R. v V.B.S., 2013 ABQB 727

Court of Queen ’ s Bench of Alberta Citation: R. v V.B.S., 2013 ABQB 727 Date: 20131206 Docket : 110511573Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - V.B.S. Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _ ________________________________________ ______________ Reasons for Sentencing Judgment of the Honourable Madam Justice K.M. Eidsvik _________________________________________ ______________ [ 1 ] Mr. S stands convicted of sexually assaulting and sexually touching a young girl and long-time family friend on February 13, 2011, when she was 12 years old, and multiple times beforehand between 2008 and 2011. The convictions were based on sections 151

and 171 of the Criminal Code . [ 2 ] Because of the Kienapple principle, that is because the sexual touching and sexual assault offences are substantially the same, the Crown applied, and I allowed, the stay of the sexual assault offences. Accordingly, I am sentencing Mr. S for the multiple sexual touching offences under s. 151 . Circumstances of the offences [ 3 ] I set out the circumstances of the offences in my written decision dated September 4, 2013 which can be found at 2013 ABQB 503 . The Court found that in the early morning hours of February 13, 2011, Mr.

S snuck into his son’s room where the victim was sleeping overnight. He removed her blanket and then put his hand up the victim’s pyjama bottoms. The victim pretended to sleep and turned to avoid the fondling, but Mr. S continued two more times before the victim got fed up and kicked him away into the wall. Mr. S left the room abruptly and his son, the victim’s friend, woke up. The victim was very upset and was comforted by her friend. She complained to him about his father touching her. She called her mother, told her what had happened, and was picked up.

The police were called later that day. [ 4 ] With respect to the other incidents for which Mr. S stands convicted, the Court found that Mr. S repeatedly entered his son’s room when the victim was sleeping over. The victim was sleeping on the floor next to her friend’s bed and would be woken up by the creaking of the floor outside the room and the opening of the door. Mr. S would then stick his hands down her pyjama pants or up her shirt and would feel her anywhere he could, including her vagina (over her underwear).

The victim would pretend to be sleeping and roll around and try to form a cocoon to try avoid or stop the assaults. [ 5 ] During the period of August 2008 to February 2011, the Court found that Mr. S assaulted the victim on multiple occasions, in the range of 15 to 20 times. She had tried to keep Mr. S out by locking the door of her friend’s room when she slept over, but this was not always successful, such as the night of February 13 where the door was originally locked but was opened for Mr. S on an earlier visit into the room that night. Circumstances of Mr. S [ 6 ] Mr. S was born in the Ukraine in 1962.

He was between 46 and 48 years old when he committed these offences. He is married to his wife whom he met while at university studying music. He moved to Canada in 1991. He has two children, one of who is in university and the other, the victim’s contemporary, who is 14 years old, and in school. [ 7 ] Mr. S worked as a professional keyboard player for a time and then started work in the finance world.

He was working with the Royal Bank as a mortgage broker at the time of the incidents and is still working, now with a different company, while out on bail. [ 8 ] Several reference letters were provided to me that speak to Mr. S’s contribution to society, especially in the Russian community, and his appreciation as a friend, father and volunteer. He is dedicated to his mother who is living in the Ukraine and supports her emotionally and financially.

He is seen as a hardworking, reliable and trustworthy person. [ 9 ] A Pre-Sentence Report (“PSR”) and Psychological Forensic Assessment were prepared for the sentencing hearing. [ 10 ] The PSR speaks to the support of Mr. S’ family and friends and his work and financial stability. He has no criminal record. The Probation Officer opines that Mr. S is a suitable candidate for community based supervision with a series of conditions including no contact with persons under 16 years old, other than his son, or with the victim. [ 11 ] The Psychological Assessment is more disturbing.

Upon a review of this report it is apparent that Mr. S appears to hold a great deal of animosity and blames others for his problems, including his own counsel for poor representation. He said at p. 6: “Well, if case was presented better, then outcome would be not guilty...” (sic). This criticism from my vantage point is completely unfounded. Both counsel in this case competently and responsibly represented their clients. [ 12 ] Mr. S believes the victim to be a liar, that she comes from an unstable home, and that she “needs treatment”.

He criticises the victim’s mother for the way she parents the victim and runs her life, even though she was a good friend of his wife for years and they spent a lot of time together as a family. [ 13 ] Mr. S continues to deny any wrong doing and suggests that, amongst other things, the victim is lying because she did not complain of the sexual touching “until later”. This was contradicted by even his own son, but it appears that Mr. S must believe that he was lying too. [ 14 ] He obviously has no remorse for his role in these offences or any empathy for the victim. [ 15 ] The testing done by Dr.

Baillie shows that Mr. S has average verbal abilities and no drug or alcohol dependency issues. The psychologist notes that the tests suggest that he has normative levels of sexual interest in girls 14 to 17 and adult women with no apparent interest in children under the age of 14. He points out however that Mr. S was perhaps attempting to present himself in a positive light on self-report personality questionnaires. [ 16 ] Dr. Baillie opines that Mr. S fits the DSM-5 diagnostic criteria for Pedophilic Disorder in light of these convictions.

He also notes that there was no admissions or test results (in the two sexual deviance tests he appears to have given him) that buttress this opinion.

However, importantly in that regard he says:“ In my professional experience, when offenders are supported by family and friends in their denial of wrongdoing and denial of sexual interest in children and when the consequences of admission could jeopardize that support, a shift to acknowledgement of interest or responsibility is unlikely.” [ 17 ] The psychologist also notes that the results in the Static 99 test (I note that he used the old test and not the new Static 99 – R for some reason), show that Mr. S is at a relatively low risk for future sexual offending.

[18] Dr. Baillie recommends that as part of the overall sentence Mr. S would benefit from a condition to attend and participate intreatment for sexual offending and until deemed to have successfully completed such treatment, have no contact with children under theage of 15 years unless accompanied by a responsible adult. Circumstances of the victim [19] There were no victim impact statements tendered at the sentencing hearing, however, I heard, to a certain extent, from thevictim and her mother about the impact these sexual assaults had on the victim at trial. [20] I start with the last incident.

The victim was initially very upset when she woke up to another assault but found courage to endit and fight back that night. She was initially consoled by her friend that night but then had to confront her assaulter and his wife – both ofwhom denied anything had happened. Indeed she testified that Mr. S told her that there was something wrong with her.

He continueswith this belief to this day. [21] On the stand at trial (she testified from a separate room with a video link), the victim (now 14 years old) had a range ofemotions from anger and hostility to depression and tears – especially when she testified about having lost what was her best friend, Mr.S’ son. She also had great emotional difficulty recounting the times Mr. S assaulted her in the vagina area. We had to break to allow herto regain her composure.

In my view she is haunted by these memories and still very anxious and upset about them. [22] Both counsel agree with the passages from the seminal case from our Court of Appeal, S (WB) (1992) (ABCA), 73 CCC (3d) 530 at paras 11 to 13, that describe the research into the harm generally suffered from victims of sexual assault andthat in every case of sexual abuse of a child there is a “very real risk of very real harm to the child”.

Further, that such a victim maysuffer greater trauma when she is closely related to the offender or, like here, the offender is a trusted neighbour since there is betrayal oftrust. [23] These elements are present in this case. The victim’s mother had befriended the S’s years before by way of interactions attheir church and spent a lot of time with their family including celebrating holidays together. The victim became best friends with Mr. S’sson and yet to visit him and stay overnight she had to risk being woken up in the middle of the night and molested by his father.

She tookcertain steps to avoid that; including locking the door to her friend’s bedroom, but no doubt this situation would have created stress andanxiety for a young girl. She was in the S's care and yet she wasn’t protected, but was harmed repeatedly. [24] The victim’s mother described the fact that her daughter’s marks dropped dramatically for a period of time after the February13, 2011 incident and when she disclosed the historical sexual abuse. They have rebounded however and she is now doing well in schoolagain.

The mother has gone to great lengths it appears to try and shelter her daughter from the legal situation, for instance she didn’t tellher of the upcoming preliminary hearing or trial until just before they occurred. [25] The Defence argues that the fact that the victim has not agreed to psychological counseling is a sign that she is doing wellpsychologically. When questioned on this however (at p. 91 of her transcript), the victim answered that she went to three differentpsychologists but found that it didn’t help at all. She was “forced to tell” her story ...and all it made her do was cry.

She felt that therewas no point in going as a result. [26] In R v Arcand 2010 ABCA 363 at para 177 and R v GRB 2013 ABCA 93 at para 14, our Court of Appeal discussed the factthat in some cases some of the harm a child victim may have suffered may not be ascertainable at sentencing. For instance this was foundin GRB, where, at the time of sentencing the victim was 18 years old and in grade twelve: “just entering adulthood and with thechallenge of personal and intimate relationships ahead of her”. [27] I am afraid that this is the situation here.

The victim is only 14 years old and appears to be hiding from dealing with theemotional effects of these assaults by avoiding professional help since it is still too painful for her – not because she is well. Studiesshow that she is more likely to suffer depression, have difficulties with intimate relationships, have sexual maladjustment or othersocialisation problems.

The fact that she is the accuser of a person who is held in high esteem in the small Ukrainian community inCalgary, from which she too is a member, may also lead to her being isolated by others that may not believe her and “side” with herassaulter. [28] We can only hope that when the time is right, that the victim will seek professional help so that she may avoid these potentialdire consequences. For sentencing purposes though I am not prepared to accept that this victim is all well and fine. It is to her credit thatshe is managing to succeed in her academic studies.

Positions of the Crown and Defence [29] The Crown’s position is that these multiple sexual offences constitute a “major sexual assault” and that the sentence should bea custodial one in the range of 5 to 6 years. [30] The Defence’s position is that this is not a “major sexual assault” and that a fit sentence would be two years less a day plus upto 3 years of probation. The Law [31] The Criminal Code provision of s. 151 sets the maximum sentence at 10 years and the minimum at 45 days. As a result, since2005, a conditional sentence is no longer available for this offence.

It is also noteworthy that our government has specified a minimumsentence to the s. 171 offence for which Mr. S was convicted (but was stayed) as of August 2012, of one year incarceration. This will notapply to these offences, but it will on a go forward basis. It demonstrates society’s views that harsher penalties are in order for childsexual offences than those meted out in the past. [32] A recent statement on society’s views comes from the Court of Appeal in GRB at para 22:

We are a society that seeks to protect its children, and there is no doubt that the harm to the victim is also a harm to society. Canadians must know that abusing a child in this way is a serious crime and will not be tolerated. A function of the criminal law is the protection of core values in our society. [ 33 ] Both the Crown and the Defence argued about whether the offences in question before me now should be categorised as a “major sexual assault”. The Crown argues that the multiple incidents involved in this case means that these offences should be characterised this way.

The starting point for sentencing a “major sexual offence” according to our Court of Appeal in S (W.B.) is four years in the case of a single major sexual assault of a child committed by a person in a position of trust. [ 34 ] The Court of Appeal has defined a “major sexual assault” to help with the categorisation of the offence of sexual assault so as to ensure proportionality in sentencing. A lengthy discussion on this topic is found in Arcand . The issue is that sexual assault by itself is a very broad offence – one that ranges from a kiss to the worst forms of degradation.

So that a major sexual assault is one that fits on the more serious end of the scale of sexual assaults.

It is also noteworthy however that there are also more serious offences of sexual assault causing bodily harm (s. 272) and aggravated sexual assault (s. 273) which cover the category of assault that involves additional harm from the harm that is assumed to occur in a major sexual assault (see para 173 to 181 in Arcand ). [ 35 ] “Major sexual assault” is defined in Arcand at para 171 as follows: A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs.

The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two.

A major sexual assault includes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. [ 36 ] Earlier in the same decision, the Court compared these examples of sexual assault as follows at para 95: “While these unlawful acts differ from each other, all are sexual assaults; all are of comparable severity especially given their consequences; and all are far more serious than other sexual assaults, such as sexual touching .” (my italics) [ 37 ] Nonetheless, R. v Kemper 2004 ABCA 348 is an example of where multiple sexual touching merited a categorisation of major sexual assault.

In that case the victim was 10 or 11 years old and the accused was 22. He assaulted the victim by fondling and kissing the victim’s neck, chest breast and hips and placing his hands on her vagina, both over and under her clothing. The touching occurred over a period of 3 years between 30 and 50 times. The victim suffered from serious and lasting emotional harm where suicide was a pressing concern.

The Court felt that although the individual acts did not constitute serious sexual assaults, the combined effect of 30 to 50 assaults combined with the devastating emotional harm suffered by the victim elevated the offence to a major sexual assault. [ 38 ] The Defence argues that Kemper should be distinguished on the basis that the harm to the victim was more severe than here and that there were double the incidents.

Further that the Court of Appeal in R. v DAP 2009 ABCA 72 found that multiple incidents of touching (5) where there was not the devastating harm such as in Kemper meant that the case could not be categorised as a major sexual assault. [ 39 ] The Defence also points to R. v Innerebner 2010 ABQB 188 where Justice Read reviewed many cases dealing with sexual touching and concluded that in the situation before her, only one instance that involved digital penetration in addition to the touching could be categorised as a major sexual assault.

And in R . v BCD 1998 ABQB 64 , in multiple incidents of sexual touching the sentence was 18 months plus a period of probation of 12 months (I note that S (WB) was not discussed in the case). Finding on “major sexual assault” [ 40 ] It is clear that the individual assaults Mr. S perpetrated on the victim would not be catagorised as major sexual assaults. Multiple assaults of fondling however have received mixed categorisation as noted above. In my view, this should not be an “all or nothing finding” as counsel suggests it is.

The finding of major sexual assault with a starting point sentence of 4 years is meant instead as an aid to help with the reasonable uniformity of sentencing and that the sentence complies with the proportionality principle that Parliament has mandated in

section 718.1 of the Criminal Code (see para 168 of Arcand ). [ 41 ] As pointed out in the dissent of Arcand , at para 372 : The Supreme Court in McDonell , Stone , and Wells recognised the value of starting point sentences when used properly.

Sentencing, however, remains an individualised process requiring consideration of all factors that bear on the severity of the offence, the offender’s blameworthiness and the harm to the victim, along with all mitigating and aggravating factors. [ 42 ] In the end, in this case, I am not persuaded that the multiple assaults here can be categorised as a major sexual assault offence. Nonetheless, the assaults in my view are serious, for the reasons I shall elaborate on shortly, and as a result I place them as a whole at the highest end of the spectrum of sentencing for non-major sexual assaults.

Other important sentencing considerations [ 43 ] Besides the categorisation of these offences, pursuant to the fundamental purposes of sentencing in s. 718 and 718.01 of the Criminal Code , denunciation and deterrence, both general and individual, are paramount in child sexual assault cases. [ 44 ] Further, pursuant to s.718.2, the court is to consider agggravating and mitigating circumstances of the particular case. It is set by statute that it is an aggravating circumstance if an offender abuses a child under 18 and if the offender, in comitting the offence, abused a position of trust in relation to the victim.

Both of these aggravating factors apply here. [ 45 ] The Crown also argues that the multiple incidents and the lack of insight Mr. S has into his abuse are aggravating. The Crown suggests that there are no mitigating factors. The one often seen in sentencing cases of this sort, a guilty plea is absent here.

[ 46 ] The Defence argues that there are many mitigating factors here; the fact that Mr. S has no criminal record; that he is a responsible citizen; that he has a positive presentence report and is suitable for community supervision; that he is willing to attend counseling; that he is a low risk to re-offend; that he has a stable marriage and family life; and that he has strong family and community support. [ 47 ] In my view, in determining the gravity of the offence and degree of responsibility of the offender, Mr. S, the offences are serious in that Mr.

S breached a trust put in him by society to keep children safe and protected while in their care. He also breached the trust of the victim, and the trust put in him by his wife’s best friend, the victim’s mother, to take care of her only child. He deliberately and repeatedly violated this defenceless and vulnerable child in the middle of the night when her other potential protectors, such as her friend, were asleep. [ 48 ] Mr. S has no insight into these issues, or remorse. When he spoke to the Court about his sentence, he failed to even mention the victim at all.

Indeed he holds her and her mother in disdain and his views taint those around him, making life continually more difficult for them in their community. [ 49 ] These are aggravating circumstances that I must take into account in this case. [ 50 ] In terms of mitigating circumstances, I accept that he has family and community support and appreciate that he has been a hard working contributor to society. The fact that he has not broken the law and been caught previously so that he does not have a criminal record is not mitigating – we expect people to obey the law.

Nonetheless, I note that he has not. [ 51 ] I have reviewed the case law on sentences in similar circumstances, many of which are now dated and not in concert with Parliament’s present Code amendments that apply to this case (i.e. appeal courts turning conditional sentences into incarceration time). The most recent Court of Appeal case presented to us, DAP , involves a situation where a grandfather, in a position of trust, sexually touched that victim 5 times over a period of 2 years. When confronted however he admitted and accepted responsibility and demonstrated deep remorse.

Kemper was distinguished on that basis and a 15 month incarceration followed by 9 months probation was upheld as being “in the extreme low end of the range for cases of this nature” (at para 7).. [ 52 ] Kemper was urged on us by the defence where a two year jail term was substituted for a conditional sentence for offences which I agree were more serious. However, as noted, this was before the Code was amended and the Court noted that “In our view, a two-year term of incarceration would be lenient for this crime...” (at para 16). [ 53 ] I find that a fit and proper sentence for Mr.

S, in light of all of the principles of sentencing discussed above, is three years penitentiary imprisonment. [ 54 ] In addition, I order that Mr. S provide a sample of his DNA pursuant to s. 487.051; that he comply with the Sex Offender Information Registration Act under s. 490.013 (2) (b) (this order will be in effect for 20 years); and a weapons prohibition for life under s. 109 (2) (

a) and (b). These orders are not opposed by the Defence. [ 55 ] The Court may also make a designation under s. 161 in these circumstances. The Defence argues that this Order would be too broad and suggested that I tailor it to a probation order. The probation officer and Dr. Baillie both recommended that conditions be put in place so that Mr. S not have contact with children under 16 unless accompanied by a responsible adult. [ 56 ] Since there is no probation order that can be put into place here, I will order that Mr.

S, pursuant to s.161, have no contact with children under 16 years old unless he is accompanied by a responsible adult, excepting his son. This prohibition will be for life unless he attends and successfully completes treatment for sexual offenders wherein he can apply to have this Order revoked. Heard on the 13 th day of November, 2013. Dated at the City of Calgary, Alberta this 6 th day of December, 2013. K.M. Eidsvik J.C.Q.B.A. Appearances: Tiffany Dwyer

for the Crown Maureen McCaunaghy, Q.C. for the Defendant