R. v. Popek, 2020 BCPC 237

Citation: R. v. Popek 2020 BCPC 237 Date: 20201123 File No: 242541-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAL POPEK BAN ON PUBLICATION Pursuant to sections 486.4 (2) and 517 of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE GORDON Counsel for the Crown: B. McCabe and D. Assonitis Counsel for the Defendant: E. Duncan Place of Hearing: Vancouver , B.C. Date of Hearing: September 25, 2020 Date of Sentence: November 23, 2020

[ 1 ] THE COURT: Michal Popek has entered guilty pleas to four counts of Sexual Assault. [ 2 ] The Crown had initially sought to have Mr. Popek declared a dangerous offender. However, the week that the evidentiary portion of that proceeding commenced, the pandemic caused by the Coronavirus COVID-19 caused the Courts in British Columbia to shut down. [ 3 ] As a result, subsequent to and during the shutdown, three pretrial conferences were held with counsel and myself. The Crown agreed that, notwithstanding its view that Mr.

Popek is dangerous, to abandon its application. [ 4 ] All parties agreed that a penitentiary sentence, followed by a 10-year long-term supervision order is most appropriate, given the offences committed by Mr. Popek. The issue between the parties is the appropriate length of prison term to be imposed. Crown counsel seeks 12 years, less time in custody; and defence seeks 10 years, less time in custody. [ 5 ] I must say at the outset, Mr. Popek's crimes are every woman's worst nightmare. He attacked four strangers on the streets.

However, he pled guilty and saved all of the complainants from having to testify; once again having to relive the horrors they experienced during the course of their testimony. Additionally, Mr. Popek's remorse appears to be genuine contrition. [ 6 ] All of the complainants have been identified, both to the Court and the defence, by their initials only. [ 7 ] The first offence occurred on March 26, 2015 and the complainant is J.P. She was 30 at the time, and at 6:10 a.m., out for a morning run, at West 16th Avenue and Discovery Street in Vancouver, Mr.

Popek grabbed her buttock, he tackled her to the ground, reached his hand inside her underwear, he groped her, rubbed her clitoris, and digitally penetrated her vagina for two to five seconds. He reached under her bra to touch her breasts with his other hand. The complainant screamed throughout, but her screams impacted neither Mr. Popek's actions nor his demeanour. Mr. Popek ran away eastbound on 16th Avenue after approximately two to three minutes. A resident of the neighbourhood helped J.P. and helped her call the police. After Mr.

Popek was arrested on the final of the four offences and his DNA obtained, his DNA matched a sample found on the exterior buttock area of J.P.'s running pants and the interior of her sports bra. [ 8 ] The offence made J.P. very fearful in her everyday life. She is anxious walking alone and she is anxious in crowds. She acknowledges that, while her physical injuries were fairly minor, that she has ongoing anxiety issues. She is on medications and suffers side effects from the medications. She had lived alone at the time of the offence and now lives with her parents.

She had worked full time and now can work only part time. She fears for her security every single day. She can no longer run alone or hike with her dog. [ 9 ] The second incident occurred on February 18, 2016. The complainant, C.X., was a then-17-year-old international student at [omitted for publication]. At noon, she was walking the Burnaby Mountain Urban Trail. She was on her school lunch break, en route to meet classmates for lunch. She could not find her friends in the usual spot and started to retrace her steps. She had seen Mr. Popek a few minutes earlier and saw him again.

He grabbed her by the waist and threw her to the ground. She attempted to punch him, but her attempt was futile. [ 10 ] He removed one of her pant legs and began to lick her genitals. She pleaded with him to stop, but he continued. She screamed and he covered her mouth. He moved his hand when she indicated that she could not breathe. She tried to call 9-1-1. He saw that attempt and threw her cellular telephone aside. He forced both vaginal and anal penetration upon her. He says he used his penis to penetrate her vagina and his finger to penetrate her anus.

He switched back to vaginal penetration when C.X. complained about the anal pain she was experiencing. He returned to licking her genitals, her face, and ear, and bit her breast. [ 11 ] C.X. begged to be released. Mr. Popek said he would release her if she fellated him. She did. He broke his assurance to her and did not release her. He returned to penetrating her vaginally. He pulled out, masturbated himself, and ejaculated into the dirt. She was able to reach her cellular telephone and took photographs of Mr. Popek's shoes and pants. [ 12 ] C.X. estimates that the attack lasted 30 to 40 minutes. Mr.

Popek smelled of liquor during the assault. C.X. felt that his clothing and he were unkempt and she believed that made him look homeless. Mr. Popek did not use a condom. C.X.'s friends located her shortly after Mr. Popek fled. A couple walking on the trail called the police on C.X.'s behalf. Mr. Popek's semen was located on an anal swab taken from C.X. [ 13 ] C.X. came to Canada without her parents and remains here without them. She has been unable to tell her family of the incident. Notwithstanding that she is a victim, she is terrified that it would ruin her parents' reputations in China.

Her parents would be forced to either abandon her, because of her tainted virtue, or lose their own reputations. There would be no possibility of marriage for her within her community. She has worked with multiple counselling agencies. She often finds herself unable to focus on her schoolwork. She is easily irritated or angered and never was before. Her grades are struggling at school. She is worried her grade point average will plummet and she will not be able to renew her student visa, although her victim impact statement was written pre-pandemic, and I actually have no idea if she was able to remain in Canada.

She fears she could be attacked again. She keeps self-defence tools with her at all times. She has lost weight and cannot tell people why. She suffered incredible physical pain from the sexual assault. She continues to have large scars along her legs. Certain odours remind her of the incident and terrify her. The sound of an ambulance brings back the memory. [ 14 ] The third sexual assault occurred on March 6, 2016 and the complainant is D.N. D.N. was, at the time, a 20-year-old student at [omitted for publication] University. She was walking to University along a wooded trail at 2:30 p.m.

She had headphones on and was listening to music. Mr. Popek grabbed her from behind and threw her to the ground. He attempted to remove her pants. She fought back with her umbrella and tried to scratch him. She told him she had cancer. He paused only very briefly and then continued in his attempt to remove her pants. His hand got into her underwear, but did not reach her genitals. A male walking the trail interrupted the attack. Mr. Popek fled. Mr.

Popek's DNA was located on the interior and exterior of D.N.'s pants' waistband. [ 15 ] D.N. chose not to write a victim impact statement, but she was so severely negatively impacted by the incident that she cannot be

alone with a man. She was terrified to speak with Crown counsel and to ride with him in the elevator without a female support person. [ 16 ] The final incident began as a break and enter into one woman's home and culminated with the sexual assault of a fourth victim on the street outside of that home. On April 19, 2016, at 8:15 a.m., Mr. Popek entered a residence at [omitted for publication] Avenue. The 84-year-old female complainant was in her bed. She lives alone in the residence and her son lives in the basement suite. She heard her bedroom door open and Mr. Popek looked in on her. She called her son's name.

Mr. Popek closed her bedroom door and left the residence. She went to see where he went and she saw the fourth sexual assault victim, M.B., outside her front yard. She saw M.B. and Mr. Popek speak to one another. She went back inside and called police. [ 17 ] M.B. was photographing the flowers along [omitted for publication] Avenue. Mr. Popek walked away, but came back and knocked M.B. over from behind. He placed his hand up her shirt and bra and fondled her breasts. He tried to pull her pants down. M.B. was screaming for help. She struck at Mr. Popek's face with her camera. A witness ran toward them and Mr.

Popek ran off. The police were able to locate and arrest Mr. Popek. [ 18 ] When they located him, he had a one half empty bottle of Fireball Whisky in his pocket and an empty beer bottle in another pocket. [ 19 ] M.B. consistently looks over her shoulder. She jumps at every sound and is suspicious of everyone she sees on the street. The sexual assault changed her in ways she could not have dreamed possible. She feels incapacitated and does not know how to feel better. The memory is with her constantly. She has not told her family of the incident and feels, therefore, that she is without support.

She has isolated herself from friends. She constantly worries about her security. [ 20 ] What is the appropriate fixed sentence for these most aggravated offences, bearing in mind the agreement of Mr. Popek that he ought to receive a long-term supervision order at the conclusion of the fixed term? A long-term supervision order may be imposed pursuant to 753.1(1): 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; Which is obviously the case here. (

b) there is a substantial risk that the offender will reoffend; and Which, again, is the case here. (

c) there is a reasonable possibility of eventual control of the risk in the community. Which, again, that is the situation here. [ 21 ] I was provided with a number of authorities, by both counsel, to review, which I did review. In its argument, the Crown points out that the offences took place over a period of 13 months and that the complainants ranged in age from 17 to 54. The offences were predatory. Mr. Popek used his strength to overcome the resistance of the victims.

The Crown submits that his pattern of repetitive behaviour in attacking the four females, who were strangers to him, establishes, in and of itself, a conclusion that Mr. Popek poses a substantial risk to reoffend, once released from custody, without the imposition of a long-term supervision order. The Crown points to the severe emotional trauma to the four women as evidence that I may easily conclude that there is a certainty that, if Mr. Popek further offends in a like manner, that his offending will inflict severe psychological damage. [ 22 ] The Court must find that there is a reasonable possibility that Mr.

Popek may be controlled if released into the community. [ 23 ] One of the Crown's most significant concerns, and the Court's as well, is, if Mr. Popek knew that stimulant use led him to reduce his inhibitions such that he could commit such horrific acts of violence, why did he keep returning to stimulant use? The Court-appointed psychiatrist, Dr. Lamba, concluded that, notwithstanding that stimulant use drove the disinhibition, that he could not rule out that Mr. Popek has a deviant sexual arousal pattern.

The Doctor did conclude, however, that due to the decades of evidence of prosocial behaviour on the part of Mr. Popek, that he, nonetheless, may be taught to self-monitor and, therefore, be manageable in the community. [ 24 ] The Crown submits that cognitive behaviour therapy while in custody, followed by abstention from intoxicants, and sex-drive-reducing medication while out of custody will work to prevent reoffending.

I completely concur and hope that the Parole Board, in fashioning the terms of the long-term supervision order, would include all of those conditions. [ 25 ] The Crown acknowledges that the guilty pleas in this case, which spared the Complainants from having to testify, is a significant mitigating factor that should balance out the length of a fixed-term sentence imposed upon Mr. Popek. [ 26 ] There are statutorily aggravating factors in this case.

Although, I must say that the facts are so egregious, I did not need Parliament to say that those circumstances are aggravating. [ 27 ] The purpose of a long-term supervision order is twofold: to both protect the public and to rehabilitate the offender as he or she reintegrates into society. [ 28 ] Defence counsel submits that the appropriate global sentence in this case is from eight to 12 years and asks this Court to come down the middle and impose a fixed term of 10 years. [ 29 ] Mr. Popek is 40 years of age and was born in Poland. The family left Poland when he was nine and emigrated to Canada. When

he was 11, because of language difficulties, he was the subject of bullying while in high school in Vancouver and turned to drug use. Over the years, Mr. Popek has become a skilled carpenter and renovation professional. He has work available to him in the family business once he is released from custody. [ 30 ] He was married from 2009 to 2014. It was the breakdown of his marriage and consequent heartbreak that led him back to the use of drugs, eventually leading to both cocaine and methamphetamine use. [ 31 ] He has been a model inmate while in custody.

He has been attending Alcoholics Anonymous and Narcotics Anonymous meetings and Church. He has completed every course offered at the North Fraser Pretrial Services Centre. He has worked as a bio-cleaner and as a librarian. [ 32 ] The risk assessments used by both sides in this case place Mr. Popek on a scale of low to average risk to reoffend in a sexually violent manner. He does not have an antisocial personality disorder. Defence counsel submits that the conclusion bodes well for future risk reduction.

He points out that, while the Doctors disagreed as to the causation of the crimes, that the conclusions are in agreement that Mr. Popek is a low risk to reoffend and is treatable. Both Doctors concluded that Mr. Popek appears to be someone who can be managed in the community. [ 33 ] The immediate suspension of the long-term supervision order upon a breach and the lengthy jail sentences imposed for breaches of long-term supervision orders would be very deterring to Mr. Popek. [ 34 ] Mr. Popek has significant support in the community, both from his family and from his church community.

He is an evangelical Christian and spends time daily reading the Bible. The many letters of reference provided to the Court describe him, I say, when sober, as thoughtful and compassionate. [ 35 ] Defence counsel acknowledges that the sexual assault of C.X., prolonged as it was, warrants a sentence, in and of itself, of four to six years in British Columbia. The other assaults were briefer and warrant lower terms of imprisonment. He argues that totality would suggest a seven and a half to 12-year sentence and that Mr. Popek's circumstances place him at a 10-year range.

He submits that, notwithstanding that deterrence and denunciation are the predominant sentencing principles in this case, that there is significant evidence, from all of Mr. Popek's behaviour while in custody, his employable skills, the work available to him upon his release from custody, and the letters of support that speak to his character from those who know him best, that he is rehabilitatable. [ 36 ] I say it is clear that Mr. Popek's remorse is genuine. Mr. Popek entered his guilty pleas to the charges before the Crown initially elected to seek to have him declared a dangerous offender.

He did so because he believed it was the right thing to do. It was. [ 37 ] In all of the circumstances, I have no difficulty concluding that the three criteria set out in s. 753.1(1) exist in this case. [ 38 ] I do not have to choose between the causation issues that arise as between the differences of opinion of the two psychiatrists. Mr. Popek used drugs, which disinhibited him, and he committed significantly horrific and violent offences. [ 39 ] The criminal justice system is not designed to repair the harm caused to victims of crime. Here, all four women suffered serious psychological trauma.

It would be ridiculously naïve to believe that that trauma will go away once I impose the sentence I am about to impose. We can hope that knowing since February 2019 that Mr. Popek pled guilty and that they did not have to testify gave each woman a measure of hope for happier days in the future. If so, perhaps the sentence imposed today will cement that small measure of hope. All of the crimes were serious; all were violent.

While sexual assaults of strangers on the street are exceptionally rare, they are every woman's worst nightmare, and there are four women here for whom that nightmare became a reality. [ 40 ] In imposing sentence, I have to consider totality.

Without that principle, the sentence might be significantly longer than it will be. [ 41 ] Going in time, for the sexual assault of J.P. on March 26, 2015, the sentence will be two years; the sexual assault of C.X. on February 18, 2016 warrants a sentence of five years consecutive; the sexual assault of D.N. on March 6, 2016 warrants a sentence of two and a half years consecutive; and the final incident, the sexual assault of M.B. on April 9, 2016, warrants a sentence of two and a half years consecutive, for a total sentence of 12 years. [ 42 ] Mr.

Popek has spent 1,689 actual days in custody, entitling him to credit for 2,533 days. The sentence, therefore, will be 2,533 days' credit and 1,847 additional days, followed by a 10-year long-term supervision order. [ 43 ] Mr. Popek will provide a sample of his DNA to the authorities today, notionally, on all four counts. [ 44 ] Is the prohibition 10 years or life? [ 45 ] UNIDENTIFIED COUNSEL: It's life [indiscernible/not near microphone.]. [ 46 ] THE COURT: All right.

Do you -- [ 47 ] UNIDENTIFIED COUNSEL: [Indiscernible/not near microphone] weapons prohibition under 109? [ 48 ] THE COURT: I certainly have no objection it to being life. [ 49 ] Mr. Popek, do you presently own or possess any firearms, ammunition, or explosives? [ 50 ] THE ACCUSED: No, I don't, no. [ 51 ] THE COURT: For the rest of your life, you are prohibited from owning or possessing any firearms, ammunition, or explosives. [ 52 ] I do not believe that there were any surcharges at the relevant time.

[ 53 ] UNIDENTIFIED SPEAKER: Correct. [ 54 ] MR. MCCABE: That's correct. [ 55 ] THE COURT: Mr. McCabe, anything else you wish me to address? [ 56 ] MR. MCCABE: We need a 743.2 order, which transfers these materials to the -- [ 57 ] UNIDENTIFIED COUNSEL: To Corrections. [ 58 ] MR. MCCABE: -- to Corrections. [ 59 ] THE COURT: Correctional Service of Canada? [ 60 ] UNIDENTIFIED COUNSEL: Yes, please. [ 61 ] MR. MCCABE: Yes. [ 62 ] THE COURT: Yes.

All materials that were filed in this Court, including, I will say, the letters of reference, and not merely the psychological assessments, but everything that explains who Mr. Popek is as a person and all of the certificates he received will be transferred to the Correctional Service of Canada. [ 63 ] UNIDENTIFIED COUNSEL: And I'm not sure if I may have misheard, but has Your Honour imposed the Sex Offender Information Registration Act order? [ 64 ] THE COURT: I had not.

But your name, sir, will be on the sexual offender registry for the rest of your life, and you will have to comply, when you are released or in custody, annually in letting the police authorities know where you are living. [ 65 ] THE ACCUSED: Okay. [ 66 ] UNIDENTIFIED CROWN COUNSEL: And, finally, I believe there's outstanding Count 4, which is the count of breaking and enter, which has [indiscernible] I believe. The Crown directs a stay of proceedings on that. [ 67 ] THE COURT: All right. Thank you very much. [ 68 ] UNIDENTIFIED COUNSEL: Thank you -- [ 69 ] THE COURT: Mr. Popek, I am going to say this.

I know that this is a tough sentence, and I balance that -- I have said how horrific the crimes are, but I do know that you are genuinely contrite for this, and I wish you all the best of luck in the future, sir. [ 70 ] THE ACCUSED: Okay. Thank you, Your Honour. [ 71 ] THE COURT: Thank you. [ 72 ] THE CLERK: [Indiscernible/not near microphone] time credited, how do you want [indiscernible/not near microphone]? [ 73 ] THE COURT: Oh, okay. I knew you would want me to do that. Okay. So -- now I have to do some math, so just give me a sec and I will do it. [ 74 ] Okay.

For the first complainant, J.P., the sentence will be 730 days' time served, plus one day, which is today; for D.N., the sentence will be 910 days' time served, plus one day, which is today; for M.B., the sentence will be 893 days, plus 17 days; and, for C.X., it will be 1,847 days concurrent to the 17 days. [ 75 ] UNIDENTIFIED COUNSEL: Consecutive? [ 76 ] THE COURT: Concurrent. [ 77 ] UNIDENTIFIED COUNSEL: Concurrent. [ 78 ] THE COURT: Because it is only 1,847 days left remaining. [ 79 ] UNIDENTIFIED COUNSEL: Mm-hmm. [ 80 ] THE COURT: Does that make sense, Madam Registrar? [ 81 ] THE CLERK: Your Honour, I'm sorry, I'm not [indiscernible/not near microphone] time that's credited, that's consecutive? [ 82 ] THE COURT: Okay.

For Count 1, it is 730 days' time served, plus one day, which is today; for Count 3, it is 910 days' time served, plus one day, which is today; on Count 4, it is 893 days' time served, plus 17 days, concurrent to the one day; and, on Count 2, it is 1,847 days, concurrent to the 17 days and the one day, which, in the end, amounts to 12 years. [ 83 ] UNIDENTIFIED COUNSEL: Yes. Which leaves Mr. Popek with 1,847 days left to serve. Or a percentage of that [indiscernible/not near microphone]. [ 84 ] UNIDENTIFIED COUNSEL: Yes.

[ 85 ] MR. MCCABE: And I believe that is all the matters for Your Honour's consideration with respect to Mr. Popek's sentencing. [ 86 ] THE COURT: All right. Thank you very much. [ 87 ] UNIDENTIFIED COUNSEL: Thank you very much, Your Honour. [ 88 ] UNIDENTIFIED COUNSEL: Thank you. (REASONS CONCLUDED)