Judge reluctantly accepts joint submission in case of assault against underage girl

By Delon Shurtz - Lethbridge Herald on April 28, 2022.

LETHBRIDGE HERALDdshurtz@lethbridgeherald.com

A 26-year-old southern Albertan woman who pleaded guilty to assault causing bodily harm has been handed a conditional sentence, despite some misgivings by the judge.
Judge John Maher hesitantly agreed Tuesday in Lethbridge provincial court with a joint submission by the Crown prosecutor and defence lawyer, that he sentence Brittany Hiebert to an 18-month conditional sentence, which allows her to serve her sentence under house arrest rather than jail.
Maher was visibly uncomfortable with the recommended sentence, however, and questioned how the lawyers determined actual jail was not more appropriate given the woman’s “reprehensible” conduct at the time of the offence.
Hiebert was initially charged by police with several sex offences involving a young girl, but when the matter was in court Tuesday, the Crown and defence jointly recommended the lesser charge of assault causing bodily harm.
“It was a meeting of the minds,” Hiebert’s lawyer told the judge, explaining that he and the Crown arrived at the joint submission after discussing triable issues with the Crown’s case.
“During these incidents, certainly the one that the victim can recall, there was a significant amount of alcohol and drug use at the time that was going to make things much more difficult for the Crown prosecutor to prove. So my client gave up her right to going to trial in order to take a guilty plea to this lesser charge.”
Maher referred to a 2016 Supreme Court of Canada decision in Regina v. Anthony Cook, that outlines the steps in which judges may render a judgement other than that recommended by the Crown and defence in joint submissions. And although the direction by the high court is to try and not interfere, Maher said he was still concerned with the joint submission recommended for Hiebert.
“I hate to tinker with joint submissions, and I’m certainly aware what the Supreme Court of Canada has said in Anthony Cook, but as you can probably gather I’m having some difficulty with this,” Maher said.
Reading from an agreed statement of facts, Crown Prosecutor Britta Kristensen told court that in early 2015 Hiebert and the 13-year-old victim discussed having a “threesome” with Hiebert’s older boyfriend. On one occasion the three people bought tequila and alcoholic ice tea then went to the man’s trailer in Chin, Alta., where they also smoked weed. Hiebert and her boyfriend had sex, then the boyfriend suggested he have sex with the underage girl, and when Hiebert didn’t object, the girl agreed and she was handcuffed. Afterward all three of them passed out.
On April 20, 2015 the three were at a birthday party, but the young girl was kicked out because she was underage. The three left the party and went to the man’s residence where they again had sex.
Kristensen said the girl has “little recollection” of the night because of her level of intoxication, but she suffered psychological and physical harm.
“I have grown to be disgusted at my own body, and it is a daily, constant reminder of the actions taken against me as a child,” the woman told court. “I need medications to function every day, and without it I am constantly reminded of the childhood and life I was robbed of.”
Hiebert’s lawyer said his client has changed her life since the incidents, has received counselling and takes full responsibility for her actions.
“She essentially asked me to inform the victim how incredibly sorry she is; how incredibly remorseful she is for everything that she had to go through at her hands.”
As part of Hiebert’s conditional sentence, the Crown and defence recommended six months of house arrest and six months of curfew followed by six months probation. Hiebert will also be bound by several conditions, including she reside at an approved residence, not consume alcohol and drugs, not contact the victim, take counselling and perform 60 hours of community service.
Maher accepted the conditions, but increased the community service requirement to 100 hours to make the sentence a little more punitive, he said.
“I can only describe your conduct as incomprehensible, acutely reprehensible by any standard; shocking, shameful. You put yourself in a position where you should have been protecting a child.”
Maher said Hiebert’s lawyer did well in getting his client a lenient sentence, and said she is fortunate she is not going to jail.
“I can tell you, on the facts as I have heard them, if this were not a joint submission, you’d be looking at more than three years.”
Maher also warned Hiebert that if she breaches any of her conditions, she will serve the remainder of her sentence in jail.
“Ma’am, you can take that one to the bank.”

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