R. v. R.S., 2013 SKPC 64

JudgeIrwin, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateMarch 13, 2013
JurisdictionSaskatchewan
Citations2013 SKPC 64;(2013), 415 Sask.R. 235 (PC)

R. v. R.S. (2013), 415 Sask.R. 235 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. AP.049

Her Majesty the Queen v. R.S.

(Information Nos. 43265525; 36878094; 2013 SKPC 64)

Indexed As: R. v. R.S.

Saskatchewan Provincial Court

Irwin, P.C.J.

March 13, 2013.

Summary:

The accused was convicted of sexual assault and sexual touching of a person under the age of 14. The Crown applied for a declaration that the accused was a dangerous offender.

The Saskatchewan Provincial Court designated the accused as a long-term offender. The court stayed the conviction for sexual touching. For the sexual assault conviction, the accused was sentenced to eight years' imprisonment (less five years for time already served) followed by 10 years of supervision.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5830.6

Sentencing - Considerations on imposing sentence - Relationship of victim to accused - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. repeat, dangerous or long-term offenders) - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 5932

Sentencing - Sentence - Particular offences - Sexual assault - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - Considerations and conditions precedent - [See Criminal Law - Topic 6503.1 ].

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - The accused (RS) was convicted of sexual assault and sexual touching of his young stepdaughter - RS had 31 prior convictions, including 12 alcohol related driving offences and three sexual offences - His first conviction was in 1987 when he was 18 and involved intercourse with his 15 year old sister - He was convicted of sexual assault involving an elderly woman in 1988 and a 15 year old girl in 1996 - The Crown applied for a declaration that the accused was a dangerous offender - An expert assessed RS and concluded that he was at a high risk to re-offend if he did not participate in high-intensity sex offender treatment, substance and anger management programming, and relapse prevention techniques - The expert suggested that RS should be considered a long-term offender - Although he met the criteria for a dangerous offender designation, he was not completely untreatable - The Saskatchewan Provincial Court found that RS constituted a threat to the life, safety or physical or mental well-being of others - His record demonstrated a pattern of repetitive behaviour - He had often combined substance abuse with offending - There were clear similarities in the kind of offences (assaulting vulnerable women) and the result (psychological trauma) - The repeated offending against his stepdaughter during a prolonged period of time suggested a failure to control his sexual impulses - This was his fourth conviction for a sexual offence since 1987, which suggested a long history of failing to control his sexual impulses - There was a likelihood he would cause further physical or psychological damage through similar failures in the future - Although the statutory criteria for a dangerous offender designation had been met, there was a reasonable possibility RS's behaviour could be controlled in the community within the limits of a determinate sentence - RS was intelligent and had previously demonstrated an ability to function in the community for significant periods of time - He had made some progress with counselling and programming in the past - The court designated RS as a long-term offender - See paragraphs 52 to 86.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - [See Criminal Law - Topic 6503.1 ].

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention - Protection of the public - Persistent aggressive behaviour - The accused (RS) was convicted of sexual assault and sexual touching of his young stepdaughter - RS had 31 prior convictions, including 12 alcohol related driving offences and three sexual offences - His first conviction was in 1987 when he was 18 and involved intercourse with his 15 year old sister - In 1988, he was convicted of break, enter and sexual assault which involved throwing two elderly women on a bed and exposing his genitals - In 1991, he was convicted of break, enter and assault which involved chasing and tackling a 30 year old woman - In 1996, he was convicted of sexual assault after caressing a 15 year old girl in her bedroom - The Crown applied for a declaration that the accused was a dangerous offender - The Saskatchewan Provincial Court found that RS had not demonstrated a pattern of "persistent aggressive behaviour" (Criminal Code, s. 753(1)(a)(ii)) - The index offences and the prior assaults did not constitute an "enduring of" or "constantly repeated" form of aggressive behaviour, primarily due to the significant breaks in his sexual offending, as well as the level of aggression involved - The 10 year gap between his 1996 conviction and the index offence (which was different than any of his previous offences) did not form part of an enduring or persistent pattern - See paragraphs 67 to 69.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 6575

Dangerous or long-term offenders - Detention - Sentencing - Sentence - The accused (RS) was convicted of sexual assault and sexual touching of his young stepdaughter - RS had 31 prior convictions, including 12 alcohol related driving offences and three sexual offences - There was minimal force used during the assault on the stepdaughter and no brutality - There was no evidence that alcohol consumption led to the assault - Between his offences, RS was hard-working, reliable and self-supporting - His denial of the assault against his stepdaughter was based on abhorrence of similar offences against children and his refusal to acknowledge that he would have committed such an offence - RS had been in custody since his arrest (over 41 months) - The Saskatchewan Provincial Court designated RS as a long-term offender - An appropriate sentence had to reflect the abuse of a stepfather and stepdaughter relationship which left the victim confused and conflicted - An appropriate sentence for the sexual assault conviction was eight years' imprisonment followed by 10 years' supervision - For the eight month period between his arrest (September 2009) and the conclusion of his trial (April 2010), and the 14 month period between the appointment of his current counsel (January 2012) and the date of sentencing (March 2013), the court gave RS a credit of two days for each day spent in custody - From April 2010 until January 2012, RS had been in custody largely because of his unwillingness to work with his defence counsel - RS was only given 16 months' credit for that 32 month period - In total, RS was given credit for five years, reducing the actual time in prison to three years - Three years was also necessary for the type of intensive alcohol and sex offender treatment that was required for his rehabilitation - The court stayed the sexual touching conviction - See paragraphs 87 to 105.

Cases Noticed:

R. v. Hardy, 2012 CarswellOnt 13427, refd to. [para. 6].

R. v. Roberts (L.R.) (2007), 300 Sask.R. 83; 2007 SKQB 209, refd to. [para. 52].

R. v. Ben (B.) (2012), 395 Sask.R. 93; 2012 SKPC 52, refd to. [para. 55].

R. v. Harris (R.L.) (2011), 386 Sask.R. 216; 2011 SKPC 176, refd to. [para. 55].

R. v. Ewenin (M.C.) (2009), 334 Sask.R. 61; 2009 SKQB 207, refd to. [para. 55].

R. v. Natomagan (A.D.) (2010), 349 Sask.R. 161; 2010 SKPC 7, refd to. [para. 55].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 55].

R. v. Gamble (M.W.) (2012), 404 Sask.R. 25; 2012 SKQB 249, refd to. [para. 55].

R. v. J.T.M. (2011), 379 Sask.R. 211; 2011 SKPC 109, refd to. [para. 55].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 55].

R. v. Daniels (D.) (2011), 375 Sask.R. 1; 525 W.A.C. 1; 2011 SKCA 67, refd to. [para. 55].

R. v. McCallum (J.E.), [2011] B.C.T.C. Uned. 715; 2011 BCSC 715, refd to. [para. 55].

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110; 2009 SKQB 306, refd to. [para. 60].

R. v. G.N.B. (2012), 406 Sask.R. 241; 2012 SKQB 397, refd to. [para. 60].

R. v. Neve (L.C.), [1999] 11 W.W.R. 649; 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 60].

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), refd to. [para. 61].

R. v. Langevin (1984), 3 O.A.C. 110; 8 D.L.R.(4th) 485 (C.A.), refd to. [para. 61].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 61].

R. v. J.Y. (1996), 141 Sask.R. 132; 114 W.A.C. 132; 104 C.C.C.(3d) 512 (C.A.), refd to. [para. 67].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 2005 SKCA 12, refd to. [para. 71, footnote 1].

R. v. W.T. (2004), 255 Sask.R. 132; 2004 SKQB 418, refd to. [para. 71].

R. v. Moosomin (L.W.) (2009), 320 Sask.R. 100; 444 W.A.C. 100; 2008 SKCA 169, refd to. [para. 76].

R. v. Haug (D.W.) (2008), 307 Sask.R. 1; 417 W.A.C. 1; 2008 SKCA 23, refd to. [para. 79].

R. v. Stonechild (R.) (2008), 312 Sask.R. 86; 2008 SKQB 98, refd to. [para. 80].

R. v. Little (G.) (2007), 226 O.A.C. 148; 2007 ONCA 548, refd to. [para. 80].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, refd to. [para. 81].

R. v. Laliberte (R.) (2011), 376 Sask.R. 116; 2011 SKQB 263, refd to. [para. 94].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 105].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1)(a)(i), sect. 753(1)(a)(ii), sect. 753(1)(b), sect. 753.1 [para. 8].

Counsel:

Buffy Rodgers, for the Crown;

Bill Roe, Q.C., for the accused.

This matter was heard in Saskatoon, Saskatchewan, before Irwin, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on March 13, 2013.

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1 practice notes
  • R. v. R.S., 2014 SKCA 11
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • December 3, 2013
    ...applied for a declaration that the accused was a dangerous offender. The Saskatchewan Provincial Court, in a decision reported at (2013), 415 Sask.R. 235, designated the accused as a long-term offender. The court stayed the conviction for sexual touching. For the sexual assault conviction, ......
1 cases
  • R. v. R.S., 2014 SKCA 11
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • December 3, 2013
    ...applied for a declaration that the accused was a dangerous offender. The Saskatchewan Provincial Court, in a decision reported at (2013), 415 Sask.R. 235, designated the accused as a long-term offender. The court stayed the conviction for sexual touching. For the sexual assault conviction, ......

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