R. v. W.E.M., 2014 ABQB 10

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 20, 2013
• Citations: 2014 ABQB 10;(2013), 579 A.R. 182 (QB)

R. v. W.E.M. (2013), 579 A.R. 182 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.067

Her Majesty the Queen v. W.E.M.

(120834189Q2; 2014 ABQB 10)

Indexed As: R. v. W.E.M.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Yamauchi, J.

December 23, 2013.

Summary:

The accused, in a judgment reported [2013] A.R. Uned. 738, was convicted of sexual interference by a person in a position of trust and sexual assault. The latter conviction was stayed. The victim was the accused's 13 year old step-daughter. The accused penetrated the step-daughter's vagina with his finger and touched her right buttock with his penis.

The Alberta Court of Queen's Bench sentenced the accused to 3.5 years' imprisonment, less 11 months' credit for pre-trial custody on a 1.0 to 1.0 basis. The court ordered that the accused be registered under the Sex Offender Information Registration Act for 20 years and made an order under s. 161(1.1) of the Criminal Code restricting the accused's contact with any person under the age of 16 years for 10 years.

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 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5849 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5849 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5849 ].

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - In August 2011, the now 39 year old accused penetrated his 13 year old step-daughter's vagina with his finger and touched her right buttock with his penis - The accused was convicted of sexual interference by a person in a position of trust or authority - He had no criminal record, was in the British military and was currently employed in the oil and gas industry - The accused was married to the mother for approximately 11 years at the time of the offence - Aggravating factors included the offence occurring while the step-daughter appeared to be sleeping in the family home - Although the accused cooperated with the police, he showed no remorse and there was no evidence of seeking any type of rehabilitative assistance - As there was no pre-sentence report, there was no evidence of the risk of the accused re-offending - The step-daughter's victim impact statement evidenced the traumatic effect on the step-daughter - The accused sought 16.5 months' imprisonment, which after factoring in credit for 11 months' pre-trial custody on a 1.5 to 1.0 basis, would equate to "time served" - The Crown sought four years' imprisonment - The Alberta Court of Queen's Bench held that the digital penetration of a child's vagina constituted a major sexual assault and the starting point sentence was four years' imprisonment - Denunciation and deterrence were paramount (s. 718.01) - Rehabilitation, while still relevant, was relegated to secondary status - The court sentenced the accused to 3.5 years' imprisonment, less 11 months' credit for pre-trial custody on a 1.0 to 1.0 basis - The court ordered that the accused be registered under the Sex Offender Information Registration Act for 20 years and made an order under s. 161(1.1) of the Criminal Code restricting the accused's contact with any person under the age of 16 years for 10 years.

Cases Noticed:

R. v. D.K. (1994), 155 A.R. 269; 73 W.A.C. 269 (C.A.), refd to. [para. 7].

R. v. B.S.M. (2011), 502 A.R. 253; 517 W.A.C. 253; 2011 ABCA 105, refd to. [para. 7].

R. v. L.M.R. (2010), 490 A.R. 196; 497 W.A.C. 196; 2010 ABCA 286, refd to. [para. 7].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449, refd to. [para. 10].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 12].

R. v. Arcand - see R. v. J.L.M.A.

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65; 73 C.C.C.(3d) 530 (C.A.), refd to. [para. 17].

R. v. B.W.P.; R. v. B.V.N. (2006), 350 N.R. 1; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 27, refd to. [para. 18].

R. v. B.C.M. (2008), 259 B.C.A.C. 222; 436 W.A.C. 222; 2008 BCCA 365, refd to. [para. 20].

R. v. G.W.H. (2004), 372 A.R. 378; 48 Alta. L.R.(4th) 181; 2004 ABPC 241, refd to. [para. 23].

R. v. Innerebner (T.L.) (2010), 496 A.R. 196; 39 Alta. L.R.(5th) 131; 2010 ABQB 188, refd to. [para. 23].

R. v. Watson (J.A.) (1994), 157 A.R. 80; 77 W.A.C. 80 (C.A.), refd to. [para. 25].

R. v. S.P.C. (2008), 433 A.R. 282; 429 W.A.C. 282; 2008 ABCA 280, refd to. [para. 26].

R. v. A.B.C. (1991), 120 A.R. 106; 8 W.A.C. 106; 1991 CarswellAlta 772 (C.A.), refd to. [para. 28].

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

R. v. T.L.B. (2007), 409 A.R. 40; 402 W.A.C. 40; 218 C.C.C.(3d) 11; 2007 ABCA 61, leave to appeal denied (2007), 375 N.R. 391 (S.C.C.), refd to. [para. 30].

R. v. D.B.A. (2007), 259 N.S.R.(2d) 244; 828 A.P.R. 244; 2007 NSSC 324, refd to. [para. 37].

R. v. L.W.H., [2011] A.R. Uned. 624; 44 Alta. L.R.(5th) 422; 2011 ABQB 22, refd to. [para. 42].

R. v. B.L. (2011), 519 A.R. 181; 539 W.A.C. 181; 68 Alta. L.R.(5th) 208; 2011 ABCA 375, refd to. [para. 44].

R. v. Church, [2005] A.J. No. 985 (Q.B.), refd to. [para. 48].

R. v. B.W.B. (2007), 412 A.R. 182; 404 W.A.C. 182; 2007 ABCA 199, refd to. [para. 49].

R. v. Bachewich - see R. v. B.W.B.

R. v. Keough (J.A.) (2012), 519 A.R. 236; 539 W.A.C. 236; 2012 ABCA 14, refd to. [para. 54].

R. v. Summers (S.) (2013), 304 O.A.C. 322; 2013 ONCA 147, refd to. [para. 59].

R. v. Ross (K.S.) (2013), 562 A.R. 122; 2013 ABQB 274, refd to. [para. 60].

R. v. Johnson (F.B.) (2013), 553 A.R. 157; 583 W.A.C. 157; 2013 ABCA 190, refd to. [para. 62].

Counsel:

R.A. Snider (Agent of the Attorney General of Alberta), for the Crown;

K.M. Sproule (Sproule MacNaughton), for the accused.

This matter was heard on December 20, 2013, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, whose oral judgment of December 23, 2013, was filed on January 2, 2014.