R. v. R.A.S., (2015) 593 A.R. 340

• Judge: Paperny, Martin and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 09, 2014
• Citations: (2015), 593 A.R. 340;2015 ABCA 21

R. v. R.A.S. (2015), 593 A.R. 340; 637 W.A.C. 340 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.142

Her Majesty the Queen (respondent) v. R.A.S. (appellant)

(1301-0066-A; 2015 ABCA 21)

Indexed As: R. v. R.A.S.

Alberta Court of Appeal

Paperny, Martin and O'Ferrall, JJ.A.

January 19, 2015.

Summary:

The accused was found guilty of sexual interference respecting his niece (HL) when she was 11 years old, and respecting his best friend's daughter (RMC) when she was between eight and 12 years old. The accused was sentenced to 3.5 years' imprisonment in relation to RMC and six months consecutive in relation to HL. He appealed from sentence.

The Alberta Court of Appeal, Martin, J.A., dissenting, dismissed the appeal.

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 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - RAS was found guilty of sexual interference respecting his best friend's daughter (RMC) - The abuse occurred when RMC was between eight and 12 years old - It involved RAS putting his hands down RMC's pants and rubbing her vagina, and touching her breast underneath her clothing - RMC's victim impact statement referred to the fact that she suffered from depression, attempted suicide and was ultimately hospitalized - RAS was sentenced to 3.5 years' imprisonment - He appealed, arguing that the trial judge improperly relied on the victim impact statement to conclude that RMC had suffered serious psychological harm when there was no evidence that linked her mental health issues to the sexual abuse - The Alberta Court of Appeal dismissed the appeal - RMC was cross-examined vigorously about her mental health at trial - Based on her evidence, it was reasonable for the trial judge to infer that the history of abuse at least contributed to her depression and equivocal mental health - There was direct evidence of harm - See paragraphs 13 and 14.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - RAS was found guilty of sexual interference respecting his best friend's daughter (RMC) - The abuse occurred when RMC was between eight and 12 years old - It involved RAS putting his hands down RMC's pants and rubbing her vagina, and touching her breast underneath her clothing - The trial judge was unable to determine the precise number of occasions of sexual touching, but found that it had occurred multiple times, at least eight of which were admitted by RAS - The trial judge found the following to be aggravating factors: the offences took place over several years; RMC was young; RMC had a close relationship with RAS; and RAS showed no remorse - RAS was sentenced to 3.5 years' imprisonment - He appealed, arguing that the sentence was unfit because the trial judge erred in characterizing the offence as a major sexual assault - The Alberta Court of Appeal dismissed the appeal - Repeated acts of sexual touching of a young child could constitute a major sexual assault - Taking advantage of RMC, who was a guest in his home and a family friend, over a long period of time and during a particularly vulnerable time in her life could realistically and foreseeably lead to emotional harm - The aggravating factors as found by the trial judge rendered the sentence proportionate to the seriousness of the offence and the culpability of the accused - See paragraphs 12 and 15.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 8].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 12].

R. v. Merrick (M.R.T.) (2012), 539 A.R. 40; 561 W.A.C. 40; 2012 ABCA 319, refd to. [paras. 12, 23].

R. v. Sandercock (1985), 62 A.R. 382; 1985 ABCA 218, refd to. [para. 15].

R. v. T.L.G. (2006), 401 A.R. 16; 391 W.A.C. 16; 2006 ABCA 313, refd to. [para. 15].

R. v. G.C.K. (2004), 357 A.R. 264; 334 W.A.C. 264; 2004 ABCA 348, refd to. [para. 23].

R. v. Estacio (D.I.) (2010), 474 A.R. 360; 479 W.A.C. 360; 252 C.C.C.(3d) 469; 2010 ABCA 69, refd to. [para. 26].

R. v. D.P. (2006), 231 B.C.A.C. 1; 381 W.A.C. 1; 2006 BCCA 409, refd to. [para. 26].

R. v. Lafleche (A.M.) (2001), 293 A.R. 285; 257 W.A.C. 285; 2001 ABCA 292, refd to. [para. 26].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 28].

R. v. B.W.B. (2007), 412 A.R. 182; 404 W.A.C. 182; 2007 ABCA 199, refd to. [para. 29].

R. v. M.G.F. (2010), 477 A.R. 244; 483 W.A.C. 244; 2010 ABCA 102, refd to. [para. 29].

Counsel:

J. Morgan, for the respondent;

J. Ruttan, for the appellant.

This appeal was heard on December 9, 2014, before Paperny, Martin and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed at Calgary, Alberta, on January 19, 2015, and included the following opinions:

Paperny and O'Ferrall, JJ.A. - see paragraphs 1 to 16.

Martin, J.A., dissenting - see paragraphs 17 to 30.