her children. He was repeatedly told to stop his attack and was reminded on numerous occasions that thechildren were present.

His response was cold and uncaring: “I don’t care, let them watch.” [21] As correctly stated by the sentencing judge, the predominant sentencing objectives for this offence are deterrence anddenunciation. The objective of denunciation and deterrence is, respectively, that the sentence should communicate society’scondemnation of that conduct and, generally, deter others who might consider engaging in such conduct (see R v M (CA), (SCC), [1996] 1 SCR 500 at para 81; and R v BWP; R v BVN, 2006 SCC 27 at para 2).

As a result, when the principles ofdenunciation and deterrence have priority, the focus of the sentencing judge is more on the offence committed (the conduct) than on theoffender. While factors personal to the offender, such as rehabilitation and Gladue factors (see R v Gladue, (SCC),[1999] 1 SCR 688), remain important, they necessarily take on a reduced role (see Friesen at paras 104-105; R v McMillan (BW), 2016MBCA 12 at para 12; and Clayton C Ruby et al, Sentencing, 9th ed (Toronto: LexisNexis, 2017) at

section 1.18). The reason for thispriority focus on conduct is to better reflect the gravity and wrongfulness of the conduct and the serious harm it causes. [22] In our view, despite acknowledging the importance of denunciation and deterrence, the sentencing judge essentiallyproceeded to ignore them. In her reasons, there is little mention of the conduct of the accused with respect to the offence committed. The reasons allot only two paragraphs to describe the night of the incident and just two sentences to the facts surrounding the sexualassault itself.

A fair reading of the reasons show that the sentencing judge’s focus was almost exclusively on the particularcircumstances of the accused and not, as required, on the offence committed (the conduct). [23] There is also nothing in the reasons that show that the sentencing judge considered the humiliating and degradingnature of the attack or that it was made that much more demeaning to the mother because it occurred in the presence of her two youngchildren.

Moreover, there is nothing in the sentencing judge’s reasons in regard to the fact that this sexual assault was statutorilyaggravating, given that it was committed against a common-law partner (see

section 718.2(a)(ii) of the Code). Finally, the fact that thesexual violence took place in the home of the mother and children was aggravating because it is a place where they “should feel safe andsecure” and because such a crime “damages the child’s sense of security in the home environment” (Friesen at para 178). Indirectlyharming children through sexual violence against women is aggravating. [24] In our view, the sentencing judge erred by not properly taking into account these aggravating factors. As a result, sheunderemphasised the nature of the assault.

b) The Risk Posed by the Accused [25] The Crown submits that the sentencing judge also underemphasised the significance of the accused’s prior youthconviction for sexual assault that occurred when he was three months short of his 18th birthday. That first assault occurred six yearsbefore this second sexual assault. The sentencing judge noted that the previous sexual assault was “[o]f concern” (at para 11) and thatthe “circumstances were similar to the current offence, in that he tried to force an acquaintance to have sex with him” (ibid).

She alsonoted that the view of both the Crown and counsel for the accused at the time of the first sexual assault was that the offence “wascompletely out of character” (ibid) and related to his alcohol consumption. [26] It turns out that the previous sexual assault was not “completely out of character”. Six years later, not only did he repeatthe same type of behaviour, there was also an escalation in the level of violence.

Despite this, after identifying the factors that underliehis behaviour as alcohol and deep-rooted emotional issues, the sentencing judge stated (at para 27): [The accused] is a young man, and I find his prospects for rehabilitation are very good, despite his prior youth offence, and also the fact

that he did take sex offender programming previously. It is obvious that the program did not address the issues that underlie hisbehaviour. [emphasis added] [27] An “offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation” (Friesen at para 124). The pre-sentence report assessed the accused as a “Medium risk to reoffend generally” and as an “Above Average Risk for beingcharged or convicted of another sexual offence”, placing him in the 80th percentile of sexual offenders.

This means that, out of 100sexual offenders, only 19 would have a higher score than he. [28] In our view, the finding that the accused’s rehabilitation prospects were “very good” demonstrates that the sentencingjudge underemphasised or failed to properly consider the accused’s prior sexual assault conviction; the risk assessments set out in thepre-sentence report; the violence parallels between the two sexual assaults; the fact that the accused downplayed the details of the earliersexual assault; and the fact that he had re-offended despite having previously taken sexual offender counselling. 2) Failing to Take Into Account the Traumatic Impact on the Children [29] When asked by the Crown to consider the grave impact this incident had on the two young children, the sentencingjudge stated that “it really is not possible for me to draw any conclusions about the children based on the evidence before me” (at para18).

For the reasons that follow, we are of the view that the sentencing judge had the necessary evidence before her in the form of themother’s victim impact statement (VIS) and her trial testimony. She should have considered the traumatic impact that the assault on themother had on the children. [30] When determining the sentence to be imposed, judges will consider evidence concerning the victims presented duringthe trial (see

section 724 of the Code) or by VISs (see

section 722).

Section 2 of the Code defines “victim” to include, for the purposesof

section 722, a person who has suffered emotional harm “as the result of the commission of an offence against any other person.” Asstated in Friesen, sections 2 and 722 of the Code recognise “that the harm flowing from an offence is not limited to the direct victimagainst whom the offence was committed” (at para 62). [31] As a result, the children in this case fell under the

section 2 definition of “victim” and were victims of the sexual assaultperpetrated against their mother. They were very young at the time of the incident. The daughter was 18 months old and the son had justturned four. They were on the bed beside their mother during the rape and witnessed the entire ordeal. Given their age, they were notcalled to the witness stand, nor were they asked to provide a VIS concerning the impact this violent incident had on them.

This is in linewith the modern approach to the evidence of young children, namely, favouring procedures and practices that will reduce “the likelihoodof inflicting further injury on a child as a result of involvement in the criminal process” (R v F (CC), (SCC), [1997] 3SCR 1183 at para 29; see also para 41; and R v JAH, 2016 MBCA 58 at para 26). [32] As a result, the Crown asked the sentencing judge to consider the impact the crime had on the children, through theevidence provided by the mother at trial and in her VIS. The accused did not contest the admission of the mother’s VIS.

The motherstated the following about the impact of the attack on her children: . . . I’m not the only one who has been affected by this sexual assault my 2 children have also My son had been affected : he used violence towards every thing : his sleep was off and would have nightmares and wake up screaming and crying for me almost every night : he shut himself out : his daily adititude [sic] was gone horrible

My daughter was affected : she would also suffer from night mares : my daughter was protective over me if a male would be near to us & would squeeze me tight and sometimes cry : she wasn’t so loveable as much as she was anymore. . . . [33] At sentencing hearings, the rules of evidence are relaxed. Indeed, pursuant to section 723(5) of the Code, hearsayevidence is admissible. The mother’s evidence relating to the impact the sexual assault had on her children was largely objective andfact-based in nature, and not challenged by the accused.

As recently stated by the Supreme Court of Canada in Friesen, a VIS presentedby a parent will typically provide the “best evidence” of the harm that the child has suffered (at para 85 quoting R v Gabriel (1999), (ON SC), 137 CCC (3d) 1 (Ont Sup Ct J)). [34] In our view, the mother’s evidence with respect to the harmfulness of the incident on the children was relevant andadmissible. It should have been taken into account by the sentencing judge in her assessment of the seriousness of the offence and themoral blameworthiness of the accused (see Friesen at paras 75-76).

By failing to do so, the sentencing judge erred. [35] As explained in the reasons above, we are all of the view that the sentencing judge ignored or underemphasisednumerous aggravating factors. In the end, by focussing on the accused’s rehabilitative prospects, she sacrificed the principles ofdeterrence and denunciation. In so doing, she failed to properly consider the seriousness of the offence and the moral blameworthiness ofthe accused.

The Fit and Appropriate Sentence [36] As a result of the errors in principle that had an impact on the sentence, this Court will perform its own sentencinganalysis to determine a fit sentence by applying the principles of sentencing afresh to the facts, without deference to the existingsentence.

As indicated earlier, we decided to admit the accused’s fresh evidence relating to his post-sentencing rehabilitative efforts forthe second phase (the determination of a fit sentence). [37] As previously mentioned, the Supreme Court of Canada increased the sentence in Friesen from four and one-half yearsto six years, with reasons to follow. We heard this appeal after the Friesen sentence had been increased, but before the reasons had beenissued. At this appeal hearing, we increased the sentence from two years less a day to five years, with reasons to follow.

We thereforehave had the benefit of the Supreme Court of Canada’s reasons in Friesen in writing these reasons. [38] The message in Friesen was unequivocal. The Supreme Court of Canada unanimously ruled that sentences for sexualoffences against children must increase. While Friesen focussed on sentencing principles for the offence of sexual interference, theCourt made clear that courts should draw upon the principles set out in that case when imposing sentences for sexual offences involvingchildren.

In this case, although the young children were not the “direct” victims, they were “secondary” victims of the sexual assaultagainst their mother (Friesen at paras 62-63). The sexual assault perpetrated against her was committed in their presence and deeplyaffected them, which in turn harmed their relationship with her. [39] While the paramount principles of sentencing for sexual assault are denunciation and deterrence, the sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender (see

section 718.2 of the Code). In this case,the gravity of the offence is apparent. Raping a mother in front of her children violates societal values. As with the situation in Friesen,the offending conduct is deeply troubling and shocking. Moreover, the accused’s degree of responsibility is high. [40] Assessing the degree of responsibility of offenders involves an examination of their moral blameworthiness in aparticular case (see R v Anderson, 2014 SCC 41 at para 21).

In making this assessment, due regard must be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (M(CA), at para 80; see also Friesen at paras 76, 88). This will ensure that the sentence imposed aligns with the accused’s moralblameworthiness, is just and appropriate and nothing more (see M (CA) at para 80; and Friesen at para 91). [41] Certain factors increase or reduce the moral blameworthiness of an offender.

For example, the abuse of a position oftrust, demeaning behaviour and gratuitous violence would increase the moral blameworthiness of an offender. The fact that the victim isa child also increases the offender’s moral blameworthiness (see Friesen at para 90).

Examples that would reduce an offender’s moralblameworthiness include cases where the offender is a young person (see R v DB, 2008 SCC 25); has mental disabilities that imposeserious cognitive limitations (see Friesen at para 91); or, where systemic and background factors (the Gladue factors) have played a rolein bringing an Indigenous person before the court (see Friesen at para 92; and R v Ipeelee, 2012 SCC 13 at para 73).

[ 42 ] In the case at hand, the accused’s moral blameworthiness is high. His intentional risk-taking was significant. He continued his conduct despite the repeated pleas of the mother not to rape her in front of the children. The consequential harm caused by the accused’s conduct was also significant. Unsurprisingly, the children and the mother suffered considerable trauma.

Finally, the normative character of the accused’s conduct was anything but normative; it ran contrary to rules of acceptable societal values. [ 43 ] While our priority focus is on deterrence and denunciation, factors personal to the accused cannot be ignored. The accused is Indigenous and a Gladue report was prepared. The principles from Gladue apply even in extremely grave cases of sexual violence involving children ( see Ipeelee at paras 84-86 ; and Friesen at para 92 ).

In this case, Gladue factors existed: the accused’s great-grandmother went to a residential school; he was raised in poverty and alcoholism; and he and his mother had been sexually abused. However, the report also pointed out the accused’s upbringing by a stable, successful mother, with a non-criminally involved family.

In terms of the accused’s rehabilitation, we are encouraged by his post-sentencing rehabilitative efforts and urge him to continue to participate in the prison’s sexual assault treatment and programming. [ 44 ] Given the rehabilitative steps taken by the accused, as well as the Gladue factors in play, we were not prepared to accept the Crown’s suggestion of a six-year sentence.

Our conclusion that the fit sentence was five years was determined after we took into account the new evidence relating to the accused’s post-sentencing rehabilitative efforts; after we weighed the different mitigating and aggravating factors; after taking into account the Gladue factors; and after we considered the various principles of sentencing enunciated above in light of the circumstances of the offence and the particular circumstances of the offender. [ 45 ] In the result, leave to appeal sentence was granted, the appeal was allowed and the incarceratory sentence was varied from two years less a day to five years. ________________________________CJM JA JA