R. v. H.R., (1997) 205 A.R. 226 (ProvCt)

• Judge: Marshall, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 08, 1997
• Citations: (1997), 205 A.R. 226 (ProvCt)

R. v. H.R. (1997), 205 A.R. 226 (ProvCt)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. AU.041

Her Majesty the Queen v. H.R.

(Docket No. 61051751P10102)

Indexed As: R. v. H.R.

Alberta Provincial Court

Marshall, P.C.J.

August 8, 1997.

Summary:

An accused aboriginal pleaded guilty to sexually assaulting his nine year old niece on two occasions.

The Alberta Provincial Court sentenced the accused to one year's imprisonment and two years' probation. The court refused to impose a conditional sentence.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - An accused aboriginal pleaded guilty to sexually assaulting his nine year old niece on two occasions - The 21 year old accused fondled the niece and had her masturbate him and provide oral sex - The accused used Saran Wrap to prevent direct contact during oral sex - Shortly after the incidents and apparently without prior knowledge that the niece had reported the assaults, the accused confessed - Receiv­ing counselling - Remorseful - Unlikely to re-offend - A sentencing circle recom­mended two years' probation - The Alberta Provin­cial Court sentenced the accused to one year's imprisonment and two years' proba­tion - The court denied a conditional sen­tence, stating that children must be pro­tected and seen to be protected and a conditional sentence, no matter how strict the conditions, would be inadequate and appal the community.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - Section 718.2(e) of the Criminal Code provided that "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." - The Alberta Provincial Court stated that this suggested that addi­tional tools unique to aboriginal people, such as sentencing circles, traditional healing methods, respect for the advice of elders, etc., were to be utilized where reasonably possible and that special recog­nition was to be given to the native tradi­tional way of life and the effects that the removal from that com­munity and way of life would have upon the aboriginal offender - However, s. 718.2(e) was not intended to exclude the aboriginal offender from responsibility to comply with the s. 718 purposes and prin­ciples of sentencing nor the s. 718.2 sen­tencing principles - See paragraphs 47 to 56.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. McDonnell (T.E.) (1997), 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436 (S.C.C.), consd. [para. 6].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 20].

R. v. Johnson (G.) (1994), 48 B.C.A.C. 93; 78 W.A.C. 93; 91 C.C.C.(3d) 21 (Y.T.C.A.), refd to. [para. 62].

R. v. Pierce (M.) (1997), 97 O.A.C. 253 (C.A.), refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 48].

Counsel:

Marilyn White, for the Crown;

Laurie Wood, for the defence.

This action was heard by Marshall, P.C.J., of the Alberta Provincial Court, who delivered the following decision on August 8, 1997.