WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: June 6, 2013

Court File No.: Not provided

Location: London, Ontario

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

D.B.

Judicial Officer and Counsel

Before: Justice J.C. George

Heard on: May 16, 2013

Reasons for Sentence released on: June 6, 2013

Counsel:

• J. Moser — counsel for the Crown
• P. Downing — counsel for the accused D.B.

REASONS FOR SENTENCE

GEORGE J.:

The Offence and Guilty Plea

[1] 40 year old D.B. pleaded guilty to and was found guilty of sexually interfering with 14 year old C.H., a close friend of his daughter. There is a mandatory minimum penalty which necessitates the imposition of a jail sentence. As to length, there is considerable difference between the respective positions being advocated.

Aboriginal Status and Gladue Considerations

[2] D.B. is an aboriginal person; a status Indian and member of the K[…] First Nation. I note — although it's of little relevance in terms of whether Gladue principles should be applied — that even though he spent time with and visited family members on the First Nation, as a youth he lived primarily off-reserve.

[3] I received and reviewed a Gladue report and heard from the victim's father, who read to the court a powerful victim impact statement.

Facts of the Offence

[4] The facts are concerning. D.B. began what essentially amounted to a relationship with young C.H., or at least that's how I think he viewed it. This relationship, which became sexual, was entirely inappropriate, certainly criminal in nature, and was committed in a breach of trust situation.

[5] There was one incident of intercourse but other sexual acts as well, one where C.H. was penetrated with an object. The troubling details include the placing of a gag ball in C.H.'s mouth, the use of other sex toys, and arrangements to meet in a clandestine fashion.

[6] After some resistance initially, even the poor young girl appears to have started to feel as if she were in a relationship. All very troubling and disconcerting that a young person was ever put in a position like that to begin with, not to mention the, what I'll call emotional blackmailing that took place. For instance, I was told that at one point D.B. communicated with C.H. indicating that he would kill himself if she didn't respond to his messages.

Victim Impact

[7] The victim impact is enormous. The sex was without a condom, which surely engendered fear and uncertainty respecting a potential pregnancy or disease. Although the most important consideration is the victim's trauma, it must be noted that the impact was felt by her family as well. This strain is apparent in the father's victim impact statement.

Sentencing Principles and Objectives

[8] The factors, principles and objectives of sentencing are as set out in sections 718 and 719 of the Criminal Code of Canada. I won't repeat them, but I have turned my mind to them all, recognizing that some are of more importance than others, given these facts and the age difference.

[9] General deterrence and denunciation are at the forefront. That, however, doesn't mean all other considerations are to be ignored. The additional part of this piece is the application and consideration of what I'll call the Gladue principles, which refers to the Supreme Court of Canada's clear direction to sentencing courts in how to interpret and apply section 718.2(e) of the Criminal Code.

Application of Gladue Principles

[10] Sentencing courts are to consider all alternatives to custody that are reasonable in the circumstances, paying particular attention to the circumstances of aboriginal people. With that, several factors come into play. First, if jail is to be imposed, the length of the sentence must be carefully considered. Second, I must take great strides to not only understand D.B's background as an aboriginal person, but to consider how that history has impacted his offending behaviour. Third, I'm to take notice of several more systemic factors which impact aboriginal people collectively. For example, the impact of residential schools; the displacement from communities; higher incidents of suicide, substance abuse, family dysfunction; and of course, higher rates of incarceration, among other things.

Crown and Defence Positions

[11] The positions advanced by counsel are quite different. The Crown seeks a penitentiary sentence in the range of two to three years, while the defence suggests a lower reformatory jail sentence, perhaps even in the intermittent range. I can't say that I agree with either.

[12] I have for certain concluded that the Crown's position is excessive, and in no substantial way recognizes the clear direction from the Supreme Court. That said, one in the intermittent range is far too low, and I disagree with defence counsel's submission that this behaviour should be placed at the low end of the continuum for this type of offence. This was not a case of one act of penetration. It was far more involved and complex than that, for the reasons highlighted by the Crown.

Sentencing Discretion and Precedent

[13] Several cases were provided which set out a wide range of sentencing options. I'm obviously not bound by what other courts have done as there is great latitude given to a sentencing judge to fashion a fit and proper sentence. Even if, for example, the Court of Appeal sets out a range of acceptable dispositions, there is always discretion to move below or beyond that, depending on the number of aggravating and mitigating circumstances.

Mitigating Factors

[14] Having highlighted the several aggravating features of this case, there are some mitigating facts as well. There is no prior criminal history. D.B. appears to have suffered a difficult and abusive childhood. He was in a home, sadly, where his desire to involve himself in aboriginal culture and practices was discouraged. He has, for the most part, been a productive member of society, having maintained gainful employment. He has, by all accounts, been compliant with his bail terms. Most importantly, he pleaded guilty which avoided the need for a trial. If there had been a trial, it would obviously not be considered in aggravation, but it did here spare the young girl from testifying, and a guilty plea is by its very nature an expression of remorse. A guilty plea should, in most circumstances, result in a reduction in the length of sentence.

Gladue and Proportionality

[15] As to the application of R. v. Gladue, [1999] 1 S.C.R. 688, Justice LeBel makes it quite clear in R. v. Ipeelee, 2012 SCC 13, [2012] 2 C.N.L.R. 218 that the judge's sentencing discretion is not unfettered. There is a strict duty to apply all principles of sentencing, including proportionality. This is intricately tied to Parliament's inclusion of section 718.2(e), itself a recognition of the difficult history of aboriginal people, which, when one thinks about it, is a proportionality issue. It speaks directly to the circumstances that may have led to offending behaviour, which in turn impacts moral culpability. Beyond Gladue and the section itself, this is a matter of common sense.

Remedial Approach to Sentencing

[16] Next, regardless of whether denunciation and deterrence are paramount in a given case, a sentencing judge must still attempt to be remedial in imposing sentence for an aboriginal person. In accordance with Justice LeBel's comments, the section and its elaboration in Gladue, does more than simply affirm the existing principles of sentence. I am being told to employ a different approach. The remedial aspect is the need for me, to the extent that I can, attempt to address the overrepresentation of aboriginal people in prison and to encourage a more restorative approach to sentencing. The latter is not always achievable, but should still be a consideration.

[17] Some courts have spoken to how section 718.2(e), by virtue of its enactment, is an acknowledgment of the failure of Canadian courts to take these issues into account. The suggestion being, they should always have been considered. As well, I need to be mindful of the fact that even though the more serious the offence the more likely the sentence will be the same as between a native and a non-native person; this is not a rule of general application.

Balancing Considerations

[18] I will consider D.B.'s particular circumstances as an aboriginal offender, as well as the unique systemic reasons for aboriginal overrepresentation in our prisons, which will, as should the guilty plea, impact quantum. This doesn't alter the need for me to discourage and condemn this kind of behaviour, and to, as well, be seen to be doing that. In that respect, beyond the inherent harm in D.B. sexually violating C.H., but also the despicable attempt to engage in a romantic, emotionally charged relationship with her, will impact sentence too.

Sentence Imposed

[19] In the result, having considered the authorities provided by counsel, their submissions, after considering the facts, and having applied the principles as they've been set out by the Supreme Court of Canada relative to aboriginal offenders, I conclude that an eight month jail sentence is appropriate.

[20] I believe this sentence will sufficiently deter D.B. from committing similar offences, while at the same time expressing society's condemnation of such behaviour. It also, being less than it could have been, takes into account the principles in Gladue, the guilty plea, and the positive report.

Distinguishing Precedent Cases

[21] To the Crown's position and submitted authorities, it is simply an unavoidable conclusion that the behaviour here, as horrible as it was, does not rise to the level of that described in any of, first, R. v. W.G.G., [2003] B.C.J. No. 2192 (Prov. Ct.), where the offender had a significant record and the assaultive behaviour was repeated. It was essentially a rape. Respecting R. v. Arcand, 2010 ABCA 363, [2010] A.J. No. 1383 (C.A.), it's distinguishable in that that case involved the violation of a passed out young female. In R. v. P.B.K., [2013] O.J. No. 333 (Sup. Ct.), being wildly different on the facts, involved several acts of incest occurring over a four year period. They are all distinguishable, and being so different, are not all that instructive.

Probation Order and Conditions

[22] A two year probation order will follow. The statutory terms will apply. D.B. will report to probation within two working days after his release and thereafter as required. He will undertake any assessment and take such counselling that's recommended by probation, including sex offender counselling or treatment. He will not associate or communicate directly or indirectly with C.H. or any member of her immediate family. He will not attend at any known place of residence, education or occupation of C.H. One last term will require him to not be alone with anyone under the age fourteen unless in the presence of a responsible adult who is at least 21 years of age.

Additional Orders

[23] A 20 year SOIRA order is made, as is an order requiring D.B. to provide a sample of his DNA suitable for analysis and banking.

[24] I have determined that an order under section 161 of the Criminal Code is appropriate. It will be in effect for 10 years and is made under subsections (a) and (b) only. Respecting (a), in addition to the standard language in the order, we will including the following – "as it relates to public parks or community centres, he will be permitted to attend in the presence of a responsible adult who is at least 21 years of age." I will not make an order under either subsections (c) or (d).

Released: June 6, 2013

Signed: "Justice Jonathon C. George"