COURT FILE NO.: 09-5105
DATE: 2014-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Dallas Mack, for the Crown
- and -
F.L.
Cedric Nahum, for the Defendant.
Defendant
HEARD: January 28 -31, May 31, June 25, July 31, and December 30, 2013.
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The defendant pleaded guilty to two counts: One count is sexual assault of a child under 14 between January 1, 2006 and February 15, 2008; and the other is sexual touching of a child under 14 between the same dates.
[2] The Crown had taken the position that there had been several assaults over the periods of time described in the counts; whereas the defendant had only admitted to one. As a consequence, I undertook a Gardiner[^1] hearing in order to adjudicate the circumstances described in the counts to which the defendant had pleaded guilty. The defendant is aboriginal and therefore a different sentencing analysis is necessary.[^2] The information required for sentencing is expected to comply with the principles contained in R v Gladue[^3].
[3] It is an important principle of the sentencing process that sentencing should take place as soon as practicable after the finding of guilt. Too much delay elapsed between my decision following the Gardiner hearing and this sentencing decision. While a portion of the delay was attributable to my lack of availability because of illness, the unacceptable and major portion of the delay was necessary for the assembly of sufficient information for a Gladue Report. Little assistance was provided by the Ontario Ministry of Community, Safety, and Correctional Services which took the position that it is prepared to provide a Gladue component in a pre-sentence report, but it has no one in the East Region trained in the preparation of a Gladue Report. The Crown’s position was that it is for the defendant to take on the responsibility for the Gladue Report since it is an issue for mitigation. However, defence counsel had no previous experience with Gladue Reports, and while I assisted counsel by providing an outline I had obtained from Alberta, as well as some sample reports, it took considerable time to find someone to prepare and present a suitable report. The Crown also has an important responsibility. To that extent, I don’t accept the Crown’s position that it is solely a defence responsibility. The Crown, as the representative of the state, has a vested interest in not only ensuring that a defendant is treated fairly, but also in ensuring that Gladue Reports are available to sentencing judges when appropriate. The legal imperatives for the sentencing of aboriginal offenders ultimately fall to the sentencing judge even where, as here, counsel and Correctional Services have limited experience. This is not to be taken as a criticism of Michelle Penney, the aboriginal support worker, who was not trained in Gladue reports, but who did her best. What became apparent to me however was that there is an absence of processes and protocols in Ottawa to assist counsel and the court in meeting the demands of sentencing for aboriginal persons. It is also clear that counsel were unaware of their respective duties in an aboriginal sentencing. It is now over ten years since the Supreme Court of Canada first set forth the special requirements for sentencing. Since the completion of submissions The Court’s further comments two years ago reflect the frustration some sentencing judges feel.[^4] Without the adoption of processes and protocols, it may well be that little progress will be seen over the next ten years. Surely, that is unacceptable.
[4] A first step would be for the Ontario Ministry of Corrections to ensure that sufficient appropriately trained personnel are available to assist the courts. I would suggest a second first step is to establish processes and protocols to ensure that counsel, corrections personnel, and the courts are adequately informed. These are modest steps but important. It is disappointing that here in Ontario, only Toronto has a court with persons with specialized training to assist a sentencing judge in aboriginal cases.
[5] In any event, I am content that I now have sufficient information to enable me to exercise my responsibilities to the defendant.
2. The Facts:
(a) Circumstances of the Offence
[6] The victim EB is a seventeen year old Grade 12 student who since the offences has been made a Crown ward. Her brother CB is two years younger. The defendant is 34 years old. He is in custody after he breached a bail condition, left the jurisdiction, and failed to show up for court.
[7] The defendant admitted to one incident of sexual intercourse and touching when EB was 12 years old. He admitted that he is the father of the child that was born October 12, 2008 when EB was 13. At the time, he was EB’s mother’s boyfriend and had been living with her since EB was approximately 5 years old. However, the defendant denied there were other incidents of sexual assault.
[8] After conducting a Gardiner hearing[^5], I found that the defendant sexually assaulted and sexually touched the complainant over a period of many months, during the course of which she became pregnant. I found that:
…the defendant was in a parental relationship with EB at all times. He abused one of the underlying principles in a family in our society that parents have an overriding obligation to protect children. When a parent – or as here- someone in a parental role not only breaches that obligation but they themselves sexually assault a child for their own gratification, then they have breached a fundamental tenet of the family in our civilization. [^6]
[9] The conviction on Count #1 has the effect of staying Count #2, sexual touching. The conviction on Count #2 is therefore stayed by virtue of the Kienapple principle.
(b) Circumstances of the Offender
[10] I relied upon the submissions of defence counsel, the submissions of Crown counsel, the viva voce evidence and report of Michelle Penney, a pre-sentence report by D. McLeod, and a sexual behaviours assessment by Dr Paul Federoff for an understanding of the circumstances of the offender. I requested a Gladue assessment but was provided with a presentence report in the usual format but some information concerning the defendant’s Aboriginal history and circumstances. It did not however address in a substantive way the first two of the three step inquiry.[^7] At my request, Ms Penney, an aboriginal court support worker, accepted the materials that I had assembled and undertook an enquiry for a Gladue Assessment even though she had no training. It was clearly the only option available to the court. I acknowledge however that Mr. McLeod’s presentence report was very helpful with its expanded portions concerning the defendant’s First Nations heritage and attachments.
[11] The defendant is a Woodland Cree, and recently found his biological family. They live in Alberta on the Marten Lake Reserve and the Cadotte Lake Reserve. The defendant entered into a relationship with a woman there who is pregnant by another man. He is currently seeking registration with the Woodland Cree First Nation north of Peace River Alberta, which I took to be reflective of his desire to rediscover his aboriginal roots. The defendant reported to the PSR supervisor that he has been in his current common law relationship for two years but failed to report that she was pregnant. Other family members reported their concerns about the viability and stability of the relationship to the PSR supervisor.
[12] The Woodland Cree are the largest indigenous group in northern Alberta and are an Algonquin people. The territories under Woodland Cree First Nation jurisdiction are served by area highways. It is a self-governing First Nation with a Chief, 4 Councillors, and a custom electoral system. The Band is said to operate its own community services, sanitation services, water plant, community centre and arena. The community is also said to be primarily Christian in religious beliefs. The defendant continues to have biological relatives residing on two of the three territories under Woodland Cree First Nation jurisdiction (Cadotte Lake, Whitefish).
[13] The defendant was born October 1, 1978, placed into foster care at birth, and then adopted by them. It was an interracial adoption and took considerable time. Until age 5, he lived in Grande Prairie, Alta and then moved with his family near Sarnia. From all accounts, the defendant found it to be a loving home. While he found his mother to be hard on him from time to time, overall he considered he had a happy upbringing, and had good relationships with his parents. His upbringing was not without problems. Alcohol and drugs had always plagued him. He began with alcohol and drugs at age 11 or 12, stole liquor from his parents, and by age 14 – 15 was spending all of his money on alcohol. At age 14, an adult provided him with alcohol and then abused him. This apparently led to more alcohol consumption. The defendant left high school at Grade 11 but has recently expressed his desire to complete high school. He also expressed to the PSR supervisor that perhaps he would like to return to Sarnia and get into the sheet metal trade. He has worked in the restaurant industry, cement finishing, and other manual work but has also relied upon Ontario Works and welfare for support.
[14] At age 18, he entered into a common law relationship which bore 3 children. The end of that relationship was acrimonious. An order dated July 25, 2012 and effective until July 24, 2017, prohibits the defendant from contact with his eldest daughter who is apparently in a correctional facility. He has three other children, but pays no support.
[15] He had moved into Sarnia and was living there when he met EB’s mother in a chat room. She was in Ottawa. They got together, he moved to Ottawa, and they moved into EB’s grandparents’ home for 4 to 5 years until they obtained an apartment of their own.
[16] At the present time, the defendant admits to being an alcoholic. His last employment was in 2010 in a restaurant. In 2010 after a probation period expired, the defendant became involved with cocaine and experienced a serious downward spiral. He says that while being in custody awaiting disposition of the current charge, he has undergone counselling and claims to have greater insight into his addictions and mental state.
[17] The defendant admitted to a Criminal Record dating back to 1993. His record includes the following:
i. Three youth convictions between 1993 and 1996, for theft under, taking a MV, and breach of recognizance. The penalties were 12 months probation x2, and one month open custody plus 12 months probation.
ii. 1997 as an adult – Theft over $5,000, escaping custody, and breach of probation for which he received two months on each consecutive (x3), plus 8 months probation consecutive on each (x3).
iii. 2000 – Assault x2, for which he received a suspended sentence and 18 months probation.
iv. 2001 – Mischief, possession, possession of proceeds of crime under $5,000, and breach of undertaking for which he was sentenced to 30 days concurrent
v. 2008 – uttering threats- for which he received a suspended sentence and 18 months probation.
vi. 2010 – breach of undertaking and received a suspended sentence
vii. 2010 – breach of recognizance x3, and was sentenced to 30 days concurrent on 2 counts plus 30 days less pre-trial custody on the third count.
[18] The defendant told the PSR supervisor that he felt that he had been treated in a prejudicial manner in the criminal justice system because of his aboriginal ancestry. He says he is proud of his First Nations heritage, and whilst in custody has participated in smudging ceremonies, but has had no contact with the Native Inmate Liaison Officer. He said he was unaware there was such a person.
[19] A sexual behaviours assessment by Dr. Federoff dated March 27, 2013 reports that testing showed the defendant’s primary arousal was heterosexual scenarios, but he could also be aroused by scenarios involving female minors, but less so. He concluded that the crimes committed by the defendant are best explained by “poly-substance miss-use and opportunity”, and concluded that a diagnosis of paedophilia was less likely.
[20] Ms. Penney’s enquiry detailed the defendant’s initial finding of malnutrition immediately after birth and his adoption by a non-native couple. She reports that the defendant felt he had a pretty harsh upbringing by his adoptive mother of Ukrainian descent, but a great deal of love and support from his adoptive father. At age 12, the defendant reported to her that he was placed in a group home as a result of his ongoing issues with his mother, and at age 16 left to go out on his own, and never returned to his adoptive home.
[21] The defendant reported to her that in 2011, he reunited with his birth mother and extended family. He has maintained his new found connection and told her he wants to continue this relationship. The family reported to Ms. Penney that the defendant’s siblings do not have substance abuse issues, that his mother has been alcohol free for 15 years, and that the family has expressed support for the defendant. She recommends that if possible, the defendant be incarcerated at Bowden Correctional Institute in Alberta for abuse and addiction issues. She recommends that after his release, he attend Pound Maker’s Lodge for further addictions and sobriety treatment.
(c) Impact on the Victim and/or Community
[22] It goes without saying that sexual abuse of children will not be tolerated in our communities. Victim impact statements were presented from the complainant as well as her foster mother. The victim is 17 and estranged from her mother and the rest of her family. She says she has a fear of older men. She reported the feelings of estrangement which are clearly amplified by her new relationship with her foster mother after she was removed from her mother’s care. The helpful statement from the foster mother reports the difficulties E had with her baby and the adoption process. She described that E has no friends, and the pregnancy permanently affected her body so that she tends to obesity. Clearly, E continues to wrestle with her internal demons and confusion. By virtue of the sexual assaults and pregnancy, she lost her entire adolescence.
[23] The burden on the state has not been insignificant in dealing with the newborn child. Hopefully the child will grow and develop into a happy healthy person now that she has been adopted.
3. Legal Parameters:
[24] The maximum penalty for conviction of sexual assault of a person under the age of 14 is 10 years.
4. Positions of Crown and Defence:
[25] The Crown seeks a jail sentence of 9 years plus various ancillary orders, and contends that this reflects the repeated assaults of the victim, her pregnancy at 13, and the breach of trust by the defendant as step-father. He contends that pre-trial credit of 2 for 1 should not be granted because the defendant left the jurisdiction and had to be brought back, plus the defendant was in breach of a non-communication order. In other words, he was in custody because of his own conduct.
[26] The defence position is that the defendant should be sentenced to 5 years less pre-trial custody which should be credited on a 2 for 1 basis, from October 5, 2012. He contends that the defendant’s dislocation as a child when he was adopted, his reconnection to his birth family and his substance abuse suggests other alternatives to a lengthy jail sentence. He further contends that the defendant’s guilty plea and acceptance of responsibility should mitigate any prison term.
5. Case Law:
[27] I was referred by counsel to the following authorities:
-concerning ranges of sentences: R v Sajna, 1991 CarswellBC 977 (CA), R v Nana-Effah, 2009 CarswellOnt 4012 (SCJ), R v BL, 2000 CarswellOnt 4428 (CA), R v TBM, 2012 CarswellBC 2404 (SC) R v B, 1990 CarswellOnt 806 (CA), R v JMAW, 1995 CarswellBC 1694 (CA);
-and the following concerning s 718.2(e): R v JN, 2013 ONCA 251, 2013 CarswellOnt 4700 (CA), R v Jones, 2013 CarswellOnt 4575 (CA), R v Popowich, 2013 CarswellAlta 450 (CA) R v Killiktee, 2013 ONCA 332 R v SDC, 2013 CarswellAlta 144 (CA).
-I was also referred to R v. D. J. M. [2005] Y.J. No. 18, R v.J.T. [2011] O.J. No. 5879, R v. W. K. A. [2012] O. J. No. 4796.
6. Mitigating and Aggravating Factors:
[28] Mitigating factors are to be applied if found on a balance of probabilities while aggravating factors are to be considered if found beyond a reasonable doubt.
[29] Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender. Evidence that the offender abused someone under the age of 18 is deemed to be an aggravating circumstance, as is abuse of someone in a position of trust[^8]. While a lack of remorse is not an aggravating factor, an absence of remorse is not a ground for leniency.
[30] Acceptance of responsibility may be a mitigating factor.
7. Principles of Sentencing:
[31] The principles in section 718.2(e) CCC,[^9] have specific reference to the defendant since he is Aboriginal. The Supreme Court of Canada recently restated the positive duty on a judge to take into account the circumstances of Aboriginal offenders in sentencing in all cases.[^10] As a consequence, I requested an assessment by someone with the necessary training and experience for incorporation into a report. In Alberta, guidelines are in the drafting stage for the assistance of assessors and for the courts to enable judges to perform their obligations where the offender is Aboriginal.[^11] Specifically, the focus in the assessment and report is on ‘alternatives to incarceration’ as mandated in section 782.2 (e) CCC in order to deflect “systemic racial discrimination”[^12] in the criminal justice system.
[32] The law also establishes a number of additional principles for the imposition of sentences. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[33] Sentences should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances.
[34] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justice sanctions that have one or more of the following objectives:
i. to denounce unlawful conduct;
ii. to deter the offender and other persons from committing offenses:
iii. separate offenders from society, where necessary;
iv. to assist in rehabilitating offenders;
v. to provide reparations for harm done to victims or community; and
vi. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
8. Gladue Assessment and Reasons
[35] The first steps of the inquiry I am required to conduct include the unique system or background circumstances common to aboriginal offenders as a group; and the particular circumstances of the defendant which resulted in him committing the crime for which he is before the court.
[36] I have great difficulty relating the defendant’s aboriginal circumstances to his particular circumstances which resulted in him committing the sexual assault. There was no evidence that his adoption into a non-native family had any connection. While I accept that he feels a certain satisfaction at his reconnection to his birth parents, I am not satisfied that that is a unique feature to his aboriginal background. There are many adopted children who feel driven as adults to reconnect to their birth family. There is no evidence that his alcohol and substance abuse was in any way linked to his aboriginal background. To the contrary, the evidence before me is that his birth family does not have alcohol or substance abuse issues. The fact that the defendant’s current girlfriend has alcohol issues is concerning only because the defendant seems not to appreciate that in order to free himself from his addictions, he must choose friends and relationships which are free of addictions. While the defendant has claimed that his alcohol issues contributed to the sexual assaults, there is nothing to suggest that the defendant’s alcohol issues are unique to his aboriginal background.
[37] To conclude the first two steps in the enquiry, I see no connection between the defendant’s aboriginal background and the commission of the sexual assault.
9. Reasons
[38] The defendant’s continued sexual assault of his step daughter which caused her to be pregnant while she was under 14 carries with it all of the most distressing features of the offence. These are all aggravating factors.
[39] The victim has been permanently estranged from her family and has been irretrievably altered as a result of the defendant’s sexual assault. The impact on the victim in a sexual assault case is important in fashioning a proper sentence.
[40] While the defendant pleaded guilty, he only admitted to one sexual assault. The Gardiner hearing required the victim to relive the events. His acceptance of responsibility was not for the offence as I found it to be, and therefore, his plea of guilt is of dubious value as a mitigating factor.
[41] Having conducted the Gladue assessment, I find that this case falls into the class of very serious cases where a fit sentence as between an aboriginal or non-aboriginal offender would be similar.[^13]
[42] The aggravating factors are serious and troubling; and require the upper end of the range. There are no mitigating factors. The defendant’s involvement with a woman who has alcohol issues and is pregnant (not by the defendant) demonstrates a lack of insight by him. To be involved with someone with alcohol and a young child invites the same atmosphere that was present at the time of these offences and suggests a risk of repetition.
[43] Denunciation, deterrence, and the Gladue assessment are the most significant principles at play. The usual range for this sort of crime is a mid to upper single digit penitentiary term. [^14]
[44] The defendant is entitled to pre-trial credit based on his 486 days of incarceration. I grant credit to the defendant on the basis of 1.5 to 1. My reasons are that firstly, the defendant was in custody because of having fled the jurisdiction. He brought that on himself. On the other hand, this sentencing process has gone on far too long. Had it proceeded in the ordinary course, he would have been settled in a proper facility with appropriate programs. He in no way contributed to the delay.
10. Final Decision
[45] On Count #1, I sentence the defendant to 8 years in the penitentiary, less pre-trial credit of 2 years; leaving time to be served of 6 years.
[46] Count #2 is stayed.
11. Ancillary Orders:
[47] Weapons prohibition for life.(S. 109)
[48] DNA order.( S 487.04)
[49] SOIRA order for 20 years (S 490.12(1))
[50] Prohibition order for life. (S 161).
[51] Non-contact order with the victim and her family (s. 743.21)
Honourable Justice Timothy Ray
Released: January 24, 2014
COURT FILE NO.: 09-5105
DATE: 2014-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
F.L.
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray
Released: January 24, 2014
[^1]: R v Gardiner, [1982] SCJ No. 171 [^2]: S 718.2(e), Criminal Code of Canada; R v Gladue, [1999] 1 SCR 13 (SCC). [^3]: Note 2. [^4]: Note 2, and also R v Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 [^5]: R. v. F.L., 2013 ONSC 828 [^6]: Note 5 @ paragraph 28. [^7]: R v Laliberte, 2000 SKCA 27, [2000] S.J. No 138, following R v Gladue [^8]: s. 718.2, CCC [^9]: S 718.2 (e) 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. [^10]: R. v. Ipeelee, 2012 SCC 13 (SCC) following R v Gladue, 1999 679 (SCC), [1999] 1 SCR 688 (SCC) [^11]: “Draft” Working Document for Northern Alberta, Gladue Reports Recommendations from the Bench, Date: January 9, 2013, obtained at an NJI seminar, Montreal March 2013. [^12]: Note 6, @paragraph 67. [^13]: R. V. N. (J.) 2013 CarswellOnt 4700, 2013 ONCA 251 @ para.51. [^14]: R. V. D. (D.) (2002) 2002 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A.), @ para. 44,