R. v. Schenkels (M.), (2016) 324 Man.R.(2d) 288 (QB)

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 01, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 324 Man.R.(2d) 288 (QB);2016 MBQB 44

R. v. Schenkels (M.) (2016), 324 Man.R.(2d) 288 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MR.005

Her Majesty The Queen v. Marjorie Schenkels (accused)

(CR 13-01-32961; 2016 MBQB 44)

Indexed As: R. v. Schenkels (M.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

March 1, 2016.

Summary:

The accused was diagnosed with HIV in 2009. In 2011, she had unprotected sexual intercourse with the complainant on three occasions and did not disclose her illness to him. The complainant subsequently tested positive for HIV. The accused was convicted of aggravated sexual assault.

The Manitoba Court of Queen's Bench sentenced the accused to a period of imprisonment of two years less a day, to be followed by two years of supervised probation.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5933.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5933.1 ].

Criminal Law - Topic 5848.10

Sentencing - Considerations on imposing sentence - Sexual offences - The accused was convicted of aggravated sexual assault for failing to disclose her HIV status to a sexual partner - The Crown argued that the offence should be considered a serious sexual assault for which the starting point was three years' imprisonment as set out in R. v. Sandercock (1985, Alta. C.A.) - The Manitoba Court of Queen's Bench held that the Sandercock framework was not relevant in this case - While the charge was a form of sexual assault, the culpable conduct was deception, not violence - See paragraph 16.

Criminal Law - Topic 5848.10

Sentencing - Considerations on imposing sentence - Sexual offences - [See Criminal Law - Topic 5933.1 ].

Criminal Law - Topic 5933.1

Sentence - Aggravated sexual assault - The aboriginal accused was diagnosed with HIV in 2009 - In 2011, she had unprotected sexual intercourse with the complainant on three occasions, and did not disclose her illness to him - The complainant subsequently tested positive for HIV - The accused was convicted of aggravated sexual assault - The Manitoba Court of Queen's Bench found that the accused's conduct was the result of fear and the inability to accept the gravity of her situation, as opposed to predatory and manipulative - The accused's emotional health, psychological well-being and life circumstances had been shaped by exposure to her mother's history of sexual violence, an issue that was disproportionately faced by aboriginal women - The accused's experience was connected to her substance abuse, depression, and general inability to cope, which in turn played a role in her committing the offence - Since the offence, the accused had changed her life for the better and now had a healthy attitude toward her situation - The court imposed a period of imprisonment of two years less a day, to be followed by two years of supervised probation.

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), refd to. [para. 16].

R. v. Lamirande (D.) (2006), 205 Man.R.(2d) 245; 375 W.A.C. 245; 2006 MBCA 71, refd to. [para. 19].

R. v. R.M. (2008), 243 O.A.C. 42; 2008 ONCA 831, refd to. [para. 19].

R. v. Iamkhong (S.) (2009), 250 O.A.C. 220; 2009 ONCA 478, refd to. [para. 19].

R. v. G.T., [2012] O.T.C. Uned. 1201; 2012 ONSC 1201, refd to. [para. 19].

R. v. Tippeneskum, 2011 ONCJ 219, refd to. [para. 19].

R. v. Ngeruka, 2015 YKTC 22, refd to. [para. 19].

R. v. Williams (H.L.) (2003), 308 N.R. 235; 231 Nfld. & P.E.I.R. 1; 686 A.P.R. 1; 2003 SCC 41, refd to. [para. 21].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 25].

Counsel:

Joanna H. Kostiuk and Manoja Moorthy, for the Crown;

R. Ian Histed, for the accused.

This matter was heard before Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment orally on March 1, 2016.