R. v. Carlson, 2022 BCPC 315

Citation: R. v. Carlson 2022 BCPC 315 Date: 20220630 File No: 54815-2-KC Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JOEL ERIC CARLSON BAN ON PUBLICATION PURSUANT TO

SECTION 486.4 OF THE C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: M. Ogi-Harris Counsel for the Defendant: E. Rines Place of Hearing: Vernon , B.C. Date of Hearing: April 26, 2022 Date of Sentence: June 30, 2022

Introduction [ 1 ] On February 4, 2022, after a two day trial, I found Mr. Carlson guilty of sexually assaulting V.C. on August 29, 2020. These are my reasons for the sentence that I impose.

Summary of Facts [ 2 ] The full circumstances are set out in my reasons for judgment [i] , but for convenience, I summarize them. [ 3 ] V.C. and Mr. Carlson both had an interest in bodybuilding. They met virtually and communicated on social platforms, including Tinder, Snapchat and FaceTime, for several months. She was 17 when they were communicating, though her Tinder account indicated she was 19. She was 18 and about five feet six inches tall when they met in person. Mr. Carlson knew her real age by then. He was 27 or 28 when they met, though his Tinder account said he was 22.

He was much larger than V.C. [ 4 ] Although they tried to meet earlier, they first met on August 29. V.C. was often up late. That evening she contacted Mr. Carlson about 1:00 a.m. and they arranged to meet at his friends in Vernon where he was staying. She wanted to meet to talk, and had said previously that she did not want to have sex when they first met. Mr. Carlson knew that she did not want to have sex right away when they were first planning to meet in July. [ 5 ] Mr. Carlson was rude to her from the moment they met. He offered her a beer even though he knew she was underage and she would have to drive.

She declined. He planned to stay outside of the apartment where he was staying, drinking beer and showing her his truck, as trucks were a mutual interest. His evidence was, and I found, that they got into his truck and talked for about 20 minutes. The truck doors were locked and V.C. could not open the door herself. [ 6 ] There was a consensual kiss. He then took her hand and placed it on top of his clothes on his genitals. She retracted it after a short while. There was never any suggestion that she moved her hand or encouraged that or any further sexual act.

He submitted that was a respectful way of moving forward. I rejected that submission. His approach that night was to “test the waters” by initiating various sexual acts without seeking consent, and assuming that silence and a failure to object amounted to V.C.’s consent. [ 7 ] After the consensual kiss, Mr. Carlson took the lead and committed sexual acts while being reckless as to whether V.C. consented. Withdrawing her hand from his genitals and not responding in any way other than that rejection was a clear communication she did not consent.

He admitted he knew that was a rejection of his advance, yet he persisted in committing sexual acts without consent. The other sexual acts he committed without consent were: touching her breasts over her clothes; massaging her vagina over her clothes; and touching her vagina under her clothes with his hand, until V.C. pulled his hand away again. The sexual acts were committed over a relatively short period, about 5 minutes. [ 8 ] V.C.’s Victim Impact Statement was entered as an exhibit at the sentencing hearing. She stated that she still has moments where she is scared to go out.

She finds it hard to date and has distanced herself from many family and friends. She would constantly check her phone, scared that Mr. Carlson would text her. That led her to be so distracted at work she was let go. She remains angry and has changed. She fears that he may do this to somebody else. Despite the impact, she has worked on herself to overcome the problems resulting from being victimized by Mr. Carlson. Sentence Submissions [ 9 ] The Crown sought a sentence of 12 months jail, followed by two years’ probation, and related ancillary orders.

The Crown argued that his moral culpability was high, given their age differences and the time and location of the offending. The Crown also recognized that Mr. Carlson’s aboriginal heritage was a mitigating factor, as was the fact of significant family support, and acknowledged that a conditional sentence order was available.

The Crown argued that denunciation and deterrence were the primary sentence considerations that should not be overwhelmed by his rehabilitation, in light of the aggravating aspects of his offending and the impact of the offending on V.C., which showed a continuing psychological impact. [ 10 ] The Crown referred to five cases in support of submissions. R. v. Choi [ii] for the proposition that proportionality is the guiding principle for imposing a sentence, not whether there are exceptional circumstances. R. v.

Friesen [iii] to reflect the changing societal and legal attitude to sexual offending, and as a lens through which sentences imposed before that decision must be viewed. R. v. Boden [iv] , R. v. Tuffs [v] and R. v. Stewart [vi] were put forward as comparative cases. [ 11 ] Mr. Carlson took no issue with the probation and ancillary orders. He argued that a 12 month conditional sentence, to be served at the Adult & Teen Challenge BC program, satisfied the principles of denunciation and deterrence, while ensuring that meaningful effect was given to the principles that relate to sentencing indigenous offenders.

He filed letters in support of his submissions, and though he waived the preparation of a Gladue report, he provided considerable information regarding his heritage and history. [ 12 ] He referred to four cases in support of his submission that a conditional sentence met the relevant sentencing principles: R. v. Holland [vii] ; R. v. R.S . [viii] ; R. v. Browne [ix] ; and R. v. Tayo Tompouba [x] .

Mr. Carlson’s Circumstances [ 13 ] Mr. Carlson is now 29 years old. He was born in Abbotsford and lived there until he was about 15. [ 14 ] Mr. Carlson’s paternal grandmother came from a reserve in the Ottawa Valley. She was removed from her parents care and sent to Residential School, after which she spent time in foster care, until eventually marrying a Swedish man. They relocated away from a reserve to Alberta because of the stigma associated with her marrying a Caucasian. [ 15 ] Mr. Carlson’s father was born in 1959, was Metis and perhaps a member of the Cree Nation. Mr.

Carlson's father was also removed from his parents care and lived in various foster homes. Eventually, he left foster care and move to Vancouver when he was about 15, where he met Mr. Carlson's mother. Mr. Carlson's father was an alcoholic. His struggle with alcohol led to problems in Mr. Carlson's home, and he passed away in 1975, in part due to his alcohol use disorder, when Mr. Carlson was 7 years old. His death led to a rapid downward spiral for Mr. Carlson's mother, who had trouble keeping a place to live. [ 16 ] She too had troubles with alcohol. Mr.

Carlson was diagnosed with dyslexia, but his mother did not support him as needed with his learning disability. His difficulties led him to leave school in Grade 9. When he was a young teen, his mother had a boyfriend who had alcohol and control issues. When Mr. Carlson was about 13 years old, he lived with his sister because his mother left with that boyfriend to live in Vernon. [ 17 ] Eventually his mother returned with only a bag to her name. She and Mr. Carlson moved about, which was another factor in his leaving school. He moved to live with a friend’s family, who wrote one of the letters of support for him.

He started working at a sports store and when he was around 17 years old, his mother had another boyfriend who was also abusive to her and to him. Eventually he stopped working in the sports store to work in construction. Later he worked in a store that sold supplements, which sparked his interest and commitment to fitness. He decided to work with a fitness company. Eventually the company paid for his certification as a fitness trainer because he was so dedicated. He ended up moving to the Interior of British Columbia for work opportunities. [ 18 ] Mr. Carlson has also had problems with alcohol.

Although he does not think he was an alcoholic, for about 11 years he would binge drink on weekends, had trouble controlling his use of alcohol, and it had a negative impact on his relationships. Those troubles suggest he is an alcoholic, but did not know it. He has been sober for at least a year. He has also been diagnosed with depression and anxiety. Although he has been prescribed medications, he has not taken any because of concerns with their side effects. [ 19 ] His family and friends are supportive.

They describe him as polite, a hard worker, and as a person who helped others, having a positive impact on their lives. [ 20 ] A consequence of his charges was that it was unlikely he could continue to work in his chosen field. That is even more problematic with his conviction. He started working in the heating, ventilation and air conditioning industry and has been certified. He also obtained his GED last year. A further collateral consequence is that because of his conviction, and as I understand it the publicity, a complaint of a historical sexual assault was made.

He is now charged with another offence. [ 21 ] As part of his bail plan, since November of 2021 he has been engaged with an Adult & Teen Challenge BC program in Chilliwack. That program is described by the Assistant Manager of the program, Mr. Falk, as “an intense minimum one-year program which can be extended to as long [a]s is required to achieve the outcome of becoming healthy adults, ready to integrate back into society. It is a very regimented, strict program.” [ 22 ] The remainder of the information provided by Mr. Falk confirms his assessment. Electronic devices are prohibited.

The day starts at 6:30 a.m. and ends at 9:30 p.m., bedtime. Participants are given one hour of free time each day, if they have met all of their other requirements during the day and are not subject to any sanctions for breaking rules. Mr. Falk noted that Mr. Carlson had excelled in all areas of the program, had accepted the fact that he needed to work on various issues and was actively participating in doing so. Despite the progress, Mr. Falk says Mr. Carlson still has much to accomplish. Mr.

Carlson knows that and wants to work towards his success. [ 23 ] The program includes counselling for substance use disorders, relationships and respect for women. He has about five months remaining before he will be eligible to graduate from the first phase of the program. The second stage of the program also has a curfew, but participants get their cell phone and internet privileges back. Counselling and accountability continue. That stage lasts for 6 to 12 months. Mr. Carlson plans to continue in that program until they recommend he is ready to go out on his own.

Analysis [ 24 ] The maximum sentence I can impose is 18 months incarceration. A sentence must be tailored to the offence and the offender. No one sentence is fit for every offence, or every offender, because the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing principles are set out in the Criminal Code .

Section 718 says that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the stated objectives. [ 25 ] The most important objectives in this case are denunciation, the condemnation of conduct that has encroached on our values; and deterrence, the law’s attempt to dissuade Mr. Carlson and others from committing the offence through imposition of a fit sentence. On the other hand, rehabilitation is a real prospect. Mr. Carlson has already started down that path.

This can be the best protection for society, and is an important consideration for first time offenders. Finally, I hope my sentence will help V.C. in her journey of healing. A sentence cannot return her to how she was before the offence, but it may create an opportunity for closure. [ 26 ] I must also consider the impact of colonialism on Mr. Carlson. I find the words of Mr. Justice Marchand, when he was a trial judge, very helpful [xi] :

[21]

Section 718.2(

e) was introduced in 1996. Cases such as R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v.Ipeelee, 2012 SCC 13, make clear that it is a remedial provision that was and is intended to deal with the crisis of over-representation ofindigenous offenders in the Canadian criminal justice system.

Sadly, the statistics are worse today than they were in 1996. [22] The crisis described by the Supreme Court of Canada has been driven by the alienation, poverty, substance abuse, lowereducational attainment, lower rates of employment, and bias experienced by indigenous Canadians as a result of Canada's colonialhistory and destructive assimilationist policies such as the operation of Indian Residential Schools. [23] While these are broader societal issues, the Court, in Gladue and Ipeelee, has recognized that sentencing indigenous offendershas a role to play in addressing their over-representation in the criminal justice system.

Indigenous offenders are different from otheroffenders because, in the words of the Supreme Court of Canada, they "are victims of systemic and direct discrimination". To helpaddress the crisis, Gladue and Ipeelee changed the way indigenous offenders are sentenced, though not necessarily the result. Insentencing an indigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors which may have played a

part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances. [24] Other important principles from Gladue and Ipeelee include the following: • The court must take a holistic approach to imposing a fit sentence. A fit sentence is one that is proportional and appropriately balancesthe seriousness of the offence with the moral blameworthiness of the offender; • The unique systemic or background factors that may have played a

part in bringing the particular offender before the court speaks tothe moral blameworthiness of the offender; • A causal connection between the systemic and background factors need not be established but a link may be important or helpful infinding a fit sentence; and • Restorative sentences may be more appropriate for indigenous offenders, but taking a restorative approach will not necessarily lead toa reduced sentence. Colloquially, s. 718.2(

e) is not a "get out of jail free" card. [27] I must have regard to sentences imposed on similar offenders who committed similar offences, but no two people orcircumstances are the same. I will not review the cases referred to by counsel. They are of assistance only in that they confirm whatcounsel acknowledged: that the proposed sentences are within the appropriate sentencing range. I agree that a jail sentence is required. [28] Since the maximum sentence I can impose is less than 2 years, I must consider if the jail sentence can be served in thecommunity under a conditional sentence.

Such a sentence can satisfy the requirement for denunciation and deterrence, while promotingother sentencing objectives; in fact, it may be the best option[xii]. In a previous decision, where I imposed a conditional sentence forsexual offending of a similar nature, although against multiple vulnerable victims, I said the following[xiii]: Over 20 years ago the Canadian government recognized that too many people were incarcerated and not enough attention was paid torestorative justice, the object of which is to reduce the negative effects of crime on victims, offenders, and the public.

Parliament’sremedy was the conditional sentence. It can provide significant denunciation and deterrence, especially where there has been mediacoverage of the offender. A conditional sentence better achieves the restorative objectives of a sentence. Those objectives arerehabilitation, making amends to victims and the community, and promoting a sense of responsibility in an offender. In this case, there isa need for punishment and restorative objectives, which suggests that a conditional sentence is the best option. [29] Mr. Carlson has not been convicted of an offence before this one.

That is an indication of good character. The letters of supportand his progress at the Adult & Teen Challenge BC program confirm that. He is mid-way through it. It is strict. It provides structure,accountability and rehabilitation. There are far too many indigenous offenders in jail. The Canadian government and the Supreme Courtof Canada, for very good reasons, have said I must do what I can to change that. Mr. Carlson’s offending appears related to hisupbringing, which was also impacted by the effects of colonialism: he had no father figure that demonstrated or taught respect to and forwomen.

It is no surprise he demonstrated those same traits when he met V.C. [30] His conviction has led to other charges. That is a collateral consequence of conviction, but it is also an indication of publicity, afactor that can fulfil some aspects of meeting denunciation and deterrence through a conditional sentence. He is truly remorseful. Thecommunity will not be endangered by a conditional sentence. The sooner he is rehabilitated, the safer women will be. Incarcerationwould interrupt that rehabilitation, without better fulfilling other applicable sentencing principles.

I am satisfied a conditional sentencewill best meet the sentencing objectives for this offence and Mr. Carlson. Conclusion [31] Mr. Carlson will serve a conditional sentence of 12 months on house arrest at the Adult & Teen Challenge BC program, followedby probation for two years to continue his rehabilitation. I will also make a number of required ancillary orders. ______________________ The Honourable J. Guild

Provincial Court Judge [i] R. v. J.E.C ., 2022 BCPC 38 [ii] 2022 BCCA 90 [iii] 2020 SCC 9 [iv] 2012 BCPC 331 [v] 2021 SKCA 6 [vi] 2021 BCPC 303 [vii] 2022 ONSC 1540 [viii] 2021 ONSC 2263 [ix] 2021 ONSC 6097 [x] 2020 BCSC 308 [xi] R. v Harry , 2018 BCSC 2069 [xii] R. v. Proulx , 2000 SCC 5 at para. 113 [xiii] R. v. Witvoet , 2020 BCPC 128 at para. 12