R. v. Harrison, 2023 BCSC 1203

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Harrison, 2023 BCSC 1203 Date: 20230621 Docket: Registry: Nelson Rex v. Kenneth John Harrison Restriction on Publication: Pursuant to s. 486.4(2) C.C.C. Before: The Honourable Madam Justice L.M. Lyster Oral Reasons for Sentence Counsel for the Crown: C.A.P. Pine Counsel for the Defence: M.D. Scheffelmaier (agent for M.G. Goulden) Place and Date of Trial/Hearing: Nelson, B.C. June 16, 2023 Place and Date of Judgment: Nelson, B.C.

June 21, 2023 Contents Introduction .. 2 Application of Kienapple .. 3 Principles of Sentencing .. 5 Circumstances of the Offence .. 7 Mr. Harrison’s Criminal Record .. 7 Impact on the Victim .. 7 Reports .. 9 Mitigating and Aggravating Factors .. 13 What is the appropriate sentence? .. 16 Introduction [ 1 ] These are my oral reasons for sentence in this matter. I have ordered a transcript of my reasons for judgment, which I have edited for clarity and grammar and to ensure that quotes and citations are complete and accurate. The reasoning and result has not changed. [ 2 ] On November 21, 2022, I convicted Mr.

Harrison of sexual interference, contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 [ Code ] invitation to sexual touching, contrary to s. 152 of the Code ; and sexual assault, contrary to s. 271 of the Code . The offending conduct in question occurred on the night of June 6 and 7, 2019. The victim was a 14-year-old girl, referred to in these proceedings as A.B. At the time, Mr. Harrison was 60 years of age. [ 3 ] I will not belabour the facts upon which I found Mr. Harrison guilty, as they are canvassed at length in my trial decision, indexed at 2022 BCSC 2422 . In brief, Mr.

Harrison went with A.B. to an isolated location. She asked for and he gave her drugs, both methamphetamines and ketamine. He took her to a more isolated location, where he performed cunnilingus upon her and digitally penetrated her vagina. He asked her to masturbate his penis with her hand, which she did. He then drove her to a yet more isolated location, where he had vaginal intercourse with her.

[4] A.B. was an extremely vulnerable girl. She was only 14 years of age; she was in foster care; she was street involved; she wasengaged in drug-seeking behaviour; and she was under the influence of drugs given to her by Mr. Harrison during the commission ofthese offences. Mr. Harrison exploited A.B.'s vulnerabilities, which he was well aware of, for his own sexual gratification. His conductwas morally and legally reprehensible. [5] I must determine which conviction or convictions should be conditionally stayed, pursuant to the Kienapple principle.

On thispoint, the Crown submits that the sexual assault conviction should be stayed, while the defence submits that both the invitation to sexualtouching and the sexual assault convictions should be stayed. [6] I must then determine the fit and appropriate sentence for Mr. Harrison's crimes. In brief, the Crown submits that a globalsentence of six to seven years is appropriate, while the defence submits that a sentence of three years should be imposed. The defencealso makes an alternative sentencing submission, which I will explain in further detail later. [7] I note that Mr.

Harrison has been held in custody for approximately eight months, comprised of two periods: one prior to histrial and one following the breach of his bail conditions following trial. Application of Kienapple [8] It is common ground that the sexual assault conviction should be stayed. The defence relied on the decision of the Court ofAppeal in R. v. P.R.J., 2023 BCCA 13 [P.R.J.] in support of its position that, in addition, the invitation to sexual touching convictionshould be stayed. At para. 52 of that decision, the court cited R. v.

Prince, (SCC), [1986] 2 S.C.R. 480, for theproposition that the Kienapple principle precludes multiple convictions for different offences where there is both a factual and legalnexus connecting them. The specific issue before the court in P.R.J. was whether, in a situation where a s. 152 offence was made outthrough

an act of touching, there was an additional and distinguishing element between the s. 151 and s. 152 offences that would refute asufficient legal nexus. [9] At para. 53, the court stated: [53] Both s. 151 and s. 152 were enacted to protect children against sexual abuse and exploitation.

Section 151 requires the offender tohave touched, either directly or indirectly, the complainant for a sexual purpose.

Section 152 requires the offender to have communicatedwith the complainant in an effort to have the complainant touch them or another person for a sexual purpose. That communication can beverbal or non-verbal and, as discussed above, non-verbal communication can involve the offender touching the complainant. [10] At para. 54, the court explained that the communication underlying P.R.J.'s conviction under s. 152 involved her touching thevictim's hand for a sexual purpose. She had touched the victim's hand to place it on her own genitals. That touching also satisfied theessential element of the s. 151 offence.

There were no additional or distinguishing elements between the two offences. The Court found,at para. 62, that, in those circumstances, to separately convict P.R.J. of the two offences would "heap multiple convictions on her inrespect [of] a single criminal act without good reasons". [11] I find that the result in P.R.J. is readily distinguishable from the circumstances of Mr. Harrison's offences. There were twodistinct phases of Mr. Harrison's conduct that night.

In the first phase, as I have said, he led A.B. down the road to a secluded location,where he performed cunnilingus and digitally penetrated her vagina and asked her to masturbate him. In the second phase, he took A.B.in his van to an even more secluded location, where he had vaginal sexual intercourse with her. [12] The basis for the conviction under s. 152 was Mr. Harrison's requests that A.B. masturbate him, allow him to performcunnilingus, and allow him to have vaginal intercourse. The basis for the s. 151 conviction was Mr.

Harrison touching A.B.'s vagina withhis mouth, digitally penetrating her vagina, touching her hand with his penis, and inserting his penis in her vagina. In other words, theinvitations to touching were distinct from the touchings themselves, unlike in P.R.J. Further, this was not a single act of child abuse, buttwo distinct phases of child abuse, each of which included multiple acts of child abuse. To convict Mr.

Harrison under both s. 151 and s.152 does not heap multiple convictions on him for a single criminal act. [13] I therefore enter a conditional stay of proceedings solely on Count 3, the count of sexual assault. Principles of Sentencing [14] Crown counsel emphasized R. v. Friesen, 2020 SCC 9 [Friesen], throughout her submissions. This is understandable, as theSupreme Court of Canada, in Friesen, set out to provide guidance and new framework for sentencing judges and appellate courts abouthow sexual offences against children are to be seen and dealt with.

At para. 5, the court stated: [5] …we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’svulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts mustimpose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender,as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness ofsexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and thefar-reaching and ongoing harm that it causes to children, families, and society at large. [15] Underscoring the court's message that sentences for crimes of sexual violence against children must increase is para. 114 ofFriesen, where the court stated: [114] D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and L.M. make clear that imposing proportionatesentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently

require substantial sentences. Parliament's statutory [page488] amendments have strengthened that message. It is not the role of thisCourt to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriatefor any court to set out binding or inflexible quantitative guidance - as Moldaver J.A. wrote in D. (D.), "judges must retain the flexibilityneeded to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33).

Nonetheless, itis incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digitpenitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms shouldbe neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed wherethere was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M.

In addition, as this Courtrecognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worstcircumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [16] It was these passages, together with others from Friesen that I will not repeat, that the Crown relied upon in support of itssubmission that a sentence in the range of six to seven years was appropriate. [17]

Section 718.01 of the Code provides that, in cases such as this, involving the abuse of a person under the age of 18 years, thecourt shall give primary consideration to denunciation and deterrence. Similarly, under s. 718.04, where the court imposes a sentence foran offence that involved the abuse of a person who is vulnerable because of personal circumstances, including being Aboriginal andfemale, the court shall give primary consideration to denunciation and deterrence. [18] There is no question that A.B. was vulnerable due to her personal circumstances as a 14-year-old girl.

The court in Friesen noted,at para. 60, that children who belong to groups that are marginalized are at a heightened risk of sexual violence, which can perpetuate thedisadvantage they already face. Among the indicia of marginalization referred to by the court at that paragraph was being in the childwelfare system, as A.B. was.

Similarly, at para. 71, the court noted that such children and youth are particularly vulnerable tovictimization. [19] The court went on, at para. 136, to consider the specific circumstances of adolescent girls like A.B. who are sexually victimized: [136] At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is anadolescent.

Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescentgirls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associatedwith higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J.

Benedet, “Confronting the SexualAssault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.). [20] The fact that deterrence and denunciation are the primary objectives to be considered in this case is not to say that othersentencing objectives and principles are irrelevant.

The court must also consider the prospects of rehabilitation under s. 718. [21] Further, the court must, under s. 718.1, impose a sentence that is proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The court, in Friesen, was at pains to emphasize the gravity of offences against children and theharmfulness of sexual offences against children. [22] The court must also consider the principles set out in s. 718.2, including the presence of any mitigating or aggravatingcircumstances under 718.2(a), and the parity principle enshrined in s. 718.2(b).

Circumstances of the Offence [23] I have already summarized the circumstances of these offences. It is unnecessary for me to do so at greater length. Mr. Harrison’s Criminal Record [24] Mr. Harrison's criminal record includes convictions between 1977 and 2012. It includes convictions for possession andtrafficking in narcotics, assault, careless use of a firearm, and failure to comply with probation orders. Given how dated Mr. Harrison'scriminal record is, and the lack of any sexual offences, I consider it of minimal relevance in determining a fit sentence for his currentconvictions.

Impact on the Victim [25] A.B. did not provide a victim impact statement; nor did any relative or other caregiver on her behalf. Crown counsel advised thecourt that extensive efforts had been made to obtain a statement from A.B., but she had been advised that A.B. was not in a position toprovide one. Nor was any family member or other caregiver found who could and would do so.

This does not mean that the court cannotconsider the impact of the offences on A.B. [26] The Supreme Court of Canada stated, at para. 86 of Friesen: [86] Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens throughwhich to analyze the significance of many particular aggravating factors.

Courts may be able to find actual harm based on the numerousfactual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as abreach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from

children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors. [ 27 ] I heard A.B. testify for nearly four days. Her evidence was harrowing. The emotional impact on her of Mr. Harrison's wrongful conduct was palpable, as I described to some extent at paras. 156-157and 164 of my trial judgment.

I also addressed some aspects of the harms she suffered in my trial decision, noting, at para. 9, that her addiction to methamphetamine worsened after the offences. A.B. was clearly traumatized by Mr. Harrison's assaults upon her and she was, doubtless, further traumatized by the experience of testifying at trial. I agree with Crown counsel that she showed remarkable resilience in pursuing this case to trial.

A.B. is not here, but I commend her for her courage, her tenacity, and her commitment to seeing that justice was done. [ 28 ] The court, in Friesen , emphasized repeatedly that, as stated at para. 50: [50] To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important … [ 29 ] And, as further stated, at para. 56: [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm … [ 30 ] There is no doubt that A.B. suffered serious emotional and psychological harm due to the sexual violence inflicted by Mr. Harrison.

Reports [ 31 ] The court ordered and received two reports: a presentence report, filed June 9, 2023 (the “PSR”), and a psychological report, including a risk assessment, from Dr. Burnett, dated June 9, 2023. [ 32 ] The PSR outlines Mr. Harrison's family of origin and his marriage and children. He is the father of six children; three of them from his marriage and three from three previous relationships. He reported to the writer that he is in touch with one of his children, Amber, on a consistent basis, and has some communication with another, David.

He has no contact with the three children from the three previous relationships. Those relationships all ended when the women left him unexpectedly and with no explanation. He reported that his wife also left him abruptly, saying that she thought he was going to abuse her. He claimed not to understand why she said this, denying any abuse in any of his intimate relationships. [ 33 ] Mr. Harrison told the PSR writer that he has a stepdaughter named E., who lives in this area.

E. was a witness in this trial and she is a street-and-drug-involved young person who had been friends with A.B. and who was living in a trailer with Mr. Harrison at the time of the offences against A.B. Suffice to say that I had significant concerns about Mr. Harrison's involvement with E., which were described in the trial decision. Of note, Mr. Harrison told the report writer that he could not remember his stepdaughter E.'s last name, which was a common theme in both reports and in his evidence at trial. [ 34 ] Mr.

Harrison told the report writer that he is in an on-again/off-again relationship with a woman named Wendy. He could not provide her name or contact information. His other associates are persons involved in drug use and transient lifestyles in this area. Mr. Harrison said that his elder brother Robert and his wife are supports to him, as is his daughter Amber. Notably, none of the people he described as main supports are aware of these proceedings. [ 35 ] Mr. Harrison told the report writer he obtained his Dogwood Diploma at age 25 and worked in carpentry and construction until he retired at age 60.

He now lives on persons with disability benefits. He told the report writer, as he testified at trial, that he wants to be a pastor. He told the report writer that he is angry and frustrated at not being able to pursue this vocation due to his convictions. In this connection, he referred to "lies relating to pain caused to him by the victim". [ 36 ] Mr. Harrison disclosed no history of mental health problems to the writer, but he did talk about having counselling for what he called “basic problems”. He reported that his mental health had been impacted by his physical health problems.

He had had his eye removed due to cancer surgery in March 2022, followed by some radiation therapy. [ 37 ] In terms of substance use, Mr. Harrison told the report writer that he has used drugs socially throughout, due to succumbing to peer pressure. He denies any addictions and denies any substance use since moving to this area five years ago. The report writer received contradictory information from Corporal Orr of the local RCMP, who reported that when Mr. Harrison was arrested on March 31, 2023 he had methamphetamine on his body and that he admitted at that time that he was a user of methamphetamines.

It is also inconsistent with Mr. Harrison's evidence at trial, where he admitted using methamphetamines, and my findings at trial, where I found that he was using drugs on the night of the offences. [ 38 ] Mr. Harrison reported feeling wrongfully accused. He asserted bitterness and anger regarding any disposition of these convictions. [ 39 ] Except for the approximately eight months in custody, Mr. Harrison was on judicial interim release since June of 2019. His probation officer reported sporadic compliance and periods of concerning presentation.

The degree of his compliance appeared to be directly correlated to the stability of his personal circumstances. [ 40 ] The report writer wrote that Mr. Harrison verbally denounced the court with expletives and communicated his disdain for the court process and those involved in it. She could not assess his attitude and understanding regarding the offences due to his position on the outcome of the trial. He expressed no accountability or concern for the impact of the offences on A.B., only referencing the impact

the situation has had on him. [ 41 ] Throughout the interview process, Mr. Harrison pronounced disdain for people who commit sexual offences, saying that he was raised to respect women. Yet, while discussing his sexual history, he denounced A.B. and the female professionals involved in this case using, reportedly, derogatory language commonly used to disrespect women. [ 42 ] The report writer was unable to contact any collateral sources of information due to Mr. Harrison's inability to provide last names or contact information. She expressed the opinion that the information provided by Mr.

Harrison was not fulsome or genuine in its delivery, as it could not be confirmed due to the lack of collateral contact information. [ 43 ] Many of the same themes and issues are discussed in the psychological report. Dr. Burnett wrote that Mr. Harrison described A.B. as a 14-year-old street-entrenched sex worker. He professed not to remember her name, which is consistent with his evidence at trial. He also told Dr. Burnett about E., again describing her as his stepdaughter. He described A.B. as a "spoiled brat" or "spoiled little bitch" who had falsely accused him. Dr. Burnett proposed to Mr.

Harrison that his pattern of associating with vulnerable substance-involved street kids could be seen as unusual and problematic. Mr. Harrison told him that he was just trying to help kids. [ 44 ] Dr. Burnett noted that Mr. Harrison espoused strongly negative sentiments about the criminal justice system. He felt wronged, victimized, and persecuted by the police, the court, and A.B. Several of his negative comments were described as "impressed as decidedly sexist/misogynistic in nature". [ 45 ] Dr. Burnett administered a number of psychological instruments to Mr. Harrison.

Among his findings, based on these instruments, was that Mr. Harrison had a "significant inclination toward positive impression management (i.e. a significant tendency to underreport, minimize perceived shortcomings and/or negative attributes)". Dr. Burnett offered a DSM-5-TR diagnosis of Unspecified Other Substance-related Disorder (for further assessment and elaboration) with antisocial personality traits. [ 46 ] Dr. Burnett found Mr. Harrison's very negative sentiments about the criminal justice system and A.B. "highly concerning and relevant to Mr. Harrison's risk for sexual recidivism".

He recommended that Mr. Harrison's antisocial/pro-criminal thinking patterns should be the focus of future intervention. He noted that Mr. Harrison has very limited access to prosocial supports within the community and that substance misuse likely represents an additional area of criminogenic concern. [ 47 ] Dr. Burnett opined that Mr. Harrison's current degree of risk for sexual recidivism falls within the average range as compared to other sexually-motivated offenders. He further opined that his current level of risk for sexual recidivism is neither high nor low.

Were he to reoffend, his most likely victim would be a vulnerable, street-entrenched, substance-involved adolescent female. [ 48 ] There are a number of concerning aspects to these reports. One is the misogynistic comments made by Mr. Harrison to both report writers. In Friesen , the court had this to say, at para. 180, about the potential significance of such comments: [180] Finally, we wish to comment briefly on the statement by Friesen’s former girlfriend to the author of the pre-sentence report that Friesen had a “hatred” for women . . .

While we do not rely on this comment as an aggravating factor because Judge Stewart did not make any factual finding in relation to it, we do emphasize that judges should be attentive to evidence of an offender’s misogynistic attitudes. Such attitudes may have a significant bearing on, among other factors, moral blameworthiness, insight and likelihood to reoffend … [ 49 ] Defence counsel submitted that Mr. Harrison comes from a background where vulgarity may be common and that the use of such language does not necessarily indicate misogynistic attitudes. I do not agree.

The fact that both report writers found the language and attitudes displayed by Mr. Harrison noteworthy is significant. Dr. Burnett, in particular, connected those comments as being relevant to Mr. Harrison's risk of recidivism, an opinion which I share. [ 50 ] It is also apparent that Mr. Harrison was less than honest with both report writers; in particular, about matters related to his substance use. [ 51 ] In my view, taken together, the two reports strongly suggest that Mr. Harrison has poor prospects for rehabilitation. This situation is similar to that considered by the Court of Appeal in R. v.

G.M., 2015 BCCA 165 where the Court stated, at para. 29, that: While a party is under no obligation to admit an offence, … continued denial is a material factor to be considered in determining whether [they are] likely to re-offend. [ 52 ] Mr. Harrison lacks any acceptance of wrongdoing, any explanation, or any insight into his offending conduct. This bodes ill for his prospects of rehabilitation.

Further, his proclivity for associating with young, vulnerable, substance and street-involved youth, and his justifications for doing same, suggest that, if he could, he would attempt to ingratiate himself with other teenage girls like A.B. and exploit them in order to obtain sexual gratification. Mitigating and Aggravating Factors [ 53 ] Neither the Crown nor the defence identified any mitigating circumstance. I find there are none. [ 54 ] The court is aware that Mr.

Harrison has some physical health problems related to the removal of his eye due to cancer, and the surgical removal of some of his toes, which causes him some mobility issues. He is also hard of hearing. There is, however, no medical evidence before the court. There is no evidence nor, indeed, any submission by the defence that his health problems were extant at the time of the offences or that they caused or contributed to the commission of the offences.

His health problems are not mitigating circumstances, although they are a relevant contextual factor to the determination of a fit and appropriate sentence, and they will be considered in that context.

[55] In her submissions, Crown counsel identified the following aggravating circumstances, all of which I consider to be present,although there is some inevitable overlap between them: 1. This was not a singular instance of assault. There were multiple instances of sexual assault throughout the night and into themorning. 2. The assaults included vaginal intercourse, a highly intimate impropriety. 3. Mr. Harrison knowingly chose to take advantage of a highly vulnerable child.

He knew her mother; he had at least one previousinteraction with A.B. on the street; he knew her age; he knew she was looking for drugs; and he knew she was in the foster care system. 4. A.B. was 14, which is a statutory aggravating circumstance under s. 718.2(ii.1). 5. The great disparity in age. Mr. Harrison was 60 and A.B. was 14. A disparity in age was recognized as an aggravatingcircumstance in R. v. Jaden, 2018 BCSC 1685 [Jaden] at para. 31. 6. Mr. Harrison provided drugs to A.B. prior to and in the course of committing the offences; namely methamphetamine andketamine.

During the first assault, A.B. was dry-heaving due to excessive drug consumption while Mr. Harrison assaulted her. She toldhim that she would need more drugs to go through with the second assault, which he gave her. This is morally egregious behaviour. 7. Mr. Harrison engaged in predatory behaviour, taking advantage of the isolated location he and A.B. went to; and then furtherisolating her, first by walking her into a wooded area, away from where E. and her friend were; and then by driving her to an even moreisolated location. 8. Mr.

Harrison had unprotected vaginal intercourse with A.B. and ejaculated on the outside of her vagina, thereby exposing her tothe risk of both pregnancy and sexually transmitted diseases. The PSR indicates that Mr. Harrison is positive for Hepatitis C, althoughthere is no evidence that was true at the time of the offences. 9. Mr. Harrison chose a victim who was disproportionately vulnerable due to her age, gender, and life circumstances. A.B. wasalone, walking the streets, looking for drugs, without any adult to support and protect her.

That vulnerability continued at trial, where shehad no family members present to support her. She did have a care worker present for part of her testimony, but ultimately she finishedher testimony alone. 10. The inherent gravity of these offences and their impact on A.B. [56] Mr. Harrison exercised his right to go to trial on these offences. He continues to deny that he committed the crimes he has beenfound guilty of. He has expressed no remorse. None of these are aggravating circumstances. They amount to the absence of mitigatingcircumstances.

What is the appropriate sentence? [57] As I have mentioned, the Crown submits that a global sentence in the range of six to seven years would be appropriate; thatbeing two sentences, one under s. 151 and one under s. 152, each of the same length, to run concurrently. [58] The defence provided two alternative sentencing positions. The first was that, if both the s. 151 and s. 152 convictions were notstayed, a sentence of three years should be imposed on one, with a sentence of two years less a day, followed by three years probation, onthe other, the two sentences to run concurrently.

The intention behind this proposal was to ensure that Mr. Harrison had access toprogramming in the community to assist in his rehabilitation on his release. [59] I appreciated the motivations for this proposal by the defence. During the hearing I expressed concern about whether such asentence was legally available.

Counsel could not identify any published decisions in which such a sentence was imposed, although hedid indicate that he had personal experience of such sentences being imposed in another jurisdiction. [60] The Crown drew the court's attention to s. 731 of the Code and an annotation about that provision in the Martin's Criminal Codethat refers to the decision of the Supreme Court of Canada in R. v. Knott, 2012 SCC 42 , [2012] 2 S.C.R. 470 [Knott].

I havesince had the opportunity to read Knott, and I conclude that s. 731, as interpreted by the court in Knott, precludes a sentence of the kindproposed by the defence. I refer to paras. 33-34, where the court wrote: [33] The ordinary meaning of s. 731(1)(

b) is perfectly clear: A probation order may not be made where the sentencing court imposesa term of imprisonment exceeding two years. In determining whether two years has been exceeded, one looks at the term ofimprisonment ordered by the sentencing court on that occasion — not at other sentences imposed by other courts on other occasions forother matters. [34] Section 731(1)(

b) admits of no ambiguity in this regard. The opening words of s. 731(1) read: “Where a person is convicted ofan offence, a court may”. The provision authorizes that court to make a probation order, “in addition to fining or sentencing the offenderto imprisonment for a term not exceeding two years”.

On a plain reading of this provision, the phrase “imprisonment for a term notexceeding two years” refers to the sentence imposed by the court empowered by s. 731(1) to make the probation order. [61] Given that I will be imposing a sentence of more than two years, I cannot make a probation order. [62] The defence's other proposal was a global sentence of three years. [63] There is no established range for sexual violence against adolescents post-Friesen. I have already quoted the court's message in

Friesen that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” [ 64 ] The defence relied upon the decision of R. v. Nystrom , 2023 BCCA 232 [ Nystrom ], a decision of our Court of Appeal issued only two weeks ago. The court declined, at para. 56, to establish a new range for sexual assault against adolescent females, other than to confirm the guidance provided in Friesen .

In that case, the sentencing judge had imposed a global sentence of two years for three counts of sexual assault against a 14-year-old victim. The Crown appealed. The court held, at para. 57, that the appropriate sentences were two years, three years, and 18 months on each of the three counts, to be served consecutively.

The court held that the resulting total sentence of six-and-a-half years would be disproportionate and applied the totality principle to reduce the total sentence to three-and-a-half years. [ 65 ] I would note that there were mitigating circumstances present in that case; namely the offender's youth, the absence of a criminal record, his unfortunate personal circumstances, and difficult upbringing. He was also diagnosed with an intellectual disability, which, while held not to be mitigating, was also relevant. Those factors are not present in Mr.

Harrison's case. [ 66 ] Other cases referred to by the defence included Jaden , a pre- Friesen case, in which the offender sexually assaulted a 15-year-old girl. The offender in that case was sentenced to three years. There were mitigating circumstances in that case, importantly, including a guilty plea, the absence of a criminal record, and expressions of remorse from the offender.

He was also a permanent resident, and, because of the conviction, he was subject to the possibility of deportation, which the court held was a relevant collateral consequence. [ 67 ] I note that in Jaden , at para. 59 , the court accepted that the general range of sentence for sexual assault against a child involving sexual intercourse is two to six years. In light of Friesen , and indeed Nystrom , I do not think that that can any longer be taken to be the range. [ 68 ] The defence also referred to R. v. Josephson , 2021 BCSC 1947 [ Josephson ].

The offender in that case sexually assaulted a 10-year-old boy on two occasions. He was sentenced to two years less a day. The sentencing judge agreed with the Crown that a sentence of three years would have been fit, but he wanted to add a probation period, and therefore imposed the two years less a day sentence, followed by probation for three years. Notably, while Josephson was decided post- Friesen , the case was decided under the pre- Friesen Criminal Code provisions in effect at the time the offences were committed in 2004, which is a distinguishing factor. [ 69 ] The defence also referred to R. v.

J.N.P. , 2020 BCSC 570 . This case was decided a few days after Friesen was released and Friesen was duly considered by the sentencing judge. The offender in that case sexually assaulted a 15-year-old girl, who was his niece. The court imposed a sentence of three years. Important factors in that case that are not present in Mr. Harrison's case were that the offender breached a position of trust and also was Indigenous, which meant that Gladue factors applied. [ 70 ] Finally, the defence referred to R. v. P.R.J. , 2023 BCCA 169 .

The sentencing judge in that case had imposed a 23-month conditional sentence on the offender, who was the victim's mother. The Crown appealed and the Court of Appeal varied the sentence to three years imprisonment. The circumstances were very different, involving a much younger child, much less physically invasive conduct, and a breach of trust of the parent/child relationship, which had resulted in the child being removed from her mother's care. [ 71 ] The Crown really based its sentencing proposal on Friesen .

It should be noted that, in that case, the Supreme Court of Canada upheld a six-year global sentence for sexual interference of a young child. The facts of that case were particularly egregious. At para. 166, the Court commented that the six-year sentence was on the lenient end of the spectrum of fit sentences for the offences in question. [ 72 ] The only other case relied upon by the Crown in support of its proposed sentence was R. v. Woodward , 2011 ONCA 610 , a case which was specifically referred to with approval by the Supreme Court in Friesen in the passage I have already quoted found at para. 114.

The offender in that case sexually assaulted a 12-year-old girl, luring her into engaging in the sexual activity with false promises of the payment of millions of dollars. The Court of Appeal upheld the sentencing judge's global sentence of five years for the sexual assault, stating, at para. 75, that, if anything, it was lenient. [ 73 ] Sentencing is an individual process and I have considered Mr.

Harrison's individual circumstances, including his significant physical health conditions and his age, as well as the fact that he appears to have some memory issues, the cause of which is undiagnosed on the evidence before me. None of those are mitigating circumstances, but they are relevant contextual considerations, particularly in terms of the impact of a penitentiary sentence on him. [ 74 ] I have also considered Mr. Harrison's prospects for rehabilitation. I accept Dr. Burnett's opinion that he is at neither low nor high risk to reoffend compared to other sex offenders.

His denial, his lack of remorse, his lack of insight, his attitude towards A.B., and the misogynistic and antisocial comments he made to both the PSR writer and Dr. Burnett cause me to doubt his rehabilitative potential. Perhaps the best that can be said for him, in terms of his risk to reoffend, is that his age and physical infirmities are likely to mean that he will have less opportunity and less capacity to reoffend once he is released from prison. [ 75 ] In light of all of the relevant considerations, in particular Mr.

Harrison's high degree of moral culpability, the inherently degrading and damaging nature of his offences on A.B., and his exploitation of A.B.'s extreme vulnerability, I find that the three-year sentence proposed by the defence would clearly be too lenient and would not sufficiently meet the primary objectives of deterrence and denunciation. I find that the six to seven-year sentence proposed by the Crown would not be excessive, but, in light of Mr. Harrison's age and health problems, is longer than appropriate in his individual circumstances. [ 76 ] Mr.

Harrison, are you able to stand? [ 77 ] THE ACCUSED: Yes. [ 78 ] THE COURT: Thank you, Mr. Harrison. [ 79 ] I conclude that a sentence of five years on each of your convictions under s. 151 and 152 of the Code , those five-year sentences to run concurrently, is a fit and appropriate sentence. You will be given credit for time served. As of last Friday, I was told that you had

served 158 days, which, with credit at time and a half, amounts to 237 days. By my calculation, as of today, you have served 162 days, which, with credit at time and a half, amounts to 243 days, and you will be given credit for that time served. Mr. Harrison, you can resume your seat. Thank you. You can sit down. [ 80 ] In addition, you will be sentenced to the ancillary orders proposed by the Crown, none of which the defence objected to: 1. The offences of sexual interference and invitation to sexual touching are both designated offences under s. 490.011(1) (

a) of the Code . Pursuant to s. 490.012 of the Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. 2. Pursuant to s. 109(2) of the Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years from your release; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. 3. Counts 1 and 2 on the indictment are primary designated offences. Pursuant to s. 487.051(1) of the Criminal Code , I make an order in form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. 4. Pursuant to s. 161 of the Criminal Code , you are prohibited for 10 years from your release from having contact or communication with a person who is under the age of 16 years. 5.

The warrant of committal shall be endorsed with the following order: Pursuant to s. 743.21(1) of the Code , you must have no contact of any kind with A.B. while you are in custody. [ 81 ] I further order that, pursuant to s. 743.2 of the Code , these reasons for sentence and my reasons for judgment at trial, together with the PSR and Dr. Burnett's report, are to be forwarded to the Correctional Service of Canada. [ 82 ] Counsel, that concludes my decision. “L.M. Lyster J.” LYSTER J.