Court File and Parties
COURT FILE NO.: CR-17-0001-00 DATE: 2018-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN S. Munsch, for the Crown
- and -
M.K. B. Sacevich, for the Defence
DELIVERED ORALLY: October 12, 2018, at Thunder Bay, Ontario Mr. Justice F. Bruce Fitzpatrick
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 486(4) OF THE CRIMINAL CODE OF CANADA
Reasons for Sentence
Introduction
[1] M.K. was convicted of one count of indecent assault on a female person contrary to s. 149 of the Criminal Code, R.S.C. 1970, c. C-34 (count five) and one count of sexual assault contrary to s. 246.1(1) of the Criminal Code, R.S.C. 1970, c. C-34 (count one). These convictions relate to events that occurred between 1981 and 1987. The victim, R.K., was the same person on both counts. The victim is M.K.’s niece. At all material times, R.K. was a minor. She was assaulted by M.K. on an ongoing basis between the ages of six and twelve. M.K. was in his thirties at the time.
[2] The law changed during the time theses assaults were occurring. Indecent assault against a female and a number of other sexual offences were repealed and replaced by the offence of sexual assault: S.C. 1980-81-82-83, c. 125, s.19; see Chase v. R., [1987] 2 S.C.R. 293, at para. 4. Essentially, an offence designated as “sexual assault” did not exist before, and an offence designated as “indecent assault” did not exist after January 4, 1983, the date the amendment to the Criminal Code was proclaimed in force: see R. c. Barbeau, [1992] 2 S.C.R. 845, at para. 2. For the conviction of indecent assault on a female, the maximum sentence was five years imprisonment. For the offence of sexual assault, the maximum sentence for the offence if charged by way of indictment was ten years.
[3] M.K. is an Indigenous offender. He has served 15 days of pre-trial custody. This was as a result of his failing to attend court on the first date sentencing submissions were to be heard and, as a consequence, the necessity for the O.P.P. to arrest M.K. and bring him to Thunder Bay to attend the next date for sentencing submissions. I heard these submissions on September 4, 2018.
[4] The Crown seeks a global sentence for both offences of two years less a day plus ancillary orders. The Crown also seeks a period of probation of three years following completion of the custodial sentence. The defence submits that a conditional sentence of two years less a day to be followed by a period of probation of eighteen months is appropriate. There was no dispute that a conditional sentence was available to M.K. because of the historic nature of the offences at issue.
Does the Kienapple principle apply?
[5] At para. 41 of my reasons for judgment, I requested that the parties make submissions as to whether or not the principles in Kienapple v. The Queen, [1975] 1 S.C.R. 729 applied in this case: R. v. M.K., 2017 ONSC 5610. I expressed my view that the findings of guilt for the two counts at issue did relate to the same transaction, namely M.K.’s ongoing sexual assault of R.K.. Counsel for the defence agreed with my initial view. The Crown did not and relied on R. v. Thorne, [1990] 86 Nfld. & P.E.I.R. 200 (Nfld. TD) and R. v. M.(K.), [2008] 76 W.C.B. (2d) 359 (Ont. S.C.), both of which note that the offence of indecent assault on a female is a different offence than that of sexual assault.
[6] Thorne concerns a review of a preliminary inquiry where the indictment included charges for sexual assault and indecent assault against a single complainant between 1982 and 1984. Prior to the review, “the charge of sexual assault had been altered to reflect different dates,” presumably to conform to the Criminal Code amendments: at para. 6. Since there was no preliminary inquiry into the charge of indecent assault and no particularization as to the specific date of either offence, Bartlett J. quashed the indictment, noting that indecent assault and sexual assault are “separate and distinct” offences: at paras. 6 and 22-23.
[7] R. v. M.(K.) concerns a number of sexual offences against multiple complainants that occurred over the course of the 1980s. The accused faced charges of sexual assault and indecent assault against one of the complainants, D.L., for a single sexual act. The accused was acquitted of both offences against D.L. because the Crown could not particularize whether or not either offence occurred before or after January 4, 1983. After a thorough review of the jurisprudence concerning sexual assault and indecent assault, Hill J. accepted that, beyond a reasonable doubt, a sexual offence had occurred, but that he could not determine which offence under the Code applied: at para. 138.
[8] Neither of the cases that the Crown relies on mention or resolve the issue of whether the Kienapple principle applies to the case before me. As stated, both cases agree that sexual assault and indecent assault are different offences. The issue to be determined is not whether they are different offences, but whether the underlying acts or transaction that make up each offence are the same. In this instance, Kienapple applies because I have accepted that the same sexual act, admitted to by the accused and perpetrated against the same person on an ongoing basis, occurred both before and after the amendments to the Criminal Code.
[9] In R. c. Barbeau, at para. 30, another case dealing with a faulty indictment charging sexual assault before the offence existed, the Supreme Court of Canada upheld a conviction for indecent assault as charged in the amended indictment. Cory J., writing for the court, explained as follows, at para. 26:
The original indictment charging sexual assault rather than indecent assault was valid in every respect except for the nomenclature used to identify the offence. The parties proceeded throughout the preliminary inquiry on the assumption it was valid. The evidence identified the actions which constituted the incidents of sexual assault or indecent assault, depending on the title used to identify the touching or fondling. The actions were the same, the evidence was the same. [Emphasis added.]
[10] I find that, whatever the nomenclature used to describe the sexual offence M.K. perpetrated against R.K., the actions were the same and the evidence was the same.
[11] Even if my interpretation of the Kienapple principle as it relates to this case is incorrect, it seems to me as a practical result, the sentencing positions of both parties are unaffected by this issue. Both are urging a global approach to sentence. The essence of the difference is whether or not M.K. will be serving his sentence in custody or at his residence in Collins, Ontario.
[12] Accordingly, I find that the Kienapple principle does apply in this matter and I enter a conditional stay on count five (indecent assault). M.K. will be sentenced on count one for his conviction of the offence of sexual assault.
Circumstances of the Offender
[13] Both a Gladue report and a pre-sentence report were prepared for M.K., but by oversight, neither were marked as exhibits in the sentencing hearing. Nevertheless, they were both referred to and considered by me, and I will therefore treat both as exhibits.
[14] There is some issue as to M.K.’s age. At the hearing, he was asked about it because both the Gladue writer and the author of the pre-sentence report reported different ages for M.K. The Gladue writer came closest as she got the month and day right, but apparently not the year. According to M.K., he was born February 9, 1940, not 1944 as the Gladue writer noted and as I stated in my judgment at para. 4. M.K. is now 78 years old with very limited education. He walks with a cane. He appears quite frail.
[15] M.K. lives a very isolated lifestyle in the hamlet of Collins, Ontario. Collins is accessible only by rail and by winter road. He is a member of Whitesand First Nation. Collins is not within the Whitesand First Nation reserve. The indigenous residents of Collins and others who lived there in the recent past, about 140 people in total, are presently applying for recognition with Indigenous and Northern Affairs Canada. Whitesand First Nation is about a 31 minute train ride from Collins according to a Via Rail schedule. The train only goes through Collins twice a week. Now, at any given time, about 40 to 45 people live in Collins.
[16] M.K. has no criminal record. He has no dependents. He never married. He attended residential school from age seven to twelve. He did not report a negative experience at residential school according to the Gladue writer. He also attended a so called “Indian Day School” at Collins.
[17] M.K. lived a traditional lifestyle, hunting, trapping, and generally living off the land. He also worked at bush camps. He is known in the community for his carving skills.
[18] M.K. does not take responsibility for what happened. While he admitted committing the sexual assault while under cross-examination at the trial before me, he did not take the opportunity to say anything during the sentencing hearing. When asked if he had anything to say at the conclusion of submissions, he merely shrugged his shoulders and said “No.” The Gladue writer reports M.K. stated what happened was not true. The pre-sentence report author reported that M.K. expressed minimal remorse and blamed his behaviour on heavy alcohol abuse in the past.
Impact on the Victim
[19] A victim impact statement was given by R.K. Again, this statement was provided to the court but not marked as an exhibit. It was partially read in by the victim, and the entirety of it was read by me. I will treat it as if it were exhibited.
[20] R.K. is now 42 years old. The continuous period of sexual assaults that occurred while she was being cared for by her uncle had a significant and serious impact on her. She has been involved with the criminal justice system as a violent offender. She attributes the rage she experienced while committing acts of violence against others as being partially the result of the mistreatment she received at the hands of M.K. She stressed that she took responsibility for her actions, attended court, and took her punishments, which is to be contrasted with how she perceives M.K. to be responding to the present situation. R.K. gave her statement in a very heartfelt and emotional manner. She clearly was greatly impacted by M.K.’s actions. She has issues trusting people. She has issues with anger. She experienced cruelty herself, but also witnessed M.K.’s cruelty towards the animals he kept. Her words spoke of a very sad and confusing childhood. But, R.K. survived. She found it in herself to forgive M.K. She did so over the course of giving her statement. She ended by saying that the experience of giving her victim impact statement has helped make her feel better.
Position of the Crown
[21] The Crown submits that this case calls for a period of incarceration. The Crown relied on the decision of Moldaver J.A. (as he then was) in R. v. D.(D.) (2002), 58 O.R. (3d) 788, at para. 44, which stressed that, “as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.” The Crown acknowledges M.K.’s advanced years and status as an Indigenous offender. However, the Crown cited a more recent Ontario appellate level authority where a mid-range penitentiary sentence was imposed: R. v. M. (D.), 2012 ONCA 894, 295 C.C.C. (3d) 159, (offender with no record, abuse of related child, 4 years).
[22] The Crown contends that denunciation and deterrence are paramount considerations in M.K.’s case and asks for a sentence of two years less a day. A reformatory sentence is necessary to appropriately denounce the prolonged actions of abuse by an adult on a very young child. This is so particularly because the relationship at issue was familial and one of trust. The Crown recognizes that M.K. is an Indigenous offender. It notes the Gladue report well covers both M.K.’s background and opportunities for healing in a nearby First Nation community. However, the Crown points to the issues the Gladue writer reports with respect to the extra efforts M.K. would have to make to avail himself of these services and problems that could result from M.K. having no access to a phone.
[23] The Crown also seeks a period of three years of probation. It also asks for ancillary orders for DNA; a weapons prohibition pursuant to s. 109 of the Criminal Code, R.S.C., 1985, c. C-46 for 10 years; a lifetime registration under the Sex Offender Information Registration Act, S.C. 2004, c. 10 pursuant to ss. 490.012 and 490.13(2.1) of the Criminal Code; and an order that M.K. not communicate with R.K. pursuant to s. 743.21 of the Criminal Code.
Position of the Defence
[24] The defence argues for a conditional sentence of two years less a day. Counsel proposes that M.K. return to Collins and stay in his house for the term of his sentence. The defence did not reference any particular or specific counselling programs that would be available to M.K. other than those listed in the Gladue and pre-sentence report. Counsel relied on the decision of the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61, at paras. 22 and 90, to argue that I am to give “serious consideration” to a conditional sentence in these circumstances. Counsel submitted that a conditional sentence is generally more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. Further, counsel argued that a conditional sentence is itself a punitive sanction “capable of achieving the objectives of denunciation and deterrence:” Proulx, at para. 22.
[25] The defence argued M.K. does not represent a threat to reoffend. He has no record. His medical issues would make a period of incarceration a difficult time for him beyond what a more youthful offender would experience.
[26] Counsel argued there is no societal benefit to incarcerating a man like M.K. given his physical frailties. Counsel argued that a period of probation of 18 months would be sufficient to continue to assist M.K. in his rehabilitation.
Aggravating and Mitigating Factors
[27] This matter involved a sexual assault on a child by an adult who was in a position of trust. Three statutory aggravating factors under ss. 718.2(a)(ii.1), (iii), and (iii.1) are engaged. Based on the victim impact statement of R.K., I have no doubt these acts had a significant impact on her. She attributes her criminal behaviour in part to the abuse she suffered at the hands of M.K. Her life has been inexorably altered.
[28] Mitigating factors include M.K.’s lack of a criminal record, his advanced age and the medical issues he is experiencing.
Principles of Sentencing
[29] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 sets out the fundamental purpose of sentencing 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 acknowledgement of the harm done to victims or to the community.
[30] Other relevant principles of sentencing are set out in ss. 718.1 and 718.2 of the Criminal Code, the relevant portions of which are as follows:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also 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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
… 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;
(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.
Reasons
[31] In this matter, both counsel have adopted a sentencing position that would see M.K. subject to a sentence of two years less a day, followed by probation. The first, and really the primary issue, is whether or not the sentence should be served in, or out, of custody.
[32] I do not accept the defence submission that this circumstance is one where a conditional sentence is appropriate. In my view, a conditional sentence for M.K. would be like no real sentence at all. He would simply go back to living life as he did before he was arrested. The Gladue report filed in this matter fully outlines programs for healing and restorative rehabilitation. I have attached as Schedule I to these reasons what I see as the most salient aspect of the Gladue report in this respect. I will read this into the record now.
[33] The Gladue report has enabled me to fully assess the resources available in M.K.’s community that would support a non-custodial sentence. However, the Gladue writer fairly and succinctly notes the “little extra effort” on M.K.’s part to participate in those possible avenues of healing and rehabilitation. In my view, the writer is being diplomatic. M.K. has taken no responsibility for his actions in the matter. None. He has denied the accusations to the Gladue writer. He has minimized his responsibility to the author of the pre-sentence report. When given a chance to express remorse before this court, he decided to show none.
[34] M.K. did not show up for the first day of sentencing submissions. He gave no explanation as to why this happened, nor did his counsel. He had to be arrested in order to be brought back before the court. In my view, his lack of remorse and his disregard for the necessity to attend court make him a very poor candidate to successfully undertake a conditional sentence. It seems to me incumbent on the defence to provide some particulars of the programs and circumstances that M.K. realistically could avail himself of, or that he was willing to do, if I was prepared to accept the submission to allow M.K. to serve his sentence conditionally. He has offered none of this. I agree with the Gladue writer that “a healing plan for M.K. is severely challenged by the miniscule size of the community of Collins.” It would be possible for a conditional sentence to be served out by a person who lives in Collins, even if they did not have a phone. However, it would require effort, none of which M.K. seems to have decided to make despite being convicted of a very serious crime.
[35] I agree with the submissions of the Crown that denunciation and deterrence play a very important role in any matter involving sexual assault on a child, particularly when it occurred over a lengthy period of time which was the evidence I heard at this trial. There is no question in my mind that what M.K. did to R.K. was abusive, senseless, selfish, and devastating to her. I appreciate M.K. is a residential school survivor. However, he reports no negative influence from this experience. Judicial notice is taken of the harsh and insensitive circumstances experienced and then recounted by many residential school survivors. In this case however, I am not prepared to find that somehow M.K’s experience can mitigate his moral culpability or diminish the horrible impact these actions have had on R.K. Sexual abuse on children is a crime that often goes unpunished for many years. The scars on the victims remain. Once it is brought to light, our sense of justice demands a serious and appropriate response. In my view, only a period of actual incarceration will appropriately and justly serve to promote all aspects of the statutory sentencing provisions while also conforming to the jurisprudence from appellate level courts and the Supreme Court of Canada relevant to determining a just and proportionate sentence in cases like this one.
[36] Denunciation and deterrence remain the principal objectives in a case such as this where the offender has not accepted responsibility for his behaviour, has no insight into the harm he has caused, and the offence was perpetrated on a child while the offender was in a position of trust. Only a period of actual incarceration will bring home to M.K. the denunciation he deserves, give him a realistic opportunity to engage in rehabilitative programing designed to restore in him a sense of responsibility for his actions, and foster an understanding of how these actions have impacted his community, in particular, the niece whose care was entrusted to him many years ago.
[37] I accept the Crown’s sentencing submission on the issue of incarceration. I find a conditional sentence is not appropriate in all these circumstances. However, I accept that incarceration will be very difficult for M.K. given his age. M.K. is therefore sentenced to a period of incarceration for 15 months less credit for time served (23 days, 15 days enhanced at 1.5 to 1).
[38] I accept the defence position that an appropriate period of probation in this case will be a period of 18 months. I hope that during the period of incarceration, which will no doubt be difficult on M.K., he can more fully begin to appreciate what he has done. As such, he will be motivated to make “the little extra effort” once he is released and continue to engage in the programming that will be recommended to him by his supervisor. This will no doubt include programming which has been referred to in the Gladue and pre-sentence report. M.K. is additionally sentenced to a period of probation of 18 months once he completes the period of incarceration to which I have sentenced him.
Ancillary Orders
[39] M.K. will also subject to the following ancillary orders:
to supply a sample of his DNA to the DNA Data Bank within 72 hours of receiving this sentence;
to a weapons prohibition pursuant to s. 109 of the Criminal Code for 10 years except if M.K. is exercising his constitutional right to hunt;
to a lifetime registration under the Sex Offender Information Registration Act pursuant to ss. 490.012 and 490.13(2.1) of the Criminal Code; and
to an order pursuant to s. 743.21 of the Criminal Code that M.K. not communicate with R.K. during the term of his sentence including the period of probation.
“original signed by” The Hon. Mr. Justice F. Bruce Fitzpatrick