



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Veinotte,









2016 BCCA 21




Date: 20160114

Docket: CA43126

Between:

Regina

Appellant

And

Aaron Gerald
Veinotte

Respondent

Restriction on Publication
:
A publication ban has been
mandatorily imposed under s. 486.4(2) of the
Criminal Code
restricting the publication, broadcasting or
transmission in any way of evidence that could identify a complainant or a
witness. This publication ban applies indefinitely unless otherwise ordered.

Section 16(4)
Sex Offender Information and Registration
Act (SOIRA)
: this section provides that no person shall disclose any
information that is collected pursuant to an order under SOIRA or the fact that
information relating to a person is collected under SOIRA.




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon




On appeal from: an
order of the Provincial Court of British Columbia, dated
September 2, 2015 (
R. v. Veinotte
, Cranbrook Docket No. 31360)

Oral Reasons for Judgment




Counsel for the Appellant:



M.A. Mereigh and M.
  Scott





Counsel for the Respondent:



G. Kosakoski





Place and Date of Hearing:



Vancouver, British Columbia

January 14, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2016








Summary:

The Crown
seeks leave to appeal the one-year mandatory minimum sentence imposed on the
respondent who pleaded guilty to one count of sexual assault contrary to s. 271
of the Criminal Code, R.S.C. 1985, c. C-46. The offence involved an intrusive
but non-violent sexual assault of a 13-year-old girl. Held: leave is granted;
the appeal is dismissed. The sentencing judge did not err in law or in
principle, nor can it be said that the sentence imposed is demonstrably unfit.
A mandatory minimum sentence is not invariably reserved for the least serious
offence and the least culpable offender.

[1]

KIRKPATRICK J.A.
:
On September 2, 2015, a judge
of the Provincial Court imposed a one-year mandatory minimum sentence on the
respondent, Aaron Gerald Veinotte, who pleaded guilty to one count of sexual assault
contrary to s. 271 of the
Criminal Code
, R.S.C. 1985, c. C-46
.
The Crown seeks leave to appeal the sentence and, if leave is
granted, asks that this Court substitute a sentence of two years imprisonment
and a two-year period of probation.

CIRCUMSTANCES OF THE
OFFENCE

[2]

On September 6, 2014, the complainant, A.L., a 13-year-old
M
é
tis girl with a troubled background, took her dog for a walk and
went to Mr. Veinottes home. Mr. Veinotte was 29 years of age and had known
A.L. and her parents for many years. They talked outside and when it became
dark and cold, went inside. They sat on the floor, smoked a marihuana joint and
cigarettes, and listened to music.

[3]

They moved to the bed to watch
television. Mr. Veinotte eventually had sexual intercourse with A.L. In his
sentencing submission, Crown counsel described A.L.s reaction:

She did note that she ignored the part about
how he was older than me. She didnt say that it bothered her. She didnt tell
him to stop. He was 29 and she was 13. She described that he did have
intercourse with her, that she wasnt sure if he ejaculated or not.

She noted that
afterwards they watched some more TV, listened to some music, that she felt all
right. She noted that she had a lot to smoke, that she was really baked, and
after they had intercourse he performed oral sex, as well, and then they had
intercourse again. She noted that she was feeling really good, and she -- that
no one had treated her in that way. She did note that she had sex previously,
and that they did cuddle in the bed after intercourse again.

[4]

A.L. later told the police that she was not frightened
of Mr. Veinotte, but was scared of losing him as a friend and family member.
She did not feel angry, but was disappointed.

[5]

Mr. Veinotte expressed remorse to A.L.s family shortly
after the incident and made a statement to the police in which he admitted the
circumstances of the offence.

CIRCUMSTANCES OF THE
OFFENDER

[6]

Both a psychiatric assessment and a pre-sentence report
were available to the sentencing judge. These reports established that Mr. Veinottes
parents are both of Mikmaq First Nations descent. His mother had a significant
alcohol problem. The psychiatrist speculated that Mr. Veinotte might have fetal
alcohol deficits although Mr. Veinotte has no awareness of those factors and
has managed to obtain his Grade 12 equivalency.

[7]

Mr. Veinotte has no knowledge of his father who was
described as a very violent man who broke Mr. Veinottes arm when he was two
years of age.

[8]

Mr. Veinotte was molested by another male when he was
11 years of age.

[9]

Mr. Veinotte became involved in theft and mischief at
age nine as a result of lack of supervision at home. He first tried alcohol and
marihuana at age 10, and regularly consumed alcohol from age 13 and was
described as an alcoholic. He has in the past been addicted to methamphetamine
and cocaine. Mr. Veinotte has an admittedly thin employment history. It appears
that Mr. Veinottes substance abuse is the primary contributing factor in his
unemployment. Remarkably, Mr. Veinotte ceased consuming drugs or alcohol
shortly after the offence in about September 2014 after he began living at a
religious-based recovery centre. At the time of sentencing he had been
substance free for almost a year.

[10]

Mr. Veinotte has a substantial criminal record
primarily for property offences dating back to 1997, but no previous
convictions for sexual offences.

[11]

The psychiatrist noted that Mr.
Veinotte had some insight into the offence and that substance abuse was a
notable factor in the offence. The pre-sentence report confirmed that Mr.
Veinotte acknowledged the charges and demonstrated sadness and remorse when
discussing the charges, in particular on how this may have impacted the victim.
He also expressed a heightened level of regret at losing his good friend,
A.L.s father, and accepts responsibility and acknowledges the emotional and
mental damage it has caused the victim and her family.

SUBMISSIONS ON SENTENCE

[12]

At the sentencing hearing, the
Crown advocated a sentence of between two and four years in accordance with the
range of sentence expressed in
R. v. G.M.,
2015 BCCA 165, of two to six years.
G.M.
concerned a violent sexual assault involving
anal intercourse.

[13]

During the course of those
submissions, the judge observed:

THE COURT: I was going to
say there  theres lots of sexual assault convictions in this area where
people have received sentences of significantly less than two years.

[14]

In light of the mandatory minimum
sentence, the defence advocated for a sentence of one year.

SENTENCING REASONS

[15]

The judge commenced his reasons by expressing his
frustration with the Crowns decision to proceed by indictment, thereby
effectively precluding the exercise of discretion in the fashioning of what the
judge considered to be an appropriate sentence. By proceeding by indictment, s.
271(a) provides that, if the complainant is under the age of 16 years, the
offender is liable to a minimum punishment of imprisonment for a term of one
year.

[16]

The judge acknowledged the seriousness of the offence.
He was specifically referred to s. 718.01 by Crown counsel in submissions. He
accepted that denunciation and deterrence were the primary sentencing factors.
He acknowledged that Mr. Veinotte had accepted responsibility, entered a guilty
plea, and that the offence constituted a breach of trust between him and A.L.
and her family. It is clear the judge was aware of the local communitys
expectations of an appropriate sentence.

[17]

The judge ultimately imposed the
mandatory minimum one-year sentence together with a one-year probation order,
including a term that Mr. Veinotte abstain from the consumption of alcohol, a
term which Mr. Veinotte said would help him and which had been identified as a
risk factor.

ON APPEAL

[18]

The Crown on appeal contends that the judge failed to
give effect to the new sentencing framework represented by Parliaments
enactment of mandatory minimum sentences for sexual offences against children.
The Crown contends that the judge failed to have regard to s. 718.01 of the
Code
which requires that when a court imposes a sentence for an offence
that involves abuse of a person under the age of 16 years, it must give primary
consideration to the objectives of denunciation and deterrence. The Crown
maintains that the judge did not appreciate that minimum sentences have the
effect of raising sentences across the board for such offences [the making of
pornography offence] to maintain proportionality:
R. v. Worthington,
2012 BCCA 454.

[19]

The Crown further contends that the judge did not impose
a proportionate sentence. The Crown submits that the circumstances of the
offence  two incidents of unprotected sexual intercourse and one incident of
oral sex, on a 13-year-old child whose acquiescence was induced by the
provision of marihuana  called for a sentence greater than one year which the
Crown submits is reserved for the least culpable offender in the least serious
circumstances.

[20]

Lastly, the Crown contends that the sentence imposed
was not fit. The Crown submits that the range of sentences for crimes against
children has been altered in recent years by reason of the mandatory minimum
sentences such that sentences imposed in the past no longer reflect the
appropriate sentence to be imposed in the present.

DISCUSSION

[21]

On December 17, 2015, the Supreme
Court of Canada handed down reasons in
R. v. Lacasse
,
2015 SCC 64, which reinstated a sentence
imposed at trial for impaired driving causing death that had been reduced on
appeal. The majority reiterated what has been said on many occasions:

[11]
This Court has
on many occasions noted the importance of giving wide latitude to sentencing
judges. Since they have,
inter
alia,
the advantage of
having heard and seen the witnesses, sentencing judges are in the best position
to determine, having regard to the circumstances, a just and appropriate
sentence that is consistent with the objectives and principles set out in the
Criminal Code
in this regard. The fact that a judge deviates
from the proper sentencing range does not in itself justify appellate
intervention. Ultimately, except where a sentencing judge make an error of law
or an error in principle that has an impact on the sentence, an appellate court
may not vary the sentence unless it is demonstrably unfit.

[12]      In such cases,
proportionality is the cardinal principle that must guide appellate courts in
considering the fitness of a sentence imposed on an offender. The more serious
the crime and its consequences, or the greater the offenders degree of
responsibility, the heavier the sentence will be. In other words, the severity
of a sentence depends not only on the seriousness of the crimes consequences,
but also on the moral blameworthiness of the offender. Determining a
proportionate sentence is a delicate task. As I mentioned above, both sentences
that are too lenient and sentences that are too harsh can undermine public
confidence in the administration of justice. Moreover, if appellate courts
intervene without deference to vary sentences that they consider too lenient or
too harsh, their interventions could undermine the credibility of the system
and the authority of trial courts. With respect, I am of the opinion that the
Court of Appeal was wrong in this case to reduce the sentence imposed by the
trial judge by basing its intervention on the fact that he had departed from
the established sentencing range.

[22]

In order for the Crown to succeed in this appeal, it
must establish that the sentencing judge made an error of law or an error of
principle that had an impact on the sentence and that the sentence was
demonstrably unfit.

[23]

In my opinion, the Crowns appeal cannot succeed
because it is, in essence, a request that we second-guess the sentencing judge.
The Crown asks us to find that it was an error in principle for the judge to
impose the mandatory minimum sentence because it failed to have regard to the
so-called inflationary floor that such sentences represent.

[24]

The Crowns submission rests on the
minority views of Madam Justice Arbour in
R. v. Morrisey
,
2000 SCC 39, and this Courts decision in
R. v. B.C.M.
,
2008 BCCA 365, in which the Court explained the
effect of mandatory minimum sentences:

[31]
While the
views of Arbour J. are not precedentially authoritative, the sentencing judge
was entitled to adopt them as a logical and appropriate statement of the
interaction between minimum sentences and the traditional sentencing
principles, notably proportionality, which requires that similar offenders
receive similar sentences. A minimum sentence does not oust that fundamental
principle. The search for a fit sentence is still guided by similar sentences
imposed in the past on similarly situated offenders. Nevertheless, a mandatory
minimum sentence introduces a higher starting point and therefore a narrower
range within which that principle will operate. The notion of a fit sentence
must be adjusted accordingly if the principle of proportionality is to remain
operative.

[32]
For example, in this case, the
introduction of the mandatory minimum sentence of one year for making child
pornography significantly shrinks the range of sentencing options. It excludes
consideration of a suspended sentence and probation under s. 731, or a
conditional sentence under s. 742.1 of the
Code.
The only remaining sentencing options are
terms of imprisonment between the statutory minimum of one year and the
statutory maximum of ten years. Thus, the least culpable offender in the least
serious circumstances, who might have received a more lenient sentence prior to
Bill C-2, will now be sentenced to one year in prison. It would be inconsistent
with proportionality if worse offenders in more serious circumstances, who
might have received a one year sentence prior to Bill C-2, continue to be
sentenced to one year under the new regime. The principle that similar
offenders should receive similar sentences requires acknowledgement that a
minimum sentence has a proportionate inflationary effect on the balance of the
sentencing range.

[25]

However, this Court in
R. v. Lloyd
,
2014 BCCA 224, expressed reservation as to the rigid application of
an inflationary floor:

[53]
There is, I think, a need for some caution in accepting the
inflationary floor principle as an invariable rule of interpretation. In
light of the Supreme Court of Canadas view in
R. v. L.M.,
2008
SCC 31 that the maximum sentence is not reserved for the worst offender and
the worst offence, it may be doubted that the minimum sentence should be
reserved for the best offender, as Arbour J. suggested.

[26]

The fallacy inherent in the Crowns argument is that
there is an invariable rule that a mandatory minimum sentence is reserved for
the least serious offence and the least culpable offender. That submission
cannot be logically sustained. It would mean, by comparison, that the maximum
sentence is reserved only for the worst offenders and the worst offences. To
accede to this would eviscerate the fine balancing that sentencing judges are
charged with performing.

[27]

Even if we were to accede to that submission, I cannot
say that, in the circumstances of this offence and this offender, the sentence
imposed is demonstrably unfit.

[28]

The Crown tendered many cases which it suggested
demonstrate the appropriate range of sentences. With respect, few of the cases
are of assistance and many simply bear no comparison at all to the
circumstances at bar.

[29]

As the majority in
Lacasse
stated, the cardinal principle is
proportionality. It is self-evident from the review of the record in this case
that this offence is very serious in that it involved an intrusive but
non-violent sexual assault of a 13-year-old girl. No one would suggest that it
is not serious or that Parliaments intention in mandating a minimum sentence
in a crime against a child should be minimized.

[30]

However, it is also self-evident that Mr. Veinotte had
an exceedingly deprived childhood marred by his own alcohol addiction and drug
use. He expressed his remorse at an early opportunity and pleaded guilty before
the trial. He has
embarked on rehabilitation with
remarkable success given a history of addiction that appears to have spanned
more than half his life.

[31]

In my opinion, this is not an appeal in which
this Court should intervene. I would grant leave to appeal but dismiss the
appeal.

[32]

GROBERMAN J.A.
: I agree.

[33]

FENLON J.A.
: I agree.

[34]

KIRKPATRICK J.A.
: Leave to appeal is granted but the appeal is
dismissed.

The
Honourable Madam Justice Kirkpatrick


