QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 272 Date: 2009 07 02 Docket: Q.B.C. 31 of 2007 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN Counsel: Roger DeCorby for the Crown Christina G. Skibinsky for S. C. SENTENCING JUDGMENT ZARZECZNY J. July 2, 2009 INTRODUCTION [1] On June 5, 2009, this Court, in a written judgment (the “Judgment”) found the accused guilty of the following offence:COUNT 1 THAT HE, the said S. C. [sic], on or between the 20th day of May and the 22nd of December, A. D. 2005 at Muscowpetung First Nation, Saskatchewan did for a sexual purpose touch A. M. [sic] a person under the age of fourteen years directly with a part of his body, to wit: his hand, contrary to Section 151(a) of the Criminal Code. [2] Section 151(1) of the Criminal Code provided, at the relevant time, as follows: 151. Sexual interference Every person who, for sexual purpose, touches, directly or indirectly, with part of the body or with an object, any part of the body of person under the age of fourteen years (a) is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years and to minium punishment of imprisonment for term of forty-five days; ... CIRCUMSTANCES OF THE OFFENCE [3] The facts of this case are as set out in the court’s Judgment. Briefly stated, the accused was found guilty of directly touching, for sexual purpose with his hand, the vagina of A.M. on more than one occasion between May 20 and December 22, 2005. The last of these occurred either December 17 or 18 of that year. A.M. was nine years old at the time and therefore person under 14 years of age as provided for by s. 151(a) of the Criminal Code. On all occasions, his touching occurred over and not under A.M.’s clothes. [4] At the time of these occurrences, the accused lived with A.M.’s mother, T.Y. He regarded his relationship with A.M. as that of step-father/daughter. His sexual touching occurred at his residence on the Muscowpetung First Nation Reserve on occasions when A.M. would visit with him and her mother on weekends. CIRCUMSTANCES OF THE OFFENDER [5] S.C. is currently 37 year old male. At the time of the commission of this offence, he was 33. He is First Nations and although he currently resides on the Ochapowace First Nation Reserve, his home reserve is Muscowpetung where these incidents occurred. At 13 years of age, he entered the Lebret Residential School where he attended for approximately three and one-half years. At the sentencing hearing, his counsel advised he experienced abuses at this school. The accused testified at the trial. He told of his experiences both of physical and, more traumatic to him, sexual abuse while growing up. He was sexually abused by both male and female members of his family. He testified at the trial that this abuse substantially impacted him and it has affected him all his life. [6] S.C. did not complete high school education, however, he says he has plans to do so. He hopes to enroll in Grade 12 equivalency program which he could begin in the fall of 2009. [7] S.C.’s counsel submitted that when he did work it was in general labouring type jobs. He has been unemployed for lengthy periods including the present. [8] S.C. has three children, two older sons, ages 13 and 17, as well as daughter, age 15, and young son born of A.M.’s mother. He currently resides with his new common law spouse who is now pregnant with his child. [9] His counsel reports that S.C. has had significant substance abuse problems throughout his life mostly with alcohol but also occasionally with drugs. Submissions made on his behalf suggest that he has twice attempted treatment programs, the first approximately five years ago which was successful for short period of time but saw him relapse into alcohol and drug abusive behaviours. The second occasion was during December and January of 08/09 while he was awaiting trial on this charge. He attended two months of an 11 month program. He withdrew before completion but hopes to re-enter and is on the waiting list. [10] S.C. has many supporters. His mother, common law spouse, cousins, brother and nieces were in court during his sentencing hearing as was Mr. Vern Anaskan of the Justice Committee of the Piapot Reserve and Chief Elizabeth Pratt of the Muscowpetung Reserve. Chief Pratt and number of others wrote letters of reference and support and during the sentencing hearing, submissions of support were received. Chief Pratt emphasized his need for healing and encouraged the court to accept his commitment to change which she believed was sincere. [11] S.C. has criminal record for offences dating back to 1993, the last of which involved an uttering threat charge in 2003, for which he was fined and received one year probation. The Crown accepts that these past offences are non-related to the present charge. In all prior cases he received fines, driving prohibitions and, in the one case, probation. His counsel advises he has not served any period of incarceration other than as related to the present offence. POSITION OF THE PARTIES [12] At the invitation of the court, counsel for both parties submitted their positions in writing with respect to the sentencing of S.C. Those positions are as follows: The Crown’s Position [13] In his brief, counsel for the Crown sets out its position as follows in para. 1: In it’s submissions, the Crown will seek sentence of incarceration to be served in Provincial Correctional Facility. The length of sentence requested by the Crown will be years less one day. ... [14] In support of its position, the Crown relies upon the cases of R. v. D.W.C., 1997 SKCA (SentDig) 30; R. v. McKay, 2000 SKCA (SentDig) 19; R. v. G. (H.), 2003 SKCA (SentDig) 38; R. v. Bighetty (2005) 2005 SKCA 94 (CanLII), 269 Sask. R. 108 (Sask. C.A.); R. v. Lindsay, 2008 SKCA (SentDig) 1, R. v. Bird (2008), 2008 SKCA 65 (CanLII), 310 Sask. R. 222. In addition to these case authorities, the Crown relies upon s. 718.01 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”) requiring court, when it imposes sentence for an offence that involves the abuse of person under the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. The Crown additionally relies upon s. 718.2(ii.1) providing that it is an aggravating circumstance that the offender abused person under the age of 18 years, s. 718.2(iii) that the offender abused position of trust or authority in relation to the victim, and s. 718.2(b) the parity principle. [15] In addition to the sentence of incarceration, the Crown applies for s. 490.012 Criminal Code sex offender registry Order (unopposed by the defence), s. 487.051(2) Criminal Code Order authorizing DNA analysis samples to be provided (again unopposed by the defendant), s. 109 ten year firearm prohibition Order and ten year prohibition Order from attending certain places as provided for by s. 161 of the Criminal Code. The latter two orders are both opposed by the defence as being over-reaching having regard to the circumstances of the offence in respect of the former and this offender in the respect of the latter. [16] Finally, the Crown asks for two year period of probation to follow any sentence with general conditions and two specific conditions including sex offender and substance abuse assessment, counselling or treatment and avoiding contact with A.M. The Accused’s Position At para. 49 of her submission, counsel for the accused advances the following position to the court with respect to its sentencing of the accused: In light of all of the submissions and materials filed, as well as any additional oral submissions on the date of sentencing, the defence submits that an appropriately fit sentence for [S.C.] would be in the range between six to nine months. We agree with the Crown’s recommendation for lengthy probation period to follow the custodial portion of the sentence. [18] As did those persons making submissions to the court during the sentencing hearing, counsel for the accused stressed S.C.’s need and desire for treatment as First Nation’s individual. Counsel stressed the restorative approach outlined by the Supreme Court in the seminal decision of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.R. 688 and commended the “Gladue principles” to the court for its consideration. In doing so, she raises s. 718.2(e) of the Criminal Code requiring the court to consider all available sanctions other than imprisonment before imposing custodial term, especially with respect to aboriginal offenders. [19] It must be pointed out at this time that counsel for the defence did not argue for any sentence imposed to be served in the community. The court understood her submissions to support not community based sentence for the accused but rather the proposition that the “Gladue factors” and principles should inform this Court with respect to the length of any incarceral sentence it might impose upon this offender. ANALYSIS The Sentencing Provision of the Criminal Code [20] As have the courts in the cases quoted in this sentencing judgment, have considered, in particular, the provisions of the Criminal Code setting out the fundamental purposes, objectives and principles of sentencing. [21] The Criminal Code of Canada, and in particular s. 718 of the Code, sets out the fundamental purposes of sentencing. These include maintaining respect for the law and just, peaceful and safe society. The objectives of sentencing are also set out in this section of the Code and they include denunciation of unlawful conduct, deterrence of an offender or other persons from committing offences, separation of offenders from society when necessary, assisting in the rehabilitation of offenders and finally the promotion of sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [22] fundamental principle of sentencing is set out by s. 718.1 of the Criminal Code. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [23] Section 718.2 of the Criminal Code mandates that sentencing court must take into consideration relevant aggravating or mitigating circumstances relating to the offence or the offender in considering whether or not sentence should be increased or reduced. This section advances the parity principle that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. [24] Finally, s. 742.1 of the Criminal Code provides that where court imposes sentence of imprisonment of less than two years and it is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing previously referred to, the court may order that the offender serve the sentence in the community subject to conditions that the court imposes. [25] The court has already commented, in the particular facts and circumstances of this case, upon the additional considerations which it is mandated to take into account with respect to the provisions of s. 718.01. Since this case did involve the abuse of person under the age of 18 years, this section of the Code mandates that primary consideration be given to the sentencing objectives of denunciation and deterrence. Section 718.2(ii.1) also applies since this case did involve the abuse of person under the age of 18 years. That is relevant aggravating circumstance as is the fact that the accused abused his position of trust or authority, namely his step-father/daughter relationship to A.M., and this too is an aggravating circumstance that the court is mandated by s. 718.2(iii) to consider. Aggravating Circumstances [26] As has already been observed, this offence involves abuse of person under the age of 18 years, namely A.M., who was nine years old at the time. The accused abused his position of trust and authority since, by his own evidence at the trial, he saw himself in step-father/daughter relationship with A.M., relationship which had continued over some years. As A.M.’s mother, T.Y., states in her victim impact statement: ... My daughter still doesn’t trust men because she gave all her trust in the world to [S.C.] and took him like her “Dad”. Then he turned around and betrayed her at the tender age of years old, by sexually touching her private parts. never thought that [S.C.] would hurt my daughter. He played the part well of being great step-dad to her. He promised her that he wasn’t here to hurt her remember him saying this to her. He gained our trust and used it to his benefit and started abusing me then eventually sexually touching [A.M.]. ... [27] These incidents of abuse occurred more than once. At the trial, as best A.M. could remember, it happened around five times or so. [28] The accused is not young man he was 33 years old when this offence occurred and he is now 37. Even though he is self-acknowledged long time abuser of alcohol and drugs, has made no serious effort at obtaining help, programming or rehabilitation. What efforts he has made have been unsuccessful or uncompleted. He has not upgraded his skills or education nor has he maintained regular or any worthwhile employment. [29] Perhaps most noteworthy, however, as an aggravating circumstance, is that at no time during the trial nor during the sentencing hearing when he was given specific opportunity to do so and asked if he had anything to say, did he apologize to his victim, the court, his community, his current spouse or T.Y. for his actions. He has shown absolutely no remorse and, as noted in the trial Judgment, appeared more focused upon himself and his own victimization then showing any concern for his victim or the impact his abuse might have upon her and her future life. [30] These are the aggravating circumstances which this Court has considered applicable in this case. Mitigating Circumstances [31] The accused does not have any significant or related criminal record and he has not previously served time in jail. He appears now to be well settled in new relationship which appears stable. He clearly has the love and support of his current spouse who has been with him during the trial and all subsequent court proceedings. She has written letter of support outlining her feelings for the accused and her belief that he truly wishes to rehabilitate himself and make plan for his and now his family’s future. [32] The accused clearly has the support of his First Nation’s community, both members of his Reserve and that of his now adopted Ochapowace First Nation Reserve. Many of his relatives, including his brother, cousins and nieces as well as his mother, were in court to support him. number of these individuals spoke at the sentencing hearing. They accept the sincerity of his wish to deal with his past and present addictive and abusive behaviours and to make new life for himself and his family. They are prepared to support him personally and with the resources of the Reserve, as Chief Pratt submitted in her oral statements and written letter to the court. [33] Finally in this regard, the court does observe that as abusive as S.C.’s behaviours towards A.M. were, the nature of his actions were not as intrusive as is the case in number of the cases relied upon by the Crown in its brief on sentencing. A.M., as the Judgment notes, is an intelligent and confident individual and although she has been impacted, as her mother’s victim impact statement outlines, nevertheless, she appears resilient and impressed the court as being able to put this matter behind her. Time will tell. CONCLUSION [34] This is not a case where a conditional sentence served in the community is available or appropriate. Section 151 of the Criminal Code provides that the maximum sentence in case such as this is 10 years but it also provides compulsory minimum sentence of incarceration of not less than 45 days. Section 742.1 of the Criminal Code relating to the imposition of conditional sentences is therefore not available in this case. [35] As previously reviewed, the Crown recommends sentence of two years less day of imprisonment while defence counsel submits that sentence of six to nine months of incarceration would be appropriate in all of the circumstances. [36] There can be no question, by virtue of the recent amendments to the Criminal Code, that the Parliament of Canada has clearly sought to protect the children and young people of this country from the abuse of adults. It has done so, in part, by enacting the provisions of s. 718.01 mandating that where case involves the abuse of person under 18 years of age, the court must give primary consideration to the sentencing objectives of denunciation and deterrence. There is no better evidence of why the protection of children is an important social value than to consider the history of abuse testified to by both A.M.’s mother and S.C. himself. As S.C. testified, the physical and sexual abuse that he suffered at the hands of his family members have haunted and affected him throughout his life. Failure of the justice system and the courts to protect young people by imposing jail sentences that will serve to denounce and deter abusive behaviour towards children will only perpetuate the kind of abuse and consequences which S.C., the accused in this case, has himself experienced and from which he testified he still suffers. [37] A.M. was entitled to be safe in the hands of her parent, including her step-parent, S.C. She was entitled to grow up happy and well-adjusted and to trust in and have respect for adults, male and female. S.C. accepted his role, as he testified at trial, as A.M.’s step-parent and as such, he was responsible to protect her and keep her safe. He abused his position of trust and authority by molesting her not once but on number of occasions. So much so, that when she finally reported his abuse to her grandmother, she did so because she was frightened that, as she testified, it would get worse. Her testimony at the trial suggested nothing less than she was sufficiently aware of the nature and kind of abuse that she was experiencing to follow her mother’s advice and report it to someone she trusted, in this case, her grandmother. She became scared enough to do so. [38] In all of these circumstances, the court has concluded that an appropriate sentence to be imposed upon S.C., for his conduct in this case, is a term of imprisonment of nine months to be served in a correctional institute of Canada. The length of sentence responds to the concerns and considerations which the court has outlined including the Code mandates of denunciation and deterrence both of S.C. and the larger members of the community. This sentence also responds to the nature of the acts committed. Thankfully, because of A.M.’s intelligence and strength S.C.’s abuse of her, while serious, was reported soon enough to avoid the potential of much more serious abuse. Because of her strength what happened to A.M. has had an impact upon her which the court expects she will be able to overcome with time. [39] The sentence of imprisonment imposed by this judgment will be followed by a one year term of probation containing the standard conditions that the accused keep the peace and be of good behaviour, appear before the court when required to do so by the court, that he will notify the court or a probation officer in advance of any change of name or address and will promptly notify the court or the probation officer of any change of employment or occupation. [40] In addition, the court imposes the following optional conditions in this probation order: 1. That S.C. will report to probation officer within five working days after the making of this probation order and thereafter when required by the probation officer and in the manner directed by the probation officer; 2. That S.C. shall participate actively in assessments, education and/or treatment in an approved program or programs for substance abuse and sex offenders as may be directed by and to the satisfaction of S.C.’s probation officer and, if so directed, S.C. shall not give just cause for dismissal from such program. 3. That S.C. shall refrain from having any contact with A.M. during the period of his incarceration and, subsequently, this probation order. [41] The Crown has satisfied the court that this offence is an offence to which s. 109 of the Criminal Code applies and therefore a mandatory prohibition order shall issue prohibiting S.C. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period of 10 years after his release from prison. [42] A further order shall issue pursuant to s. 487.051(2) of the Criminal Code authorizing and ordering you to provide sufficient samples of your bodily substances so that a DNA analysis may be conducted. The court further orders, pursuant to s. 487.012 of the Criminal Code, that S.C. comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, the length of such order to continue for 20 years. [43] Finally, the Crown has requested an order be made pursuant to s. 161 of the Criminal Code prohibiting S.C. from engaging in certain employment involving positions of trust or authority towards persons under the age of 14 years and prohibiting him from attending certain public areas frequented by children under 14. am prepared to accept the submissions of the Crown with respect to ss. 161(1)(b) order, however, not in respect of an order under ss.(a). This offence occurred in particular circumstances and there is no indication that the acts of abuse were random nor is there any evidence that compulsive behaviours were involved. An order will therefore issue pursuant to s. 161(1)(b) prohibiting S.C. from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 14 years. J. T. C. Zarzeczny
The accused was found guilty of the following offence: for a sexual purpose touching A. M. a person under the age of fourteen years directly with a part of his body contrary to s. 151(a) of the Criminal Code. After reviewing the circumstances of the offence and the offender, in addition to sentencing principles as set out in the case law and statutes, the Court found that this was not a case where a conditional sentence served in the community is available or appropriate. The Court found the appropriate sentence, given all the circumstances, is a term of 9 months to be served in a correctional institute in Canada, to be followed by a 1 year term of probation containing the standard conditions. HELD: The accused is sentenced to 9 months incarceration. Pursuant to s. 109(1) of the Criminal Code, a firearm order was made for 10 years prohibiting the accused from possessing any type of weapon. The accused shall also supply a sample of his DNA for analysis. There is an order under s. 490.012(1) that the accused comply with the Sexual Offender Information Registration Act. The accused is also prohibited, pursuant to an order under s. 161(1)(a), from attending a public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, day care centre, school ground, playground or community centre for a period of 3 years.