“She said no, and he said, ‘I like a challenge’”
Michael John Smith, 45, of Oromocto First Nation, stuck his hand up woman’s dress twice at pool hall even though victim kept rebuking his advances
Despite a woman 20 years his junior rejecting his advances repeatedly, Michael John Smith was undeterred. He walked up behind her in a pool hall last summer and slid his hand up her dress to grope her.
Twice.
Smith, 45, of Nikia Drive on the Oromocto First Nation, appeared before Fredericton provincial court Judge Natalie LeBlanc on Tuesday for sentencing.
He’d previously pleaded guilty to a July 10 count of summary sexual assault.
The victim is a woman whose identity is protected by a court-ordered publication ban.
Crown prosecutor Kathleen Jacobs said some women in Oromocto had gathered at a friend’s house for a night out and were waiting for one of their husbands to arrive to take them to Dooly’s in Oromocto.
When the husband arrived, court heard, Smith was tagging along with him, and he accompanied the group to Dooly’s at about midnight July 10.
“He started buying drinks for the entire group,” the prosecutor said.
Smith also started hitting on the victim, she said, who was about 20 years younger than him. He was touching her shoulder repeatedly and hitting on her relentlessly, court heard.
“[The victim] told him to stop,” Jacobs said, noting the woman kept telling Smith to leave her alone,
“She was very clear throughout the night she didn’t appreciate Mr. Smith’s behaviour.”
But her repeated rejections were to no avail.
“Mr. Smith responded that she was feisty,” the prosecutor said. “She said ‘No,’ and he said ‘I like a challenge.’”
At one point, she said, Smith told the victim’s friends he was going to stick his hand up her dress, and they told him that was a bad idea.
The woman was at the bar, the prosecutor said, and Smith walked up behind her.
“He put his hand up her dress,” Jacobs said, noting he did so again a short time later despite the woman’s objections.
When he did so, court heard, he touched the victim’s thigh, buttocks and vaginal area.
When confronted over the violations, Jacobs said, Smith claimed the victim’s friends had dared him to do it, but they denied it.
‘She’s changed the way she dresses’
In a victim-impact statement filed with the court, the woman reported the humiliating incident has altered her life.
“She reports a loss of trust, a loss of comfort,” Jacobs said, noting the crime has also negatively affected her sex life with her husband.
“She said she’s changed the way she dresses… so that this won’t happen again.”
The prosecutor said Smith was previously convicted for a domestic assault, though he completed a partner-abuse program in 2020 as part of his sentence for that crime.
That prior record is relevant, she argued, because it demonstrates Smith’s attitude toward women.
Furthermore, Smith knew exactly what he was doing that night, she said.
“He told her friends what he was going to do,” Jacobs said. “He was not taking no for an answer.”
Another element of the crime to consider is the disparate ages of the offender and the victim, she said, noting Smith is about 20 years older than the woman he assaulted.
The prosecutor said such behaviour has to be deterred, suggesting “a short, sharp sentence that sends a message to Mr. Smith and the rest of the community that this sort of behaviour won’t be tolerated.”
Jacobs recommended a jail term of two to three months, to be followed by probation with provisions for counselling and treatment.
Defence lawyer Edward Derrah said there are a number of mitigating factors in Smith’s favour, such as his early guilty plea, clear remorse and the fact he’s the sole provider for his spouse and five children - with another one on the way.
Derrah argued Smith’s crime, while boorish, was on the lower end of the scale for sexual offences.
“It’s not like he tried to drag her into a dark corner,” he said.
The defence lawyer asked the court to impose a conditional sentence, to be served in the community, which would allow him to continue to support his family financially.
‘I’ve hurt my family’
Smith said he was drinking on the night in question and didn’t even know why the police came to his house after this happened.
He said his actions were the result of “a momentary lapse of stupidity.”
“I’ve hurt my family … I’ve let my wife down, which is a really big deal,” Smith said.
“That’s not the person that I am … I’m really disappointed in myself.”
Smith’s spouse accompanied him to court Tuesday, but broke into tears and left the courtroom as the prosecutor began to detail how the offender had hit on, harassed and violated the victim.
“I apologize. I’m sorry,” Smith told the court, noting he hasn’t had a drink since that night.
LeBlanc said Smith’s conduct last summer was concerning, as he made predatory comments and chose to put his hands on the victim even after she gave him clear messages to leave her alone.
“I do consider the circumstances aggravating,” she said.
The judge said the seriousness of his crime is reflected in the profound effect it’s had on the victim.
However, LeBlanc said, she also had to consider mitigating factors, such as the fact that he took responsibility for his actions.
Furthermore, she said, the court had to factor in Smith’s Indigenous heritage in sentencing. There’s an overrepresentation of Indigenous persons in Canada’s jails and prisons, the judge said, and higher courts have directed sentencing judges to avail themselves of options other than incarceration whenever possible and appropriate.
Court heard that Smith has family members who were subjected to the residential school system.
LeBlanc noted Smith served a period of probation in the past, and there were no reported violations of that order, indicating the offender had to follow conditions when they’re imposed.
As such, she granted the request for a conditional sentence, imposing one for six months.
During that time, Smith will be subject to house arrest, except for work, medical and counselling appointments and Fridays from 1-4 po.m. for personal business.
He’s also to abstain from alcohol and other intoxicants during his conditional sentence, stay out of establishments that serve and sell alcohol except for grocery stores, and co-operate with compliance checks at his home.
The judge also ordered an 18-month term of probation to follow.
During both the conditional sentence and probation, he’s to have no contact with the victim, and attend counselling/treatment programs as directed by probation services.
LeBlanc also ordered Smith to submit a DNA sample for inclusion in a criminal database, comply with sex-offender registration requirements for 10 years, and to pay a victim-fine surcharge of $100.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Once you hear the words Indigenous heritage come out of the judges mouth you know the sentence is a farce.