WARNING: This story contains graphic sexual content
British Columbia's highest court has dismissed the appeal of a transgender sex offender who was sentenced by a Surrey provincial court judge to three years in prison for sexually assaulting a female friend in the victim's home while she was unconscious.
The B.C. Court of Appeal verdict in the case of Rex v. Michael Allen Wiens was delivered on May 21 in Vancouver.
"As a preliminary matter, I note that since her trial, the appellant has indicated that she uses she/her pronouns, and, as did the judge at sentencing, I will do so throughout these reasons," Justice Sheri Donegan said at the outset.
The Surrey judge also ordered Weins on May 29, 2024 to be registered on the Sex Offender Information Registration Act (SOIRA) for 20 years. The appellant appealed the sentence and SOIRA order on grounds the judge rejected Wein's "Indigeneity" and failed to "meaningfully consider" Gladue principles in sentencing.
"The defence advocated for a sentence of two years鈥� imprisonment, relying primarily on the involvement of intoxicants and the presence of Gladue factors to reduce the appellant鈥檚 moral responsibility in committing this offence," Donegan explained in her "The defence acknowledged that there was limited information available regarding the appellant鈥檚 Indigenous ancestry, but submitted that she had clearly suffered from intergenerational impacts of colonialism and systemic discrimination against Indigenous people."
Canada's Gladue law came into force in 1996 with the intent of reducing over-representation of Indigenous people in the prison system. It requires judges to consider circumstances unique to Indigenous offenders and their background.
While the Surrey judge at sentencing accepted Wein's claim to Indigenous heritage, she concluded Gladue factors couldn't play a meaningful role in her analysis due to a lack of information that would help her evaluate the significance of Weins' Indigenous identity and circumstances. Given the crime involved the deep betrayal of a vulnerable friend and finding no mitigating factors concerning moral blameworthiness, the Surrey judge decided Weins' Indigeneity had no 鈥済reat impact in the circumstances of this case."
The court heard Weins and the victim on Feb. 2, 2021 consumed a drug called gamma-hydroxybutyrate (aka GHB) together at the victim's home. "The victim became so impaired by the drug that she fell while showering and soon lost consciousness," Donegan noted.
The judge noted the victim, who had been sexually assaulted while unconscious, only became aware of it about a week later while reviewing video footage from her home security system.
"The recording from that night showed that the appellant assisted the victim, who was unable to walk on her own, from the bathroom to the sofa in the living room," Donegan said.
"As the victim lay unconscious on the sofa, the appellant wiped her unresponsive, limp and naked body with a towel, and then repositioned her so that her buttocks and genital area were facing toward the appellant," the appeal court judge continued her narrative.
"The appellant then digitally penetrated the victim鈥檚 vagina. The video next showed the appellant moving closer to the victim鈥檚 body, and the judge found that the appellant鈥檚 penis penetrated the victim鈥檚 vagina at this point, without using a condom. The victim remained unconscious during the entire encounter."
The Crown sought a three-year prison term. Donegan noted Weins, age 40, has a with 40 convictions between 2004 to 2022 that involved property, driving, and drug offences and failure to comply with bail and probation orders.
"This crime, including the manner in which she learned of it, has had long-lasting and profound emotional, psychological and economic impacts on the victim," Donegan affirmed.
She dismissed Weins' appeal, with Justices Christopher Grauer and Peter Edelmann concurring.
"The appellant鈥檚 connection to Indigeneity is remote and there is no evidence that disconnection from her heritage played a material role in her personal circumstances through the intergenerational transmission of harm," Donegan concluded.
"It follows, in my view, that it was open to the judge to conclude that she could not attach any great significance to Gladue factors in the sentencing analysis and she made no error in doing so."
