Court of Queen s Bench of Alberta

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1 Court of Queen s Bench of Alberta Citation: R v Brown, 2018 ABQB 469 Date: Docket: Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Timothy Anthony Brown Accused Reasons for Sentence of the Honourable Mr. Justice B.R. Burrows [1] Timothy Anthony Brown has been convicted of the following offences: 1. Count 2 - Trafficking of a person under the age of 18 years (CC s (1)(b)) (maximum sentence 14 years imprisonment, minimum sentence 5 years imprisonment) 2. Count 3 - Sexual interference (CC s. 151) (maximum sentence 10 years imprisonment) 3. Count 5 - Overcoming resistance to the commission of an offence (CC s. 246(b)) (maximum sentence life imprisonment). What is a fit sentence to impose on him? [2] The offences occurred between May 1, 2014 and August 8, The trial was held in the fall of I found Mr. Brown guilty on November 17, 2017 and my Reasons for Judgment are at 2017 ABQB 702. Subsequent to trial I issued reasons dismissing a disclosure application

2 Page: 2 made in the context of a Jordan Application (2017 ABQB 708) and a Jordan Application (2018 ABQB 136). [3] The facts upon which the convictions are based are set out in my Reasons for Judgment at 2017 ABQB 702. I will summarize them briefly. [4] The complainant in the three offences is SC, who in May 2014 was a 12 year old indigenous girl who had been living with her aunt. She had run away from her aunt s residence and was living on the street. There she met Mr. Brown and was in his company for a couple of days before he took her to his friend s apartment. He kept her there for about two weeks. If she left the apartment he would go with her to ensure her return. He gave her crystal methamphetamine, marihuana and alcohol. He arranged for his friends to come to the apartment to have sex with her while she was under the influence of the drugs and alcohol. His friends paid Mr. Brown for having sex with her. He had sex with her himself several times as did the friend in whose apartment these events occurred. [5] Mr. Brown is indigenous. He is 31 years old. He was 27 years old at the time of the offences. Gladue Report [6] A Gladue Report was prepared for consideration in these sentencing proceedings. The Gladue Report writer spoke to Mr. Brown, his brother, his sister and his girlfriend, to gather information for the report. [7] Mr. Brown was raised in the north central Alberta. His mother was indigenous. His father was not. He was raised primarily by his father and indigenous step-mother. The family included five step-siblings, the children of his step-mother, as well as Mr. Brown s two older brothers. Another brother and a sister (both older than Mr. Brown) lived elsewhere. When Mr. Brown was 2 years old his fifth sibling, a brother who was 5, died when he was hit by a drunk driver. One of Mr. Brown s older brothers died less than a year ago from a drug overdose. [8] Mr. Brown s step-mother, who was his primary parent when he was a child, attended residential school. [9] The Gladue Report states that in Mr. Brown s early childhood there was significant alcohol abuse, marihuana trafficking, and domestic violence in his home. His step-mother frequently called the police. He and his siblings were taught to avoid speaking to police. [10] Mr. Brown s father was often incarcerated and the children were left in the care of his step-mother. The report states: Mr. Brown stated he and his siblings were treated differently than [his stepmother s] biological children. He believes [she] treated he and his siblings poorly because of their lighter skin also for being someone else s kids.... Mr. Brown and both of his collaterals described food being locked up in the family home and added [the step-mother] would keep Mr. Brown and his brothers

3 Page: 3 locked in their rooms for days at a time. Mr. Brown described having the lightbulbs in his room removed, the windows screwed shut and the bedroom doors locked. He stated he was left with a bucket to go to the bathroom in. Mr. Brown s siblings noted the children would often have to forage for food or berries and kill small animals in order to eat. Mr. Brown s girlfriend... stated she grew up in the community with him and remembers the siblings being treated poorly. She added she and other students would often bring food for Mr. Brown and his siblings. [11] In his early schooling Mr. Brown experienced racial discrimination. The report says, He hated school because the teachers would call he and his siblings, the white kids and treated them poorly because they had lighter skin. [12] Mr. Brown reported that when he was 7 or 8 years old a male babysitter touched him inappropriately and burned him on intimate parts of his body. He disclosed this abuse to his parents and the babysitter was not engaged again. [13] Mr. Brown went to live with his mother in Edmonton when he was about 15 years old. He began consuming alcohol and using drugs. He associated with gang members. He began engaging in property theft of gradually increasing seriousness, influenced significantly by gang peer pressure. He was kicked out of his mother s home. He began living on the streets and hussling which has continued throughout his adult life. [14] When he was 19, he and his then partner had a son. His relationship with his son s mother ended. Mr. Brown has recently begun to have contact with his now 13 year old son. After this first domestic partnership ended, Mr. Brown entered a relationship with an older woman who had five children. That relationship lasted for about eight years and Mr. Brown developed a close bond with his partner s children. The relationship ended. [15] Mr. Brown s current domestic relationship began about four and a half years ago. He and his partner have a 3 year old son. [16] Mr. Brown s employment history has consisted of temporary labour jobs. He worked in a camp job for about 2 years and loved it. [17] Mr. Brown recognizes that he has substance abuse issues. He told the report writer that he would like to become sober and to become a responsible parent and believes he is ready to attend treatment and attain sobriety. He recognizes that he will need help to accomplish this goal. [18] Mr. Brown also advised the report writer that he believes in both organized religion as well as traditional Aboriginal spirituality. He would like to access traditional treatment and ceremonies to help him attain a mature and responsible lifestyle. [19] Mr. Brown appears to have good family support from his two older siblings. [20] The report writer identified the Gladue Factors which are apparent in Mr. Brown s background. The list includes:

4 Page: 4 - Domestic violence, substance abuse, poverty, and parental cruelty when he was a child. - Experience of racism from teachers and others because he had a lighter skin than other children. - Childhood sexual abuse - Unemployment and lack of educational opportunities - Early life exposure to and involvement in criminal activity. Criminal Record [21] Mr. Brown s adult criminal record began in 2005 when he was 19 years old and consists of convictions on 14 occasions. His previous offences include many offences against the administration of justice (failing to comply with an undertaking or recognizance, failure to appear), driving offences (driving while disqualified,.08 driving), property offences (theft, possess stolen property), weapons offences, and offences of violence (assault with a weapon, assault, robbery with a weapon). He has been incarcerated many times for short periods. His most recent previous conviction (robbery with a weapon), in June, 2015 resulted, according to the criminal record provided by the Crown, in a sentence of incarceration of more than 3 years. Victim Impact Statement [22] The complainant, SC, who is now 16 years old, wrote a victim impact statement which, at her request, was read at the sentencing hearing. I will quote parts of it: How Timothy Brown affected me is I m still struggling with crystal Meth addiction for now what seems 4 years of my young adult life. I still have trouble with sexual exploitation after being harmed in such a way.... I may have scars both physical and mentally. He took a piece of me, that piece I fight back for and continue to fight for every day. I still have problems trusting male adults and as well as young ones. I suffer from PTSD.... I am a 16 year old Aboriginal Youth who has been to hell and back. I may have been kicked down and drugged up while forced to have sex with men at a young age. But I ll not be a puppet to be used and abused anymore.... I m going to fight back for my life and teach myself how to love and be loved not only by me but my family and those who support me. [23] I was advised that SC wrote the Victim Impact Statement in February, 2018 when she was in placement. I was advised that at the time of the sentencing hearing in his matter, May, 2018, she was AWOL in the community with her location unknown. Crown s Position [24] Ms. Godfrey, for the Crown, submitted that a fit sentence for Mr. Brown is 10 years incarceration. She referred me to the following cases in her submission: 1. R v. Hajar, 2016 ABCA R v. Sandercock, 1985 ABCA R v. Tang, 1997 ABCA 174

5 Page: 5 4. R v. Stone and Bedford, 2013 ONSC R v. Lemmon, 2012 ABCA R v. Finstone, 2017 ONCJ 22 [25] Ms. Godfrey submitted that aggravating factors include that SC was under 18 years old (CC s (ii.1), that Mr. Brown s offences consisted of multiple acts, that SC was particularly vulnerable, that there was a very significant age difference (15 years) between Mr. Brown and SC, and that SC suffered psychological trauma. [26] Ms. Godfrey submitted that there were no mitigating circumstances. She recognized that the presence of the significant Gladue factors in Mr. Brown s background justified a significant reduction in what would otherwise be a fit sentence. [27] Ms. Godfrey submitted that a fit sentence would be the mandatory 5 year minimum for Court 2, (trafficking of a person under the age of 18 years); 5 years consecutive for Count 3 (sexual interference); and 3 years consecutive for Count 5, (overcoming resistance to the commission of an offence). From the total sentence of 13 years, Ms. Godfrey submitted that an appropriate reduction to recognize the Gladue factors and their effect on Mr. Brown s moral blameworthiness for his offences would be 3 years. The result would be a global sentence of 10 years. Defence Position [28] Ms. Konye for Mr. Brown submitted that a 5 year global sentence was fit. She submitted that some of the factors which the Crown suggested were aggravating were in fact part of the offence. She disputed that it is appropriate to attach significant weight to the suggestion that SC suffered psychological trauma as a result of Mr. Brown s offences, because no evidence to that effect was put before me and the law requires aggravating factors to be proven beyond a reasonable doubt. She observed that SC clearly had a difficult life before Mr. Brown s offences and the causal connection between any psychological harm she has suffered and Mr. Brown s offences should not therefore be assumed. She reviewed and emphasized the significance of the Gladue factors in Mr. Brown s background (recipient of bad parenting, exposed to food shortages, exposed to significant emotional trauma in his life) and observed that both offender and victim in this case have clearly suffered the results of our society s ill treatment of its indigenous members. A Fit Sentence [29] There can be no dispute that Mr. Brown s present offences are very serious. To my mind these particular features of his offences cause them to be very serious: - That SC was only 12 years old at the time she was subjected to Mr. Brown s offences. In any context these offences would be extremely serious but their seriousness is very seriously aggravated by SC s youth. - That SC was particularly vulnerable she was on the street. It would have been clear to Mr. Brown that no one was looking out for her or even looking for her. It would have been clear to Mr. Brown that any form of adult support and companionship, even of the quality Mr. Brown, 15 years her elder, afforded her, was, from SC s

6 Page: 6 extremely vulnerable point of view, preferable to no adult support and companionship whatsoever. He took callous advantage of SC s obvious extreme vulnerability. - That the means by which Mr. Brown overcame SC s resistance to the sexual exploitation to which he subject her was by giving her a highly addictive drug crystal meth. - That Mr. Brown caused SC to be sexually abused by numerous men including himself. The sexual exploitation consisted of multiple incidents over a two week period. - That Mr. Brown profited from his sexual exploitation of SC. The men who had sexual relations with her paid him. [30] I do not attach great significance to the attachment by SC of the PTSD label to her condition. But I do accept her view that she was very seriously harmed by Mr. Brown s crimes. [31] It is necessary that the sentence I craft, in light of these very serious circumstances, firmly denounce Mr. Brown s conduct and that he and others be strongly deterred by the sentence from engaging in such conduct in the future. Obviously, I must also have regard to the other sentencing goals identified in the Criminal Code in particular assisting Mr. Brown s rehabilitation, providing reparation to his victim and community, and promoting in him a sense of responsibility for what he has done. [32] It is also important that I give appropriate consideration to Mr. Brown s background and the very distressing circumstances of his childhood and young adulthood described in the Gladue Report. That a child could have been subjected to such treatment in this society without anyone in authority becoming aware of it or doing something about it if they became aware is extremely troubling. Equally troubling is the recognition that the extremely poor parenting Mr. Brown received was in large part the product of our society s treatment of those responsible for parenting him when they were children. The direct line between the treatment Mr. Brown received as a child and the treatment he inflicted on SC is obvious. The overall moral blame for his crimes against SC must be assigned in significant proportion to our society. Mr. Brown s moral blameworthiness is significantly reduced as a result. A substantial reduction in what would otherwise be a fit sentence is justified. [33] In my view, a total sentence of 13 years (consecutive 5 years sentences on each of Counts 2 and 3, and a consecutive 3 year sentence on Count 5) would be appropriate before considering the Gladue factors. [34] Further, as such a sentence would be the total of consecutive sentences, it is necessary to consider the totality principle to consider whether the package of consecutive sentences produces an unjustly long total sentence. [35] In my view, a reduction of 3 years is an appropriate total response to both considerations (Gladue factors and totality principle). In my view, a fit sentence to impose on Mr. Brown is 10 years imprisonment. Put another way, taking into account the Gladue factors, a fit global sentence is 10 years. Consideration of the totality principle does not require any further reduction in this case.

7 Page: 7 [36] Mr. Brown, I sentence you on Count 2 to five years imprisonment, on Count 3 to five years imprisonment consecutive to the sentence on Count 2, and on Count 5 to three years imprisonment concurrent with the sentence on Count 3. [37] Counsel agreed that as of May 7, 2018, the day sentencing submissions were made, Mr. Brown had spent 137 days in pre-sentence custody and should get 1.5 to 1 credit for those days. As of today he has spent 43 further days in pre-sentence custody. He is therefore entitled to 1.5 to 1 credit for 180 days. That is 270 days or 9 months credit. He therefore has 9 years, 3 months left to serve. [38] I make the following ancillary orders: 1. There shall be an order authorizing the taking of DNA samples from Mr. Brown pursuant CC s There shall be an order in respect of the conviction on all three counts prohibiting Mr. Brown from possessing weapons as described in CC s. 109 for the period set out in s. 109(2)(a). [39] The Crown sought an order under s. 161(a). I decline to make such an order. The circumstances of Mr. Brown s offences do not suggest to me that such an order is appropriate. [40] I direct the Clerk s office to provide Mr. Brown with the notice required by CC s. 737(8) concerning the Victim Fine Surcharge that Parliament has, in that section, imposed on him. Heard on the 07 th day of May, Dated at the City of Edmonton, Alberta this 19 th day of June, B.R. Burrows J.C.Q.B.A. Appearances: Carole Godfrey for the Crown Anna Konye for the Accused

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