R. v. Rhodes (K.H.C.), 2013 MBQB 251

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 24, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 251;(2013), 297 Man.R.(2d) 247 (QB)

R. v. Rhodes (K.H.C.) (2013), 297 Man.R.(2d) 247 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.026

Her Majesty The Queen v. Kenneth Howard Cecil Rhodes (accused)

(CR 08-15-00316; 2013 MBQB 251)

Indexed As: R. v. Rhodes (K.H.C.)

Manitoba Court of Queen's Bench

Thompson Centre

Spivak, J.

October 24, 2013.

Summary:

The accused was charged with sexual assault. The accused's position was that the complainant consented to the sexual activity, but, if she had not, he honestly but mistakenly believed that she had.

The Manitoba Court of Queen's Bench, in a decision reported at 295 Man.R.(2d) 29 and indexed as R. v. Rhodes (K.), held that the complainant did not consent. Further, the defence of honest but mistaken belief in consent was not available on the facts. The court convicted the accused. He appealed.

The Manitoba Court of Appeal, in a decision reported at [2011] Man.R.(2d) Uned. 87, allowed the appeal and ordered a new trial. The accused was granted judicial interim release. Before a verdict had been handed down in the accused's re-trial, he was convicted of breaching a release condition.

The Manitoba Provincial Court, in a decision not reported in this series of reports, declined to conduct a revocation hearing pursuant to ss. 524(3)(b) and 524(8) of the Criminal Code.

The Manitoba Court of Queen's Bench, in a decision reported at 295 Man.R.(2d) 29 and indexed as R. v. Rhodes (K.), convicted the accused of sexual assault. The Crown brought a motion to have the accused's judicial interim release revoked pending his sentencing.

The Manitoba Court of Queen's Bench, in a decision reported at 297 Man.R.(2d) 114, granted the motion.

The Manitoba Court of Queen's Bench sentenced the accused to three years' imprisonment and made ancillary orders.

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 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The aboriginal accused (Métis) was convicted of sexual assault (digital penetration, vaginal intercourse, brief anal penetration, and cunnilingus with the complainant without her consent) - The offences occurred more than seven years ago and the accused had not been criminally re-involved, except for a recent minor conviction for breach of his recognizance - The Manitoba Court of Queen's Bench held that a conditional sentence was not appropriate - Gladue considerations were not significant here - The accused had not suffered many of the hardships and well-known systemic factors experienced by many aboriginal persons - He reported that his siblings were treated differently due to racism, but he was seen as a non-aboriginal - A vulnerable young woman was sexually violated by a man she just met, who was considerably older than her and almost twice her size - The breach of her personal dignity and integrity was profound - The impact upon her was traumatic and lasting - The court took into account condemnation of the conduct, denunciation and deterrence, and proportionality - Rehabilitation was also a factor, particularly in a first-time offender with strong family support, steady employment, and no substance abuse issues - The court held that a sentence of three years was fit and appropriate.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 14].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 228 O.A.C. 224; 2012 SCC 13, refd to. [para. 14].

R. v. L.L.G. (2012), 284 Man.R.(2d) 285; 555 W.A.C. 285; 2012 MBCA 106, refd to. [para. 14].

R. v. Gabriel (Q.J.) (2013), 291 Man.R.(2d) 291; 570 W.A.C. 291; 2013 MBCA 45, refd to. [para. 14].

R. v. Popowich (M.J.) (2013), 544 A.R. 312; 567 W.A.C. 312; 2013 ABCA 149, refd to. [para. 16].

R. v. Brooks (M.L.) (2012), 298 O.A.C. 126; 2012 ONCA 703, refd to. [para. 16].

R. v. J.C.L., [2009] Man.R.(2d) Uned. 24; 2009 MBCA 52, refd to. [para. 16].

R. v. Pelletier (K.) (2012), 295 O.A.C. 200; 291 C.C.C.(3d) 279; 2012 ONCA 566, refd to. [para. 16].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 16].

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; 2000 SCC 5, refd to. [para. 17].

R. v. Sandercock (1985), 62 A.R. 382; 1985 ABCA 218, consd. [para. 20].

R. v. Borkowsky (H.) (2008), 225 Man.R.(2d) 127; 419 W.A.C. 127; 2008 MBCA 2, consd. [para. 20].

R. v. Leyte (S.S.) (1996), 110 Man.R.(2d) 235; 118 W.A.C. 235 (C.A.), refd to. [para. 20].

R. v. D.A.H. (2003), 168 O.A.C. 176; 171 C.C.C.(3d) 309 (C.A.), dist. [para. 21].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, dist. [para. 22].

Counsel:

David N. Gray, for the Crown;

Rodrigue Guay, for the accused.

This case was heard by Spivak, J., of the Manitoba Court of Queen's Bench, Thompson Centre, who delivered the following decision on October 24, 2013.