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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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

Ontario Court of Justice

Date: June 29, 2017

Between:

Her Majesty the Queen

— and —

A.E.

Before: Justice G.F. Hearn

Heard on: February 8, March 31, May 8 and May 29, 2017

Reasons for Sentence released on: June 29, 2017

Counsel:

• Ms. T. Holmes — counsel for the Crown
• Mr. S. Grainger — counsel for the accused A.E.

HEARN J.:

BACKGROUND

[1] On February 8, 2017 the accused entered a plea of guilty to one count of sexual interference. The Crown has proceeded by indictment on the count and as a result there is a statutory minimum period of imprisonment of one year.

[2] The matter was adjourned to March 31, 2017 to allow a pre-sentence report as well as a Gladue report to be prepared. Both have been received, reviewed and noted to be factually accurate.

[3] In addition, the matter was adjourned to give Ms. A.E. an opportunity to make arrangements to enter a treatment program to allow her to formally address an obvious and ongoing substance abuse problem involving both alcohol and drugs. Unfortunately, although she has made some attempts to do so, that has not been done to date.

[4] The matter came before the court on May 29, 2017 at which time thorough and thoughtful submissions were received from counsel both for the Crown and the defence.

[5] It is important to note, notwithstanding some indication previously that the defence would be bringing a challenge to the constitutionality of the minimum period of imprisonment called for, defence has abandoned that challenge. The defence thereby implicitly accepts that the low end of the range of sentencing for Ms. A.E. is effectively one year imprisonment.

CIRCUMSTANCES OF THE OFFENCE

[6] The events leading to the charge took place some time between September 2015 and June 2016. Until May 2016 Ms. A.E., who has struggled with addictions for many years, was living with her two children, ages six and three at the time, at her stepmother's house in Kitchener. Also in the residence were her father and the victim, 14 year old A.F.

[7] During that period of time it is said Ms. A.E. struggled with issues that resulted on occasion with her children being the primary responsibility of her father and stepmother, C.F. At that time Ms. A.E. herself was 24 to 25 years of age, having turned 25 on […], 2016.

[8] Some time during the mid-part of May 2016 Ms. A.E. advised her father and stepmother that she had lost her cell phone that they had provided to her. Her father found it in the driveway of the residence and decided to keep it from Ms. A.E. in order to "teach her a lesson".

[9] On May 20, 2016 Ms. A.E. left the family residence without telling anyone where she was going or how long she would be away. She left her two children in the care of her father and stepmother. On May 25, 2016 Ms. C.F. recalled that the father had kept Ms. A.E.'s cell phone in the garage of the residence and she went into the garage to view the cell phone to see if she could locate Ms. A.E. by scanning her contacts on her phone.

[10] Ms. C.F., while doing so, found the name of her son A.F. at the top of the message list and opened up the conversation thread. She then found numerous conversations between Ms. A.E. and her son that were sexually explicit with a photograph of what she believed was Ms. A.E.'s vagina.

[11] The various conversations viewed led Ms. C.F. to believe her son had been having sexual relations with Ms. A.E. She confronted her son and he admitted to her that he had in fact had sex with Ms. A.E. The information was relayed to Family and Children's Services and the police were notified.

[12] The child was interviewed and disclosed that a sexual relationship with Ms. A.E. had begun some time in the fall of 2015. He recalled Ms. A.E. asking him to have sex when she was "drunk" and he had turned her down, but a few days later she asked again when she was allegedly sober and at that point he agreed. The sexual activity between the two took place an unknown number of times but it is acknowledged it was somewhere between three and six times that the couple actually had intercourse. Other sexual contact would appear to include the masturbation of the victim and oral sex.

[13] In addition, the two carried on sexually explicit conversations over the cell phone and would make arrangements to meet in Ms. A.E.'s bedroom to have sex.

[14] The victim noted candidly that on occasion he would sometimes initiate the efforts to have sex and be turned down and at other times Ms. A.E. would do so and he would turn her down.

[15] The victim disclosed three specific times that he had sex which consisted of masturbation, oral sex and intercourse. The victim was uncertain as to when this took place over the timeframe alleged, but was clear the last time had been some time after the March Break but not in the month of May.

[16] Ms. A.E. was arrested, provided her rights to counsel and provided an inculpatory statement to the police wherein she admitted to having sexual intercourse with the victim on five to six occasions. She stated the relationship had begun during the previous summer and had involved heavy petting and oral sex until Christmas and then progressed to full intercourse. She also stated during the course of her statement that she "had a lot of things going on in her life and didn't care that she was doing something wrong at the time." Ms. A.E.'s position was that on each occasion she had sexual contact with the victim she was either high on drugs or intoxicated and had always declined when she was "sober". She also acknowledged that she was aware of the victim's age being 14 and regretted her decision to let the relationship occur.

VICTIM IMPACT STATEMENT

[17] The victim in this matter declined to submit a victim impact statement and has offered no input to assist the court. The victim's mother, however, when interviewed by the author of the pre-sentence report, stated that since Ms. A.E. has been charged she has noted significant negative behavioural changes in her son. She states he has lost interest in activities he previously enjoyed and seems to be rebelling against various household rules. Ms. C.F. states he is doing better currently, but has "completely shut out the situation" and will not discuss the events surrounding the charges or talk about Ms. A.E. The mother also points out that Ms. A.E.'s half-sister has been affected by her actions as well and is currently involved with some form of counselling to deal with the stress created by Ms. A.E.'s conduct.

CIRCUMSTANCES OF THE OFFENDER

[18] As noted, a pre-sentence report as well as a Gladue report were requested and with some effort on the parts of the authors of both reports they have been prepared and have been noted to be accurate. They are marked as exhibits in this matter. The efforts resulted from what appears to be a reluctance on the part of the accused to engage, but I am satisfied fully after reviewing all of the material and hearing submissions from counsel that that reluctance did not initiate from disinterest but more as a result of the struggles Ms. A.E. faces and her history.

[19] The reports are thorough, detailed and compelling. The authors of both reports are to be commended for the comprehensive nature of the reports. The reports have been helpful to the court and both counsel have tailored their submissions to the contents of the reports.

[20] Ms. A.E. is currently only 26 years of age. She comes before the court as a relatively youthful first-time offender which is perhaps surprising given the circumstances as she describes them since she was in her early teens.

[21] She is the mother of two children, K., seven years of age, and C., four years of age, both of whom are currently in the care of her father and his partner, Ms. C.F., the mother of the victim here. Her father and Ms. C.F. have been involved with the children for many years and have been the primary caregivers since May 2016 when Ms. A.E. left the home and then was subsequently charged with the matter before the court. Since that time she has only had supervised access visits to her children.

[22] Ms. A.E. is an Aboriginal person, as are her mother and father. She in fact currently is living with her mother who was present in court during the course of sentencing submissions being received.

[23] The Gladue report is of great assistance in setting out Ms. A.E.'s background and that of her parents and in understanding how her parents' backgrounds have not only impacted them but also the accused as well in most significant ways.

[24] Tragically, Ms. A.E.'s mother was the product of what has been called the "Sixties Scoop" which occurred during the sixties and involved the practice of Aboriginal children being apprehended from their aboriginal homes and placed into non-Aboriginal homes for adoption. Such adoption or apprehension of Aboriginal children during this period of time has very rightfully been recognized, as noted in the Gladue report, as a "stain on Canada's history".

[25] Ms. A.E.'s mother was removed from her home and her culture when she was about two years of age. She had been born in Saskatchewan and was adopted by a family in St. Thomas, Ontario. The family was non-Aboriginal and Ms. A.E.'s mother was effectively cut off at a very, very young age from her culture, her history and her family. The impact on the mother has been lifelong and is chronicled in the reports. Her history, and indeed that of Ms. A.E., presents as heartbreaking and disturbing.

[26] Ms. A.E.'s parents separated when she was extremely young and she lived primarily with her mother during her formative years, although she would see her father on occasion. Her mother became involved in substance abuse, and indeed Ms. A.E.'s recollection is that her first alcoholic drink was provided to her by her mother when she was 12 years of age. Her mother's background after being adopted is reviewed in both the pre-sentence report and the Gladue report, but Ms. A.E.'s own upbringing involved various forms of trauma, including sexual abuse and cultural isolation. As a result of her parents' limited exposure to their own culture, Ms. A.E. has only recently become interested and aware of her aboriginal heritage.

[27] At age 12 to 13 Ms. A.E. became involved with drug use herself and began prostituting herself to get money to purchase drugs. While in her mother's residence she was sexually abused as a young child by one or more of her mother's boyfriends. At age 15 she was involved in a common-law relationship where the common interest seems to have been primarily drugs and/or alcohol.

[28] She had an abortion at 16 years of age and her first child was born at 18. After the birth of the first child she entered into another relationship which involved the use of "harder drugs" and a second child was born. Due to her transient lifestyle and her drug issues she had a difficult time providing for her children. She was in and out of her father's home for many years, and had been there continuously for some time up to the date of her arrest on this matter, from 2013 when she resided at the residence with her children, Ms. C.F. and her son. She has in the past and continues to struggle with addiction to drugs as well as alcohol. She is quite candid in acknowledging to the authors of both reports as well as the court that she struggles even to this day with drug use. The portrait of Ms. A.E. as set out in the reports presents as a sad tale. Her education is limited, having left school at an early age because of bullying and other issues. Her transient lifestyle and use of drugs have been issues that at the present time she has been unable to overcome.

[29] She attempted to upgrade her education and was having some success in that regard, but her efforts failed as she reverted back to drug use. One thing that is perfectly clear in the material, however, is that she loves her children dearly, wishes to parent and provide for them, but appreciates that until she gets her addiction issues under control she will be unable to do so.

[30] Since her arrest she has made contact with her aboriginal community and has been dealing with The Healing of the Seventh Generation. The workers there and other counsellors she is dealing with are sympathetic, supportive and appreciate the struggle that Ms. A.E. is undergoing and the efforts she has made. Although to some these efforts may seem unremarkable, the court does not treat her efforts in the same fashion. Getting over an addiction is not an event, it is a process. Ms. A.E. is attempting to take part in the process and the fact that she has not been able to do so fully is an indication of the draw her addictions have on her. Her background is to a large degree tragic and although she has had some supports in place previously, they have been insufficient. She now is taking steps to rely on those previous supports as well as new supports within her community and hopefully will follow through with the plans that have been set out in some detail in the reports and will follow the recommendations of the authors of those reports.

[31] It is clear that not only has Ms. A.E. in the long run victimized the victim in this matter, she is also in many ways a victim herself.

[32] Ms. A.E. is certainly a product of her background and her upbringing. As noted in the pre-sentence report by the probation officer:

"Her mother and older generation family members were victims of the 'Sixties Scoop' and the residential school legacy either directly or indirectly. Due to such these victims were impacted on how their children were raised at home and within the community which has affected the subject. Problems that the subject encountered during her youth and teen years included minimal parental supervision, almost to the point of abandonment, lack of structures, transient lifestyle, exposure to alcoholism, violence and drug use and vicarious trauma of sexual abuse and physical abuse. This has had significant impact on the choices the subject has made within her own life. She has dealt with significant drug and alcohol issues since she was a young teen, she has been the victim of domestic violence and has been a victim of sexual abuse as a child and throughout her teens. She noted a lack of parental figures throughout her childhood and teens and noted one stepmother emotionally abusing her."

[33] She has been involved with counselling as noted. Her intentions are to ultimately attend at an indigenous residential treatment centre to focus on her addiction issues as related to her heritage. She has made connections within the community and appears to be motivated, and noted to be involved with traditional healing with the assistance of counsellors. She also has intentions of completing her high school education in order that she might obtain meaningful employment.

POSITION OF THE PARTIES

[34] The Crown emphasizes the circumstances of the offence, the abuse of a child and the continuing course of conduct Ms. A.E., both during the time the offence was committed and since her arrest, in failing to address her issues in an appropriate manner. At the same time, the Crown recognizes the background of Ms. A.E. as set out in the various reports filed and although normally seeking a penitentiary sentence in the range of four to five years, advocates for a sentence in this particular case of three years' imprisonment.

[35] Defence counsel, without diminishing the serious nature of the charge before the court, notes the circumstances surrounding the offence, the pleas of guilty and the personal circumstances of Ms. A.E. and submits that an appropriate sentence would be a sentence in the range of the minimum period of imprisonment available, namely 12 months to be followed by a lengthy period of probation. Both the Crown and the defence agree that the various ancillary orders sought by the Crown are appropriate.

PRINCIPLES TO BE APPLIED

[36] In Regina v. Hamilton, a decision of the Ontario Court of Appeal, Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender."

[37] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, para. 16; Regina v. D.(D.), para. 33, both decisions of the Ontario Court of Appeal.)

[38] The principles of sentencing set out in the Code are set out in section 718 to section 718.2. Section 718 reads as follows:

"718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community."

[39] Section 718.01 states that:

"When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

[40] Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[41] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Ms. A.E. and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[42] Section 718.2 of the Code states that a court that imposes a sentence shall take into consideration the following principles:

"(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

… shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

[43] Clearly, the principles to be considered then as primary factors here are the principles of deterrence and denunciation. Still, the court must recognize that rehabilitation is a factor to be considered and in dealing with Ms. A.E. her status as an Aboriginal offender also becomes a relevant factor to be considered.

[44] With respect to the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[45] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[46] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[47] The purpose of general deterrence in sentencing is to protect the public from the commission of such crimes as before the court by making it clear to Ms. A.E. and to other persons with similar impulses that if they yield to them, they will be met with severe punishment.

[48] It is also to be remembered that Ms. A.E. presents as a first offender so the court notes the principle of restraint set out in section 718(2)(e), which effectively states that imprisonment is a sanction of last resort and when imposed should be no longer than is minimally necessary to achieve sentencing objectives as set out in the Code. Effectively, general deterrence cannot be the sole consideration and appropriate consideration must be given to the rehabilitation of the accused. (See Regina v. Batisse, 2009 ONCA 114, a decision of the Ontario Court of Appeal.)

[49] Counsel have provided case law. I have reviewed that case law and I am familiar with the cases provided. It is clear not only by virtue of the provisions of the Criminal Code but also by principles set out in the case law that the sexual abuse of children is to be treated seriously by the courts and denounced. Indeed, even where there is an absence of physical violence during the course of the commission of a sexual offence upon a child, there still remains psychological damage done to child victims of the sexual misconduct which could be profound and devastating. The case law is replete with comments that the court should impose in sentencing offenders involved such conduct sentences which properly reflect society's desire to protect children. (See Regina v. Woodward, 2011 ONCA 610, Regina v. Stuckless, Regina v. D.(D.), and Regina v. E.M. Q., 2015 BCSC 201.)

[50] The case law as set out is also helpful in establishing sentencing "ranges" for offences such as that before the court. However, the courts have also kept in mind that sentencing is an individual exercise and as noted in cases such as Regina v. Jacko, 2010 ONCA 452 at paragraph 90:

"Sentencing 'ranges'…are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter."

[51] In Regina v. Lacasse, 2015 SCC 64, the Supreme Court again reinforced the principle that sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past which serve in any given case as guides for the application of all relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. (See paragraphs 57 to 58.)

[52] The principles set out in section 718.2 and specifically (d), (e) and (f) establish as well that restorative justice is an important principle to be considered when sentencing an individual.

[53] Section 718.2(e) requires the court to pay particular attention to the circumstances of Aboriginal offenders and consider all available sanctions other than imprisonment that are reasonable in the circumstances. In Regina v. Gladue, the Supreme Court at page 465 noted when dealing with the issue of restraint and over-incarceration in Canada stated:

"Thus it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation and rehabilitation there is widespread consensus that imprisonment has not been successful in achieving some of these goals."

[54] Further, when considering section 718.2(d) and (e), both of which incorporate the principle of restraint and require the court not to deprive the offender of liberty if less restrictive sanctions are appropriate, the court noted at page 400:

"The broad role of the provision is clear. As a principle, s. 718.2(e) applies to all offenders and states that imprisonment should be the penal sanction of last resort. Imprisonment is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender."

[55] In Regina v. Kakekagamick, the Ontario Court of Appeal discussed the approach to be taken by the court when sentencing Aboriginal offenders. The court set out that section 718.2(e) was enacted as a remedial provision in recognition of the fact that aboriginal people are seriously over-represented in Canada's prison population and in recognition of the reasons why this over-representation occurs. The Court of Appeal noted that the background considerations underlying the unique circumstances of aboriginal offenders which are meant to assist the judge in his or her analysis with respect to sentencing are:

1. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

2. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

[56] The court in sentencing then must take into account the circumstances of Ms. A.E. including the nature of the offence, the victim and the community and where the court narrows the sentence to one involving imprisonment, the court is required to consider the unique systemic or background circumstances which may have played a part in bringing Ms. A.E. before the court. The court must also consider the types of practical procedures and sanctions that would be appropriate in the circumstances for Ms. A.E. because of her particular Aboriginal heritage.

[57] Still, it is important to keep in mind as noted in Regina v. Wells, that section 718.2(e) does not require nor is there a general rule that Aboriginal offenders must be sentenced in a way that gives the most weight to the principles of restorative justice. In the Wells case at page 387 the court stated:

"Let me emphasize that section 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of section 718.2(e) does not mean that Aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation. As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-Aboriginal offenders."

[58] In Regina v. Gladue, at paragraph 93 the court stated:

"Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force."

[59] The Supreme Court of Canada also provided further sentencing guidance when dealing with Aboriginal offenders in Regina v. Ipeelee, 2012 SCC 13, where, in the following noted paragraphs, the Supreme Court indicated:

"The Court [in R. v. Gladue] held, therefore, that s. 718.2(e) of the Code …does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

… To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court…often…by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. [Ipeelee, para. 60.]

Section 718.2(e) does not create a race-based discount on sentencing. … [S]entencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. … Section 718.2(e)…direct[s] judges to craft sentences in a manner that is meaningful to Aboriginal peoples. [Ipeelee, para. 75.]

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. [Ipeelee, para. 87.]"

[60] All of that said, the court fully appreciates that denunciation and deterrence are to be given primary consideration when considering the principles of sentence to be applied in arriving at an appropriate sentence for Ms. A.E. Still, rehabilitation is also an important objective of sentencing as well as restraint and consideration in all of that in light of Ms. A.E. presenting as an Aboriginal offender.

AGGRAVATING FACTORS

[61] The aggravating factors in this matter are as follows:

1. Sexual abuse of a child under the age of 18 years is a statutorily aggravating factor. The case law is replete with comments about the need for denunciation and deterrence when sentencing an individual involved in such conduct. Sexual abuse of a child is not to be tolerated and children are our most vulnerable asset and deserve the protection of the court.

2. General deterrence and denunciation are to be given primary consideration. Ms. A.E.'s activity was not an isolated act. The facts indicate that on three to five occasions the sexual activity involved various sexual conduct including sexual intercourse with a 14 year old.

3. The Crown argues that Ms. A.E. was in a position of trust and there is some merit to that position. The victim was the son of Ms. A.E.'s father's common-law spouse who had been supportive of Ms. A.E.'s situation and, in fact, had taken care of Ms. A.E.'s own children on numerous occasions while Ms. A.E. had other priorities. Ms. A.E. and her children had been taken in by her father and the common-law partner to assist her when she was financially and emotionally unable to deal with her own situation. There is a sense of breach of the trust implied with that situation by Ms. A.E. by her conduct with the victim.

4. Although there is no formal victim impact statement from the victim, the pre-sentence report speaks of the impact on the victim as perceived by the mother and also the impact on Ms. A.E.'s half-sister resulting from her conduct. Further, Ms. A.E. not only victimized the child but members of her own family including her own children.

5. Ms. A.E. has some insight into her conduct, although somewhat limited at the time of the offence. She, however, appreciates she cannot blame her conduct on the presence of alcohol or drugs. She had many opportunities to step back and consider the situation and, notwithstanding that the young victim perhaps entered into this conduct voluntarily, he was not of a legal age to consent. Ms. A.E. was the adult and she could have stepped back, reconsidered her conduct and stopped it. It was not stopped voluntarily and it appears to have ceased only as a result of the fortunate discovery of the cell phone messages by the stepmother.

MITIGATING FACTORS

[62] The mitigating factors in this matter are as follows:

1. Ms. A.E. has entered a plea of guilty to the count, thus avoiding a preliminary hearing and/or a trial. She has accepted responsibility, knowing she faces at least a year imprisonment. Her remorse is not only shown by her plea but otherwise and I accept that remorse is genuine and sincere. Immediately upon apprehension she provided an inculpatory statement to the police and has been co-operative throughout.

2. Although criminal and disturbing, there is nothing in the facts to indicate there was a presence of violence, threats or compulsion involved and although the conduct took place on more than one occasion, it was not continuous conduct over a prolonged period.

3. Although, as noted, the presence of drugs was involved and not an excuse, for that and other reasons set out in the various material filed Ms. A.E.'s judgment at the time of the events was impaired. It was not a normal course of conduct with the child with whom she had lived for many years.

4. Ms. A.E. has suffered consequences as a result of her conduct already. She was arrested, embarrassed and alienated from her family, and most importantly, from her two children whom I have no doubt she loves. Since the events were disclosed in May 2016 she has only had supervised access to her children and she has much work to do to restore any meaningful contact and relationship with the children at all.

5. Although Ms. A.E.'s insight is limited, as noted, into her conduct, she appreciates that she needs to address multiple issues. She has taken "baby steps" only, but has been at least attempting to do something. She knows she must rely on supports, and deal with her drug issue and the other issues of abuse that have occurred in her past. I do not take her lack of success in engaging in attempting to address those supports at this time, but rather see that as more a consequence of the serious issues she must face and her conflicted past. Still, she has started to engage in counselling and has community supports within the community at large and within the Aboriginal community. She has, in fact, a plan that is in place and hopefully will be pursued once she is released from custody.

6. The court does and must consider the background of Ms. A.E. which can best be described as tragic. Her background obviously factors into her conduct. The court has a difficult time imagining what Ms. A.E. has been through. However, her Aboriginal community is supportive, dedicated and can help Ms. A.E. if she reaches out but she must do that. She must appreciate that she may not necessarily be responsible for who she is, but she is responsible for who she becomes.

SENTENCE TO BE IMPOSED

[63] This is a troublesome sentencing. I have considered the facts and the circumstances that led to the charge before the court. I have also considered the circumstances of Ms. A.E., the impact on the victim, the principles to be applied and the aggravating and mitigating factors present. I am satisfied the appropriate disposition in this matter is a sentence that will allow Ms. A.E. to remain in a reformatory setting and that sentence will be one of imprisonment for 18 months. That period of imprisonment will be followed by a period of probation for a further 18 months during which Ms. A.E. can hopefully continue to address her issues within the community with the assistance of the supports available.

[64] The terms of the probation order will be as follows:

• You will keep the peace and be of good behaviour.

• You will appear before the court when required.

• You will notify the court or the probation officer in advance of any change of name or address or employment.

• You will report within two working days of your release from custody to a probation officer and thereafter as directed and be under the supervision of the probation office.

• You will abstain absolutely from the purchase, possession or consumption of drugs except in accordance with a medical prescription.

• You will abstain absolutely from the purchase, possession or consumption of alcohol or other intoxicating substances.

• You will abstain from owning, possessing or carrying any weapon, including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code.

• You will take part in any counselling or programming that may be recommended by your probation officer for any area identified by your probation officer and specifically with respect to issues of substance abuse, alcohol abuse, inappropriate sexual conduct and understanding boundaries, sexual victimization or any other area identified by your probation officer. You will provide your probation officer with an authorization to permit your probation officer to liaise with any counsellor under whose care you might be to monitor your course of counselling. You will also provide your probation officer with an authorization to permit your probation officer to liaise with any counsellor or doctor under whose care you might be to monitor your course of counselling and your plan of care.

• You will have no contact directly or indirectly with anyone specifically named by your probation officer except with the written permission of your probation officer.

[65] There will also be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code and an order for registration under S.O.I.R.A. for a period of 20 years, the Crown having proceeded by way of indictment on the charge.

[66] In addition, there will be a section 161 order as requested by the Crown with the length of that order to be five years and the relevant term to be that Ms. A.E. will be prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or being a volunteer in a capacity that involves in being in a position of trust or authority towards persons under the age of 16 years. As set out in the submissions of both the Crown and defence there is no need to impose any further conditions under the section 161 order.

[67] In summary then, the sentence is 18 months' imprisonment to be followed by 18 months' probation. There is an order for a DNA sample, an order for registration under S.O.I.R.A. for 20 years and a section 161 order for a period of five years. All other charges against Ms. A.E. are to be marked withdrawn.

Released: June 29, 2017

Signed: Justice G. F. Hearn