Docket: CACR2275 Her Majesty the Queen Appellant - v. -, 2013 SKCA 101

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 101 Date: 2013-09-25 Between: Docket: CACR2275 Her Majesty the Queen Appellant - and - Shawn Curtis Whiting Respondent Restriction on Publication: In accordance with s. 486 of the Criminal Code , an order has been made prohibiting publication of any information that could disclose the identity of the complainant. Coram: Richards C.J.S., Ottenbreit and Whitmore JJ.A. Counsel: Jerome Tholl for the appellant Morris P. Bodnar, Q.C. for the respondent Appeal: From: QBNJ 36/11, J.C. of Saskatoon Heard: August 8, 2013 Disposition: Allowed

Written Reasons: September 25, 2013 By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit Whitmore J.A. I. Introduction [ 1 ] This is an appeal by the Crown against the sentence imposed upon Shawn Curtis Whiting who pleaded guilty to committing a sexual assault upon E.M. contrary to s. 271 of the Criminal Code . [ 2 ] The learned sentencing judge imposed a sentence of six months incarceration and a six-month probation order.

In addition, the sentencing judge imposed a DNA Order, a 10-year firearms prohibition and a $100.00 complainant surcharge. The trial judge declined to order that Mr.

Whiting be made subject to an order under the Sex Offender Information Registration Act , S.C. 2004, c. 10. [ 3 ] The Crown appealed the sentence on the basis that the sentencing judge erred in failing to characterize the offence as a major sexual assault and placed too much emphasis on the proximity in ages of the complainant and the accused resulting in a disproportionately low sentence which is demonstrably unfit. [ 4 ] In addition, the Crown appealed the decision of the sentencing judge in declining to impose an order under the Sex Offender Information Registration Act on the basis that such an order is mandatory and the sentencing judge was therefore required to make such an order. [ 5 ] This decision relates only to the appeal regarding the sentence, a decision with respect to the appeal of the Sex Offender Information Registration Act order will follow at a later time.

II. Background [ 6 ] On March 21, 2009, the respondent entered into a conversation with the complainant on an online computer network site. During this conversation, the respondent learned the complainant was 14 years old. The conversation was of a sexual nature. The respondent determined that the complainant had not had sexual intercourse before and told her “older guys can show u new things”. [ 7 ] She hesitated and replied she wanted to know him better before going too far but he proposed that they meet that night. Eventually she agreed to meet him.

From the transcript of the conversation it is clear that the respondent was leading the conversation and talked the complainant into meeting with him for sex that evening. [ 8 ] She gave him her address and he drove over and picked her up. They went to a nearby parking lot where they each removed their own clothes and commenced sexual intercourse. [ 9 ] When the complainant asked the respondent to stop, he did so. They got dressed and he returned her to her home. She then told her mother what had happened. III.

The Decision of the Court Below [ 10 ] The sentencing judge described this as one of the most difficult cases he has dealt with. [ 11 ] The sentencing judge acknowledged certain mitigating factors, being the age of the respondent (19 years), the fact the respondent had no criminal record, and had been steadily employed with increasing responsibilities since graduating from high school. The sentencing judge referred to him as “a young man who would not be in front of me under any other circumstances, who has a job, who has an education that he has pursued. He has a career.

He has a responsible position.” [ 12 ] The sentencing judge also considered the aggravating factors, being the age of the complainant (14) and the serious impact the sexual assault has had on her. Her depression became worse, she had difficulty in school and engaged in self-mutilation.

The sentencing judge also considered as an aggravating factor that the respondent knew the complainant’s age but thought it was acceptable to be involved in such a way. [ 13 ] The Crown sought a sentence of 24 to 30 months incarceration, acknowledging that the youth of the respondent may serve to reduce the starting point by six months to one year.

The respondent argued that a sentence of 45 days incarceration was appropriate, being the minimum sentence prescribed by s. 271 of the Code , arguing that the age difference between the complainant and the complainant is five years and 32 days and that if the complainant were 32 days older or the respondent was 32 days younger, the consent of the complainant would be considered pursuant to s. 150(2.1) of the Code . [ 14 ] The sentencing judge acknowledged that the starting point for this offence has been established at three years by R. v. Revet , 2010

SKCA 71, 256 C.C.C. (3d) 159, and said that the starting point was inappropriate in this case. The sentencing judge then imposed asentence of six months incarceration. He declined to order that the respondent comply with The Sex Offender Information RegistrationAct. [15] The sentencing judge found that the respondent is not a stereo-typical sexual offender and would not be back in court for a sexualmatter. IV. Issues [16] The Crown raises the following as points in issue with respect to the sentence appeal: 1. The sentencing judge erred in principle; 2. The sentence is demonstrably unfit. V.

Standard of Review [17] The standard of review is set out in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at paras. 90 and 92 to the effectthat: [90] … [A]bsent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court ofappeal should only interfere to vary a sentence imposed at trial if it is demonstrably unfit. . . . [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v.

Knife (1982), (SK KB), 16 Sask. R. 40 (C.A.), at p. 43; R. v. Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges.

It has been repeatedly stressed that there is no such thing as a uniform sentence fora particular crime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for asingle appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

Aswell, sentences for a particular offence should be expected to vary to some degree across various communities and regions in thiscountry, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in theparticular community where the crime occurred.

For these reasons, consistent with the general standard of review we articulated inShropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed bythe trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similarcrimes. VI. Analysis [18] The Crown asserts that the offence before the Court is a “major sexual assault” and the starting point in sentencing is three years’incarceration.

According to the Crown, the sentencing judge failed to acknowledge that this was a major sexual assault and thereforefailed to impose an appropriate sentence. The Crown argues that a sentence of two to two and a half years incarceration is appropriate. [19] The respondent’s position is that the sentencing judge did consider whether this was a major sexual assault and in considering allthe factors came to the conclusion that a sentence of six months was appropriate under the circumstances. [20] In R. v. Cappo (1993), 116 Sask. R. 15, this Court referred to R. v. Bird (1993), (SK CA), 105 Sask.

R. 161, adecision of this Court which set a threshold sentence of three years for offences of this nature. Bird in turn referred to R. v. Sandercock(1985), 1985 ABCA 218 , 22 C.C.C. (3d) 79, a decision of the Alberta Court of Appeal which established the starting point forsentencing for a major sexual assault at three years.

The Alberta Court of Appeal in Sandercock described a major sexual assault as: 13 One archetypical case of sexual assault is where a person, by violence or threat of violence, forces an adult victim to submit tosexual activity of a sort or intensity such that a reasonable person would know beforehand that the victim likely would suffer lastingemotional or psychological injury, whether or not physical injury occurs. The injury might come from the sexual aspect of the situationor from the violence used or from any combination of the two.

This category, which we would describe as major sexual assault, includesnot only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, andbuggery, where the foreseeable major harm which we later describe more fully is present. [21] In R. v.

Revet, supra, this Court held as follows: 24 This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would beconsidered a starting point from which a sentencing judge should start, increasing or decreasing the term according the aggravating andmitigating 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. [ 22 ] The Crown argues that if the sentencing judge had properly characterized the offence, he would have imposed a lengthier period of incarceration. [ 23 ] The respondent argues that the sentence is appropriate, given the willingness of the complainant to participate and the proximity in ages of the complainant and the respondent. The complainant was in control the whole time.

She waited for the respondent to come and get her, she took her own clothes off and when she asked the accused to stop, he did so. [ 24 ] The respondent argues that the minority decision in R. v. Revet to the effect that it is “an error to say that consent can never be a factor in determining the gravity of the offence of sexual assault” is relevant and applicable. [ 25 ] The respondent further argues that due to the proximity in ages of the complainant and the respondent, s. 150.1(2.1) should be considered.

Section 150.1(2.1) reads as follows:

(2.1) When an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if (

a) the accused (

i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (

b) the accused is married to the complainant. As the respondent is only five years and 32 days older than the complainant, the respondent argues the issue of the complainant’s de facto consent should be considered to reduce the sentence. [ 26 ] The offence before this Court is a major sexual assault. It involved full sexual intercourse with a person incapable of providing consent. The complainant suffered significant consequences as a result of the encounter.

As stated in Revet , “a useful comparison may be made with sentences for sexual assaults upon women who were incapable of giving consent” as a result of consumption of alcohol or drugs, or being asleep, and cases such as this where the complainant does not have the capacity to consent because of age. [ 27 ] The trial judge erred in not characterizing the offence as a major sexual assault. This reflected a failure to appreciate its gravity.

Had he seen the offence in the proper light, he would not have rejected the starting point of three years expressly stated in Revet . [ 28 ] In focusing on the youth and character of the respondent, the sentencing judge also erred in not properly considering certain objectives of sentencing set out in s. 718 of the Code . [ 29 ] Specifically, the sentencing judge should have considered the denunciation of the respondent’s conduct, the deterrence of the respondent and others from committing offences, and the acknowledgement of the harm done to the complainant and to the community.

In the end, he imposed a sentence that was demonstrably unfit. [ 30 ] Having found that the sentencing judge erred in not characterizing the assault as a major sexual assault, a fit sentence remains to be determined. [ 31 ] The Crown concedes that the respondent’s age should be a mitigating factor, but it should not reduce the starting point such that the sentence is one-sixth of what this Court articulated as the starting point in Revet . [ 32 ] The sentencing judge understood and acknowledged that the complainant could not consent.

At p. 27, lines 21-27 of the transcript, he stated: Now, you were a child by our law. And as a child, you could not consent to activity of this nature. And as a child–quite frankly, a child at 14 is too young to understand all of the implications and the subtleties of–of the conduct that went on.

Had you known what you would go through psychologically and, unfortunately, physically with the–some of the problems that you’ve dealt with–and I’m pleased to see from the victim impact statements are dealing with in–in a–in a somewhat successful way at this particular point, I’m sure you would not have involved yourself in the activity at all. The trial judge then considered the youth and personal circumstances of the respondent. As a result, he rejected the starting point established in Revet . [ 33 ] The sentencing judge was concerned about the impediment to the respondent in achieving something in his life.

In my view he over-emphasized the young age of the accused and thus imposed an inappropriate sentence. [ 34 ] The Crown submits that courts have held that sentences of 14 months to three years incarceration are appropriate in cases such as this

[ 35 ] In R. v. Pritchard , 2005 ABCA 240 , 371 A.R. 27, a 19 year old accused contacted a 13 year old girl through the internet. They agreed to meet and on their second meeting they had sexual intercourse. There was some evidence the accused had some brain dysfunction. He was given a 30 month suspended sentence.

Upon appeal, the Alberta Court of Appeal stated that the Crown’s proposition of a 14 to 18 month sentence of incarceration was appropriate but because the accused was well into psychological treatment under the probation order, the Court felt it was inadvisable to interrupt the sentence and to order a sentence of incarceration at that time. [ 36 ] In the case of R. v. Feng , 2011 ABCA 172 , 505 A.R. 229, the offender was 25 years of age and the complainant was 14.

The offender reviewed the law and found it legal to have sexual intercourse with the complainant but the law changed shortly thereafter raising the age of consent to 16. The parties were friends and the offender intended to marry the complainant when she became 18. There was a de facto consent. This was not a predatory behaviour and the complainant suffered no trauma or ill effects from the admitted nine-month relationship. The Alberta Court of Appeal dismissed the Crown’s appeal and confirmed the sentence of 17 months. [ 37 ] In R. v.

King , 2013 ABCA 3 , the Alberta Court of Appeal dismissed an appeal by the accused from a sentence of three years imprisonment. The accused, aged 43 was convicted of sexual assault, sexual touching and invitation to sexual touching all in relation to the same young female under the age of 16 years. The relationship lasted until the complainant was 16. The Alberta Court of Appeal held at para. 27 that the suggestion that the complainant agreed to a sexual relationship justified a reduction in sentence from the starting point was expressly rejected.

The Court held that the de facto consent of the complainant was not a mitigating factor but the absence of an aggravating factor. The accused initiated the relationship. The Alberta Court of Appeal also held that the fact there was no violence was likewise merely the absence of an aggravating factor, not a mitigating factor. [ 38 ] As stated, the case before us is a major sexual assault. The trial judge should have observed the threshold of three years. Having said that, there are factors which serve to reduce the sentence to less than three years.

The Crown concedes that the sentence imposed should be in the range of 20 to 24 months. The trial judge observed that the respondent is “a young man with who would not be in front of me under any other circumstances, who has a job, who has an education that he has pursued. He has a career. He has a responsible position.” The sentencing judge had no doubt that the respondent would not be back in front of the court or any other court dealing with a sexual matter. The respondent pled guilty thus saving the complainant the stress of testifying.

The respondent has no criminal record, has the support of his family and a former girlfriend. Finally, the proximity in the ages of the parties is something this Court can consider. [ 39 ] The sentence of six months is unfit. It is therefore set aside. A sentence of 14 months is appropriate and is hereby substituted in its place. Mr. Whiting is hereby ordered to present himself to the Saskatoon Provincial Correctional Centre within 48 hours of the issuance of this decision.

DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of September, A.D. 2013. “Whitmore J.A.” _____________ Whitmore J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Ottenbreit J.A.” Ottenbreit J.A.