Supreme Court

Decision Information

Decision information:

Transcript of the Reasons for Sentence

Decision Content

R v Rose, 2018 NWTSC 21                 S-1-CR-2017-000144

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

DONALD ROSE

_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L.A. Charbonneau, sitting in Hay River, in the Northwest Territories, on the 15th day of March, 2018.

_________________________________________________________

 

 

APPEARANCES:

 

 

Ms. A. Piché:                 Counsel for the Crown

Mr. M.E. Hansen:              Counsel for the Accused

 

 

(Charges under s. 271 of the Criminal Code)

 

 

No information shall be published in any document or broadcast or transmitted in any way  which could identify the victim or a witness in these proceedings pursuant to

s . 486 . 4 of the Criminal Code


 

1            THE COURT:             Before I begin, I just want to

2                    reiterate that there is a publication ban in

3                    effect prohibiting the publication or broadcast

4                    of any information that could identify the victim

5                    in this matter.  I am going to direct that a

6                    transcript of my decision be prepared and that

7                    she be referred only with the initial of her

8                    first name, even though I will refer to her by

9                    name in the brief remarks I will make this

10                   afternoon.

11            MR. HANSEN:            Excuse me, ma'am.  You were

12                   just going over administrative details, but I

13                   know that Mr. Rose could not hear you speak.

14            THE COURT:             Okay.  Sorry about that.

15            MR. HANSEN:            Not a problem.

16            THE COURT:             I will try to speak louder,

17                   Mr. Rose.  Can you hear me now?  Yes.  Okay.  I

18                   was just talking about the fact that there is a

19                   publication ban that prevents anyone from

20                   publishing D.'s name.  I was telling the court

21                   reporter that I want a transcript of what I am

22                   about to say and asking her to use an initial and

23                   not her name in the transcript.  That is as far

24                   as I got, and I will keep my voice up from this

25                   point on, and interrupt me, Mr. Hansen, if you

26                   get any indication that Mr. Rose is not hearing

27                   me.  All right.


 

1                             Donald Rose admits that over a period of two

2                    years, he sexually assaulted D., his great niece.

3                    She was 10 and 11 at the time.  He was a trusted

4                    family member, and D. and her mother often

5                    visited him.  When he was alone with her, he took

6                    advantage of the situation.  He now admits that

7                    on multiple occasions, he touched her genital

8                    area above her clothing and under her clothing.

9                    In a statement he gave to police in June 2017, he

10                   also admitted digitally penetrating her vagina on

11                   multiple occasions.

12                             These were very serious sexual assaults.

13                   They had a serious impact on D. herself and on

14                   her family.  Not surprisingly, this has caused

15                   immense and possibly irreparable damage to the

16                   family relationships.  The proceedings in court

17                   cannot repair those relationships, but I hope

18                   that at least the fact that these proceedings

19                   will conclude today and the fact that Mr. Rose

20                   now admits his full responsibility for what he

21                   did can perhaps be a first step towards some form

22                   of healing in the future.

23                             Mr. Rose through his lawyer this afternoon

24                   resiled, or I would say went back, on some of the

25                   things he had told the police when he gave his

26                   statement about this.  I just want to say a few

27                   words about that because I think it is very


 

1                    important.

2                             In his statement to the police, Mr. Rose had

3                    said that D. was the one who instigated, who

4                    started the sexual contact, that she was sexually

5                    aggressive with him.  His lawyer says Mr. Rose

6                    now understands this is wrong and not true.  The

7                    comments that Mr. Rose made in his statement to

8                    the police are extremely disturbing.  I hope it

9                    is true that Mr. Rose realizes that, in fact, the

10                   things that he said in his statement to the

11                   police are not correct.  The claim that a 10- or

12                   11-year-old child is sexually aggressive or

13                   somehow instigating sexual contact should be

14                   rejected as fundamentally flawed in all cases.

15                   It should be denounced in all cases.  Children

16                   cannot be made to bear any kind of responsibility

17                   or blame in things of this nature.  D. is not in

18                   any way, shape, or form responsible for any part

19                   of what Mr. Rose did to her.  He was at fault

20                   completely and without any qualification.  People

21                   tell themselves all sorts of things to

22                   rationalize their own behaviour, but I say again

23                   there is no merit, no foundation ever for this

24                   type of suggestion.  There is no such thing as a

25                   10- or 11-year-old child being a "willing

26                   participant" to this kind of activity.

27                             Having heard from family members today, it


 

1                    is especially unfair that this happened to D.

2                    considering the other health issues that she has

3                    already faced in her young life.  How unfair can

4                    it be that a little girl who has been through

5                    cancer treatment at this very young age then had

6                    to be subjected to this kind of abuse, live with

7                    it for two years, and would now have to live with

8                    the aftermath of all this.  It is not fair at

9                    all, and I sincerely hope that Mr. Rose truly

10                   does realize all of this now.  I hope it is

11                   something that he knows in his head but also

12                   feels in his heart.

13                             The sexual assaults that Mr. Rose committed

14                   were major sexual assaults as we define them in

15                   law, at least in the case law in this

16                   jurisdiction.  These kinds of assaults committed

17                   by a person in a position of trust, which was the

18                   case here, usually bring sentences that have a

19                   starting point of four years for one single act.

20                   The reason that sentences are so severe is

21                   because we know and we have known for many years

22                   now that this type of assault leaves devastating

23                   impacts on children.  These impacts can be

24                   long-lasting, way longer than any physical

25                   injuries when there are physical injuries.

26                             I will not read from those cases here this

27                   afternoon, but those impacts were discussed at


 

1                    some length by the Court of Appeal of Alberta in

2                    R v. S.(W.B.) more than 25 years ago.  The Court

3                    of Appeal's comments were referred to in

4                    R. v. G.(C.A.) 2013 NWTSC 80 at paragraphs 37 to

5                    42 and also in R. v. Holman 2014 NWTSC 13, which

6                    were among the cases that counsel filed for this

7                    hearing.

8                             D.'s young age is an aggravating factor and

9                    the repetition, multiple repetition, of assaults

10                   is also aggravating.  But there are mitigating

11                   factors.  I agree with counsel that the guilty

12                   plea is the most significant mitigating factor.

13                   It has spared D. from having to testify about

14                   this.  It was a very, very early guilty plea,

15                   entered before a date for the preliminary hearing

16                   was even scheduled.  For having seen for many

17                   years witnesses testify in court in these types

18                   of cases, I know that sparing a child, or an

19                   adult for that matter, from having to talk about

20                   these things in court is sparing them a lot.  So

21                   Mr. Rose deserves significant credit for his

22                   guilty plea.

23                             The other reason a guilty plea is important,

24                   aside from having spared her from having to talk

25                   about this and having spared her family from

26                   having to go through a prolonged court process,

27                   is that a guilty plea provides certainty of


 

1                    outcome and it tells everyone what the truth is.

2                    It leaves no one able to suspect or say that

3                    maybe the story was made up.  It makes it very

4                    clear who did what.  It makes it very clear where

5                    the responsibility lies, and although I know it

6                    does not remove the harm to families, it may

7                    avoid denial on the part of some family members

8                    who do not want to believe that the allegations

9                    are true.  It avoids prolonging rumours and

10                   debate about what is true and what is not, and

11                   that is very important.

12                             Mr. Rose is 78 years old.  His lawyer has

13                   thoroughly reviewed his personal circumstances,

14                   and I am not going to repeat all of that here

15                   now.  As I mentioned to counsel earlier this

16                   afternoon, I think it is important to bring this

17                   matter to a close today for everyone's sake, and

18                   because of that, I have had very little time to

19                   prepare these reasons, and so that is why I am

20                   not going to go into all of the details I was

21                   told, less than an hour ago, about Mr. Rose's

22                   circumstances, but I have taken them into

23                   account.  I have taken into account his age and

24                   the fact that he has never been convicted of any

25                   crime until today, which is quite remarkable.  I

26                   have considered his own medical issues, the fact

27                   that he is an aboriginal person, the fact that he


 

1                    attended residential school.  I have also, as is

2                    my duty, taken judicial notice of systemic and

3                    background factors that would have had an impact

4                    on him as an aboriginal person.

5                             I heard that, as many, he struggled with

6                    alcohol and developed a problem with alcohol at a

7                    younger age.  I heard that he addressed this

8                    problem and dealt with that addiction on his own,

9                    which is remarkable and to his credit because we

10                   see a lot of people, in particular through the

11                   criminal justice system, who struggle with this

12                   type of addiction and are not able to address it

13                   in a meaningful way.  So those things are all

14                   things that I have taken into consideration.

15                             I also heard that a family member assaulted

16                   Mr. Rose in retaliation or out of anger because

17                   of what had happened.  Obviously this Court does

18                   not condone violence.  No one should ever take

19                   the law into their own hands.  Mr. Rose wanted

20                   his lawyer to tell me about this, and he has, but

21                   that is a matter that must be left to be dealt

22                   with by the courts in due course.

23                             So where does that take me?  The bottom

24                   line, as I started off saying, is that these

25                   offences are profoundly disturbing.  What

26                   Mr. Rose did and how often he did it over a

27                   period of time raises very serious concerns.  It


 

1                    is difficult to understand what would lead a

2                    person to do this to a child.

3                             The Crown's position, as the Crown itself

4                    recognized, is at the low end of the scale

5                    considering the nature of the conduct and the

6                    fact that it was repetitive, but I agree that

7                    that position fairly acknowledges the

8                    significance of the guilty plea and Mr. Rose's

9                    circumstances.  Really the question is whether I

10                   should keep the sentence at the very low end of

11                   that range to allow the making of a probation

12                   order that would include things like a no-contact

13                   order and possibly other rehabilitative measures.

14                             It seems on the facts of what I have heard

15                   that it would be a very good idea for Mr. Rose to

16                   seek counselling to try to perhaps understand

17                   what made him act in this way.  He does not have

18                   to be on probation to take or access counselling

19                   or look into his issues, and although I

20                   understand that a no-contact order is something

21                   that the family would like, the most that I could

22                   do through a probation order is to prohibit

23                   contact for a period of three years.  There is

24                   nothing that can be done to prohibit that

25                   permanently.  The Court hopes that Mr. Rose,

26                   knowing their position, will respect that once he

27                   is no longer under conditions not to have


 

1                    contact.

2                             I have considered carefully whether I should

3                    keep the sentence at the very low end of the

4                    range to enable a probation order to be a part of

5                    it, but keeping in mind that I am dealing with a

6                    very mature adult who has managed to stay out of

7                    trouble his whole life, I am not convinced

8                    probation is an appropriate sentencing tool in

9                    this case, and perhaps more importantly, I think

10                   that imposing the two-year sentence would not

11                   reflect the seriousness of the conduct in this

12                   case.

13                             Sexual assault is a very prevalent crime in

14                   this jurisdiction, and it has to be deterred.  I

15                   recognize at the same time that restraint is a

16                   very important sentencing principle, so I am not

17                   going to impose a sentence at the top end of the

18                   range suggested by the Crown.  But I do not feel

19                   it appropriate to impose a sentence as low as the

20                   bottom end of that range.

21                             As the Crown has said and as I think I have

22                   just said, deterrence and denunciation are the

23                   most significant important sentencing principles

24                   here because the Court has a duty to do what it

25                   can to protect children and to send and resend

26                   the message that they must be protected.  This is

27                   not about revenge.  This is about ensuring that


 

1                    everyone knows that the courts in this

2                    jurisdiction treat the sexual abuse of children

3                    very seriously, and as I have said, the reason

4                    that is so important is because of the harm that

5                    this conduct causes.  What D. is experiencing,

6                    according to the victim impact statements that I

7                    have heard, are things that we hear all the time

8                    in these kinds of cases.  It is impossible to

9                    overstate the amount of harm that this kind of

10                   behaviour causes.

11                             I am going to deal with the ancillary orders

12                   first.  There is no real issue taken with any of

13                   them.  There will be a DNA order because this is

14                   a primary designated offence.  The order in

15                   relation to the Sexual Offender Information

16                   Registration Act will be made.  There will be a

17                   Section 109 firearms prohibition order.  There

18                   will be a Section 161 order for a period of 15

19                   years.  It is going to include in reference to

20                   the paragraphs (a), (a.1), (b), and (c) of

21                   Section (1).  For the purposes of paragraph (c),

22                   the Order will say that there is to be no contact

23                   with a person under 16 unless another sober adult

24                   is present.  And with respect to paragraph (a.1)

25                   Mr. Rose will be required to not be within

26                   50 meters from D.'s residence.

27                             I am going to make an order under


 

1                    Section 743.2 that there is to be no contact with

2                    D. while Mr. Rose is in custody.  The section

3                    contemplates other people, and because I am not

4                    sure that I have all the correct names, I am just

5                    going to ask when we stand down, Ms. Piché, if

6                    you need to consult with the family members that

7                    are here just to give the clerk the names, and,

8                    of course, we are not talking the entire extended

9                    family but the immediate family who should be

10                   included in that order.  I would ask that you

11                   give those names to the clerk.

12                             The victim of crime surcharge is mandatory,

13                   so I will make an order for the payment of that,

14                   and the time to pay and the default time are

15                   statutorily provided.

16                             Mr. Rose, can you stand up, please.

17                   Mr. Rose, for the sexual assaults that you have

18                   pleaded guilty to, I sentence you to a term of

19                   imprisonment of two and a half years in custody.

20                   You can sit down.

21                             Under the circumstances, given Mr. Rose's

22                   age, given his health conditions, and given his

23                   ties to the community, I am going to direct that

24                   the clerk endorse the warrant of committal with

25                   the strongest possible recommendation that he be

26                   permitted to serve his sentence in the Northwest

27                   Territories, and I am going to ask, Mr. Clerk,


 

1                    that you alert the authorities about the fact

2                    that a relative of D.'s works at the Fort Smith

3                    facility, and that if the authorities decide that

4                    Mr. Rose can serve his sentence in the

5                    Northwest Territories, it would be preferable

6                    that he not be sent to Fort Smith.  The

7                    authorities should be aware of the situation with

8                    that employee if that is still the case when the

9                    time comes.

10                             Is there anything that I have overlooked

11                   from the Crown's perspective?

12            MS. PICHÉ:             No.  Thank you, Your Honour.

13            THE COURT:             Anything from defence?

14            MR. HANSEN:            No, Ma'am.

15            THE COURT:             Thank you for your work on

16                   this case, counsel.

17      _____________________________________________________

18      PROCEEDINGS CONCLUDED

19      _____________________________________________________

20

21

22

23

24

25

26

27


 

1                  CERTIFICATE OF TRANSCRIPT

2

3                    I, Kim Proulx, hereby certify that the

4            foregoing pages are a complete and accurate

5            transcript of the proceedings taken down by me in

6            shorthand and transcribed from my shorthand notes

7            to the best of my skill and ability.

8                    Dated at the City of Edmonton, Province of

9                    Alberta, this 28th day of March, 2018.

10

11                             Certified Pursuant to Rule 723

12                             Of the Rules of Court

13

 

 

16                             __________________________

17                                                          Kim Proulx

18                                                          Court Reporter

19

20

21

22

23

24

25

26

27

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.