R. v. R.S.B., 2022 BCPC 317

Citation: R. v. R.S.B. 2022 BCPC 317 Date: 20221102 File No: 68434-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. R.S.B. BAN ON PUBLICATION 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: L. Ostry Counsel for the Defendants: W. Smart, K.C. and N. Gilewicz Place of Hearing: North Vancouver , B.C. Date of Hearing: September 2, 2022 Date of Judgment: November 2, 2022

INTRODUCTION [ 1 ] THE COURT : This sentencing involves a member of the soccer coaching community who violated the sexual integrity of four youthful and talented soccer players. Their future lives in soccer and elsewhere were deeply impacted. That devastation continues today. [ 2 ] The person who violated the sexual integrity of these four youths, to whom I will refer as J.D., L.O., L.S., and M.S., was R.S.B. R.S.B. has entered guilty pleas to one count of sexual touching and three counts of sexual assault.

The offences occurred at separate and different time periods between 1988 and 2008. [ 3 ] I will be using the term "violated" or sexual "violence" in describing R.S.B.’s conduct. I use these terms because sexual offences against children and youths constitute violent crimes that wrongfully exploit their vulnerability and cause profound harm to children, families, and the community: R. v. Friesen , 2020 SCC 9 at para. 5 . [ 4 ] The sentencing regime in the Criminal Code of Canada requires R.S.B. to serve a custodial sentence in prison on (at least) some of these charges, if not all.

The central issue on this sentencing is the length and manner in which his custodial sentence will be served. [ 5 ] This sentencing proceeding has garnered significant public attention. I am acutely aware that this sentencing process and outcome will not meet the expectations of many, regardless of the amount of incarceration imposed.

For some, the period of incarceration will never be enough; for others it will be too much. [ 6 ] It is important to understand what is happening here today and also what is not going to happen. [ 7 ] R.S.B. has immeasurably harmed four young women who were still teenagers at the time. I have listened very closely to their voices. I have considered their words carefully. They may be adult women now, but their sense of betrayal is profound and continues. [ 8 ] R.S.B. has accepted responsibility fully for his conduct.

R.S.B. will be held accountable for his actions in accordance with the law. [ 9 ] I wish to be clear. My role is to uphold the laws of Canada and impose a fair, impartial, and balanced sentence. The law, not emotion nor outrage, drives this process.

The law recognizes the devastation wrought on these once-young athletes, but it does not permit me to ignore the personal circumstances of the offender, nor refuse to mitigate his sentence accordingly, if appropriate. [ 10 ] Undoubtedly, this sentencing requires the assessment of complex laws and legal principles, substantial information, and intricate sentencing calculations. CROWN POSITION [ 11 ] I turn now to the Crown's position. [ 12 ] The Crown seeks a sentence that reflects the serious harm caused to the victims. The sentences must be consecutive for each offence.

Initially the global sentence range sought by the Crown is from three years, three months, to four and a half years' incarceration. However, the Crown recognizes that I must apply the principle of totality found in s. 718.2(

c) of the Code . This legal principle requires that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. Consequently, the Crown submits that the appropriate overall sentence is two years less one day, to be followed by a period of community supervision on probation for three years. [ 13 ] Ms.

Ostry (for the Crown) is also seeking a number of ancillary and mandatory orders requiring R.S.B. to: • provide a sample of his DNA, • register with the Sex Offender Information Registry Act , • not to communicate with the victims during his incarceration, and, • not to possess any firearms for 10 years. DEFENCE POSITION [ 14 ] Mr. Smart, K.C. (for the defence), argues that a global one-year custodial sentence meets the principles of sentencing and reflects R.S.B.’s profound remorse; his extensive rehabilitative efforts over the past 14 years; and, his low risk to reoffend.

R.S.B. seeks an eight-month period of incarceration in a correctional facility and a four-month custodial period to be served in the community on a Conditional Sentence. R.S.B. also seeks two years' probation. ISSUES [ 15 ] I turn now to the issues. [ 16 ] Further to s. 718 of the Code , the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society.

[ 17 ] To achieve these goals, I must impose a fair sentence that meets several objectives. Further to s. 718.02, in cases involving the abuse of a person under 18 years of age, the primary objectives are:

a) to denounce unlawful conduct and the harm done to victims or the community; and

b) to deter the offender and others from committing offences. [ 18 ] However, there are also other objectives that must be satisfied, secondarily: • to separate offenders from society when necessary; • to assist in rehabilitating offenders; • to provide reparations for harm done to victims or the community; and, • to promote a sense of responsibility in offenders with an acknowledgment of the harm done to victims or the community. [ 19 ] This sentencing poses some challenges reconciling the recent Supreme Court of Canada decision in R. v.

Friesen with the historical and dated nature of R.S.B.'s sexual and exploitative offending. [ 20 ] The Supreme Court of Canada noted that there has been a "considerable evolution in Canadian society's understanding of the gravity and harmfulness of these offences": para. 110, citing R. v. Stuckless , 2019 ONCA 504 at para. 90 . [ 21 ] The recognition of this evolution raises the question of how to assess R.S.B.'s degree of responsibility during periods of time when Canadian society had not yet fully appreciated the harm of these offences.

Understanding this issue will assist me in dealing with the overall question: what sentence properly reflects all aspects that I must consider as reflected in ss. 718 through 718.201. [ 22 ] I thank all counsel for their professional and comprehensive submissions, upon which I rely heavily. I have considered the case authorities provided by counsel, as well as other appellate and Supreme Court of Canada case authorities, which are identified in this decision.

I have referred only to those cases that are most relevant to resolving the outstanding issues in this case. [ 23 ] I have also considered the oral and written submissions of counsel, in addition to the following: • the presentence report by Probation Officer Mara Billings, dated the 5th of April 2022; • the psychological assessment prepared by Dr. Kathy Lewis, dated the 26th of May 2022; • another psychological assessment by Dr. Patrick Bartel, dated the 25th of August 2022; • all victim impact statements; and, • all letters of reference.

OVERVIEW CIRCUMSTANCES OF THE OFFENCES [ 24 ] I turn now to the overview and I will deal first with the circumstances of the offences. [ 25 ] Based upon the Agreed Statement of Facts filed by the parties, I find the following factual circumstances relevant to this sentencing, which are not disputed by R.S.B. General [ 26 ] Generally, there are several aspects of the circumstances that apply to all the victims. R.S.B.’s Coaching Career [ 27 ] First, it is important to understand the trajectory of R.S.B.’s coaching of girls' and women's soccer.

I find that R.S.B. has held important coaching positions at local, provincial, national, and professional levels. [ 28 ] The victims were coached by R.S.B. while on various B.C. provincial teams during the summer months, which usually started in late April or early May and ended in late July or early August. B.C. Provincial Teams play at a higher level than child and youth club teams. [ 29 ] In 1988, R.S.B. was the assistant coach of the B.C. Provincial Under-16 girls' soccer team. He had just turned 21 years old.

The head coach held ultimate decision-making power, but consulted R.S.B. and seriously considered his comments. In his role as an assistant coach, R.S.B. was extensively involved in developing the skills of individual players. R.S.B. delivered instructions or gave feedback to the players. [ 30 ] In 1989 through 1990, R.S.B. became an assistant coach for the B.C. Provincial Under-18 girls' soccer team. R.S.B. worked in that capacity from 1989 through 1993, when he was 22 through 26 years old.

[ 31 ] By 1993 through (at least 1995), R.S.B. was the assistant soccer coach at the University of British Columbia. R.S.B. has coached both the men's and women's university soccer teams, when he was 26 through 28 years of age. [ 32 ] By 2001 through (at least) 2004, R.S.B. operated a soccer academy, Total Soccer Systems (TSS), in Richmond, British Columbia. At this point, he was aged 34 through 37 years old. [ 33 ] By 2006 through (at least) 2008, R.S.B. held three soccer-related positions. By February 2006, he was a coach with the Vancouver Whitecaps women's soccer team.

The name “Vancouver Whitecaps” represents the pre-eminent professional soccer organization for Vancouver, fielding both youth and adult teams. At the same time, R.S.B. was a scout for Canada Soccer, a national organization. By 2007, R.S.B. was the assistant coach of the national women's team.

In 2007 and early 2008, he was 40 years old. [ 34 ] Also during this time, the National Training Centre at Simon Fraser University provided training facilities for the Vancouver Whitecaps youth and adult teams, as well as private individual soccer training. [ 35 ] During the 2008 to 2009 professional soccer season, R.S.B. ceased to work for the Vancouver Whitecaps soccer organization after allegations arose about inappropriate conduct.

Position of Trust and Authority [ 36 ] I turn now to the issue of position of trust and authority. [ 37 ] Second, I find that all four victims met and associated with R.S.B. while he worked in professional roles for soccer organizations. Whether he was an assistant coach or full coach, he directly coached and/or mentored them all at some stage of their soccer training and games. Even if he was not the ultimate coaching decision maker, both coaching staff and players extensively relied upon his views and recommendations. R.S.B. was very involved in player development.

When he was not actively coaching them, they still continued to seek his advice and support, which he provided. [ 38 ] It is not disputed that R.S.B. was in a position of trust in relation to each victim. While R.S.B. also initially appeared to consider J.D. and L.O. as peers and sought a friendly relationship with all the victims, the soccer context remained at the heart of their interaction. [ 39 ] Thus, I find as a fact that R.S.B. was in a position of authority and trust with J.D., L.O., L.S., and M.S. at the time of each offence.

Further, given the trajectory of his coaching career, I accept that R.S.B. was in a position of trust and authority at times when he was not actively coaching any of the victims, but continued to interact with them.

Similarities between the Victims and in the Offending Conduct [ 40 ] Third, there are many similarities in the circumstances surrounding the sexual violations of J.D., L.O., L.S, and M.S.: 1) Each victim trained extensively and were competitive soccer players before they met R.S.B. 2) They were all in high school or had just finished high school when the sexual violations occurred. 3) Before and during their coaching by R.S.B., they were talented and determined athletes.

They all sought to play soccer nationally, if not internationally and professionally. 4) R.S.B. actively coached them during the relevant three to four-month summer seasons, which usually spanned (as I have indicated) the early Spring until July/August. 5) As R.S.B. coached each of them, they in turn formed a connection with him. R.S.B. praised them and paid attention to them. R.S.B. built or tried to build some form of friendship with them. They chatted at practices.

Understandably, at least at first, these teenaged athletes appreciated his input and attention. 6) With regards to J.D., L.O., and M.S., R.S.B. dealt with them in a flirtatious and flattering manner. However, these three began to feel the weight of his attention and scrutiny. 7) Eventually, R.S.B. began contacting J.D., L.O., and M.S. outside of training practices and games. R.S.B. called them at home, and then later on contacted them through social media and emails. Their initial conversations centred on soccer and each athlete's future in soccer.

However, their conversations eventually became more wide-ranging. 8) R.S.B. then began forming emotional and sexual verbal connections with J.D., L.O., and M.S. He asked each of them about boyfriends and whether she had a boyfriend. The tenor of the conversations then became even more personal and sexual. The number, duration, and frequency of his communications increased, placing inordinate and unwarranted pressure on J.D., L.O., and M.S.

Over time, R.S.B. separately told J.D., L.O., and M.S. that he was attracted to her. 9) R.S.B.'s interactions with L.S. were different, in that he did not engage in the same prolonged conversations or interactions. R.S.B. did not express an emotional or sexual interest in her before the incident occurred. Rather, R.S.B. took advantage of a situation and placed pressure on her to acquiesce during the incident. For L.S., the violation of her sexual integrity occurred somewhat unexpectedly. 10) At a certain and different point for all four victims, they realized that his conduct was inappropriate.

They realized R.S.B. was taking advantage of them. However, the victims felt pressured by R.S.B. to continue communicating with him. [ 41 ] It is not relevant that J.D. or any other victim participated in any way in their eventual sexual interaction: Friesen at para. 152 . Such conduct by a victim can never displace the adult's responsibility not to inflict sexual violence on children and youths: Friesen at para. 154 .

[ 42 ] R.S.B. reported to Dr. Lewis that there were different reasons for his offences with the different victims. For the first two offences, R.S.B. acknowledges now that he did not understand at the time (1989 through 1990) that he was not in a relationship. R.S.B. was in his early twenties and did not realize. [ 43 ] I confess that I find his report concerning L.S. lacks a meaningful explanation for his conduct. R.S.B. acknowledged that they did not have sexual chemistry, but that they had a good relationship.

He remembers "freaking out" after it happened and saying to himself, "Stop!" [ 44 ] By 2008, he felt his career was ending and experiencing mental health stress. R.S.B. acknowledged that he lacked self-awareness when the events occurred with M.S. Sexual Touching (J.D.) – 12 Dec. 1988 to 25 Feb. 1990 [ 45 ] I now turn to the individual acts and context for the sexual violation of each victim. [ 46 ] I will begin with the sexual touching of J.D. The Information spans from December 12, 1988, to the 25th of February 1990. This is a span of approximately one year and two months. [ 47 ] J.D. joined the B.C.

Provincial Under-16 girls' soccer team when she was 16 years old, presumably in 1988. R.S.B., as I have mentioned, was 21 years old at the time. [ 48 ] After his conversations with J.D. (who was 16 years old still) became more sexual, R.S.B. told her that he wanted to see her naked and that he fantasized about being with her. Their conversations evolved into "phone sex" during which, at his suggestion, they each removed their clothing while talking on the telephone and touched themselves sexually. R.S.B. told her that he masturbated while thinking or fantasizing about her.

Their phone conversations were "very secret". [ 49 ] After months of telephone conversations, J.D. spent the night at R.S.B.'s residence. She had arranged a cover story for her parents. They engaged in sexual activity which included J.D. performing oral sex on R.S.B. at his request, mutual sexual touching, and attempted sexual intercourse. J.D. was 17 years old at the time. R.S.B. was either 21 years old or had just turned 22 years old during their first sexual interaction. [ 50 ] They eventually had sexual intercourse over the course of their relationship. She hid these encounters from her family and the team.

She experienced guilt about their interactions and feared dismissal from the team if their activities were discovered. [ 51 ] After J.D. turned 18 years old, R.S.B. coached her on the B.C. Provincial Under-18 girls' soccer team during the summer of 1990. Their relationship had already ended before the 1990 summer season and they had no sexual contact during that time. They remained on friendly terms.

R.S.B. left for another coaching position midway through that season. [ 52 ] She continued to play competitive varsity soccer for three years during her university years, as well as two further years on the UBC women's team when R.S.B. was an assistant coach. Sexual Assault (L.O.) – 1 Jan. 1990 to 31 Aug. 1990 [ 53 ] I turn next to the sexual assault of L.O., which occurred on one occasion. This incident occurred less than six months after the end of R.S.B.'s sexual contact with J.D. [ 54 ] L.O. tried out for the B.C. Provincial Under-18 girls' soccer team in early spring 1990, when she was 17 years old.

She joined the team in late spring as she turned 18 years old. [ 55 ] R.S.B. coached her as the assistant coach on the Provincial Under-18 girls' team. Shortly after she joined the team, R.S.B. focused on her. Their phone calls became much more intimate and overtly sexual within a shorter timeframe than with J.D. R.S.B. extended numerous invitations for walks and meals. She declined and tried to deflect the conversations. [ 56 ] L.O. felt she could not simply end or refuse to answer R.S.B.'s telephone calls. She feared she would lose opportunities if she challenged him.

She came from a difficult background and saw R.S.B. as the "gatekeeper" to everything she had been "working and dreaming about". She believed he could shut down her career in soccer. She walked a very fine line between not being overtly rude or dismissive, while declining his offers. I infer that she did not want this sort of interest from him. [ 57 ] His attention escalated in June 1990 when R.S.B. asked her to remain at the soccer pitch after the others had left, before joining her teammates at a post-match party. R.S.B. told her that he wanted to talk to her.

She was nervous, given the now intimate nature of their telephone calls, but felt safe knowing that she was going immediately on to the post-game party. [ 58 ] R.S.B. suddenly, and without her consent, took her into his arms and kissed her in an intimate manner with his tongue. He was breathing heavily and appeared aroused. R.S.B. told L.O. he wanted to "make love" to her right then and there on the soccer pitch. L.O. was scared and did not want to have sex with R.S.B. She reminded him about his wife. She broke away and fled. She felt exposed and vulnerable.

She wanted to tell someone, but did not know how to begin. [ 59 ] She was 18 years old and R.S.B. was 23 years old. [ 60 ] When R.S.B. later telephoned her, he continued to compliment her. He described being "turned on" and imagining "all the things that he would like to do" to her as he watched her bending over to stretch her hamstring muscle. [ 61 ] L.O. considered leaving the team after R.S.B.'s conduct, but it was not necessary when he left the team for a different position. She eventually became captain of her university soccer team and received a scholarship for graduate school.

Sexual Assault (L.S.) – 1 Jan. 1995 to 1 Jul. 1995 [ 62 ] I turn now to the sexual assault of L.S., which generally occurred between the 1st of January, 1995, and the 1st of July, 1995. The one specific incident appears to have occurred on the 25th of January, 1995. This incident occurred approximately 4.5 years after the incident with L.O. [ 63 ] In 1992, L.S. joined the B.C. provincial girls' soccer team and was coached by R.S.B. when she was 15 and 16 years old. R.S.B. was 24 to 25 years old.

Due to his easy rapport with the team players, R.S.B. was often included in chats and activities outside of the provincial team's activities. [ 64 ] When she was in Grade 12, R.S.B. no longer directly coached L.S. However, he remained a "coach figure" in her mind. He was the assistant coach of the UBC women's soccer team and was also a full-time UBC student. He arranged for L.S. to attend the UBC campus during a school day and meet the players on the UBC women's soccer team. [ 65 ] On the 25th of January, 1995, R.S.B. was driving L.S. to UBC when his vehicle was rear-ended by another vehicle at 9:45 a.m.

She suffered a lower back soft-tissue injury and her father attended the scene upon R.S.B.'s request. R.S.B. insisted that he would take L.S. to her doctor in North Vancouver, so that her father could return to work. It is unclear why R.S.B. did not drive directly to L.S.'s doctor. It is possible that L.S. had to wait for an appointment time. Regardless, R.S.B. took L.S. to his basement suite, which was also located on the North Shore. [ 66 ] Once at his residence, R.S.B. pressured L.S. into receiving a massage from him.

She initially declined more than once, but eventually submitted after his continued persistence. He sat on the couch and positioned her on the floor directly in front of him. R.S.B. massaged L.S. over the top of her shirt, but eventually lifted her shirt at the back and placed it up and over her shoulders. He undid her bra clasp and continued massaging her back. At this point, she felt nervous, uncomfortable, and trapped. [ 67 ] R.S.B. then ran his hands along the sides of L.S.'s body using open palms.

He touched the outer portion along the full sides of her breasts while pressing and holding for one to two seconds. She reacted in some fashion, possibly by flinching, and he moved his hands away. He stood up and told her something along the lines that he needed to go because he was "getting hard" and too excited or aroused. R.S.B. left the room for at least five minutes. She quickly replaced her bra strap, pulled down her shirt, and sat on the couch.

She felt scared and awkward. [ 68 ] Upon his return to the room, R.S.B. told her that they should not be doing that anymore because he was getting too aroused or excited. Shortly after, they attended at her doctor's office. [ 69 ] At that time, she was 17 years old and he was 27 years old. Sexual Assault (M.S.) – 1 Jun. 2006 to 25 Mar. 2008 [ 70 ] Finally, I turn to the sexual assault of M.S., which occurred between the 1st of June, 2006, and the 25th of March 2008. The more specific incidents of unwanted sexual contact I find occurred in February or March, 2008.

These incidents occurred approximately 11 to 13 years after the incident with L.S. [ 71 ] M.S. trained at R.S.B.'s TSS Coaching Academy from ages 11 through 14 years. During the summer of 2006, M.S. was between Grades 10 and 11 and played on the B.C. provincial soccer team for her age group. She was frustrated with her and the team's performance. At the time, R.S.B. was a scout for Canada Soccer and observed her team play in a national tournament. Her mother suggested she seek R.S.B.'s input. M.S. and R.S.B. began communicating by email.

They also saw each other at the National Training Centre at SFU, where R.S.B. was coaching the Vancouver Whitecaps. M.S. saw R.S.B. before and after the training sessions. Their contact was limited to waving or saying hello. [ 72 ] During the summer of 2007, M.S. trained on the Vancouver Whitecaps youth team. At the same time, R.S.B. was coaching the Whitecaps women's team at the same facility. She saw him during her training. At that time, R.S.B. was also the assistant coach of the national women's team and oversaw various teams. He travelled often.

During these periods, M.S. admired R.S.B.'s coaching ability and considered him to be a mentor. She sought his advice. [ 73 ] During the fall 2007, M.S. was selected for the Whitecaps women's prospects full-time player program. She trained at SFU at least four days per week and played exhibition games. At this time, she was in Grade 12 and 17 years old. He was 40 years old. [ 74 ] At a certain point in 2007, R.S.B.’s communications unfortunately devolved into the similar pattern in frequency and personal tone as those with J.D. and L.O.

He initially made M.S. feel special and complimented her maturity and emotional intelligence. Nonetheless, as his electronic and in-person communications increased in frequency and sexual innuendo, her discomfort and stress increased to high levels. R.S.B. then began to profess that he was falling in love with her and demanding some form of physical and sexual intimacy. [ 75 ] This unwanted attention soon developed into a violation of her emotional, physical, and sexual integrity. By October 2007, M.S. realized that R.S.B. wanted to have sex with her.

I accept that R.S.B. placed a great deal of pressure on M.S. to have sex with him, based on her description of his repeated comments. His physical violations included unwanted hugging. [ 76 ] His sexual violations occurred in February 2008, when he kissed her on the cheek and later stroked her neck as she drove. On neither occasion did she want him to touch her. This conduct was not an incidental touch nor an innocuous kiss. They occurred after prolonged emotional pressure for sexual contact.

Importantly, this conduct occurred before and after an important game for M.S. when national team coaches were present. [ 77 ] Her immediate responses to the various forms of pressure and touching included:

• not knowing how to respond; • feeling trapped; • freaking out; • screaming inside her head and thinking "don't touch me"; • disgust at the thought of kissing him (which I add is unsurprising since R.S.B. had trained and mentored M.S. since she was a young adolescent in his soccer academy); • feeling things had become "really scary"; and • fear of negative soccer career repercussions if she refused him. [ 78 ] From M.S.'s recollection of the words he used and his emotional displays, I note that R.S.B. appeared to attribute responsibility to M.S. for his falling in love with her and his need for emotional and sexual intimacy.

R.S.B. variously told her the following: • he was experiencing anxiety and panic attacks because she was not responding to him while he was falling in love with her; • "you put the spell on me"; • "you're making me fall in love with you"; • "what are you doing to me?"; • he had proven that "this" was not sexual but love, because he had been around for a year talking every day to her without anything physical occurring; • "you're my girl"; • his favourite area of a woman's genitals; • his sexual fantasies; and • that on her 18th birthday, that was "E day" (meaning "ecstasy day"). [ 79 ] At no time was M.S. interested in a romantic or sexual relationship with R.S.B.

She never wanted to be hugged, touched, or kissed by him. Nonetheless, his words and conduct placed the 17-year-old (almost 18-year-old) M.S. in the position of having to apologize to the 40-year-old R.S.B. for refusing his unwanted and unlawful sexual advances (which she did after one of their later communications while R.S.B. was crying). [ 80 ] Throughout, M.S. did not want to encourage him, but was acutely worried about the repercussions on her athletic goals if she refused him. She believed in R.S.B.'s influence to make or break her soccer career.

R.S.B. was now the head coach for the Vancouver Whitecaps women's full team. He was still the assistant coach on the national team. He was well connected to a variety of Canadian and American coaches. R.S.B. communicated on behalf of her with several U.S. university coaches. She believed her every recruitment by other coaches was due to his recommendations. She also believed that everyone trusted him, including her parents. [ 81 ] M.S.'s stress was immense.

R.S.B.’s conduct also occurred in the context of the profound emotional pressure wrought by his professions of love, interspersed with demands for kisses and other sexual intimacy. By counting down the days to her upcoming birthday when she would turn 18 years old in March 2008, as well as describing where and when he would have sex with her after she turned 18 years old, R.S.B.'s pressure raised M.S.'s stress to critical levels.

She quit soccer on her 18th birthday and cut off all contact with R.S.B. [ 82 ] Clearly, also during this time, R.S.B. displayed emotional upset, including tears, anxiety, and panic attacks. His emotional state was unstable and labile. I also accept that he was experiencing severe mental health distress at this point for reasons beyond his infatuation with M.S. He was travelling 260 days out of the year by 2008, which placed a great deal of stress and loneliness on him and his family. BACKGROUND OF R.S.B. [ 83 ] I turn now to the background of R.S.B. [ 84 ] R.S.B. is currently 55 years old.

He lives with his spouse of 29 years. He has two adult children. He maintains contact with his parents and two siblings. He experienced family violence from his father. He also witnessed his mother and siblings experiencing family violence by his father. [ 85 ] R.S.B. also experienced sexual abuse when he was 10 or 11 years old by a family member, and by an older swimmer when R.S.B. was swimming competitively. [ 86 ] R.S.B. completed Grade 11 and later obtained his diploma in high performance coaching from the National Coaching Institute at the University of Victoria.

He completed four years of human kinetics at UBC, but did not complete all requirements for a degree. He later returned to UBC to take a sports ethics course.

[87] R.S.B. has been employed as a coach from 1988 until 2008, when he left the Vancouver Whitecaps, as well as the Canada Under-20 women's national team and the full national team. [88] From approximately 2010 through 2016, R.S.B. worked as an investment advisor with Research Capital, as well as beinginvolved in starting various companies, some with his brother. He also engaged in volunteer work that involved coaching and, in the1980s, dressed as a clown for the Variety Club. CURRENT CIRCUMSTANCES OF R.S.B. [89] Currently, his spouse and family fiercely support him emotionally.

His bond with his spouse is very strong at this time. He worksas a licensed investment advisor through the Canadian Securities Institute. AGGRAVATING AND MITIGATING CIRCUMSTANCES [90] I turn now to the aggravating and mitigating circumstances. AGGRAVATING CIRCUMSTANCES [91] I will begin with the aggravating circumstances and those that are relevant to the aspects of the offences.

Aspects of the Offences [92] The following aggravating circumstances relate to the circumstances of the offences: 1) The multiple number of offences and victims. 2) The repetition of sexual offending against teenaged girls at separate and periodic times over 20 years. 3) The vulnerability of three victims was reflected in their ages, which ranged from 16 to 17 for J.D., L.S., and M.S. This is a statutoryaggravating factor pursuant to s. 718.2(a)(ii.1). 4) I note that L.O. had just turned 18 years old at the start of her training by R.S.B.

Nonetheless, I find she was a vulnerable person dueto her still relatively young age and personal circumstances. 5) Some element of grooming for each victim during which R.S.B. directed their conversations and interactions from the sporting andmentor zone towards the friendship zone, then to a more intense friendship zone, before moving to a gradual increase in sexualizedinteraction. Conduct that amounts to grooming can build a relationship of trust: Friesen at para. 125. 6) Betrayal of position of trust: Friesen at para. 126.

The breach of trust increases the harm to the victim and thus the gravity of theoffence. It is a statutory aggravating factor further to s. 718.2(a)(iii). Athletic coaches are in a position of trust and authority over thechildren they coach: R. v. Downes, 2019 BCSC 992 at paras. 176 and 180. Impact on Victims [93] I turn now to the impact on the victims. [94] In Friesen, the Supreme Court of Canada emphasized that society's need and commitment to protect children and youthsencompasses their autonomy, bodily integrity, sexual integrity, dignity, and equality.

As a result, I must also consider the emotional andpsychological harm to children and youths caused by sexual offences: Friesen at paras. 42 and 51 through 59. [95] Sexual violence is wrong, even in cases where the degree of physical interference is less pronounced: Friesen at para. 145.While the degree of physical interference is an aggravating factor, sexual violence that does not involve penetration is still "extremelyserious" and can have a devastating effect on the victim: Friesen at paras. 138 and 142. [96] The Supreme Court of Canada has repeatedly stated that "any sexual offence is serious" and "even mild non-consensual touchingof a sexual nature can have profound implications for the complainant": Friesen at para. 142, citing R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948 at para. 29; R. v. J.A., 2011 SCC 28 at para. 63. [97] Moreover, "[t]he modern understanding of sexual offences requires greater emphasis on these forms of psychological andemotional harm, rather than only on bodily integrity": Friesen at para. 142, citing R. v. Jarvis, 2019 SCC 10 at para. 127. [98] I am going to pause here to take the morning recess for the court staff, because it is an appropriate time to break. Thank you. [99] THE CLERK: Order in court, all rise. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) Impacts on All Victims

[ 100 ] THE COURT: I turn now to the following aggravating circumstances that relate to the impact on all victims: 1) The power imbalance in which they were forced to navigate his conduct in the face of his growing influence in the soccer community and with increasingly higher calibre teams. These athletes were always cognizant that R.S.B. had the ability to shape or distort their future soccer careers.

While some victims continued to play soccer at university level after R.S.B.'s offences against them, his conduct impacted them psychologically and (they felt) diminished their athletic prospects. 2) The degree of physical interference is more aggravating in relation to J.D., whose bodily integrity was sexually violated with acts leading up to and including oral sex and sexual intercourse.

Nonetheless, the sexual nature of the touching and the violation of the sexual integrity of L.O., L.S., and M.S. are only slightly less aggravating given the age differences between them and R.S.B. at the time. 3) The stress, emotional, and psychological detriment experienced by each victim. This pressure caused them to doubt themselves. In some cases, at least two of these teenagers felt compelled to apologize to an adult R.S.B. for their own reluctance to respond to his overtures due to R.S.B.'s reactions and interactions with them. It is both troubling and untenable.

As adults, they continued to experience anxiety, self-doubt, and in some cases depression. Their ability to trust others, particularly men, has been impacted. Impacts on Individual Victims [ 101 ] I wish to summarize some of the more individual impacts on each victim. J.D. [ 102 ] I will begin with J.D. She felt manipulated. She is still working through it. She has difficulty trusting people in positions of power or authority. She has become sceptical and questioning of people's motives or intentions if they praised her or gave her attention. She feels that she cannot trust her own judgment of character.

She is particularly sensitive about how teachers and coaches interact with her children. [ 103 ] She experiences self-doubt and shame for falling for his manipulative behaviour. She is angry that R.S.B. did not remove himself from coaching after she heard about the subsequent offences. She is worried about being confronted by R.S.B. or seeing him. She fears him. L.O. [ 104 ] She entered competitive soccer at a later age, at a time when her family had fewer resources to support her efforts. This caused her to feel isolated and reluctant to disclose his conduct.

She did not think people would believe her and disclosure would limit her opportunities. She left the Canadian program and stopped pursuing a career at the national level because of his conduct. She felt that he manipulated her into believing that she was responsible for his inappropriate conduct in some way. She entered counselling in her mid-twenties. L.S. [ 105 ] Soccer meant absolutely everything to her when she was growing up. She worked extremely hard, aspiring to scholarships and representing Canada on the elite national team. She lived, breathed, and dreamt of soccer.

She feels that R.S.B. stole her sense of purpose growing up and her pursuit of her goals. He made her feel like it was her fault and that she had done something wrong. [ 106 ] She was disciplined by her parents when she refused to have contact with R.S.B., such that R.S.B.'s traumatization followed her into her own home. Her experiences with R.S.B. later affected all of her personal relationships, including her marriage, in unexpected ways. Her experiences continue to haunt her. She has spent considerable resources and time in counselling. M.S. [ 107 ] M.S. became more afraid of R.S.B. as his intensity grew.

She felt immense shame, even though she had not wanted his attention in that way. She felt like no one would believe her and was terrified she would get in trouble. He was the primary point of contact, as mentioned earlier, with every university coach with whom she sought recruitment. [ 108 ] Selecting her preferred university, which included where she would play soccer, was an important decision that caused her a great deal of stress. She felt helpless against his influence and power over her soccer life. She attended the university where she was expected to play soccer, but was not able to really play again.

She had difficulty trusting the male coaches. She experienced nightmares and sleeplessness. [ 109 ] She lost contact with childhood soccer friends and teammates who had been at the centre of her social identity. She isolated herself, particularly from her mother with whom she had previously been very close. She experienced self-doubt about her athletic abilities and was concerned whether her accomplishments had been due to his sexual interest in her. [ 110 ] Later on in life, when doing well professionally, she became afraid of the attention of males who praised her work.

She felt like she was making herself prey to men when she succeeded or stood out. She had difficulties forming personal relationships after this. MITIGATING CIRCUMSTANCES [ 111 ] I turn now to the significant mitigating circumstances in this case.

Guilty Pleas [ 112 ] R.S.B. has entered a very early guilty plea. I find that he has accepted responsibility through his guilty plea and, more importantly, by directly acknowledging the wrongfulness of his acts and trying somewhat to understand why they happened. R.S.B. has also experienced and demonstrated a profound personal guilt for his actions. In addition, his guilty plea has saved court resources. Most importantly, his entering guilty pleas means that the victims do not have to testify and relive their trauma. Remorse [ 113 ] I accept that R.S.B. feels tremendous remorse and shame for his conduct.

R.S.B. spoke with sincerity and emotion about his understanding of the harm he has caused to the victims, his family, and the community. He has apologized at length in court to his victims. Other Conduct [ 114 ] Other than these offences, which occurred at discrete times over 20 years, R.S.B. conducted himself in a pro-social fashion during his life. He has a stable family life and remained gainfully employed. Character and Compliance with Court Orders [ 115 ] His lack of a criminal record is also a mitigating factor. This is R.S.B.’s first involvement with the criminal justice system.

He has complied with comprehensive and restrictive bail terms over a substantial period of time since, I believe, 2019 or 2020. His general good character is a somewhat mitigating factor. [ 116 ] However, this mitigating factor is diminished in this case because those who abuse a position of trust are usually, but not always, of good character. They earned their position of trust with the victims because of their recognized good character: R. v.

J.J.O. , 2016 ONCJ 549 at para. 88 . [ 117 ] While R.S.B. was able to reach high levels in his coaching profession, he ultimately destroyed his status, legacy, and recognition for his hard work with his criminal behaviour. Health and Rehabilitative Efforts [ 118 ] I turn now to address issues of health, mental health, and rehabilitation. [ 119 ] R.S.B. has attended extensive counselling to address a number of issues. Mental health concerns were primary. He has attended at his family doctor for anxiety and depression. He has experienced "imposter syndrome" since childhood with a feeling of doom.

He has received counselling to deal with the disgust and remorse he feels for his conduct relating to these victims. He is dealing with a need to be validated. [ 120 ] R.S.B. is also dealing with the family violence he experienced as a child. He also received individual and joint marital counselling after the charges arose. In addition, the counselling has assisted him with trauma. He experienced anxiety and panic symptoms as a youth, but those symptoms became significant early in 2007. [ 121 ] In 2008, R.S.B. received psychological counselling with Dr.

Derek Swain. [ 122 ] In 2009, R.S.B. received personal counselling with Arunima Sharma, which also helped him understand the role of a coach and to view coaching relationships differently. [ 123 ] From 2008 through 2019, R.S.B. experienced a lower mood, intermittent thoughts of suicide, and vivid and unwanted intrusive thoughts. He experienced acting out associated with those intrusive thoughts and images, with a compulsive need to act on these. [ 124 ] In 2019, R.S.B. was admitted to hospital for three to four days for depression and suicidal ideation as a result of his criminal-legal situation.

He was certified under the Mental Health Act and placed on medication. The diagnosis was an adjustment disorder with depressed mood and anxious mood, with the need to rule out anxiety disorder and paraphilia. [ 125 ] In 2019, R.S.B. engaged in counselling sessions with a psychiatrist, Dr. Chakraborty. From 2019 until the present, he has continued counselling with Ms. Sharma, with some gaps due to COVID and counsellor unavailability. [ 126 ] R.S.B. has actively pursued, accepted, and worked diligently to obtain counselling in the past and is open to receiving further counselling.

He has not yet received sexual offender programs, counselling, or treatment. Community Support and Employment [ 127 ] R.S.B. has received and filed 30 letters of support in which the writers demonstrated their knowledge of these charges and reflect R.S.B.'s extensive support in the community from a wide range of people. He is clearly respected by a great number of people from different parts of his life. They all spoke highly of him. In particular, they spoke of him being a caring, empathetic, and supportive person, emotionally and in soccer. [ 128 ] I have received five letters from his family.

There are three letters from long-time childhood friends. I have received 12 letters from soccer players previously coached by R.S.B. That includes two female soccer players who have played at the professional level, nine other former female players who were coached by R.S.B., and one male soccer player who was coached by R.S.B. Most of these

players are now in their twenties. [ 129 ] I have received five letters from the parents of soccer players that he coached. I have received two letters from other coaches who worked closely with R.S.B. I have also received three letters from persons mentored outside of the context of soccer. [ 130 ] R.S.B. has been continuously and gainfully employed for most of his life. RANGE OF SENTENCE LENGTH [ 131 ] I turn now to the range and determination of the overall sentence, which in this case is complex.

CROWN AND DEFENCE POSITIONS [ 132 ] As mentioned earlier, the Crown initially proposed a jail term that ranges between three years, three months, to four years, six months.

The Crown would allocate this custodial time to each offence as follows: Count 2 (the sexual touching of J.D.) – a range of 12 to 18 months' custody in jail; Count 5 (the sexual assault of L.O.) – a range of six to nine months' custodial time in jail, consecutive to all other sentences; Count 6 (the sexual assault of L.S.) – a range of six to nine months' custody in jail, consecutive to all other sentences; Count 10 (sexual assault of M.S.) – a range of 15 to 18 months custody in jail, consecutive to all other sentences. [ 133 ] However, the Crown accepts that the proposed sentence should be reduced on the principal of totality, so that R.S.B. should serve two years less a day in jail for all offences combined.

The Crown argues that the principles of denunciation and deterrence, as well as the aggravating circumstances, must take precedence, despite R.S.B.'s mitigating and rehabilitative circumstances. [ 134 ] The defence seeks a total custodial sentence of one year, comprising eight months to be served in jail and four months to be served in the community on a conditional sentence. [ 135 ] Both parties agree that probation is appropriate, but differ on the length.

SENTENCING RANGES AND CASE LAW [ 136 ] I have been provided with a substantial number of court decisions to illustrate the appropriate range of sentence that applies to this case. I do not intend to review each case individually. [ 137 ] In

summary, some of the cases dealt with incest, teachers, coaches, a police officer, and a piano teacher – all of whom were considered to be in a position of trust at the higher end of the spectrum. Most of the victims were much younger than those in this case at the time of the offences. The range of sentences in the cases went from approximately a suspended sentence for voyeurism with covert photos of 12 to 14-year-olds ( R. v. Downes , 2019 BCSC 992 ) to two years less a day in custody in jail ( R. v.

Haugo , 2006 BCPC 319 ). [ 138 ] I find the following cases to be the most relevant to the current situation. [ 139 ] R. v. Haugo , already cited, in which the accused was a track and field coach who committed offences at two separate time periods: the first in 1967 to 1968, when he was 28 years old, and then later in 2004 through 2005, when he was 65 years old. The victims were teenagers and older adolescents, ranging from 11 to 12 years, 14, 17, and 19. The offences involved sexual touching and digital penetration. The Court found him to be a low risk and he was 67 years old at the time of sentencing.

He received a sentence of two years less a day to be served on a conditional sentence, plus three years' probation. [ 140 ] The next case is R. v. Hepburn , 2013 ABQB, or I presume that is now going to be KB, 520. The accused was an assistant coach who was 21 years old at the time of the offences. The victim was 13 years old. There were three incidents with regards to sexual touching and invitation to sexual touching. The offences were minimally invasive and did not involve the genital or private areas.

There was grooming to increase emotional dependency of a vulnerable victim, which augmented the victim's psychological harm. There was persistence and the degree of contact escalated. At para. 25, the Court wrote that the "trajectory was clear." In this [sic] case, the interaction caused the victim to question her own judgment. She felt it was her own fault: para. 27. In the end, Ms. Hepburn received 12 months in custody on one count and 18 months in custody concurrent after the calculation of totality, plus two years' probation. [ 141 ] The next decision is R. v. P.E.S. , [2010] O.J. No. 1125 (O.C.J.) .

The offender was a well-respected hockey coach who was 43 years old. The victim was a 17-year-old female player who turned 18 years old. The offences involved sexual exploitation, oral sex, kissing, and hugging. The offender received a 120-day or four-month in-custody sentence before the application of time served. The resulting sentence was 114 days, which was three months and 24 days in custody (in jail), with three years' probation. [ 142 ] The next case is R. v. Olson , 2016 BCPC 150 . The 36-year-old teacher offended against a 17-year-old student. There was sexual intercourse.

The offender received a five-month custodial sentence in jail. I have here that it is written concurrent, so I suspect there were other offences as well, plus two years' probation. [ 143 ] The next case is R. v. Devic , 2018 BCSC 257 , in which a police officer arranged to meet someone whom he believed was under 16 years old, after an exchange of sexually-charged emails. He was the recipient of significant public shaming and humiliation. He received a four-month conditional sentence with 12 months' probation.

[144] R. v. Chen, 2017 BCSC 1689, affirmed 2017 BCCA 426, the offender piano teacher sexually assaulted five students agedbetween 11 and 20 years old by touching them over and under their clothing and kissing them a number of times. At sentencing, theoffender had a strong support system and had experienced a significant degree of shame and humiliation. The sentencing judge's sentenceof 75 days in custody on one count and four conditional sentences of 21 months (concurrent with each other but consecutive to othersentences) plus one year probation, was upheld by the Court of Appeal.

The Court of Appeal ruled that the situation involved a seriousbreach of trust, but that the sentencing judge was aware of the principles of denunciation and deterrence, and that the decision had beendriven by the judge's view of proportionality. [145] The last decision I will reference is the decision in R. v. D.M., 2021 BCSC 379, in which a father sexually exploited and sexuallyassaulted his daughter, aged 16 through 18 years old. He touched her breasts; he jiggled her breasts; [and,] he touched her buttocks andmassaged her back while pushing his erect penis against her buttock.

He received a 90-day intermittent sentence with two years'probation. DECISION [146] I turn now to my decision. [147] This case is both troubling and tragic for all parties. Learning that a once-admired and respected person has engaged in conductthat has injured others, particularly young persons, distresses everyone. LEGAL PRINCIPLES Primary Sentencing Principles [148] The decision in Friesen discusses in depth how sexual offences affect children, teenagers, and the community at large.

There canbe no doubt that the primary sentencing principles that apply to R.S.B.’s case are denunciation and deterrence, both specific and general.Although some of the victims were 18-year-olds when specific acts of sexual violence occurred, I find that similar principles apply tothose victims. [149] I accept that, to some extent, the stigma of an investigation and prosecution for a sexual offence, the loss of a career and one'sstatus in the community can also be seen as a form of punishment.

This stigma "brands a person for life, constitutes serious punishment,and is an important part of the way society brings offenders to account for their misconduct": R. v. D.E.S.M., (BCCA), [1993] B.C.J. No. 702 (B.C.C.A.) at para. 20. [150] Such public stigmatization may cause the offender to be ostracized by colleagues, friends, and others. Public shaming andhumiliation intensify this punishment. I accept that the widespread use of electronic and shared social media today amplifies theseeffects: Devic at para. 22. [151] I find that it is unnecessary to incarcerate R.S.B. to protect the public.

Rehabilitation [152] I turn now to rehabilitation. It remains an important principle that I must consider. As the sentencing judge, I retain the discretionto accord "significant weight" to other factors, including rehabilitation, in exercising discretion in arriving at a fit sentence in accordancewith the overall principle of proportionality: Friesen at para. 104. [153] Moreover, I am required to "encourage efforts toward rehabilitation because it offers long-term protection . . .

Rehabilitation mayalso weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourableto rehabilitation than prison": Friesen at para. 124, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 56, andciting R. v. Proulx, 2000 SCC 5 at paras. 16 and 22. [154] I find that R.S.B.'s conduct and efforts in the recent past and in his current circumstances offer good prospects for rehabilitation. Dr. Lewis’s Assessment [155] Dr. Lewis's report employed psychological tests which showed that R.S.B. had a generally negative self-perception.

She foundthat the psychological testing placed him at a below-average risk for being charged or convicted of another sexual offence. This meansthat he has few identifiable criminogenic needs and has clearly identifiable pro-social resources and strengths. [156] Dr. Lewis retained some concerns relating to what she called his "denial/avoidance" of the sexual component of his offending,which she found contradicted the victim's descriptions of "predatory" and grooming behaviour, his explicit sexual comments to them, andhis experience of unwanted intrusive sexual thoughts.

She was also concerned with his poor decision making when he decided tocontinue coaching after the controversy over his player interactions in 2008. R.S.B. coached his daughter's soccer team between 2009and 2019 for different town associations. I note that there is no information of any offending conduct or inappropriate conduct of anykind during that time period. [157] Dr. Lewis viewed his coping strategies, which centred on avoidance of risky situations, as insufficient.

She opined that he shouldnot have unsupervised access to females under 18 years of age, nor be in a position of authority over or have unsupervised contact withvulnerable persons. Her views on the latter, she said, should be reassessed after he has taken sexual offender treatment programming. [158] She found that he has general insight into the wrongfulness and harm caused by his behaviour. Excuse me. I find that R.S.B. has

general insight into the wrongfulness and harm caused by his behaviour, which substantially lowers his risk to reoffend and improves his ability to benefit from counselling. I accept that his offending centred on similarly-aged teens because he was coaching teams with players of those ages. However, I agree with Dr. Lewis that R.S.B. has further work to accomplish in understanding what caused him to interact with such younger persons in a sexualized and manipulative way. Dr. Bartel’s Assessment [ 159 ] Dr. Bartel echoed some of Dr.

Lewis's observations concerning R.S.B.'s significant level of anxiety and stress, but with a lesser degree of depressed mood. He concluded that in 2019, when R.S.B. was certified under the Mental Health Act and hospitalized, R.S.B. likely suffered from a major depressive disorder. He also found that R.S.B. possessed harsh self-criticism and self-doubt. He diagnosed R.S.B. with an adjustment disorder with mixed anxiety and depressed mood. This disorder typically resolves when the stressors resolve. [ 160 ] Dr. Bartel found R.S.B. to be pro-social with no indication of persistent antisocial traits.

There was no indication of lack of remorse, irresponsibility, repeated criminality, deceitfulness, or early-onset delinquency or recurrent aggression. Dr. Bartel concluded that R.S.B. does not appear to present, at this time, with any paraphilic disorder, meaning: no pattern of recurrent, intense sexual urges, fantasies, or behaviours that involve deviant or illegal sexual conduct. [ 161 ] His psychological testing found that R.S.B. is presently at a low risk for sexually inappropriate or offending behaviours in the future.

He also notes that R.S.B. has been offence-free for 14 years at this point, particularly while he has been coaching female soccer players. He has also received counselling about boundaries and insight into the inappropriateness of his behaviours. [ 162 ] Dr. Bartel underscores the deterrence flowing from the significant negative media attention and public scrutiny. Dr. Bartel did not find a risk for violent sexual offending or offending against children or teens under 16 years of age.

He also strongly recommended that R.S.B. complete sexual offender programs and treatment. [ 163 ] I accept that R.S.B. presents a low risk to reoffend on the spectrum of reoffending, given the holistic approach taken by Dr. Bartel in his assessment, as well as the structured professional judgment assessment tools he employed. PROPORTIONALITY [ 164 ] I turn now to proportionality. A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender, further to s. 718.1. [ 165 ] In this case, the seriousness of the offences is clearly substantial.

As mentioned earlier, the Friesen decision requires increased sentences for sexual offences against children and youthful victims to properly reflect the gravity of these offences and the moral culpability of the offender: Friesen at para. 75 . This increase reflects Parliament's decision to increase maximum sentences for these types of offences.

It also demonstrates the court's and society's more evolved and deepened understanding of the seriousness and harmfulness of sexual offences inflicted on children and teenagers: Friesen at para. 110 . [ 166 ] The Supreme Court of Canada has ruled that "imposing a proportionate sentence is a highly individualized exercise tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime": R. v. Nur , 2015 SCC 15 at para. 37 , citing C.A.M. at para. 80. Gravity of the Offences [ 167 ] The courts must recognize and reflect the harm and wrongfulness of sexual violations.

The courts must also reflect the life-altering consequences that flow from sexual violence against children and youths. Clearly R.S.B.'s offences -- excuse me, that is a reference to Friesen at para. 74 . Clearly R.S.B.'s offences fall on the serious end of the spectrum of offending. Degree of Responsibility [ 168 ] The breach of trust enhances the offender's degree of responsibility and moral blameworthiness: Friesen at para. 129 . [ 169 ] One of the main issues in this case is the degree of responsibility that can be attributed to R.S.B.

The question that has arisen is this: if the courts and society did not fully appreciate the seriousness and harms arising from sexual offences on children and teenagers, then should R.S.B.'s degree of responsibility or moral culpability be attenuated because he would not have fully understood them either? [ 170 ] R.S.B. submits that the Friesen decision did not deal with historical sexual offences. It attributed moral blameworthiness for offences committed at the time when the courts and society had a "modern recognition" of the harms of these offences: Friesen at para. 87 .

Given this growing understanding now, he contends that he faces significantly more stringent consequences than he would have reasonably contemplated (in terms of legal jeopardy or risk) at the time of the offences. [ 171 ] The defence uses the analogy of the distinct moral responsibility of offenders convicted of fentanyl-related offences before and after the demarcation point identified in R. v. Smith , 2017 BCCA 112 . The B.C. Court of Appeal ruled that the public did not become aware fully of the dangers of fentanyl until November 2016, when public health authorities and the coroner made it known.

In other words, moral blameworthiness could not be attributed at the same level for offences committed before November 2016. [ 172 ] Notwithstanding that this very able submission has intuitive merit [and] with the greatest of respect to able arguments, I am unable to accept it for the following reasons, many of which have been raised by the Crown: a. This issue has been considered by higher courts whose decisions are binding on me.

These decisions have ruled that Friesen applies to historical sexual offences committed before that decision was released: "Moreover, Friesen is not limited in its application to offences

committed after the decision was released. It is of general application and a clarion call to properly reflect the gravity of such offencesand the moral culpability of such offenders, no matter when the offence occurred": reference to R. v. A.H.K., 2022 BCSC 1563 at para.85, citing R. v. Plehanov, 2020 BCCA 249 at paras. 18 to 21; R. v. Z.K., 2021 BCSC 1926 at para. 24; R. v. Gerrard, 2021 BCSC 1219 atparas. 84 to 91; and R. v. Polay, 2021 BCSC 1872 at paras. 47 to 51. b. I agree with the Crown's submission that there is a distinction between an offender receiving the benefit of lesser punishment andprotection from retrospective statutory penalties pursuant to s. 11(

i) of the Charter, and increases in sentence arising from case decisions.While more severe legislative provisions relevant to the offences do not apply to the offender, the offender is still subject to thejurisprudence: R. v. Stuckless, 2019 ONCA 504 at paras. 61 and 112; R. v. Norberg, 2021 BCSC 2425 at para. 73; and R. v. X., 2022QCCA 266 at para. 21 to 22. c. I accept that R.S.B. considered J.D. to be closer to a peer and girlfriend. However, they both maintained secrecy about theirrelationship.

Despite his own relatively young age, he intuitively knew that they should not disclose the relationship to her family or theteam. d. The same applies to L.O. – he waited until the soccer field was empty and everyone had left; L.S. – he assured her father that hecould leave, and then took her to his place where the offence occurred; and M.S. – where he urged her to use the monikers Harry andSally and encouraged secrecy. e. Ultimately, I find that he had substantive notice on some level that his conduct with the players he coached was not entirelyappropriate.

This attracts a higher degree of responsibility, even for offences committed before the "modern recognition" of thewrongfulness and harm of his conduct. f. The analogy with fentanyl, while at first glance seems to apply, cannot. In the Smith decision, it was quite clear that scientificevidence established the demarcation point. TOTALITY [173] I turn now to the issue of totality. It is undisputed that the sentences should be consecutive, given that each must reflect separateoffending conduct, time periods, and victims. [174] It is also undisputed that the principle of totality reflected in s. 718.2(

c) applies to this case. This

section states that whereconsecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The purpose of the law is to ensure thatthe cumulative sentence rendered does not exceed the overall culpability of the offender. The totality principle also requires that theeffect of the cumulative sentence does not "impose on the offender 'a crushing sentence' not in keeping with his record and prospects": R. v. C.A.M., (SCC), [1996] S.C.J. No. 28 at para. 42, citing Clayton C.

Ruby, Principles of Sentencing, 4th Edition,Toronto, Butterworths, 1994, at pages 44 to 45. [175] This means that I must first fix a sentence for each offence. Next, I must take a final look at the aggregate or overall sentence.Then I am required to reduce the overall sentence if the total exceeds what is just and appropriate in the circumstances: C.A.M. at para.42, citing D.A. Thomas, Principles of Sentencing, 2nd Edition, London, Heinemann, 1979, at page 56; R. v. Adams, 2010 NSCA 42 atpara. 23.

CALCULATIONS Before Application of Totality Principle [176] I turn now to my calculations before the application of the totality principle. [177] Sentences of incarceration in some form are necessary, given the need to meet the principles of denunciation, deterrence, theimpact on the community and victims, while balancing the gravity of the offences and R.S.B.'s degree of responsibility. [178] I remain mindful that the victims were all in their late teens, that all the offences involved a breach of trust, but that R.S.B.'s riskof reoffending is low and his prospects for rehabilitation are very high. [179] Before the application of the principle of totality, I would impose on Count 2 (regarding the victim J.D. and sexual touching) 12months in custody.

This would reflect the emotional pressure that she experienced from age 16 through 17, and the prolonged duration,frequency of sexual violations, and degree of physical interference (which were profound while she was 17 years old, over the course ofa year). [180] With regards to Count 5 (the sexual assault of L.O.), I would impose a six-month custodial sentence consecutive to all others. Thiswould reflect R.S.B.'s inappropriate sexual interest in and psychological pressure on L.O., which spanned approximately two to threemonths while she was 18 years old.

His sexual violation occurred only once when he kissed her without her consent, although there wereinstances of unwanted hugs. [181] With regards to Count 6 (the sexual assault of L.S.), I would have imposed a seven-month sentence consecutive to all others. Thiswould show an increase from the earlier sentence, the other sentences, because of his prior unlawful conduct. There was no expression ofinappropriate sexual interest before the incident and no psychological pressure for intimacy or sexual contact.

His physical interferenceoccurred once for one to two seconds when he massaged her back and touched the side of her naked breasts for a few seconds while shewas 17 years old. [182] [On] Count 10 (the sexual assault of M.S.), I would have imposed a 15-month sentence in custody consecutive to all others. This

is because R.S.B. expressed inappropriate sexual interest before the incident and prolonged psychological pressure for intimacy and sexual contact while she was 17 years old. His physical interference was to kiss her cheek and stroke her neck in a sexualized context. The gap in time between the third offence and this offence is much less relevant given the prolonged pressure and wrongful acts by R.S.B. This reflects the profound age gap between him and M.S., at a time when R.S.B. was in no doubt about the wrongfulness and impact of his conduct on M.S., notwithstanding his mental health issues.

This sentence must be heightened due to its seriousness, particularly as the fourth in a series, but his moral culpability is reduced somewhat by his deteriorating mental health at that time. [ 183 ] The cumulative sentence would have been 40 months or three years, four months. However, I must now apply the principle of totality, which will reduce the overall sentence. I will now also determine whether some of the offences against L.O. and L.S. may be served in the community.

After Application of Totality Principle [ 184 ] After reviewing the cumulative sentence, I find that it is necessary to reduce the total sentence from three years and four months to ensure that the sentence is not "crushing" nor unduly long or harsh, given R.S.B.'s antecedents and prospects. [ 185 ] Due to R.S.B.'s significant acceptance of responsibility, remorse, rehabilitative efforts, and low risk to reoffend, the sentencing principles can be satisfied by a custodial sentence in which the larger portion is served in a correctional facility and a smaller portion is served in the community on a conditional sentence.

Conditional Sentence [ 186 ] A conditional sentence is available for Count 2 relating to J.D., due to the decisions in R. v. D.M . , 2021 BCSC 379 , and R. v. Chen , 2021 BCSC 697 , which I am required to follow, and R. v.

Sharma , 2020 ONCA 478 . [ 187 ] R.S.B. is precluded from a conditional sentence on Counts 5 and 6 relating to L.O. and L.S. because the conditional sentence did not exist at the time of the offences and is now precluded by s. 742.1(f)(iii) because they are sexual assault offences prosecuted by indictment. [ 188 ] A conditional sentence is available for Count 10 relating to M.S., as it existed during a portion of the range of the offence dates in the indictment. [ 189 ] I note that in R.F.G., 2006 NBCA 104 , the New Brunswick Court of Appeal has stated that a conditional sentence could not meet the principles of denunciation and deterrence in that case.

R.F.G. involving a 13-year-old victim who was sexually assaulted by her 37-year-old teacher by kissing, touching, oral sex, masturbation, and vaginal intercourse. The sentencing judge's sentence of two years less a day on a conditional sentence was overturned on appeal and transformed into a two-year-less-a-day custodial sentence in prison.

I note the particularly aggravating young age of the victim and gap in age between the offender, as well as the significant degree of physical interference with a child. [ 190 ] Nonetheless, I am required by law to seriously consider the availability of a conditional sentence for eligible offences: Proulx at para. 127 . [ 191 ]

Section 742.1 governs when a conditional sentence may be imposed. Applying the requirements of s. 742.1, I find that the appropriate sentence -- okay, I think what I am going to do is, I am just going to say at this point that I am just going to read what my sentence is going to be. I am not imposing the sentence at this time, because I understand that we will be adjourning to address issues relating to the Sexual Offender Information Registry . [ 192 ] CNSL W. SMART: I think my friend and I -- our view is that you can impose your sentence. [ 193 ] THE COURT: Okay. [ 194 ] CNSL W.

SMART: Because it's a separate order and we can come before you in R.S.B.'s -- [ 195 ] THE COURT: All right. [ 196 ] CNSL W. SMART: -- absence, if you're agreeable. [ 197 ] THE COURT: Then I can just continue the sentencing and I will not be functus . [ 198 ] CNSL W. SMART: Yeah. [ 199 ] CNSL L. OSTRY: I think if -- if a custodial sentence is involved, you can sign the warrant of committal, the sentence can begin, but so long as you don't embark on the SOIRA portion, as I am understanding, you won't become functus . [ 200 ] THE COURT: Okay, thank you.

All right. [ 201 ] Applying the requirements of s. 742.1, I find that the appropriate sentence for Counts 2 and 10 will be less than two years on the basis of all the information I have received, and the principles that I have balanced. Counts 2 and 10 are also not subject to a mandatory minimum at this time. [ 202 ] I find that R.S.B. would not endanger the safety of the public if he served either of his sentences for Counts 2 or 10 in the community.

The real issue is whether I am satisfied that R.S.B. serving his sentence in the community for either Counts 2 or 10 would be consistent with the fundamental purpose and principles of sentencing.

[ 203 ] The Supreme Court of Canada requires that I start from the position that no eligible offence is precluded from consideration for a conditional sentence, and that conditional sentences are a punitive sanction that also permit rehabilitative aspects: Proulx at paras. 22, 127 (2) and (3).

The Supreme Court of Canada has also ruled that, as a punitive sanction, a conditional sentence can provide significant denunciation and deterrence: Proulx at para. 127 (8). [ 204 ] The primary need for denunciation and deterrence in these circumstances and for this offender are satisfied by the conditional sentence for Count 2 only, as the first offence and when combined with the longer total period of custody in a correctional facility for the other three offences.

Cumulative Sentence [ 205 ] I turn now to the aggregate or cumulative sentence. [ 206 ] The law requires that I do not deprive an offender of their liberty if less restrictive sanctions may be appropriate in the circumstances, further to s. 718.2(d). The law also mandates that I consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. (Sorry, I think I have omitted a word, just give me a moment here.

Yes.) That I consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders pursuant to s. 718.2(e). [ 207 ] I remain mindful of the seriousness of the offences and the moral culpability of R.S.B. in conjunction with his antecedents, rehabilitation, and low risk for reoffending. [ 208 ] The overall sentence in this case will be a custodial sentence of two years less a day, comprised of 15 months, 29 days served in a correctional facility, and eight months served in the community on a conditional sentence order.

Probation for three years will follow. [ 209 ] Probation is not limited to a rehabilitative objective. It may have a deterrent effect and serve to protect the public in some cases: R. v. Voong , 2015 BCCA 285 at paras. 37 , 39, 42 and 43. [ 210 ] Mr. Smart -- [ 211 ] CNSL W. SMART: Yes? [ 212 ] THE COURT: I will ask your view on this. Before I impose the allocation of sentence to each count -- [ 213 ] CNSL W. SMART: Yes. [ 214 ] THE COURT: -- I wish to alert you that I will require some further time to produce the conditions -- [ 215 ] CNSL W.

SMART: Yes. [ 216 ] THE COURT: -- for the conditional sentence order and the probation. I wish to produce them in written form for Madam Registrar so she has them accurately. I also wanted to canvass whether the parties wish to make any further submissions with regards to what those conditions should be. [ 217 ] CNSL W. SMART: If I could just have a moment? [ 218 ] THE COURT: Of course. [ 219 ] CNSL W. SMART: We made those submissions and I don't have any now on the CSO conditions, thank you. [ 220 ] THE COURT: Ms.

Ostry has provided prospective terms for probation in her written submissions, but did not provide any terms proposed for the conditional sentence. The reason I am raising the issue is that the conditional sentence must have a restrictive element to it involving house arrest or curfew and other restrictions. I wanted to turn counsel's mind to that issue. Are counsel available at two? [ 221 ] CNSL W. SMART: Yes, thank you. [ 222 ] THE COURT: May I at this point read out the sentence that applies to each term -- [ 223 ] CNSL W.

SMART: Yes. [ 224 ] THE COURT: -- without imposing it on R.S.B., and without having him taken into custody -- [ 225 ] CNSL W. SMART: Yes. [ 226 ] THE COURT: -- and stand down till 2:00 p.m. so that I can hear submissions with regards to, in particular, the conditional sentence? [ 227 ] CNSL W. SMART: Yes, thank you. [ 228 ] THE COURT: Is that -- [ 229 ] CNSL L. OSTRY: Yes, Your Honour. [ 230 ] THE COURT: All right. I am going to read them out now, R.S.B. I am not placing you into custody of the sheriffs and I am not

technically imposing the sentence on you at this time. CONCLUSION [ 231 ] With regards to Count 2 (the sexual touching of J.D.), the sentence will be eight months in custody to be served on a conditional sentence. This was the first offence and is entitled to a somewhat less restrictive sentence.

It meets the criteria for a conditional sentence and is appropriate given the overall sentence. [ 232 ] Count 5 (the sexual assault of L.O.) – the sentence will be a four-month term in custody in a correctional facility, consecutive to all other sentences. [ 233 ] Count 6 (which is the sexual assault of L.S.) – the sentence will be a term of five months in custody in a correctional facility, consecutive to all other sentences. [ 234 ] Count 10 (the sexual assault on M.S.) – will be a term of six months and 29 days in custody, served in a correctional facility and consecutive to all other sentences.

I anticipate that the term of probation will attach to Count 10 only. [ 235 ] All right, I will stand down at this point, unless there is anything else the parties wish to address. [ 236 ] CNSL L. OSTRY: I don't think at this point, Your Honour. [ 237 ] THE COURT: All right, thank you. [ 238 ] CNSL W. SMART: No, thank you. [ 239 ] THE CLERK: Order in court, all rise. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [SUBMISSIONS AT 2:07:11 P.M. TO 2:14:49 P.M.] [ 240 ] THE COURT: I make that indication, Madam Registrar.

To be absolutely clear, the conditional sentence order will follow the period of custody in a correctional facility, and after that the probation will follow. [ 241 ] CNSL W. SMART: I will just raise -- the only -- I don't want my client serving more time than necessary, but he may be on parole for part of the time, so it would be the conditional sentence order would follow the expiration of the jail sentences. The sentences on Counts 5, 6, and 10. [ 242 ] THE COURT: You are saying after warrant expiry, not statutory release? [ 243 ] CNSL W. SMART: Yes.

Well, I have to be candid, I'm a bit in the dark about how it works with corrections, but -- [ 244 ] THE COURT: I would expect that R.S.B. would receive either early release or some form of statutory release, except for the fact that you wish that he receive a certain amount of counselling and treatment, and that has a particular length, in the community. But that treatment is also available in the -- sorry, in custody - it has particular length. But it is also -- the exact same thing -- [ 245 ] CNSL W. SMART: Yes. [ 246 ] THE COURT: -- is available in the community.

So, I am less concerned about that. [ 247 ] I am still going to make the strong recommendation that he be at Ford Mountain, but if there was a way in which I could have the conditional sentence begin immediately upon his release from custody, I would prefer to do that. But I am unclear whether that is possible. That was always my intent, the minute he stepped out the door, he would be under the control of the conditional sentence order, house arrest, etc., etc. [ 248 ] What do you want to do? [ 249 ] CNSL L.

OSTRY: I have to say, I don't know enough about how it operates at corrections to answer. [ 250 ] THE COURT: If you think about how many years of experience are in this courtroom right now -- [ 251 ] CNSL L. OSTRY: Yes. [ 252 ] THE COURT: -- and none of us can put our finger on it. [ 253 ] CNSL W. SMART: No. [ 254 ] THE COURT: And I have

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