R. v. T.L.P., 2017 BCSC 1868

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. T.L.P., 2017 BCSC 1868 Date: 20171020 Docket: 25328-2 Registry: Quesnel Regina v. T.L.P. - and - Docket: 26049-2 Registry: Quesnel Regina v. T.L.P. Restriction on publication: Pursuant to s. 486.4(2) and 539.1 of the Criminal Code of Canada Before: The Honourable Mr. Justice Davies Reasons for Judgment Counsel for the Crown: J.C. Johnston Counsel for the Accused: M.J. Anderson Place and Date of Hearing: Quesnel, B.C. September 7-9, 13-14, November 30, December 1-2, 2016 and July 4-6, 2017 Place and Date of Judgment: Quesnel, B.C.

October 20, 2017 Table of Contents INTRODUCTION .. 4 ISSUES .. 4 BACKGROUND .. 5 ANALYSIS AND DISCUSSION .. 17 1) The dangerous offender and long term offender provisions of the Code . 19 2) Concessions and Admissions made by T.L.P. 24 3) Are sexual interference under s. 151 of the Code and/or invitation to sexual touching under s. 152 of the Code “serious personal injury offences”? . 25 4) Do the principles enunciated in Kienapple , apply to some of the offences of which T.L.P. has been convicted? . 33

a) Should the convictions of T.L.P. for sexual assault under s. 271 or for sexual interference under s. 151 be conditionally stayed? . 34

b) Should convictions of T.L.P. for invitation to sexual touching under s. 152 of the Code be conditionally stayed? . 39

5) T.L.P.’s personal history . 42 6) Psychiatric Opinion Evidence . 54

a) Dr. Herv é ’s opinion . 56

b) Mr. MacNeil’s opinion . 63 7) Has the Crown established that T.L.P. is a dangerous offender? . 71

a) Does T.L.P. suffer from a delusional disorder? . 72

b) Is T.L.P. genuinely motivated and amenable to rehabilitative treatment? ...... 73

c) Is the risk that T.L.P. will in future re-offend against prepubescent female children limited to situations where he is “in the community unsupervised, without restrictions and having access to children within a home environment”? . 75

d) Conclusion on designation issue . 76 8) The appropriate determinate sentence for T.L.P.’s offending . 77

a) Applicable principles of sentencing . 79

b) The sentences to be imposed upon T.L.P. for his sexual offending against his child victims 86

i) T.L.P.’s offending against C .. 87 ii) T.L.P.’s offending against K .. 87 iii) T.L.P.’s offending against J . 88 iv) T.L.P’s offending against A .. 89

v) T.L.P.’s offending against X .. 90

c) The sentence to be imposed upon T.L.P. for Possession of Child Pornography 91

d) Application of the totality principle . 91

e) Time served after conviction . 91

f) Ancillary sentencing orders . 92 9) The necessary Long Term Supervision Order 93 DELIVERY OF REASONS .. 94

SUMMARY .. 95 INTRODUCTION [ 1 ] On March 6, 2015 I convicted T.L.P. of 13 counts on a 16 count indictment for sexual offences committed against five very young female victims, all but one of whom were his nieces. [ 2 ] The offences occurred over a period extending from 2001 to 2013. The circumstances of his offending and those of his victims are recorded in my reasons for conviction filed under Neutral Citation 2015 BCSC 618 .

In these reasons I will use the same initials for each victim that I used in my reasons for conviction. [ 3 ] The Crown has applied to have T.L.P. declared a dangerous offender under s. 753(1) of the Criminal Code , R.S.C. 1985 c.

C- 46 [the Code ] and seeks a determinate sentence of from 12 to 16 years followed by a ten year Long term Supervision Order. [ 4 ] T.L.P. submits that the Crown has not established the statutory criteria for designation of him as a dangerous offender. [ 5 ] He does, however, admit that the totality of the circumstances of his offending establish that he should be sentenced as a long term offender under s. 753.1(1) of the Code and he accepts that the appropriate length of a Long Term Supervision Order is ten years. [ 6 ] T.L.P. submits that a global determinate sentence of six years together with that Long Term Supervision Order will appropriately address his offending.

ISSUES

[7] As a consequence of: 1) Concessions and admissions made by T.L.P. that require that he be sentenced as either a dangerous offender or a long termoffender and after; 2) The submissions of both the Crown and defence that T.L.P. should be subject to a determinate sentence followed by a ten yearLong Term Supervision Order; only the following contested issues remain to be decided: 1) Has the Crown established that T.L.P. is a dangerous offender rather than a long term offender? 2) Are sexual interference contrary to s. 151 and invitation to sexual touching under s. 152 of the Code “serious personal injuryoffences” under

Part XXIV of the Code? 3) Do the principles enunciated in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 [Kienapple] apply to some of thesexual offences of which T.L.P. has been convicted to avoid multiple convictions for the same criminal wrongdoing? 4) What is the length of the appropriate determinate sentence for T.L.P.’s offending? BACKGROUND [8] Although I convicted T.L.P. of sexual offences that occurred between 2001 and 2013 the Crown does not rely on theconvictions for his offending in 2001 as a predicate offence with respect to these dangerous offender proceedings.

The Crown relies onlyupon the convictions for his offending against his four nieces over the period from 2011 to 2013 as predicate offences. [9] The Crown takes that position because the offences against C (to whom T.L.P. was not related but whose home he was sharingwith her parents), for which he was convicted of sexual assault and invitation to sexual touching for his offending occurred between 1997and 2002.

Accordingly, the application of principles and legislation that pre-dated the 2008 amendments to the dangerous offenderprovisions of the Code would apply to the 2001 offences and unnecessarily complicate statutory considerations related to his lateroffending. [10] Given that the application of those earlier statutory considerations is not necessary to the decisions I must reach and would notsubstantively effect the result of these proceedings the Crown, without opposition by T.L.P. seeks consideration of the offencescommitted against C only as part of a pattern of offending when considering whether T.L.P. should be designated a dangerous offenderunder the present statutory regime and with respect to the appropriate determinate sentence for T.L.P.’s offending against C. [11] The predicate offences for which T.L.P. has been convicted and upon which the Crown does rely in seeking a dangerousoffender designation were committed by T.L.P. against his four nieces over a period of from January 1, 2011 to January 4, 2013. [12] Those convictions were for: 1) Sexual assault, invitation to sexual touching and sexual interference against his niece K who was then 9 or 10 years old each ofwhich offences occurred on two occasions between January 1, 2011 and January 4, 2013; 2) Sexual assault, invitation to sexual touching and sexual interference against his then 4 to 5 year old niece J which occurredconsistently over a nine month period from February of 2012 to December of 2012; 3) Sexual assault, invitation to sexual touching and sexual interference against his then seven year old niece A which occurredover an 18 hour period on December 31, 2012 through January 1, 2013 when T.L.P. was babysitting A and her younger sister X; and 4) Invitation to sexual touching against his then five year old niece X which also occurred between December 31, 2012 andJanuary 1, 2013 when T.L.P. was babysitting X with her older sister A. [13] In addition to those convictions, as a consequence of steps taken during the investigation of the offences against his nieces,T.L.P. was found to be in possession of child pornography. [14] At the conclusion of the hearing of submissions on these dangerous offender proceedings, T.L.P. pleaded guilty to possession ofchild pornography under s. 163.1(4) of the Code. [15] The Crown and T.L.P. then jointly submitted that the appropriate sentence for that offence (the subject of the indictment filed inQuesnel Registry 26049-2) is one year to be served concurrently with the determinate sentence to be imposed by me with respect to thepredicate offences and the offences committed by T.L.P. against C. [16] I have accepted that joint submission. [17] In order to put in perspective the competing positons of the Crown and T.L.P. with respect to the substantive issues now to bedecided under

Part XXIV of the Code and to give context to the opinions of the Crown and defence psychological experts who filedreports and testified it is, unfortunately, necessary to repeat in some detail the circumstances of T.L.P.’s offending against his nieces, myassessment of the denials of criminal liability that he advanced, and before my findings of credibility. [18] I start with my observations concerning T.L.P.’s offending against J in respect of which I stated at paras. 76 to 101 of myreasons for conviction:

[76] I will not specifically detail all of the evidence relating to allegations against the accused involving the complainant J., which are the subject of Counts 10, 11, and 12 which respectively charge sexual assault under s. 271(1), sexual interference under s. 151, and invitation to sexual touching under s. 152 . [77] I do, however, regret that I must, in order to sufficiently explain my reasons for judgment refer to some of that evidence. [78] J. was subjected to the accused's involvement in her childhood sexual development when he came to live with his sister and her husband in Prince George in February of 2012. [79] He says he became involved with J. because she came to him and said she thought her daddy was hurting her mommy.

The accused says he realized that what J. was concerned with was only her parents love-making but then decided to embark upon the methodology espoused by Anonymous of teaching J. about sex and sexual activity at the age of four going on five. [80] The accused testified that the methodology he employed with J. and which he had helped in some part to develop would follow a series of steps engaged in over time. In

summary, those steps with J. included: • general discussion about sex in which he explained that her father was not hurting her mother, followed by; • a discussion about body parts, during which both he and J. were naked in which he showed her, with particularity, the makeup and different names for the parts of her vagina and the purposes for each.

He also showed her his penis; • a demonstration of "all the common sex acts" she might eventually be forced to engage in by a pedophile in which, while clothed and without penetration by him but with body-to-body contact, he demonstrated each sexual position and described to her in words what would occur with respect to each position, followed by; • an oral sex act which he said was designed to give her intense sexual pleasure by sucking momentarily on her urethra but which would almost immediately give rise in her to a belief in a need to urinate.

He testified that the intent of that oral sex act was to show pleasure but prevent her from seeking it again with others because of the following urge to urinate; • after that, a discussion of the dangers of sex, including danger that could result from J. herself seeking sex or becoming prey to abusers; • those steps were followed by months of sexual role-playing based on games that J. would engage in that were based on real-life sexual abuse situations in which the goal was for J. to stop the abuser or have him caught out; and • this process was initiated to gain the child's trust to become part of her inner circle so that secrets could be kept and her sexual energy would be directed to him in future. [81] The evidence establishes that these steps were played out by the accused with J. over a period from February 2012 to sometime in December of 2012.

The evidence also establishes that the incident of oral sex I have referred to occurred in the first three months after the accused moved in with J.'s family. Accordingly, I find that it occurred after February and before June of 2012. [82] Significantly, the issue of sexual discussion between the accused and J. came to the attention of J.'s parents sometime after the incident of oral sex to which I have referred. [83] At about that time, J.'s parents had told J. not to sleep in the accused's bedroom, and she was upset.

The accused testified that he thought J.’s parents were being unreasonable so he asked her mother whether he could have permission to talk to J. if she came to him about sex or sexual touching without having to disclose it to her parents unless it was important. He said that J.'s mother agreed that it would be good for J. to have a confidante and that he could do so. [84] Whether that was or was not said by J.’s mother, I do not know.

What I do find has been established by the evidence is, however, that is that in obtaining whatever consent he may have obtained the accused never told J.'s parents about what he had already been doing by way of discussion and demonstration and his actual sexual activity with J. including the oral sex act he had performed on her. [85] I am satisfied that the accused knew that if he had told them what he was actually doing, any further relationship with J. and opportunity to pursue his methodology to carry out that which he wished to do with her would end.

I find he did not fully disclose, because of his disregard and disrespect for those social norms with which he does not agree and that he manipulated the situation for his own purposes. [86] In the result, J.'s parents did not know of the accused’s sexual involvement with J. until January 1, 2013, when his action with J.'s cousins A. and X. that occurred on December 31, 2012, came to be known by their parents who then immediately informed J.'s parents. [87] The totality of the evidence to which I have referred, and also much of which I have not, related to the specifics of the demonstration, vocabulary, and role-playing stages of the process by which he sought to indoctrinate J. convince me beyond any doubt that the accused is guilty of both sexual interference and sexual assault on Counts 10 and 11 with respect to J. [88] I find, more specifically, that the act of oral sex I have referred to was intended by the accused to be for the sexual gratification of J.

Whether she was able to be so sexually gratified or not, that was his admitted intention. [89] I also find that the totality of the methodology employed by the accused violated J.'s sexual integrity and that the accused’s assertion that it was "educational" or "protective" does not preclude those actions having been taken for a sexual purpose. [90] Sexual interaction and sexual interference with a four to five-year-old child was the purpose of the methodology, and I am satisfied by the accused's secretive actions and disingenuous seeking of J.'s parental permission to talk to J. that he knew what he was doing was for a sexual purpose.

[91] The evidence also satisfies me that the accused's fostering of a secret relationship by entry into J.'s inner circle of trust in which hehoped she would come to him in relation to sexual matters amounted to sexual domination of her. [92] In my view, the accused’s actions and deliberate following of the methodology he had helped to develop amounted to little morethan the methodology by which pedophiles groom their victims. [93] There is one further aspect of the accused's sexual involvement with J. that I must reluctantly discuss. [94] The accused testified that an incident occurred when J. had hurt herself while masturbating.

He said he encouraged her tomasturbate but also that he wanted her to know that she should stop using sharp objects in her vaginal and anal areas that might hurt hersensitive skin. [95] He said he used a toy taken from a toy box holding toys which she could be using to masturbate that looked like a piece of corn andrubbed it on her anal area which caused her pain so that she would be more careful.

I am satisfied that the totality of the context of thatincident proves beyond a reasonable doubt the accused's guilt of sexual interference and sexual assault. [96] It also proves beyond a reasonable doubt his guilt of the offence of invitation to sexual touching under s. 152, which includesinvitation or counselling to touch for a sexual purpose and also includes invitation, incitement, or counselling by the accused for thecomplainant to touch him or herself. [97] The accused admitted that masturbation is for a sexual purpose. He also asserted that it is a regular occurrence in young children,and he may be right.

While it is not a crime for a child to masturbate, it is a crime for an adult to counsel or incite the child to do so. [98] I am also satisfied that the entirety of the accused's methodology in teaching about sexual body parts while both he and J. werenaked, his discussion and demonstration of various sexual acts, as well as his sexual role-playing with her, constituted in their entirety aninvitation by his actions to touch himself for a sexual purpose.

There was no other purpose. [99] The role playing and instruction all involved direct and indirect sexual touching by his invitation, with or without clothing. [100] Further, actual touching is not necessary to establish the essential element of the offence of invitation to sexual touching. See R. v.Sears (1990), (MB CA), 58 C.C.C. (3d) 62 (Man.

C.A.). [101] I accordingly find the accused guilty also of Count 12 with respect to his involvement with J. [19] Concerning his offending against A, I stated at paras. 115 to 128: [115] I turn next to my determination of whether the Crown has proven the guilt of the accused beyond a reasonable doubt in respect ofCounts 1, 2, and 3 alleging sexual interference with, the sexual assault of, and the invitation to sexual touching of the complainant A. [116] These events occurred on the evening of December 31, 2012, into the early hours of January 1, 2013, when the accused was alonewith A. and her sister X. in their home.

He was responsible for the overnight babysitting of the children while their parents, brother, andtheir older sister K. were out together for a New Year's Eve gathering and overnight stay with friends. [117] The background to these events as related by the accused was that he was concerned by actions and words by A. at a Christmasparty some six weeks earlier that she might be being sexually abused by her father. [118] He testified that he had since then been waiting for an opportunity to address those concerns with A. to discover whether there hadbeen any sexual abuse of her.

He said he believed there was some urgency and had anticipated an overnight stay by A. with the accusedand her cousin J. at J.'s home where he could investigate.

That did not occur, however, and the first opportunity he had to inquire furtherof A. came on New Year's Eve when he was charged with the responsibility of looking after her and her younger sister X. [119] I need not provide great detail as to what occurred because the accused admitted that he followed the same “pedophile-proofing”steps with A. that he had done with J. but did so in an 18-hour rather than a nine-month period of time. [120] The accused admitted to the same discussions of sex; sexual vocabulary lessons without clothing on to properly name all of theparts of A.'s vagina; his own nakedness to show her his penis; demonstrations, with clothes on, of the sexual positions that people engagein with words and actions; the same act of oral sex he had performed on J. to show her the pleasure of sex but also create the false need tourinate; and, the role-playing of sexual abuse games. [121] A. was seven years old at the time.

Her sister X. was five and watched much, if not all, that happened between her sister and theaccused. [122] The accused also showed both girls pictures on his computer showing sexual actions of adults in an orgy scene as well as picturesof a young girl's face showing facial expressions while experiencing oral sex. [123] The accused testified that his concerns about sexual abuse of A. by her father were eliminated during the discovery stage of hisinvolvement with A. and his examination of her vagina, which he said disclosed to him that her hymen remained intact.

He also admittedthat during the demonstration/vocabulary stage, he tried to get an erection to show A. what an erect penis would look like but could onlyget a partial erection. When A. asked whether she could touch it, he said she could, and she did. [124] I am satisfied the Crown has proven beyond a reasonable doubt that the accused is guilty of sexual interference, sexual assault, andinvitation to sexual touching with respect to A. as charged. [125] I reject entirely, as I did with respect to J., his assertions that these acts were not for a sexual purpose.

That was the only purposefor them, and the suggestion that they were for education or “pedophile-proofing” of a six or seven-year-old girl wholly fails to

acknowledge or respect the violation of A’s sexual integrity, the gratification sought to be given to her by the creation of pleasure by oral sex, and the domination of the her by seeking to become a part of her inner circle. [126] I am also prepared to accept A.'s evidence that the accused put his penis into A.'s mouth that night.

A. was a very good witness for her age and could communicate what happened to her with the accused more easily than her younger cousin J. could do. [127] The accused also acknowledged in cross-examination that he could not deny that he had put his penis into A’s mouth, although he did not recall doing so, because of the18 hour length of time over which these episodes had occurred and because he was suffering from the effects of insomnia. [128] That evidence of the accused having no specific recall, when contrasted with his absolute denial of the similar allegations made by C., and A’s convincing evidence lead me to believe that the accused did in fact put his penis into A.’s mouth as she testified. [ 20 ] Concerning the specific offences committed by T.L.P. against X as a participant in his actions with her sister A that same night I found at paras. 131 to 138: [131] As I have already said, X. was present during the sexual interactions between the accused and her sister A. most which she watched.

The evidence is unclear as to the extent of any actual touching of X. by the accused, and I am not able to say that actual touching by him did occur. [132] There is some suggestion in his statement to the police that he examined her vaginal area to see if her hymen was also intact. While the accused denied touching her to do so he did admit that X. took her pants off, put her legs in the air, and spread her legs so he and A. could look closely at her vaginal area.

The same had occurred when A. was examined by the accused, and during that process, X. had also helped and observed. [133] While I think it is likely that the accused did touch X. while examining her vagina, I cannot find beyond a reasonable doubt that he did so.

In the face of his denials, as well as those of A. when she testified that the accused had not touched X., and since I have found A. to be a credible witness, I am satisfied that I must acquit the accused of the sexual interference with and sexual assault of X. alleged in Counts 4 and 5. [134] I do not, however, have a reasonable doubt of the accused's guilt with respect to Count 6. [135] The totality of the circumstances that night and the accused’s sexual involvement with both X. and A, was concerned with sexual knowledge and his satisfaction of the children’s sexual curiosity.

The accused fostered that with his words, actions, and with pornographic images. He also performed oral sex on A. in the presence of X., who saw other naked and non-naked sexual role-playing and participated - other than as one of the sexual participants-in some of that role-playing. [136] The totality of those circumstances constituted an invitation of X to touch contrary to s. 152 of the Criminal Code . She availed herself of that opportunity by helping to examine A.'s vaginal area either with or without touching. She also touched herself while examining her own vaginal area.

In addition, had X wanted to touch the accused’s penis as her sister did, he would have allowed that to occur. [137] I am satisfied that notwithstanding the accused's testimony about his lack of a sexual purpose, the totality of those circumstances constitute an invitation to X to touch for a sexual purpose. [138] That is especially so given his desire to engender trust so that he could dominate both A.'s and X.'s future sexual instruction without parental understanding or knowledge. [ 21 ] As to T.L.P.’s offending against A and X’s older sister K, I found at paras. 102 to 114: [102] I will next discuss the charges against the accused involving his niece K. in Counts 13, 14, 15, and 16 of the indictment. [103] The first two of these counts alleged sexual interference under s. 151 and sexual assault under s. 271 that allegedly occurred in Quesnel.

The second two allege the same offences but that they occurred in Prince George. The evidence establishes that the four charges involve two incidents while K. was six or seven in the fall of 2012 but she may even have been eight years of age. Although the evidence does not allow me to be more precise K. was, in any event, well under the age of 16. [104] On the first incident which occurred in Prince George, while they were sitting on a hill, the accused asked K. whether she wanted to learn about sex and what to do if someone did something wrong to her. She said she knew what to do.

She would tell her mother. [105] The accused proceeded to explain that was not right because she first had to engage in a process by which she said no, and if it that was not accepted, she had to give a second rejection, a “notice of default”, and if necessary repeat it, and then if the individual persisted, tell her mother. [106] In doing so, the accused testified that he demonstrated his teaching by putting his hand over her vaginal area, while K. was clothed, to show what would be the appropriate response and the sequence of those responses.

He also told her that she had to reject by words or actions because silence means consent. [107] After that event, the accused testified that he was satisfied that no further lessons were then needed. [108] However, a second episode occurred in Quesnel while the accused and K. were sitting and watching a movie, at which time he put his hand on her stomach to see whether she had learned her lessons from before. He said he slipped his hand under her panties at the waist level and that she did not say no.

He then asked if she had forgotten, and he said she said, "No, you said silence could mean yes," and he told her, "No, not with your uncle."

[109] K. testified that the accused actually touched her vagina under her clothing. She also said the accused told that her sex felt good. [110] K. was a good witness but, like any child witness, was confused as the timing of events. She was also testifying about events that had occurred more than two years earlier. [111] While I believe that what K. testified to about the two incidents was likely true, I am not satisfied on the totality of the evidence that I can make a finding of fact that the second incident happened as she said.

In saying that, I take into account the accused's denials and that K.'s memory was understandably imperfect. [112] It does, however, in any event, not matter whether the touching in which the accused engaged with K. included direct touching of her vagina. He admitted touching her over the area of her vagina on the first incident and on her skin above her vagina on the second. [113] The purpose of that touching could only be sexual since the only context of the events was concerned with sexual activity with a seven or eight-year-old child whom he ought not to have touched in any way in those areas.

In doing so, the accused violated K.’s sexual integrity twice and, in the second incident, sought to re-enforce his domination of her sexual thinking that he had commenced with the first episode. [114] I find the accused guilty of sexual interference and sexual assault on Counts 13 and 15 as well as on Counts 14 and 16. [ 22 ] In those passages and in relation to those findings I made reference to defences asserted by T.L.P. (who was unrepresented at trial) in seeking to excuse his offending. [ 23 ] Those failed defences also remain relevant to the issues now to be decided and the psychological expert opinions adduced by the Crown and T.L.P. [ 24 ] In

summary, the defences advanced by T.L.P. were that: 1) notwithstanding the legal incapacity of his victims to consent to the sexual offending against them they were still somehow capable of consenting to that offending; and 2) the sexual activity in which he engaged with his victims was not for a sexual purpose. [ 25 ] Concerning T.L.P.’s assertion of a defence of “consent” I found at paras. 32 to 38: [32] Although the accused did admit to knowing the complainants’ ages he did nevertheless seek to suggest that the five children were somehow capable of consenting to the sexual offending with which he is charged. [33] Those suggestions were made by the accused not only in his testimony at trial but also in the statement he made to the police on January 1, 2013. [34] I specifically advised the accused that consent was not and is not a defence to the sexual offences for which he is charged.

I gave that advice because of the provisions of s. 150.1 of the Criminal Code which provide that: 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 . . . or is charged with an offence under

section 271 . . . in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [35] That provision makes any suggestion by the accused of the complainants’ consent legally inapplicable. [36] The accused's testimony concerning his belief in the ability of a child of tender years to consent is based upon his adherence to a belief system espoused by those persons who style themselves Freemen-on-the-Land or some iteration thereof. [37] To the extent I understand his evidence, the accused says that consent is a matter of contract formed by offer and acceptance in social settings in which, unless an offer is refused and notice of refusal given to the offeree, consent is established.

He asserts also that silence in the face of an offer, whether verbal or physical, for example, an unwanted touching of a person, can result in acceptance and therefore establish consent. [38] While the accused is entitled to his beliefs and may seek to govern his own conduct by them, they do not form part of Canadian law and, most particularly, do not override the provisions of the Criminal Code of Canada , enacted for the protection of children, to which I have referred. [ 26 ] I then went on to discuss T.L.P.’s assertion that his actions were not for a sexual purpose.

At paras. 39 to 42 I stated: [39] Other than the repugnant notion that children of the ages of these complainants could consent to the sexual activity for which he has been charged, the accused has also sought to justify and decriminalize his behaviour by reference to what he considers to be appropriate methods to teach children of tender years about all aspects of sexual activity they might encounter so that they will not become victims of sexual predators.

He also espouses the theory that if such children do become sexual victims, they will know that they are not to blame and will not suffer guilt. [40] A part of his theory also is that children of tender years are inherently sexual and that if they are not properly taught about sexual activity in all of its aspects and possibilities so that they will have full knowledge about those sexual topics, they will explore sexuality in ways that might prove harmful to them and prevent healthy sexual development in later years into their adulthood. [41] Those notions have become an essential part of the accused’s belief system based upon his observation and participation in discussions about child sexual abuse and pornography and child development on a website he identified as "Anonymous," which he

believes to be credible and in respect of which he has contributed. [42] Primarily, based upon those theories, the accused testified and has submitted that the admitted sexual activity in which he engaged with the complainants and most specifically with, his four nieces, were not engaged in for a sexual purpose.

He says they were engaged in solely for the purposes of teaching and development of trust relationships with them that would encourage them to come to him with sexual issues, questions, or concerns in the future after having been so instructed. [ 27 ] I also stated at paras. 68-75: [68] Before proceeding to discuss the specifics of the sexual offences alleged against the accused involving his four very young nieces, I will make some general observations that pertain to all four children and the accused's sexual involvement with them. [69] In doing so, I am not using the evidence in relation to any one count or set of counts to determine issues specific to another count.

The observations and findings I now make are founded in the whole of the evidence and, most specifically, in my assessment of the accused's own testimony as to why he has done what he has done. [70] Firstly, I find that the evidence establishes that the accused has become obsessed with childhood sexuality.

When that obsession first arose is not capable of determination on the evidence at this trial, but I have no doubt that it had started by at least 2001 when he became sexually involved with C. in violating and dominating her sexually. [71] Secondly, I find that his obsession continued and became more entrenched in the years leading up to 2012 when his actions which are the subject of these proceedings escalated to involve his four nieces.

That obsession is evidenced by his acknowledgement of the influence of the website "Anonymous" on his thinking and what he says is his study and knowledge of the subjects of child pornography, child sexuality, childhood sexual development, and the effect of sexual abuse on children in years following such abuse. [72] Thirdly, I find that the accused decided that his knowledge of childhood sexuality, which he believed exceeded that of the general public and the children's own parents, coupled with his Freeman philosophies, led him to believe that he had the right to insert himself into the lives of his nieces in areas which he knew were primarily the responsibility of their parents even though he knew they were all good parents because the accused believed he had some obligation to "pedophile-proof" the children. [73] That concept of “pedophile-proofing” was something which he had discussed on Anonymous and had participated in developing.

Part of that participation included techniques that he deliberately later engaged in with respect to his youngest nieces, in part, to seek to bring himself into their “inner” circle so that they would in future come to him with sexual questions and keep the specifics of his techniques secret. [74] Fourthly, while he says that what he was doing was for the sexual protection of the children, his waiting for times in which there was no parental or other adult supervision of his interaction with the children leads me to the conclusions that the accused not only knew that what he was doing would be seen to be wrong but was still prepared to deliberately engage in those because he was convinced of his superior knowledge and abilities as well as the correctness of his philosophies concerning childhood sexuality and development which he believed should prevail over the rights of his nieces' parents. [75] Fifthly, I am satisfied that the accused’s unfounded belief in the superiority of his knowledge, coupled with his other philosophies, caused him to disregard known social norms of which he was well aware, but with which he did not agree, because they conflict his own views of the world.

He did so in deliberately seeking out his nieces for sexual instruction and philosophical teachings that he considered appropriate, notwithstanding their tender ages.

He also did so notwithstanding that what he was doing in secret to build trust by exposing the children to what he believed had no potential for lasting harm because he said he was trying to protect them from abusers they might encounter in the future. [ 28 ] The continuing significance of the assertion of those “defences” to his offending, which he sought to justify as “paedophile proofing” or “pedo-proofing” in this dangerous offender proceeding relates to the extent to which he still adheres to the beliefs he expressed and the impact of that upon whether the Crown has established that T.L.P. should be designated as a dangerous offender rather than a long term offender.

ANALYSIS AND DISCUSSION [ 29 ] To put the competing positons of the Crown and T.L.P. as to whether the Crown has established that T.L.P. should be designated a dangerous offender rather than a long term offender as well as the length of the appropriate determinate sentence for his offending I will: 1) discuss the applicable statutory provisions and relevant authorities that inform the designation decision to be made; 2) review concessions and admissions made by T.L.P. and their impact upon that issue; 3) consider and determine whether sexual interference contrary to s. 151 and invitation to sexual touching under s. 152 of the Code are “serious personal injury offences” under

Part XXIV of the Code; 4) consider and determine whether the principles enunciated in Kienapple , apply to some of the offences of which T.L.P. has been convicted; 5) consider T.L.P.’s personal history in the context of his offending; 6) discuss the expert psychological evidence adduced by the Crown and T.L.P. as it relates to the designation issue;

7) decide the designation issue; 8) decide upon the length of the determinate sentence appropriate for T.L.P.’s offending; and 9) deduct from the determinate sentence the credit to which T.L.P. is entitled for his post-conviction incarceration from March 6, 2015 to October 20, 2017 awaiting the completion of these sentencing procedures under

Part XXIV of the Code . [ 30 ] I will then address ancillary sentencing orders that must be made in respect of T.L.P.’s sexual offending and discuss the provisions of the agreed upon ten year Long Term Supervision Order appropriate for T.L.P.’s eventual control in the community. 1) The dangerous offender and long term offender provisions of the Code [ 31 ] The dangerous offender and long term offender provisions of the Code are set forth in

Part XXIV of the Code . The purpose of

Part XXIV as an adjunct of sentencing is the protection of the public. [ 32 ] In R. v Steele , 2014 SCC 61 [ Steele ] the Supreme Court of Canada observed at para. 1: Indeterminate detention and long-term supervision under

Part XXIV of the Criminal Code , R.S.C. 1985, c. C-46, are exceptional sentences in our criminal justice system. They are reserved for individuals who pose an ongoing threat to the public and accordingly merit enhanced sentences on preventive grounds .

Part XXIV outlines the process by which an offender may be designated as a dangerous offender or a long-term offender and be sentenced accordingly. Before either of these designations can be made, a number of conditions must be met . One such condition is that the offence that forms the basis for the dangerous offender or long-term offender application must be a "serious personal injury offence" ("SPIO") as defined in s. 752 of the Criminal Code. [My emphasis.] [ 33 ] All of the preconditions required by s. 752.01 of the Code for the institution of these proceedings against T.L.P. under

Part XXIV of the Code have been met by the Crown. [ 34 ] It is noteworthy that although T.L.P. was not required to do so, he co-operated in respect of those preconditions by: 1) not opposing his remand for assessment under s. 752.1(1) of the Code ; and 2) participating in that assessment by consenting to being interviewed by Dr. Hugues Herv é the appointed assessor. [ 35 ] Section 753(1) of the Code stipulates criteria which must be met by the Crown before a convicted offender can be designated as a dangerous offender . [ 36 ] The provisions specifically relevant to these proceedings state: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or … (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. …

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted …

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence . [My emphasis.] [ 37 ] Sexual assault under s. 271 of the Code is designated a “serious personal injury offence” under s. 752 of the Code and thus engages the provisions of s. 753. [ 38 ] I will later discuss the extent to which the convictions of T.L.P. for sexual interference under s. 151 of the Code and for invitation to sexual touching under s. 152 of the Code also constitute “serious personal injury offences” under s. 752 of the Code so as to also engage s. 753 . [ 39 ] Although T.L.P. acknowledges that his offending meets the statutory criteria to establish that he is a long term offender, it is useful to record the provisions of s. 753.1 that are specifically relevant to that designation. [ 40 ] In that regard, s. 753.1 provides: 753.1

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

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

b) there is a substantial risk that the offender will reoffend ; and (

c) there is a reasonable possibility of eventual control of the risk in the community .

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) ,… or s.271 sexual assault). and … … (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [My emphasis.] [ 41 ] It is also important to note that, s. 753(5)(

a) provides that if the court does not find an offender to be a dangerous offender under s. 753(1) it may in the same proceeding consider whether the offender is a long term offender under the provisions of s. 753.1 of the Code . [ 42 ] In this case, the most significant difference between a dangerous offender designation for T.L.P.’s offending as urged by the Crown rather than the long term offender designation acknowledged as appropriate by T.L.P. relates primarily to considerations as to whether the evidence establishes a likelihood that T.L.P. will re-offend sexually as he has in the past as opposed to a “substantial risk” that he will do so. [ 43 ] In other words, if the likelihood that T.L.P. will re-offend sexually as he has in the past is established by the evidence, the appropriate designation is that T.L.P. is a dangerous offender under s. 753(1) .

However, if the evidence falls short of establishing a likelihood of re-offending but establishes a significant risk of such re-offending the appropriate designation is that T.L.P. is a long term offender under s. 753.1 . [ 44 ] That difference engages issues of risk assessment and to a limited extent also engages questions of T.L.P.’s amenability to treatment. [ 45 ] The extent to which the issue of “treatability” is a factor in determining whether an offender meets the legislative criteria for designation as a dangerous offender as opposed to a long term offender was discussed by the Ontario Court of Appeal in R. v.

Szostak , 2014 ONCA 15 [ Szostak ] at para. 36 . In discussing the differences between prior dangerous offender legislation and that which was enacted in 2008, Rosenberg J.A. wrote for the Court: To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, there has been an important shift in the way in which the legislation works. The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition.

But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the

interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender . The possibility of successful treatment is

significant in choosing the appropriate disposition. [My emphasis.] [46] The Supreme Court of Canada dismissed the offender’s application for leave to appeal that decision. [47] I must, however, also note that: 1) the Ontario Court of Appeal’s decision in Szostak specifically did not consider the issues of amenability to treatment as aconstitutional issue; 2) in R. v. Boutilier, [Boutilier] Voith J. found that the present legislative framework is overly broad by precluding considerationof amenability of treatment at the designation stage.

He subsequently determined (reported at 2015 BCSC 901) that those overly broadprovisions were not saved by s. 1 of the Charter; 3) the British Columbia Court of Appeal overturned Voith J.’s decisions. See: R. v. Boutilier, 2016 BCCA 235; and 4) the Supreme Court of Canada granted leave to appeal the Court of Appeal’s decision in Boutilier on December 1, 2016 andheard the appeal on May 23, 2017.

The Court reserved its decision and no decision has yet been pronounced. [48] I am accordingly bound by the decision of the British Columbia Court of Appeal in Boutilier in which the Court stated atparas. 62 and 63: [62] The offender’s personal circumstances are relevant at both the designation and penalty stages. At the designation stage, the Crownmust establish the likelihood that the offender will cause future harm to others. It is at this stage that the extent of the offender’s elevatedrisk of harm is identified.

This can be achieved in part by the s. 752.1 assessment report, which will also provide some evidence of theoffender’s treatability. At this stage, consideration of the offender’s treatability for his identified risk of harm is limited because it isbased on the offender’s past conduct including the predicate offence(

s) and his present circumstances and characteristics. The inquiryrequires a prediction of the offender’s risk based on the probability that he will cause future harm to others. If the offender’s prognosis offuture risk is positive, the Crown is unlikely to succeed in establishing this criterion beyond a reasonable doubt and the designation willnot be made.

If it is not, the consideration of the offender’s future treatment prospects at the sentencing stage will assist the judge indetermining which of the sentencing options will provide the most responsive and proportionate disposition for the offender’s risk ofharm.

Last, I would note that none of the regimes have included the future treatment prospects of the offender at the designation stage.This was so in Lyons, where the two-stage legislative regime was found to be constitutional (at 334, 372). [63] Examining the offender’s future treatment prospects for his elevated risk of harm at the designation stage would not ensure theprotection of the public because the ability to manage the offender’s risk of harm would have to be assumed in the absence of theimplementation and monitoring of the proposed treatment. Nor could the benefits of an offender’s treatment be assessed.

As was noted inR. v.

Jones, (SCC), [1994] 2 S.C.R. 229 at 290: “[t]o release a dangerous offender while he remains unable to control hisactions serves neither the interests of the offender nor those of society.” Only at the sentencing stage can the effect of a proposedtreatment plan for the management of the offender’s risk of harm be effectively implemented and monitored through a custodialtreatment program in a determinate or indeterminate sentence, or a long-term supervision order or other supervisory order. 2) Concessions and Admissions made by T.L.P. [49] T.L.P. has conceded for the purpose of these sentencing proceedings that: 1) some of the offences for which he has been convicted constitute “serious personal injury offences” as defined by the Code andare therefore appropriate for consideration as predicate offences for the purpose of these proceedings under

Part XXIV of the Code; 2) T.L.P.’s behaviour constitutes a persistent pattern of behaviour as defined in the Code and in case law; 3) this pattern of behaviour shows a failure by T.L.P. to restrain his behaviour; 4) T.L.P.’s behaviour at the time of the commission of those serious personal injury offences for which he has been convicted hasshown an indifference to the consequences of his behaviour to other persons; 5) sexual assault is inherently violent and causes severe psychological damage to other persons, particularly children; 6) should T.L.P. commit further serious personal injury offences, the fact of his re-offence would create injury and evil to otherpersons as those terms are used in s. 753.1(2)(

b) of the Code; and 7) T.L.P.’s behaviour up to and including the serious personal injury offences for which he has been convicted represent a failureduring the period of the commission of those offences to restrain behaviour and sexual impulse. [50] Those concessions are all supported by the evidence adduced at trial and in this sentencing proceeding. 3) Are sexual interference under s. 151 of the Code and/or invitation to sexualtouching under s. 152 of the Code “serious personal injury offences”? [51] T.L.P.’s concession that “some” of the offences for which he has been convicted (sexual assault under s. 271 of the Code) are“serious personal injury offences” requires determination of whether the offences of sexual interference under s. 151 and/or invitation tosexual touching under s. 152 of the Code are also “serious personal injury offences” under the provisions of

Part XXIV of the Code.

[52] Consideration of that issue also touches upon the Kienapple issues raised by T.L.P. that I will later discuss. [53] The Crown asserts that sexual interference under s. 151 of the Code and invitation to sexual touching under s. 152 of the Codeare “serious personal injury offences” as the term is defined by s. 752 of the Code, referenced in s. 753 (1)(

a) as part of the phraseology: …the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of thedefinition of that expression in

section 752, and the offender constitutes a threat to the life, safety or physical or mental well-being ofother persons … [My emphasis.] [54] Although T.L.P. does not dispute that sexual interference under s. 151 is a serious personal injury offence for the purposes ofPart XXIV of the Code, that position is, at least to some extent, premised or dependent upon the Kienapple submission he advances thatthe convictions of him for sexual assault under s. 271 of the Code should be stayed in favour of the convictions for sexual interference. [55] I have accordingly concluded that it is necessary to address the underlying substantive issue without reference to T.L.P.’sconcession. [56]

Section 752(

a) of the Code provides: serious personal injury offence means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or [57] Given the role that statutory

interpretation plays in the determination of this issue it is important also to note that following thedisjunctive “or” at the end of s. 752(a), s. 752(

b) goes on to provide: (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to athird party or causing bodily harm) or 273 (aggravated sexual assault). [58] In some cases before the Supreme Court of Canada rendered its 2014 decision in Steele it had been held that in order toconstitute a serious personal injury offence, the Crown was obliged to prove that the offender’s victim had suffered “severe”psychological damage as a consequence of the offence. See for example R. v. White, (B.C.S.

C) and R. v. Harley,2000 BCCA 333. [59] In other cases, however, the contrary conclusion had been reached. See for example: R. v. Currie, (SCC),[1997] 2 S.C.R. 260; R. v. M.B.H., (Ont. C.A.) (which included convictions for one count of sexual interference andseven counts of invitation to sexual touching); and, R. v.

Webster, 2011 ONSC 2502 (which included convictions for multiple counts ofsexual interference). [60] I agree with the Crown’s submission that any disagreement in the authorities concerning the extent or seriousness of thephysical or psychological harm suffered by the victim as being necessary to qualify as a serious personal injury offence under s. 752 ofthe Code was settled in Steele. [61] At paras. 22 and 23 in Steele, Wagner J. wrote for a unanimous Court: [22] To determine whether an offence constitutes an SPIO, it is necessary to review the elements of the offence, but it may also benecessary, if that review is insufficient, to consider the factual circumstances in which the offence was committed.

Certain offencesautomatically constitute SPIOs regardless of the manner in which they are committed: s. 752, para. (

b) of the definition of “seriouspersonal injury offence”; see R. v. Currie, (SCC), [1997] 2 S.C.R. 260, at paras. 21-22. There are other offences thatalways constitute SPIOs in that one of their elements automatically satisfies the descriptive criteria set out in para. (

a) of the definition ofan SPIO. One example would be where personal violence or endangerment forms part of the definition of the offence: see, e.g., R. v.Cepic, 2010 ONSC 561, 93 M.V.R. (5th) 129, at para. 18. Robbery is clearly not one of this second type of offences, since it can involvethe use of violence or threats of violence to a person or property, whereas subpara. (a)(

i) of the definition of an SPIO refers only to theuse or attempted use of violence against another person: see Lebar, at para. 65. [23] Thus, the question is whether a robbery committed as in the instant case — by using threats of violence to a person, but withoutusing actual physical violence — satisfies the criterion of “use or attempted use of violence against another person” set out in thedefinition. I conclude that it does. I reach this conclusion in light of the modern principle of statutory

interpretation that the words oflegislation must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act,the object of the Act, and the intention of Parliament”: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. [My emphasis.] [62] At paras. 38 to 41 he also wrote: [38] This Court’s statement in Lyons (at p. 324) that the offences falling within the definition of an SPIO are “very serious violentcrimes” reflects the importance of the SPIO requirement in the overall scheme. Some courts took this statement to mean that in every

case the predicate offence must on its own warrant the kind of punishment imposed under

Part XXIV, but this represents an incorrectreading of Lyons. As this Court explained in Currie, at para. 28, the words “very serious violent crime” were used in relation to thespecific facts of Lyons and did not require that all predicate offences fit that description. A predicate offence must be serious, but thedegree of seriousness intended by Parliament is exhaustively set out in the definition of an SPIO in s. 752. [39] Paragraph (

a) of the definition in s. 752 requires, first, that the offence be an indictable offence, second, that the maximumsentence for the offence be imprisonment for 10 years or more and, third, that the offence involve (

i) the use or attempted use of violenceagainst another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely toinflict severe psychological damage on another person. In subpara. (a)(i), the word “violence” is not qualified, which means that thecriteria may be satisfied even if the violence in question is not in itself “serious” (see Goforth, at para. 21; Lebar, at para. 67; R. v. Smith,2012 ONCA 645 , at para. 2). The degree of seriousness intended by Parliament exists if all three requirements of the definitionare met.

Thus, an offence that involves the use or attempted use of violence against another person is not an SPIO under para. (

a) of thedefinition if it is not an indictable offence or if it is not punishable by a sentence of imprisonment for 10 years or more. Just as para. (b)of the definition does not invite the court to assess the manner of commission of the enumerated offences, subpara. (a)(

i) does not inviteit to assess the seriousness of the violence the offender used or attempted to use; any level of violence is sufficient. [40] This

interpretation is consistent with the gatekeeper function of the SPIO requirement. An offender who commits an indictableoffence for which he or she may be sentenced to imprisonment for 10 years or more and that involves the use or attempted use ofviolence against a person commits what Parliament has defined as an SPIO; it is not necessary to further inquire into the level of theviolence in question.

If the offender is remanded for assessment and is then found, on the basis of past conduct and patterns ofbehaviour, to be a dangerous offender or a long-term offender, it cannot be said that the offender was “picked up off the street because ofhis past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and thensubjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely” (Lyons, at p. 328).Rather, the punishment “flows from the actual commission of a specific crime, the requisite elements of which have been proved to existbeyond a reasonable doubt” (ibid.).

See also Johnson, at para. 23, in which the Court mentioned that dangerous and long-term offenderproceedings form part of the sentencing process. [41] This statutory framework enables courts to properly sentence dangerous offenders who have committed SPIOs “without havingto wait for them to strike out in a particularly egregious way” (Currie, at para. 26). For our purposes, the jurisprudence confirms that thewords “use or attempted use of violence” must be read in their grammatical and ordinary sense, having regard to their statutory context.Neither the purpose of the SPIO requirement nor that of

Part XXIV warrants reading in a qualitative minimum level of violence. [My emphasis.] [63] Particularly germane to the issues now are the observations of the Court at paras. 55 and 56 wherein Wagner J. wrote: [55] Subparagraph (a)(ii) of the definition of an SPIO refers to “conduct endangering or likely to endanger the life or safety of anotherperson or inflicting or likely to inflict severe psychological damage on another person”. Mr. Steele argues that if subpara. (a)(

i) of thedefinition is interpreted more broadly, it would apply to less serious instances of the very conduct to which subpara. (a)(ii) applies,thereby rendering the “severe psychological damage” portion of the definition redundant. If this argument is taken a step further, it mightbe argued that subpara. (a)(ii) targets violent activity on the basis of its harm or effects — i.e. danger to life or safety or severepsychological damage — whereas subpara. (a)(

i) targets violent activity on the basis of the force that was applied — i.e. use or attempteduse of violence. [56] With respect, after considering the relationship between subparas. (a)(

i) and (a)(ii) of the definition, I am led to the oppositeconclusion. As a preliminary matter, there is no indication that the various parts of the definition of an SPIO in s. 752 are mutuallyexclusive: see R. v. J.Y. (1996), (SK CA), 141 Sask. R. 132 (C.A.), at para. 22. On the contrary, I can think of manyscenarios in which an offence causing the harms outlined in subpara. (a)(ii) would clearly also involve “the use or attempted use ofviolence”. The same can be said about para. (

b) of the definition, which lists a number of sexual offences to include them in thedefinition of an SPIO. The offences enumerated in para. (

b) will of course often also meet the qualitative criteria of subparas. (a)(

i) and(a)(ii). The fact that a proposed

interpretation would bring some offences within the ambit of more than one part of the definition in s.752 should not, in itself, justify narrowing the definition to avoid such overlaps. [64] I refer also to paras. 61 and 62 in which Wagner J. observed: [61] I have already briefly addressed the argument that the exclusion of robbery from the offences listed in para. (

b) of the definitionis relevant to the determination of legislative intent. With respect, this argument is based on two false premises. First, robbery may becommitted by way of threats of violence to property and such threats are clearly excluded from the definition of an SPIO, which meansthat Parliament could not have categorically defined robbery as an SPIO even if it considered the threats to be violent. Second,Parliament identified three sexual offences each of which categorically qualifies as an SPIO in para. (b). There is no indication thatParliament intended to create an exhaustive list of all offences constituting SPIOs in all cases. Rather, as this Court stated in Currie, para.(

b) serves to make it clear that the enumerated sexual offences, whatever form they may take, are inherently serious and may trigger adangerous offender application (para. 22). [62] The reason why Parliament included a list of sexual offences is surely not that sexual offences are not otherwise covered by theexpression "use or attempted use of violence". The more reasonable view is that Parliament included the list to make it clear that suchoffences will constitute SPIOs in all circumstances, even those that are committed with minimal physical force and that do not result inbodily harm. Furthermore, the view that Parliament, in enacting para. (

b) of the definition, was rejecting a narrow approach that mightexclude some sexual offences is consistent with my

interpretation of subpara. (a)(i), which rules out a similarly narrow approach in thecontext of threats of violence. [My emphasis.] [65] Although Steele was only directly concerned with the offence of robbery when no physical harm was suffered by the victim of

the offence, I am satisfied that the principles enunciated in Steele are equally applicable to both ss. 151 and 152 of the Code when what isat issue is the violation of the sexual integrity of or the sexual domination of a victim under the age of 16 for purposes of sexualgratification. [66] I say that in part because either offence may involve little or no physical harm but the full extent and the severity of thepsychological damage inflicted upon young children by the offender may not be known for many years. [67] In reaching that conclusion I refer to and adopt the reasoning, observations and findings in the following authorities concerningthe psychological harm to children caused by sexual offending: 1) In R. v.

Stuckless, (Ont. C.A.) Abella J.A. (as she then was) stated at para. 44: Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. As Moldaver J. stated in R.v. McF., released April 27, 1992, unreported (Ont. Gen. Div.): I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats ofphysical harm or the infliction of limited and measured amounts of force. . . .

I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced asa factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have acrippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far moredevastating, painful and long-lasting than conduct which causes injury to the body. [My emphasis.] 2) In R. v. D.D., (ON CA), [2002] O.J.

No. 1061 (C.A.) [D.D.] Moldaver J.A. (as he then was) stated atparas. 35 and 36: 35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at onceour most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselvesagainst predators like the appellant and as such, they make easy prey.

People like the appellant know this only too well and they exploitit to achieve their selfish ends, heedless of the dire consequences that can and often do follow. 36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that littlewas known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse nolonger holds sway. The horrific consequences of child sexual abuse are only too well known. [My emphasis.] 3) In R. v.

D.M., 2012 ONCA 520 the Ontario Court of Appeal summarized principles derived from D.D. as follows at para. 38: 38 Although the case [R. v. Woodward, 2010 ONCA 610] involved one child victim and one incident with no additional violence, thiscourt made it clear that in sentencing, the principles enunciated in D.D. applied. Moldaver J.A. repeated the principles of sentencingarising from D.D. and I will repeat them here (at para. 72): ... The relevant considerations and principles from D.D., at paras. 34-38, are summarized below:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they makeeasy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends,heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (

i) children often suffer immediate physical and psychological harm; (ii) childrenwho have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and childrenwho have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation,general and specific deterrence and the need to separate offenders from society must take precedence over the other recognizedobjectives of sentencing. [My emphasis.] 4) More recently, in R. v. G.E.W., 2014 BCSC 2597, in this Court Myers J. stated at para. 18: [18] T-L.C. could not be located and therefore there is no impact statement from her. However, I do not think it can be argued that theabuse did not have a profound impact on her. In R. v.

K.M.M., 2012 SKQB 297, Gunn J. inferred from the circumstances that a youngvictim of sexual assault had suffered "negative and potentially permanent psychological impacts". Gunn J. cited from R. v. S. (W.B.); 127 AR 65 (A.B.C.A.) describing the research into the harm generally suffered from victims of sexual assault andthat in every case of sexual abuse of a child there is a "very real risk of very real harm to the child". Further, that such a victim may

suffer greater trauma when she is closely related to the offender. Gunn J. also referred to R. v. Arcand, 2010 ABCA 363 and R. v. G.R.B.,2013 ABCA 93, where the Alberta Court of Appeal discussed the fact that in some cases some of the harm a child victim may havesuffered may not be ascertainable at sentencing.

For instance, this was found in G.R.B., where, at the time of sentencing the victim was18 years old and in grade twelve: "just entering adulthood and with the challenge of personal and intimate relationships ahead of her".[My emphasis.] 4) Do the principles enunciated in Kienapple, apply to some of the offences of whichT.L.P. has been convicted? [68] In R. v.

Meszaros, 2013 ONCA 682 [Meszaros] Blair J.A. speaking for a five member panel of the Ontario Court of Appealwrote at para. 30: 30 It is a fundamental principle of criminal law that no person may be convicted twice for the same criminal wrong (nemo debet bispuniri pro uno delicto). As developed in subsequent Supreme Court of Canada and appellate jurisprudence, the Kienapple rule is anexpression of that principle. The rule is that there ought not to be multiple convictions for the same "delict", "matter", or "cause":Kienapple, per Laskin J. at pp. 749-50.

For Kienapple to apply there must be both a sufficiently close factual nexus and a sufficientlyclose legal nexus between the two offences in the circumstances: see R. v. McGuigan, (SCC), [1982] 1 S.C.R. 284; R. v.Krug, (SCC), [1985] 2 S.C.R. 255; R. v. Prince, (SCC), [1986] 2 S.C.R. 480; R. v. Provo, (SCC), [1989] 2 S.C.R. 3; R. v. Langevin (1979), (ON CA), 47 C.C.C. (2d) 138 (Ont. C.A.); and R. v. R.K. (2005), (ON CA), 198 C.C.C. (3d) 232 (Ont.

C.A.). [69] In this case two issues arise concerning application of the Kienapple principle. [70] Those issues are: 1) although the Crown and T.L.P. agree that the Kienapple principle applies with respect to the convictions entered against T.L.P.for both sexual assault under s. 271 and sexual interference under s. 151 of the Code in relation to some of his victims there is somedebate as to which of the two offences should be subject to a conditional stay as the “less serious” of the two offences; and 2) the Crown does not accept T.L.P.’s submission that application of the Kienapple principle also requires that the convictionsentered against T.L.P. for invitation to sexual touching under s. 152 of the Code against some of his victims must also be subject to aconditional stay as being “less serious” offences than either sexual assault or sexual interference to prevent multiple convictions for thesame delict, cause or matter. [71] I will next address both issues.

a) Should the convictions of T.L.P. for sexual assault under s. 271 or for sexual interference under s. 151 beconditionally stayed? [72] In R. v. D.L.W., 2014 BCSC 43 [D.L.W.], Romilly J. reversed the decision he had earlier made (reported at 2013 BCSC 1327) inwhich, at para. 335, by application of the Kienapple principle he had entered conditional stays of convictions against the offender forsexual interference as being “repetitive of the convictions for sexual assault”. [73] In reversing that decision Romilly J. referred to the decision of Gorman P.C.J. in R. v. Young, [2010] N.J.

No. 373 (P.C.)[Young] as well as to the Ontario Court of Appeal’s decision in Meszaros. [74] At paras. 21 to 26 Romilly J. wrote: [21] In Young, the accused had sexual intercourse with a 13 year old girl on one occasion. He was convicted of sexual interference andsexual assault. The Court held that the same act formed the basis for both convictions and the two offences were substantially the same.Furthermore, there was no indication from Parliament that the Kienapple principle was not to apply.

The Court therefore held that theKienapple principle applied and a conditional stay was entered on the sexual assault charge. In the result, the Court held that the sexualinterference charge was the more serious offence. [22] Gorman P.C.J.’s analysis at paras. 21-26 is instructive. He wrote: [21] As can be seen,

section 151 requires proof that when the accused touched the victim, the accused’s intent involved a sexualpurpose. Section 271(1) does not require proof of this intent. Section 271(1) involves an objective test. In R. v. Lutoslawski, 2010 SCC 49, [2010] S.C.J. No. 49, the Supreme Court of Canada indicated that it “was established in R. v.

Chase, (SCC),[1987] 2 S.C.R. 293, that ‘[t]he test to be applied in determining whether the impugned conduct has the requisite sexual nature is anobjective one: ‘Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?’ (p. 302) …Sexual assault does not require proof of an improper or ulterior purpose.” Thus, a perfect legal symmetry does not exist between the twooffences. [22] Though the existence of this distinction between sections 151 and 271(1) of the Criminal Code was acknowledged by the BritishColumbia Court of Appeal in R. v.

R.A.J. (2010), 2010 BCCA 304 , 289 B.C.A.C. 15, the Court still concluded that theKienapple principle applied to offences committed pursuant to these two sections when a factual nexus existed (at paragraph 10): I agree with the position of R.A.J. and the Crown that the convictions for both s. 271 and s. 151 cannot stand. Given the Crown’sposition I agree that the conviction for s. 153 also cannot stand. This is based solely on the wording of the indictment and the fact that

this count was meant to be an alternative to the sexual assault count. This conclusion should not be taken as a determination that there isalways a legal nexus between these two offences. The evidence fully supports that the assaults were of a violent nature. I agree with theCrown that the conviction for sexual assault pursuant to s. 271 best captures the delict in this case. I would enter stays of proceedings onCounts 2 (s. 151) and 3 (s. 153), conditionally, pending any further appeal. [23] The same conclusion was reached in R. v. S.J.M. (2009), 2009 ONCA 244 , 247 O.A.C. 178.

In that case, the Ontario Courtof Appeal concluded that the “elements of the sexual interference offence are substantially the same or alternative to the elements ofsexual assault either on the basis that one element is ‘a particularization of another element’ or ‘there being more than one method,embodied in more than one offence, to prove a single delict’: R. v. Prince at pp. 500-2.” Also see R. v.

E.W. (2002), 2002 NFCA 49, 216 Nfld. & P.E.I.R. 89 (N.L.C.A.), at paragraph 70. [24] In this case, though the elements of the two offences are not identical, the two offences are substantially the same and alternatives toeach other. The same cause, matter or delict underlies both charges. Thus, this is an appropriate case for the Kienapple principle to beapplied, unless there is a clear Parliamentary indication that the common law principle prohibiting multiple convictions for the samedelict is not to apply. In this case, that indication is lacking.

There is, for instance, no indication in either of the two provisions to suggestthat multiple convictions was envisioned by Parliament (see R. v. McGuigan, (SCC), [1982] 1 S.C.R. 284) or thatParliament envisioned an “additional” punishment being imposed when one act by an offender breaches both sections 151 and 271(1) ofthe Criminal Code (see Kienapple, at page 753 and R. v. Clark (2008), 2008 ABCA 271 , 234 C.C.C. (3d) 12 (Alta. C.A.), atparagraph 33). Finally, the entering of a stay of proceedings in relation to t

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