R. v. Maligaspe, 2023 BCSC 1227

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Maligaspe, 2023 BCSC 1227 Date: 20230602 Docket: 110850-4 Registry: Kamloops Rex v. Nihal Ananda Maligaspe Before: The Honourable Justice Gropper Oral Reasons for Sentence Counsel for the Crown: K. Bouchard Counsel for the Offender: J. Michi Place and Dates of Hearing: Kamloops, B.C. April 25-26, 2023 Place and Date of Judgment: Kamloops, B.C. June 2, 2023 [ 1 ] THE COURT: These are my reasons for sentence in this matter. Introduction [ 2 ] Nihal Maligaspe, the offender, is before the Court for sentencing on two counts of historical sexual assaults.

He was convicted by a jury on May 6, 2022. The counts are: Count 1 Nihal Ananda MALIGASPE, from the 1st day of October, 2002 to the 31st day of July, 2006, inclusive, at or near Kamloops, in the Province of British Columbia, did sexually assault D.M., contrary to Section 271(1) of the Criminal Code .

Count 2 Nihal Ananda MALIGASPE, from the 1st day of August, 2006 to the 31st day of December, 2006, inclusive, at or near Kamloops, in the Province of British Columbia, did sexually assault D.M., contrary to Section 271(1) of the Criminal Code . [ 3 ] While the counts refer to D.M. as the complainant, there is no publication ban on the complainant's name. She is Dinushini Maligaspe. [ 4 ] In these reasons, however, I will refer to Mr. Maligaspe as the offender and Ms. Maligaspe as the complainant in order to avoid any confusion between Mr. and Ms. [ 5 ] I did not conduct the jury trial in this matter.

The trial judge, Justice Matthews, recused herself after the jury verdict and before the sentencing hearing. I was assigned to preside over the sentencing proceeding under s. 669.2 of the Criminal Code , R.S.C. 1985, c. C- 46 . In preparing for the sentencing hearing I have reviewed the transcripts of the evidence at trial and I have listened to the digital recordings of all the trial proceedings. I have also reviewed the charge that was given to the jury. [ 6 ] As the offender was convicted by a jury, s. 724(2) of the Criminal Code provides:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 7 ] R. v. Ferguson , 2008 SCC 6 , is the leading authority guiding sentencing judges following guilty verdicts rendered by a jury. According to the transcript and the charge itself, Justice Matthews instructed the jury that they need not be unanimous on which act or acts the Crown has proven to be a sexual assault. They only needed to be unanimous on an offence having been committed during the relevant time period. They were not required to unanimously determine guilt for a particular transaction within the given timeframe.

[ 8 ] In this case, the jury's verdict indicates that the jury accepted that there was at least one occasion between October 1, 2002 and July 31, 2006, when the offender sexually assaulted the complainant, and that between August 1, 2006 and December 31, 2006, on at least one occasion the offender sexually assaulted the complainant. The jury's verdict is ambiguous in respect of the frequency and duration of these offences. Before addressing each of these counts, I will provide a factual background that arises from the evidence and is not in dispute.

Background [ 9 ] The offender is the biological uncle of the complainant. They met at the funeral of the offender's mother and the complainant's grandmother in 1997 in Sri Lanka. At that time, the offender was 46 years old; the complainant was 16. While at the funeral, they discussed the idea of the complainant moving to Canada and attending school. The two corresponded by letter between 1997 and 2001. [ 10 ] In August 2001, at the age of 20, the complainant came to Canada in order to attend Thompson Rivers University (“TRU”) in Kamloops. The offender sponsored the complainant to come to Canada on a student visa.

She resided at his family home along with the offender's wife and three children. From September 2001 to August 2002 the complainant attended TRU and took general studies courses. In the fall of 2002, the complainant began her courses in nursing. [ 11 ] In 2007, the complainant moved from Kamloops to Calgary and obtained employment as a nurse. She bought a condominium there with the financial assistance of the offender. She has since paid the offender back. [ 12 ] In March 2019, the complainant confronted the offender twice by phone about his having sexually assaulted her.

She recorded the phone calls and later provided them to the police when she reported the sexual assault in May 2019. Count 1 -- Sexual Assault between October 1, 2002 and July 31, 2006 [ 13 ] As I have noted, the essential findings of fact on Count 1 are that the offender sexually assaulted the complainant on at least one occasion between October 1, 2002 and July 31, 2006, at or near Kamloops, British Columbia.

The jury thus found that the offender intentionally touched the complainant, knowing, being reckless to, or wilfully blind to the fact that she did not consent to his touching and his touching was of a sexual nature. [ 14 ] There are other issues on the sentence to be considered in imposing sentence, including when the sexual abuse began, what incidents of sexual assault did the Crown prove beyond a reasonable doubt; what is the extent of the sexual abuse that the Crown proved beyond reasonable doubt on this Count; and, was the offender in a position of trust, power, or authority and, if so, did he abuse that position to engage the complainant in sexual activity. [ 15 ] In respect of the question of when the sexual abuse began, while there was conflicting evidence about whether it was 2002 or 2003.

The Crown has conceded, for the purposes of sentencing, that the sexual assault began in 2003. [ 16 ] It is not clear which specific instances of sexual assault the jury found that the Crown had proven beyond a reasonable doubt. The complainant testified that there were numerous -- up to 15 times per month -- sexual assaults over the period covered by Count 1. The defence asserts that there were three sexual assaults that were covered in the period outlined in Count 1. [ 17 ] I cannot find that the Crown has proven the frequency of the sexual assaults that the complainant alleges beyond a reasonable doubt.

The evidence is somewhat equivocal. Thus, I found the Crown has proven that there were three sexual assaults over the period covered in Count 1. [ 18 ] In regard to whether the accused was in a position of trust, power, and authority, and whether he abused that position to engage the complainant in the sexual activity, the defence concedes that there was a significant breach of trust in this case. There was a 30-year age gap between the offender and the complainant. The sexual assaults ran the gamut from kissing to oral sex and full penetration.

Several other factors support that the offender was in a relationship of trust, power, or authority with the complainant through the timeframe captured in Count 1: 1) He was her uncle. 2) She emigrated from Sri Lanka to come and live with him and his family in Canada. 3) He sponsored her on a student visa. 4) She was 20 years old when she arrived in Canada. 5) The offender was 50 years old at the time. 6) The complainant described the offender as like a father figure and role model to her. 7) The offender agreed he treated the complainant like a daughter. 8) The offender agreed that the complainant put her trust in him when she agreed to come to Canada and live with him and his family. 9) The offender agreed that he and the complainant were very close and when the complainant had a problem, she would come to him.

10) The offender agreed that the complainant confided in him and she sought his advice sporadically. 11) The offender agreed that he knew that the complainant trusted him implicitly and that he broke that trust when he had sex with her. 12) The complainant said she felt it was implied that if she did not submit to sexual acts with the offender, there would be negative repercussions to her, although the offender never specifically verbalized that to her. 13) The offender agreed that by 2003, the complainant had told him something about having a troubled home life in Sri Lanka. 14) The offender paid most of the complainant's expenses, including her tuition. 15) The offender became one of her instructors in third-year at TRU and had a private office on campus. 16) The offender knew that the complainant's nursing degree was important to her and that it was her path to financial independence.

Count 2 - Sexual Assault between August 1, 2006 and December 31, 2006 [ 19 ] The essential finding of facts that I can derive from the jury's conviction of the offender on Count 2 are that he sexually assaulted the complainant between August 1, 2006 and December 1, 2006 at or near Kamloops, B.C.

As with Count 1, it means the jury found as a fact that the offender intentionally touched the complainant, knowing, being reckless to, or wilfully blind to the fact that she did not consent to his touching and that his touching was of a sexual nature. [ 20 ] The Crown says Count 2 was designed to capture a specific instance of sexual assault. The offender agreed that this assault happened and that he admitted to it in the recorded phone calls that he had with the complainant on March 16, 2019.

In that phone call, he stated that he took advantage of the complainant and that she did not consent to sexual relations that day, and that the offender raped her. [ 21 ] The Crown identifies the following other issues on sentencing with regard to Count 2: 1) Did the complainant attempt to commit suicide the night before the sexual assault? 2) Was the complainant unconscious when the offender began to have sexual intercourse with her on that occasion? 3) What was the extent of the sexual abuse that the Crown has proven beyond a reasonable doubt on this count? 4) Was the accused in a position of trust, power, and authority over the complainant and, if so, did he abuse that position to engage the complainant in sexual activity? [ 22 ] I find that the Crown has proven beyond a reasonable doubt that the complainant intended to kill herself on the night before that occasion.

She had failed her last nursing course. She learned that when she returned from Sri Lanka in early September 2006. She felt helpless and scared and she considered that killing herself was the only solution. She ingested Tylenol and Benadryl in significant amounts and lay down to go to sleep. When she woke up, the offender was on top of her, holding her face and kissing her and penetrating her vagina with his penis. [ 23 ] The offender attempted to cause the complainant to vomit.

He did not take her to the hospital and told her that a mental health diagnosis would be a black mark on her record that would stick. [ 24 ] The defence concedes that this demonstrates that the offender was not merely reckless during Count 2, but was wilfully blind as to the incapacity to consent by virtue of the complainant's inability to understand the four conditions requisite in s. 273.1(2)(b), and those are that the complainant was incapable of consenting to the activity for the reason other than one referred to in s. 273.1(2)(a.1);

section 273.1(2)(a.1) refers to the complainant being unconscious. The defence takes the position that the evidence does not establish that the complainant was unconscious at the time the sexual assault took place, and further asserts it is unnecessary to find that the complainant was unconscious in order to arrive at a verdict of guilty on Count 2. The jury could have found the offender was guilty by virtue of s. 273.1(2)(b), that the complainant was incapable of consenting to the activity for any other reason, other than she was unconscious, or s. 273.1(2)(

c) that the accused induced the complainant to engage in this activity by abusing a position of trust, power and authority, or both. [ 25 ] The defence concedes that the accused was in a position of trust, power and authority and abused that to engage the complainant in sexual activity. I find that the evidence that the complainant was in and out of consciousness and had vertigo as the sexual intercourse continued is proven beyond a reasonable doubt and that s. 273.1(2)(a.1) applies. [ 26 ] Similarly, I find that subparagraph (

c) applies. The offender abused his position of power and trust for the reasons given under Count 1, and also in the particular circumstances of Count 2. Victim Impact Statement [ 27 ] The complainant read her comprehensive and heartfelt victim impact statement. She described her background in Sri Lanka where there was a cultural role regarding obedience. She said that she developed a trusting relationship with her uncle and was devastated by his sexually assaulting her on several occasions.

[ 28 ] The sexual offences were deeply troubling to her and resulted in depression, post-traumatic stress disorder, and other associated mental health problems. It also resulted in physical symptoms, including pelvic pain and cramps, and excessive sweating triggered by stress. [ 29 ] These mental and physical symptoms have interfered with the complainant's ability to work. She has undergone significant counselling and occupational therapy over several years. There has been a significant economic impact upon her, including the cost of counselling and occupational therapy, and the purchase of a service dog.

There has also been a reduction in her income due to her inability to work as a registered nurse because of her physical and mental health problems. The complainant is unable to see a future without these limitations for many years to come. [ 30 ] The complainant fears for her security, which is addressed in a very small way, partly with the help of her service dog. [ 31 ] The complainant also describes the impact of the justice system and the trial, which she describes as a whirlwind.

She describes that the system has limitations and drawbacks that have impacted her negatively as a victim. [ 32 ] Ultimately, the complainant says she is a determined individual and she continues to survive the damage that the offender has inflicted upon her, but she must always be ready to be derailed or triggered by something that throws her world into turmoil. Circumstances of the Offender [ 33 ] The offender is now 72 years old with no criminal record. He was born in Sri Lanka.

He travelled to England in 1977 to study to become a psychiatric nurse and immigrated to Canada in 1979. [ 34 ] The offender's first job in Canada was at George Brown College in Toronto from 1979 to 1981. In 1982 he moved to Edmonton for a work opportunity and where he met his ex-wife. They have three children together who are now between the ages of 30 and 40. [ 35 ] The offender and his family relocated to Penticton in 1986, where he took a position as an administrator. This was the last time he actually practised as a mental health nurse.

The offender and his family moved to Kamloops in 1992 when he became the Director of Community Mental Health for the Ministry of Health. He left that role to become a planner for Interior Health in 1998, and continued in that position to 2003. [ 36 ] In 2004, the offender began teaching at TRU and consulting on the side. In 2006, he established his own company: Maligaspe Healthcare. That was a business of owning and operating long-term care homes for seniors in Prince George and Quesnel. [ 37 ] The offender is now divorced from his wife and he no longer has a relationship with his children.

As a result of his convictions, the offender is no longer allowed to attend his business of operating and managing the long-term senior care facilities. He cannot attend inside the business or have contact with clients and care homes so he does landscaping and outdoor work for the facilities. His ex-wife manages the business. The offender has no significant concerns about his physical or mental health. [ 38 ] In the summer of 2022, the offender met with Dr. Lyne Piché for the purpose of conducting a risk assessment report for the benefit of the Court. Dr.

Piché is a clinical psychologist who specializes in the area of sexual dysfunctions and paraphilias. [ 39 ] In regard to the offender’s risk assessment, Dr. Piché provided the opinion that Mr. Maligaspe obtained a score on the Static-99R that places him in the very low risk range. Dr. Piché assessed the offender's dynamic risk factors that include significant social influences, intimacy deficits, sexual self-regulation, cooperation with supervision, and general self-regulation, and determined it to be in the moderate risk range. Dr.

Piché says that the combination of the scores provides a composite assessment of risk/needs to produce estimates of sexual recidivism that place the offender in a category of very low risk. Dr. Piché notes the offender has no understanding of the rules of sexual consent.

He believes that sexual consent is obtained in a non-verbal way and that it is his partner's job to withhold consent by verbal or physical means. [ 40 ] In the sentencing hearing, the offender provided several letters of support from individuals in his community who are aware of the convictions. [ 41 ] At the conclusion of the sentencing hearing, the offender apologized to the complainant. He recognized that he had brought her so much pain. He said he did not realize the effect that his offending had upon her, although he understands it now. He says that nothing like this will happen again.

Crown and Defence Positions The Crown [ 42 ] The Crown is seeking a global sentence of eight years as well as ancillary orders. Particularly the Crown seeks a sentence of four and a half years on Count 1 and three and a half years on Count 2, to be served consecutively, for a global sentence that would be eight years. The Crown does submit that the Court ought to exercise restraint and reduce the sentence on each count by six months in order to achieve that sentence.

The Defence [ 43 ] The defence submits that the Court should impose a sentence of two years less a day and place the offender on a period of probation for three years to follow, with conditions in order to address each principle of sentencing set out in the Criminal Code . The

defence says that the sentences should be served concurrently. Relevant Case Authorites [ 44 ] In R. v. G.M. , 2015 BCCA 165 at para. 22 , the Court set out a range of sentences for sexual assault involving intercourse as two to six years. [ 45 ] The Crown provided a series of authorities that address sentences for repeated sexual assaults. In most of the cases provided, the range of sentence was three to four years for one or several instances of sexual assault where the victim was vulnerable and the offender abused his position of trust, power, or authority.

I will not refer to all of the cases cited. [ 46 ] I do wish to address two of the cases that include sentences of twice to three times the range set out in G.M. In my view, those cases are highly distinguishable. The first is R. v. Nahanee , 2022 SCC 37 , where the Court upheld an eight-year sentence imposed on an accused who pleaded guilty to two counts of sexual assault on his nieces. The first involved several incidents lasting over a period of five years beginning when the niece was 13. The second involved another niece, one incident when his niece was 15 years old.

Guilty pleas were presented to the sentencing judge, along with the parties' submissions on sentence. The range that was sought as between the defence and the Crown was three to six years. The sentencing judge departed from the submission and imposed an eight-year sentence. [ 47 ] The issue before the Supreme Court of Canada was whether the sentencing judge ought to have imposed a sentence greater than that sought by the Crown and whether the judge ought to have provided notice to the parties of her intention to do so.

The Court considered that the judge had provided adequate reasons for why she exceeded the Crown range and determined that the sentence imposed was not demonstrably unfit. [ 48 ] My focus here is on determining the appropriate sentence, not one that is not demonstrably unfit. [ 49 ] The decision of R. v. A.H.K., 2022 BCSC 1563 , is also distinguishable on its facts. In that case, the offender engaged in an escalating course of physically and sexually assaulting his daughter over a 12-year period. He began the physical assaults when she was seven and the sexual assaults when she was nine. [ 50 ] In R. v.

Hume , 2016 BCCA 230 , the Court imposed a sentence of three years on the offender for one incidence of serious sexual assault, unlawful confinement, and uttering threats to a vulnerable victim. [ 51 ] The offender in R. v. Shrivastava , 2019 ABQB 663 , which I understand is presently under appeal, was sentenced to three and a half years for sexual assault of a victim while she was sleeping. The Court addressed the references that had been provided by the offender as to his good character at para. 77, and stated: [77] Mr. Shrivastava’s references speak emphatically of his caring and moral nature.

However, character traits displayed in public are of questionable relevance to offences committed in secrecy. In particular, since sexual offences are "usually perpetrated in private, out of sight and knowledge of friends and associates", evidence of community reputation has "little probative value" . . . Sexual offences "are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best" . . . [ 52 ] The Crown also referred to the decision of R. v. Friesen , 2020 SCC 9 .

That decision is pivotal in cases involving the sexual assault of children. [ 53 ] In R. v. Thomas , 2022 BCSC 2297 , provided by the defence, Justice MacDonald explained how Friesen applies, even where the victim is not a child: [41] In Friesen , the Supreme Court of Canada articulated a new analytical framework to be applied by sentencing judges when sentencing offenders who have committed sexual offences against children. The Court emphasized an upward departure from prior sentencing ranges.

The comments the Court made in Friesen have application to sentencing in sexual offences against adults [and Justice MacDonald notes two Manitoba Court of Appeal cases there] namely that sexual violence invades personal autonomy, violates bodily and sexual integrity, and gravely wounds dignity . . . Courts are required to focus their attention on emotional and psychological harm, not just physical harm . . . [42] The Court in Friesen held that sentences for sexual assaults must recognize . . . both the harm caused to girls and young women and the inherent wrongfulness of the violence . . .

The Court’s reasoning emphasizes that all forms of sexual violence are morally blameworthy. The offender has treated the complainant as an object and has disregarded their human dignity. Courts must give proper weight to the offender’s underlying attitude toward the complainant because it is highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation . . . [ 54 ] The defence has provided a series of cases involving elderly offenders. In R. v. Anthony, 2014 BCSC 2132 , the Court imposed a sentence of two years less a day and two years' probation.

The offender was a psychologist who engaged in sexual abuse and assault of his patient for three years. The victim was an emotionally disturbed, vulnerable person, and to whom he was in a position of trust and authority. There were mitigating factors. He had lost access to his profession. He had been shamed publicly. He was in declining health, and his risk to reoffend was very low. [ 55 ] In R. v.

Bond , 2017 BCSC 1808 , the Court imposed a two-year sentence and three years' probation on an offender convicted of one count of sexual assault and one count of sexual touching while he was a person of trust and authority over the victim, who was dependent on him. A motivating factor in sentencing was to keep the offender on probation for three years, which was not possible if the sentence was more than two years.

[ 56 ] A 30-month sentence was imposed on the offender in R. v. Cartwright , 2019 BCSC 820 , for one count of sexual assault of an intoxicated sleeping victim. [ 57 ] In R. v.

Swope , 2015 BCCA 167 , the Court upheld a sentence of 39 months imposed upon an elderly offender in poor health who had committed six counts of indecent assault on six of his students while he was their Grade 2 teacher in the early 1980s. [ 58 ] In Thomas , to which I have already referred, the Court imposed a 21-month sentence on the offender who pleaded guilty to two counts of sexual assault involving a series of incidents of digital penetration and masturbation. Principles of Sentencing [ 59 ] Sections 718 to 718.2 of the Criminal Code set out the principles of sentencing.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. A sentence should have one or more of the following objectives: (

a) to denounce unlawful conduct ... (

b) to deter the offender and other[s] ... from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or ... the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims [and] to the community. [ 60 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 61 ] A sentence should be similar to sentences imposed on similar offenders for similar offences. An offender should not be deprived of liberty if less-restrictive sanctions may be appropriate in the circumstances. [ 62 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 63 ]

Section 718.2 sets out statutorily specified aggravating factors.

Those that apply here are: (ii) evidence that the offender, in committing the offence, abused ... a member of the victim or the offender’s family, ... (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, [and] (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health ... [ 64 ] In cases involving sexual assault of a vulnerable person, the principles of denunciation and deterrence require primary consideration.

Mitigating and Aggravating Factors Mitigating Factors [ 65 ] In respect of mitigating factors, the offender has no criminal record. He has a strong record of employment and support in his community. He is remorseful. Aggravating Factors [ 66 ] In regard to aggravating factors, there was a significant breach of trust. The complainant was his niece. She was 30 years younger than him and new to Canada. The offender was her sponsor. She resided with him and his family. He supported her financially and in her pursuit of a career.

She was entirely dependent on the offender and he used his position of trust to take advantage of the complainant. [ 67 ] The complainant trusted the offender and confided in him. She regarded the offender as a father figure and a role model. Eventually the offender became one of the complainant's professors at TRU and his power over her grew. [ 68 ] In considering the strong social and employment background that the offender enjoyed, I must temper that with the comments of the trial judge in Shrivastava .

While the offender was very well regarded in his community, I note that the sexual assaults took place in secret, and often in the privacy of his own home. Moral Blameworthiness

[ 69 ] As noted in Friesen , sentences for sexual assaults must recognize and reflect both the harm caused to young women and the inherent wrongfulness of the violence.

At para. 89, the Court states: [89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity… [ 70 ] As I have noted, the moral blameworthiness of the offender is compounded by his position of power, trust, and authority over his much younger and very dependent niece. [ 71 ] As a result of the offender's sexual assaults on the complainant, the complainant has suffered and will continue to suffer in multiple ways set out in her victim impact statement.

Appropriate Sentence to be Imposed [ 72 ] The kind of sentence to be imposed must emphasize deterrence and denunciation and recognize the gravity of the offence and the high moral blameworthiness of the offender. [ 73 ] I will now refer to what I have described as the Friesen factors. Friesen sets out the significant factors to determine a fit sentence, beginning at para. 121. They are: 1) likelihood to reoffend; 2) abuse of a position of trust or authority; 3) duration and frequency; 4) the age of the victim; 5) the degree of physical interference; and 6) victim participation. 1.

Likelihood to Reoffend [ 74 ] I accept that the offender is at a very low risk to reoffend. He is 20 years older than he was when the sexual offences took place. His opportunities to reoffend are limited. Lower risk to reoffend appears to be a common theme in many of the cases involving sexual offences against a victim by a person who is in a position of trust and authority. That is because offenders are unlikely to find themselves in similar circumstances after they have been convicted of these counts. 2. Abuse of a Position of Trust or Authority [ 75 ] As I have noted, both in Count 1, Count 2, and in my

summary, the offender repeatedly abused his position of trust and authority. 3. Duration and Frequency [ 76 ] As I said, I cannot find that the sexual assaults were as frequent as the complainant said they were beyond a reasonable doubt. Nevertheless, for all the years that the complainant resided in the offender's home where several of the sexual assaults took place, the complainant had to contend with and fear that she might be assaulted by the offender at any time. Her home was not a peaceful sanctuary from the time the sexual assaults began until she moved out. 4.

The Age of the Victim [ 77 ] The complainant was 20 years old when the sexual assaults began. Though she was not a child, she was very vulnerable, as I have already set out. 5. The Degree of Physical Interference [ 78 ] The degree of sexual interference was pronounced in this case. The complainant described instances of penile penetration as well as the depth of emotional and physical harm that she suffered because of her uncle sexually assaulting her. 6. Victim Participation [ 79 ] The complainant was an unwilling participant throughout. Proportionality

[ 80 ] Proportionality is a fundamental principle of sentence. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Friesen directs me to give effect to the inherent wrongfulness, potential harm, and actual harm that the offender's sexual offences had with the victim. [ 81 ] I must focus on the harm, addressing the complainant's personal autonomy, her body, and sexual integrity, her dignity, and her relationships with family and friends. [ 82 ] I must consider the aggravating factors that include almost all of the significant factors to which Friesen refers.

In this case, I must emphasize the sentencing objectives of denunciation and deterrence, while balancing all of the objectives of sentencing as set out in the Criminal Code . [ 83 ] The offences reflect each of the aggravating factors set out in Friesen , with the exception of likelihood to reoffend. All of the factors I have set out relate to both counts. Specifically in relation to Count 2, the circumstances reflect a sexual assault that occurred where the complainant was in an extremely vulnerable state, the complainant was so depressed that she tried to kill herself.

The offender sexually assaulted her while she was in and out of consciousness. He did not take her depression and suicide attempt seriously, and dissuaded her from getting professional help, despite his many years as a mental health nurse. [ 84 ] Before I ask Mr. Maligaspe to stand in order that I can impose the sentence that I have determined to be appropriate, I want to address the matter of consecutive or concurrent sentences. [ 85 ] The Crown suggests that the sentences should be consecutive, on the basis of the principles set out in R. v. G.P.W. , [1998] B.C.J.

No. 838, at para. 116 : The trial judge could not be said to have erred in principle by imposing consecutive sentences in the manner he did so that, in the end, the appellant would not benefit from the fact that he has committed so many offences over so long a period of time. In my opinion, a person convicted of separate and distinct offences should not get special consideration simply because the offences, in which the same or similar conduct is repeated, are committed against the same people in a domestic setting ... [ 86 ] I agree with the sentiment expressed by the court in that case.

However, the facts of that case are distinctly different than those before me. [ 87 ] In G.P.W. , the accused was convicted of 22 counts of assault causing bodily harm and sexual assault of a woman and her daughter with whom he lived. The assaults were of an extremely brutal nature and took place over a number of years. The accused showed a lack of appreciation of the devastating effects of his abuse and the seriousness of his conduct.

He was sentenced to a total of 20 years' imprisonment, comprising various concurrent and consecutive sentences which amounted to 10 years for the offences committed against each victim. [ 88 ] In this case, I consider there to be a nexus in time between the various acts. The offences occurred while the complainant was residing in the offender's home, although they did not take place exclusively in his home, while the complainant resided in Kamloops and was attending university here. I therefore impose concurrent sentences. [ 89 ] Mr.

Maligaspe, would you stand, please. [ 90 ] Based on the authorities that I have provided and considering that the offender is a senior citizen, albeit with no significant health problems, I impose the following sentence on each count: Count 1, three and a half years' imprisonment, and Count 2, three years' imprisonment and, as I have stated, to be served concurrently. [ 91 ] Thank you, sir, you can be seated. [ 92 ] I also impose the following ancillary orders: 1) An order under s. 490.012 of the Criminal Code , the offender is subject to a 20-year SOIRA order under Counts 1 and 2, pursuant to s. 490.012 of the Criminal Code , due to the suspension and a declaration of invalidity expressed in R. v.

Ndhlovu , 2022 SCC 38 . 2) A non-communication order, pursuant to s. 743.21 of the Criminal Code , prohibiting the offender from contacting the complainant, Dinushini Maligaspe, directly or indirectly, for the duration of the offender's incarceration. 3) In regard to a DNA order, sexual assault, that is s. 271 of the Criminal Code , is a primary designated offence under s. 487.4(

a) of the Criminal Code , and pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis from Mr. Maligaspe, who has been convicted of an offence where that offence is a primary designated offence. 4) Finally, I impose a firearms prohibition pursuant to subsection 109(1) (

a) of the Criminal Code . The offender has been convicted of an indictable offence in the commission of which violence was used and for which he may have been sentenced to imprisonment for 10 or more years. Thus, I make an order prohibiting Mr. Maligaspe from possessing any non-restricted firearms or ammunition for a minimum of 10 years, and from possessing any restricted or prohibited firearms or weapons or ammunition for life. [ 93 ] Thank you, that concludes my reasons for sentence. Is there anything further? [ 94 ] CNSL J. MICHI: Justice, there is just the issue of a victim fine surcharge.

In the A.H.K. decision, Madam Justice Ker's decision, at para. 159, she discusses how the reasoning in Boudreault renders it inoperable. Since then, Bill C-75 was put it back into effect, but only for offences that occur after a certain date in 2019, so it's my understanding that following the reasoning in Boudreault and Justice Ker's decision, the victim fine surcharge doesn't apply in this case. In any event, Mr. Maligaspe is going to be in custody and he's not going to have an opportunity to pay.

[ 95 ] THE COURT: All right. Ms. Bouchard? [ 96 ] CNSL K. BOUCHARD: I -- I agree with my friend -- [ 97 ] THE COURT: All right. [ 98 ] CNSL K. BOUCHARD: -- that it doesn't apply in this case. [ 99 ] THE COURT: All right. Thank you. Anything else to be addressed? [ 100 ] CNSL J. MICHI: No. I've advised the sheriffs that Mr. Maligaspe has a CPAP so they'll have to check that. He's got it with him. [ 101 ] THE COURT: That is a sleep apnea device? [ 102 ] CNSL J. MICHI: A sleep apnea device, as well as -- [ 103 ] THE COURT: Yes. [ 104 ] CNSL J.

MICHI: -- a list of his medications, so just so that Madam Sheriff is aware of that. [ 105 ] THE COURT: Yes, thank you. All right, thank you very much. We will adjourn. “Gropper J.”