R v SR, 2020 BCPC 227

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

Indigenous Law Centre – CaseWatch Blog

Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

R v Amaaq, 2020 NUCA 11

The Court of Appeal overturned a conditional sentence order of two years less a day and a consecutive three year suspended sentence for aggravated assault against an Inuk mother found guilty of committing these offences against her five-year-old child. The Court of Appeal varied the sentence for aggravated assault by imposing a term of imprisonment of two years less a day followed by a three year period of probation to be served consecutively to the two year conditional sentence for failure to provide the necessaries of life. At the joint request of the Crown and defence counsel, Ms. Amaaq’s obligation to serve jail time was stayed to avoid jeopardizing the future welfare of another child who would likely be placed in foster care if she were imprisoned. 

Indigenous Law Centre
Indigenous CaseWatch Blog

The Crown appeals sentences imposed by the Nunavut Court of Justice on December 12, 2019 for two offences the respondent committed against her five-year-old child over an approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to provide the necessaries of life and a consecutive three-year suspended sentence for aggravated assault. The Crown requests that this Court set aside the sentence for aggravated assault and impose a jail term “in the range of 2 years less a day”, as this is the second time the respondent has been convicted of assaulting this child.

The five-year old’s body was covered in bruises and bite marks. He suffered severe internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed bowel. The youngster told the examining nurse he could not recall the last time he ate. The child’s height and weight was in the fifteenth percentile for his age.

The sentencing judge tried to produce a sentence faithful to Gladue factors. However, a noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s direction in section 718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence” if the offender abused a person under eighteen years of age. The Court grants leave to appeal and varies the sentence for the aggravated assault conviction by imposing a term of imprisonment of two years less a day followed by a three-year probation period to be served consecutively to the two-year-conditional sentence for the failure to provide the necessaries of life.

The Crown and the respondent asked to stay any custodial sentence that may be imposed to allow the offender to discharge her parental obligations to her four-year-old daughter. The offender has shown no signs that she is a danger to this child or the community. The offender’s daughter would most likely be placed in foster care if the offender was incarcerated. Foster care, would be a poor second choice in these circumstances and would jeopardize the future welfare of yet another of the offender’s children. Had only the respondent’s counsel made this request, the Court most likely would not have granted it, as the Court would be extremely reluctant to dilute, in any way, the message that those who imperil the physical and mental welfare of their offspring are guilty of a grievous breach of trust and merit a term of imprisonment. The youngster’s grandmother has adopted the young boy and assumed the duties and responsibilities of parenthood late in life.