Docket: CACR2178 Her Majesty the Queen Appellant - v. -, 2012 SKCA 95

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 95 Date: 2012-10-23 Between: Docket: CACR2178 Her Majesty the Queen Appellant - and - KM Respondent Restriction on Publication: There is an order pursuant to s. 486.4(1) of the Criminal Code directing that the identity of the complainant and any information that could disclose the identity of the complainant shall not be published in any document or broadcast in any way. Coram: Cameron, Jackson & Herauf JJ.A.

Counsel: Beverly Klatt for the appellant Mark Brayford, Q.C. for the respondent Appeal: From: Provincial Court Heard: October 4, 2012 Disposition: Appeal allowed Written Reasons: October 23, 2012 By: The Honourable Madam Justice Jackson

In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Herauf Jackson J.A. [ 1 ] K.M. was charged with three counts of sexual interference as prohibited by s. 151 of the Criminal Code . After a guilty plea, she was sentenced to two years in a penitentiary. She was also ordered to comply with The Sex Offender Information Registry Act , S.C. 2004, c. 10 , pursuant to s. 490.012 of the Criminal Code , for life and to provide a sample of her DNA. The Crown appeals the length of her prison term. [ 2 ] Ms. K.M. had sexual relations with three 14-year-old boys, friends of her similarly-aged son.

She provided a place where they could consume alcohol and she facilitated their acquisition of alcohol. [ 3 ] The detailed circumstances of the offences are best taken from the submissions of Crown counsel at the time of sentencing: . . . As to the circumstances, all three victims were 14 years of age at the time of the offences and the accused knew their ages. They were friends of her son, who was the same age. They were school classmates, as well as some–some or all played hockey together. The first in time, Your Honour, deals with–I just want to make sure I’ve got–J.

Now, J. was a very close friend of the accused’s son and, at some point, her son began having parties. I guess they could be clarified–actually, groups of friends over and alcohol being consumed at these parties. Now, obviously, these persons were too young to purchase alcohol, so the accused was purchasing alcohol for them. This happened on several occasions, quite a regular occurrence. Even some of the victims say then it would be on more than one time during an evening, she would actually go to the liquor board store and purchase more alcohol.

A number of times, this would involve people giving her money to go buy alcohol and she would bring it back to her home. As you can see from the pre-sentence report, at this point, she was divorced and had custody of her children every other week. It appeared from the other persons, looking into the relationship she had with her son, that she, rather than being as a parent/child relationship, it seemed to be more of friends, and she was trying to be his friend, such that the observers saw that her son was able to order her around to do things, and she just complied.

And with J., I understand that–I mean, he observed this and he began a similar relationship, which led into, at various times, making sexual jokes with her. At one point, I think it was after a hockey game, the boys had been showering and they came and they–they ran around the living room, covering their private parts, but ran around naked. Then on the first occasion with J., what happened is that he was at her home with at–there was a total of four young persons, not including her son. Alcohol had been consumed. Two of the other persons left to go for a walk and he and S., another victim, were left present.

He had been making sexual innuendoes towards the victim and had suggested to her, “Do you want to have a three-way?” and she said, “You guys are too young.” He said that S. and he were the drunkest of the four males that were there that day, that they talked and he says, I convinced her to do it. “Come on, no one’s going to find out.” She may have said I can go to jail or something like that, but they did pull out the living room couch. As I said, the other two had been told to go for a walk. He started kissing her. She took off her own pants.

He began having sex with her from behind and, at some point, she was also–also gave S. a blowjob while she having sex with J. The second time with J. was also at her home. Her son had–had to leave early. She gave him a ride back to his dad’s, and she had sexual intercourse with J. in her room. There was another time when he was there and was told that he could sleep on the sister’s loft bed, which was in a different bedroom, and she had come in and given him a blowjob. She randomly sent him texts all the time.

And I want to emphasize that on none of these occasions, and these are–this includes all of the victims, were condoms ever used. So these boys not only had to go through the fear of thinking about STDs, but they didn’t know her situation and whether she could have become pregnant on any of these occasions as well, Your Honour. S., who I’ve mentioned, as I say, had been consuming alcohol and felt that he was drunk on the first occasion. He was a close friend of J. and he felt because of peer pressure, as if he was forced into the participation. He did say, “K.M. said I didn’t have to if I didn’t want to.

I said, I didn’t care,” and–so then the–as I say, the blowjob proceeded. And I believe also the accused describes another occasion in her pre-sentence report. Now, the third victim was L. L. was 14 years of age, had been at a number of these parties where the accused had purchased alcohol. And on this particular occasion, he had been playing a drinking game. He said he was not feeling well and went to lie down in a bed. A couple of the other boys ended up coming and lying with him on the same bed. K.M. walked into the bedroom, said, “L., you look

squished. You can come and sleep with me,” and took him to her bedroom. She started kissing him. She took off her own pants. Hisdescription was that she said put it in. He said, “You are caught in the moment, when you are drunk, you just do it.” And as a male, onceyou began, he just continued. [Transcript, pp. 11-13] [4] Ms. K.M. was 37 at the time the offences took place. She was recently divorced and was sharing custody of her son and daughterwith their father. She had no record and was well thought of in the community.

According to the pre-sentence report, she is described asbeing a “passive” individual and someone who has little insight into her offending behaviour. She told the author of the pre-sentencereport she realized what she did was wrong but that she “[h]onestly…didn’t know this was against the law when you have two (2)consenting people” (at p. 8). The author stated that “[s]he was observed blaming one of the victims for being the aggressor” (at p. 8). [5] A risk assessment demonstrated that Ms. K.M.’s overall risk for general re-offending is low.

As to her sexual risk assessment,the pre-sentence report indicated that no validated risk assessment tool exists for female sexual offenders due to the low number of suchoffenders reported in Canada. [6] The pre-sentence report discussed sentencing options. No sex offender treatment programs are offered in any Saskatchewaninstitution.

Pine Grove Correctional Centre was described in the report as the “only female correctional centre in Saskatchewan” but thatit does not provide “any treatment, education or information regarding sexual offending.” The report indicated that the closest facilitythat provides sexual offender treatment is the Edmonton Institute for Women, a federal penitentiary. [7] Crown counsel at the sentencing hearing suggested a global sentence of three and one-half years imprisonment. She stated thatbut for the guilty pleas, she would have been seeking a custodial sentence of five and one-half years.

She submitted that the decision inR. v. Revet, 2010 SKCA 71, 256 C.C.C. (3d) 159 is directly applicable. The majority of the Court sustained Mr. Revet’s sentence ofthree years for having engaged in sexual intercourse on two occasions with a girl aged 14. Ms. K.M.’s counsel, relying on a series ofdecisions pre-dating Revet, submitted that a total sentence of between 12 and 18 months should be imposed. [8] The three charges alleged that Ms. K.M. had touched each of the boys for a sexual purpose “with a part of [her] body, to wit: herhands” contrary to s. 151 of the Criminal Code.

The sentencing judge clarified with counsel for Ms. K.M. that he agreed all of thecircumstances should be considered, notwithstanding the wording of the charges. [9] The sentencing judge concluded that Ms. K.M. could benefit from sex offender treatment, but that no such treatment wasavailable in Saskatchewan. Thus, he decided to sentence her to a penitentiary, which would require her to serve her sentence in anotherprovince.

He concluded that the principles of sentencing, especially the principles of deterrence and repudiation, would best be met inthis case with a global sentence of two years in the penitentiary with all sentences being concurrent with each other. [10] With that the Crown appealed to this Court, submitting that the sentencing judge erred in principle when he assessed the gravity ofthe offences. In particular, the Crown argues that the sentencing judge failed to give proper effect to the fact that Ms. K.M. committedseveral major sexual assaults against more than one person.

In support of that proposition, the Crown relies specifically on Revet. [11] Counsel for Ms. K.M. seeks to defend the sentence, largely based on the argument that this Court should show proper deference tothe decision of the sentencing judge. He argued that a two-year penitentiary term, which will be served outside of Saskatchewan, is not aclearly unreasonable sentence. [12] The appellate standard of review of sentences is well known. The Supreme Court of Canada has recently re-affirmed the principleof deference in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para. 14.

LeBel J., on behalf of the majority, wrote: . . . The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 15). ThisCourt also made the following comment in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: ... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [Emphasis added.] [13] From this it is clear that an appellate court’s review powers are limited, but there remains an aperture of review that requiresintervention in this case, for the same reasons that the majority of the Court gave in Revet.

In Revet, Sherstobitoff J.A. for the majoritywrote: [19] To review the fitness of the sentence imposed by the sentencing judge, one must go back first to the fundamental principle setout in s. 718.1 of the Code that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [20]

Section 718 sets out the objectives of sentencing which include denunciation, deterrence, separation of offenders from society,rehabilitation of offenders, reparations for harm to the victim and community, and the promotion of a sense of responsibility in offendersas well as acknowledgment of harm done.

[21]

Section 718.01 of the Code requires a sentencing court, when imposing a sentence for an offence involving abuse of a person under the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. [22]

Section 718.2(a)(ii.1) requires a court to increase or decrease a sentence for aggravating or mitigating circumstances respectively, and makes the abuse of a person under the age of 18 years deemed to be an aggravating circumstance. [23] The latter two provisions which require the primary objectives of sentencing in such cases to be denunciation and deterrence, and which deem abuse of a young person to be an aggravating circumstance attracting an increased sentence, indicate clearly that Parliament intended such offences to be treated as high on the scale of gravity. [24] This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered a starting point from which a sentencing judge should start, increasing or decreasing the term according the aggravating and mitigating factors: R. v.

A.W.C ., 2007 SKCA 87 , 304 Sask. R. 224, and the cases cited therein. [25] In this case, a useful comparison may be made with sentences for sexual assaults upon women who were incapable of giving consent at the time of assault due to being under the influence of alcohol, drugs or sleep, or combinations thereof. These have been treated by this Court as sexual assaults drawing the same starting point sentences as those in all other major sexual assaults: R. v. A.W.C. [26] There is no reason why the same starting point should not be used in a case such as this.

Sexual assaults upon children are at least as high in terms of gravity, if not higher, than sexual assaults upon adult persons. [27] In this case, other than the age and learning disability of the victim, there is very little remarkable. There are a few mitigating factors. The appellant had no criminal record, and he pleaded guilty. Although he expressed remorse, he also tended, according to the pre-sentence report, to blame the victim for bringing the matter on herself by sending text messages to him.

Otherwise his only excuse was an alcohol problem which is no excuse. [ 14 ] The sentencing judge disregarded Revet saying: … In this case, I do not think there is a typical case that is similar, and there is very little–indeed, there is very little case law available at all, so it is difficult to say there is an appropriate starting point.

If there is no similar or appropriate starting point, I can look at basic principles in similar cases to determine a range of sentences. [Transcript, p. 33.] He stated there "was very little case law"(Transcript, p. 33) to guide him before concluding that there is no appropriate starting point sentence for adult offenders who have sexual intercourse with children under the age of 16.

As a consequence, he held that the range of appropriate sentences for an adult offender who has sexual intercourse with a child under the age of 16 is a custodial sentence of between 9 and 36 months. [ 15 ] Neither the analysis nor the result in Revet can be distinguished. In such circumstances, the sentencing judge was required to give effect to it (see: R. v. S.(M.) , 2003 SKCA 33 , [2003] 11 W.W.R. 27 at para. 31 ). Further, a sentence of two years is clearly unreasonable. As the recitation of the facts in this case indicates, Ms. K.M. cannot rely upon a momentary lapse of judgment.

The incidents occurred over a four-month period. Ms. K.M. provided the premises, the alcohol and the atmosphere that permitted these assaults to take place. Assaults occurred against three individuals. In the case of L., she clearly took advantage of an intoxicated 14 year old. The prosecutor at the sentencing hearing indicated that the video-taped statement of L. showed him “very emotional” when he said “I didn’t want to lose my virginity to her” [Transcript, p. 13].

The parents of the children filed victim impact statements attesting to the feelings of guilt and shame experienced by their sons. [ 16 ] With the enactment of s. 718.01 of the Criminal Code and the change to the age of consent for adolescents between the ages of 14 and 16, Parliament has made its intention very plain that sexual assaults against children in this age group are to be met by significant penalties. [ 17 ] The Crown has submitted that a fit sentence would be 42 months.

A 42-month sentence for these offences committed in these circumstances would be a reasonable sentence, though we must not lose sight of the personal circumstances of the offender and, in particular, the impact of this sentence on Ms. K.M., given that she is required to serve this sentence outside of Saskatchewan. [ 18 ] At the time of sentencing, which occurred some 18 months after the charges were laid, Ms. K.M. was attending the Saskatoon Business College where she was taking an administrative assistant program. Her children were completely estranged from her.

She was suffering from clinical depression and was described by a relative as being “fragile.” Ms. K.M. indicated to the pre-sentence report author that “emotionally things would be a lot better if she could mend the relationships with her kids.” By serving her sentence in Alberta, this sentence will fall more harshly on Ms.

K.M. than on other offenders serving a similar sentence as she is further removed from her primary source of support, her parents, who reside at some considerable distance from Edmonton. [ 19 ] Having regard for the seriousness of the three offences, Parliament’s clear direction regarding offences against children and the

jurisprudence from this Court, a two-year sentence is clearly unreasonable. A fit sentence in all of the circumstances, particularly the offender’s personal circumstances, would be three years. [ 20 ] Leave is granted to the Crown. The appeal is allowed. The custodial portion of the sentence is set aside. The sentence is fixed at three years. The ancillary DNA and SOIRA orders remain. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of October, A.D. 2012. __ “Jackson J.A.” _______________________ Jackson J.A. I concur __ “Cameron J.A.” ______________________ Cameron J.A. I concur __ “Herauf J.A.” ________________________ Herauf J.A.