R. v. Knight, 2023 BCSC 1748

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Knight, 2023 BCSC 1748 Date: 20230808 Docket: 179326-2 Registry: Victoria Rex v. Kyle Michael William Knight Restriction on Publication: Pursuant to 486.4(2) & 486.5(1) C.C.C. Before: The Honourable Justice Lamb Oral Reasons for Sentence Counsel for the Crown: S. BakkenCounsel for the Accused: S.J. Roy as agent for R.R. DruryPlace and Date of Hearing: Victoria, B.C. July 31, 2023Place and Date of Judgment: Victoria, B.C.

August 8, 2023 Introduction [1] THE COURT: Kyle Knight is before the court today to be sentenced following his conviction for sexual interference. OnMarch 24, 2023, I convicted Mr. Knight on both counts of Indictment 179326-2.

That is, I found him guilty of sexual assault and sexualinterference contrary to ss. 271 and 151 of the Criminal Code respectively. [2] A conditional stay of proceedings was entered with respect to the sexual assault charge pursuant to the principles set out in R. v.Kienapple, (SCC), [1975] 1 S.C.R. 729. [3] With respect to the conviction for sexual interference, the Crown submits that an in-custody sentence of three to four years,together with various ancillary orders, is a fit and proper sentence in the circumstances. [4] Mr. Knight submits that an in-custody sentence of two years less a day is appropriate.

Circumstances of the offence [5] In my reasons for judgment indexed at R. v. Knight, 2023 BCSC 624, I set out in detail the circumstances of the offence uponwhich the conviction is based. For the purposes of sentencing, I will briefly summarize the circumstances. [6] Late on the evening of October 19, 2019, Mr. Knight met E.M. for the first time on a city bus. Mr. Knight was 22 years old atthe time. Both Mr. Knight and E.M. had been drinking earlier that evening. [7] At some point during the bus ride, E.M. and two of her friends decided to go to Mr. Knight's apartment with Mr.

Knight and hisfriends to continue drinking. [8] After the bus ride, at least 10 people congregated in Mr. Knight's one-bedroom apartment. Mr. Knight sat next to E.M. on thecouch until she spilled beer on his pants. When Mr. Knight went to change his pants, E.M. followed him into his bedroom. They kissedjust inside the bedroom door. Mr. Knight lowered his pants, and E.M. performed oral sex on him. [9] Mr. Knight stood behind E.M. and helped her pull her pants down. His penis touched her vagina. At that moment, someoneopened the bedroom door on their way to the bathroom. This was the fourth such intrusion while Mr.

Knight and E.M. were in hisbedroom. Mr. Knight pulled up his pants and left the bedroom. E.M. exited the bedroom a few minutes later with help from her friend. [10] The entire encounter between E.M. and Mr. Knight in the bedroom lasted three to five minutes. [11] At the time of these events, E.M. was approximately 15 years, 11 months old. Mr. Knight did not ask E.M. her age at any point

before the sexual activity occurred. [ 12 ] Ultimately I concluded that Mr. Knight was reckless as to whether E.M. was over the age of 16 years when he touched her for a sexual purpose. I found him guilty of sexual interference. Victim impact [ 13 ] E.M. provided information to the presentence report writer about how the offence affected her. The court also received written victim impact statements from E.M. and from her mother. [ 14 ] According to the presentence report, E.M. experienced multiple long-term impacts as a result of the offence, including flashbacks and nightmares that she fears will never go away.

In the aftermath of the offence, E.M. began abusing drugs and alcohol to manage her feelings and emotions. Although she now has control of her use of the substances, the events sent her into "an alcoholic spiral" for several months. [ 15 ] In her written victim impact statement, E.M. says that her outlook on life was completely changed by the offence. She is quite uncomfortable around men she does not know. She fears that something similar is going to happen again. She fears that something similar may happen to her own daughter.

E.M.'s sexual experiences subsequent to the offence are not enjoyable. [ 16 ] E.M.'s mother confirms that the offence affected E.M. and her whole family. E.M.'s family constantly worries about what could happen to her when she goes out with her friends. E.M.'s mother reports that E.M. had a long period of depression and was in an almost constant anxious state after the offence occurred. She stopped going to school and could not get out of bed. Her anxiety limited her activities. [ 17 ] E.M. has pursued therapy and takes medication to manage the psychological effects of the offence.

She anticipates she may need therapy for the rest of her life. Circumstances of the offender [ 18 ] Mr. Knight is currently 26 years old. He was born in Victoria, British Columbia. Until he was seven years old, Mr. Knight's mother raised him on her own. She then met the man who became Mr. Knight's stepfather. Mr. Knight's younger sister was born when he was 10 years old. He moved with his family to Halifax and Ottawa before returning to live in Victoria. [ 19 ] When he was 16 years old, Mr.

Knight stayed in Victoria and lived briefly with a girlfriend and her mother, while the rest of his family moved back to Ontario. By then, he was working at Walmart. After his relationship with his girlfriend ended, Mr. Knight became homeless. He has had only brief periods of housing since the age of 16. [ 20 ] When he was 16 years old, Mr. Knight met his biological father, who was heavily involved in drugs and alcohol and not willing to fulfil a parenting role. [ 21 ] Mr. Knight has not seen his mother for a number of years. [ 22 ] Mr. Knight completed Grade 10.

He has an intermittent work history, including short-term employment in various customer service jobs and a year's long stint at the shipyards. Mr. Knight would like to complete his high school diploma, and he hopes to return to work at the shipyards. [ 23 ] Mr. Knight reports a historical diagnosis for attention deficit hyperactivity disorder and anxiety. He is currently not taking medication for these conditions, and there is no evidence that either condition played a role in the commission of the offence. [ 24 ] Mr.

Knight recalls multiple instances of sexual abuse that were perpetrated on him by his mother's boyfriends when he was approximately four or five years old. Mr. Knight recalls two other instances of sexual abuse by two different men in 2021. This sexual abuse has not been reported to authorities. [ 25 ] Mr. Knight has a lengthy history of substance abuse. He started using marihuana at age 10. He started using a variety of different substances regularly and habitually at age 14. [ 26 ] As of the writing of the presentence report, Mr.

Knight used crack cocaine, marihuana and methamphetamine most often and occasionally opiates such as heroin or fentanyl. He attended a treatment centre at age 20 for heroin dependency, after which he remained sober for a few months before relapsing. On the night of the offence, Mr. Knight had consumed alcohol and perhaps marihuana. [ 27 ] Mr. Knight has a criminal record that includes convictions for robbery, assault, and assault with a weapon. Mr. Knight has also been convicted of breaching court orders.

Principles of sentencing [ 28 ] The fundamental principles to be considered by the court in sentencing are established by Parliament and set out in ss. 718 to 718.2 of the Criminal Code .

Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with reference to six objectives.

[ 29 ] The six objectives listed in s. 718 are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separation of offenders from society where necessary, assistance in the rehabilitation of offenders, provision for reparations for harm done to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. [ 30 ] Of note in this case, s. 718.01 of the Criminal Code says that denunciation and deterrence are to be given primary consideration when sentencing for an offence that involved the abuse of a person under the age of 18 years. [ 31 ] Pursuant to s. 718.1 of the Criminal Code , a sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender.

These two perspectives on proportionality "converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary": R. v. Nasogaluak, 2010 SCC 6 . [ 32 ]

Section 718.2 sets out a number of specific principles that a court must take into consideration when imposing a sentence. One important principle is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender: s. 718.2 (a). [ 33 ] There are two aggravating factors identified in s. 718.2 (

a) that apply in this case: the offender abused a person under the age of 18 years, and the offence had a significant impact on the victim. [ 34 ] Another important sentencing principle is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2 (b). This is called the parity principle. To achieve parity, the court often considers a usual range of sentences as a starting point.

However, our Court of Appeal recently noted that the jurisprudence has not yet established a range of sentences for sexual assaults committed against children, subsequent to the Supreme Court of Canada's decision in R. v. Friesen, 2020 SCC 9 [ Friesen ]; R. v. Nystrom , 2023 BCCA 232 at para. 45 . [ 35 ] In Friesen , the Supreme Court of Canada provided guidance for trial judges imposing sentences in this type of case, which I have followed.

I will identify some of the key passages that are particularly noteworthy for the case at bar. [ 36 ] At para. 75 of Friesen , the Supreme Court of Canada emphasized that "courts need to take into account the wrongfulness and harmfulness of sexual offences . . . when applying the proportionality principle." [ 37 ] In terms of wrongfulness of sexual offences against children, the Supreme Court of Canada said at paragraph 78 of Friesen that it is "inherently exploitative for an adult to apply physical force of a sexual nature to a child" and that "Courts must always give effect to the wrongfulness of this exploitation in sentencing, even if the degree of exploitation may vary from case to case." [ 38 ] In terms of the harmfulness of sexual offences against children, the Supreme Court of Canada at paras. 79 to 86 of Friesen explained that courts must consider both potential harm, including harm that is reasonably foreseeable as a consequence of the sexual offence that may materialize at a later date, and actual harm to the victim.

With respect to the latter, the Supreme Court of Canada said at paragraph 85 that such "consequential harm is a key determinant of the gravity of the offence." [ 39 ] In assessing the degree of responsibility of the offender, the Supreme Court of Canada at paragraph 88 of Friesen said that "courts must take into account the harm the offender intended or was reckless or wilfully blind to." The offender's degree of responsibility is heightened because the victim is a child: Friesen at paragraph 90 . [ 40 ] The Supreme Court of Canada recognized at paragraph 91 of Friesen that "sexual assault and sexual interference are broadly- defined offences that embrace a wide spectrum of conduct", which means that "the offender's conduct will be less morally blameworthy in some cases than in others." An offender who has failed to take all reasonable steps to determine the victim's age will have a lower level of moral culpability than an offender who lacks an honest belief that the victim was of the age of consent: R. v.

Angel , 2018 BCSC 1751 at paragraph 70 . [ 41 ] Taking note of s. 718.01 and 718.2(a)(ii.1), the Supreme Court of Canada confirmed that sexual offences against children are to be punished more severely than sexual offences against adults: paragraph 116 of Friesen . [ 42 ] The Supreme Court of Canada noted that the age of the victim is an aggravating factor if the victim is really young: Friesen at paragraph 115 .

However, the Supreme Court of Canada also cautioned sentencing judges to impose proportionate sentences where the victim is an adolescent, as such cases have historically resulted in disproportionally low sentences: Friesen at paragraph 136 . [ 43 ] The Supreme Court of Canada highlighted that sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, problematic substance use, and unwanted pregnancy: Friesen at paragraph 136 . [ 44 ] Beginning at paragraph 121 of Friesen , the Supreme Court of Canada provided that when determining a fit sentence, the court should consider the following factors:

a) the offender's likelihood to reoffend;

b) the offender's abuse of a position of trust or authority;

c) the duration and frequency of the sexual violence;

d) the age of the victim; and

e) the degree of physical interference. [ 45 ] With these instructions in mind, Friesen states that mid-single-digit penitentiary terms for sexual offences against children are normal and upper-single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional

circumstances: Friesen at paragraph 114 . [ 46 ] With this legal framework, I will consider how the Criminal Code provisions and the guidance from the Supreme Court of Canada in Friesen apply in this case, with reference to counsel's submissions on sentencing and other post- Friesen decisions on sentencing. Analysis [ 47 ] In this case, denunciation and deterrence are the primary principles of sentencing, by virtue of s. 718.01. [ 48 ] The first stage of the proportionality assessment requires consideration of the gravity of the offence.

As Friesen makes clear, sexual interference is inherently exploitative and harmful. The actual harm is a significant factor in assessing the gravity of the offence. In this case, I am satisfied that the offence caused significant psychological harm to E.M. [ 49 ] Counsel for the defence argues that the victim impact statements and other evidence of harm to E.M. should be given less weight, because there was evidence during the trial that E.M. expressed some ambivalence about the outcome of the criminal proceeding when she refused to return to the court to testify.

I am not satisfied that evidence relied upon in support of the Crown's application pursuant to s. 715(1) is relevant to my decision on sentencing. Even if it was, I do not accept that such evidence goes as far as submitted by defence counsel. Any statements E.M. made to the support person to explain her refusal to testify at trial cannot be divorced from the context in which they were made.

In any event, E.M.'s feelings about the criminal proceeding would not detract from or lessen the psychological impact of the offence on E.M., which is clear on the evidence. [ 50 ] Counsel for the defence argued that the gravity of the offence is lessened because the offence involved an isolated encounter that lasted only a few minutes.

The Supreme Court of Canada in Friesen recognized that frequency and duration may increase the gravity of the offence, but I understand the term "duration" in that context to refer to the period of time over which a number of interactions occurred, rather than how long a particular encounter lasted. [ 51 ] As in this case, one episode of sexual interference involving a high degree of physical interference, as this one did, may be very harmful, as this one was.

I do not accept that the gravity of the offence is lessened in this case simply because the sexual contact occurred during one encounter that was relatively brief. [ 52 ] Defence counsel submitted that Friesen is less applicable in this case because E.M. was a few weeks away from the age of consent. Defence counsel also argued that Mr. Knight was a relatively immature 22-year-old, which effectively narrowed the age gap between him and E.M. In Friesen , the victim was a young child.

However, the Supreme Court of Canada specifically intended to send a strong message about the wrongfulness of sexual offences against children, the harm caused by such offences, and the need for increased sentences. E.M.'s proximity in age to the age of consent does not lessen the gravity of the offence, nor does Mr. Knight's relative immaturity. [ 53 ] Parliament has prescribed the age for a finding of sexual interference and Mr. Knight was found guilty of this offence. Acceding to these submissions would diminish E.M.'s entitlement to protection under the law as an underage person: R. v.

Brozer , 2023 BCSC 134 at paragraph 72 . [ 54 ] I accept defence counsel's submission that, unlike some other cases, there is no evidence of supplementary violence beyond the offence itself. Further, there is no evidence of advanced planning on the part of Mr. Knight. [ 55 ] Turning to the second stage of the proportionality assessment, the degree of responsibility of the offender, I must consider Mr.

Knight's personal circumstances and any aggravating or mitigating factors that would justify a departure from the usual sentences for sexual interference. [ 56 ] The Crown identifies the following aggravating factors which I accept:

a) abuse of a person under age of 18, s. 718.2(a)(ii.1);

b) the offence had a significant impact on the victim, s. 718.2(a)(iii.1);

c) E.M. was intoxicated and vulnerable, and Mr. Knight continued to provide her with alcohol at his home; and

d) Mr. Knight's criminal record. [ 57 ] The Crown submits that Mr. Knight's being a stranger to E.M. is an aggravating factor. In R. v. K.M. , 2020 NSSC 278 at paragraph 14 , the Crown made a similar submission. However, it is not obvious that the court accepted Crown's submission in that case. I do not accept that Mr. Knight's status as a stranger to E.M. is an aggravating factor.

The Supreme Court of Canada at paragraph 129 in Friesen discussed the statutory aggravating factor of abuse of a position of trust, and noted that an offender "who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger." As noted by Justice Muise at paragraph 21 in R. v. Wood , 2021 NSSC 253 , the breach of trust is likely to increase the harm and thus the gravity of the offence, and it is aggravating because it increases the offender's degree of responsibility.

It is incongruent to suggest that being in a position of trust and being a stranger are both aggravating factors. [ 58 ] Both counsel submit, and I accept, that Mr. Knight's relative youth at the time of the offence (22 years old) is a mitigating factor. [ 59 ] Mr. Knight's conviction arose from his failure to take all reasonable steps to determine E.M.'s age. Therefore, his moral culpability is lower than if the court had found that he lacked an honest belief that E.M. was at least 16 years old: R. v. Angel , 2018 BCSC 1751 at paragraph 70 .

[ 60 ] By way of other potential mitigating factors, defence counsel highlights Mr. Knight's history of drug and alcohol problems and history of unreported sexual abuse. Defence counsel notes that Mr. Knight had been drinking on the night of the offence and that he may have also used marihuana. However, there was no "foundation from which to reasonably conclude that because of intoxication, [the offender] was unable to appreciate the wrongfulness of [the offender's] conduct or its consequential harms": R. v.

P.R.J. , 2023 BCCA 169 at paragraph 73 . [ 61 ] Further, there was "no evidence on which to base a finding that the offender suffered from a mental disorder that was linked to the commission of the offences": R. v. Nystrom at para. 29 . [ 62 ] Mr. Knight has expressed a willingness to pursue addiction and other counselling. He is willing to engage in a sexual offender treatment program.

His counsel suggests he is showing increased insight and compliance. [ 63 ] I have no evidence regarding the final Friesen factor; that is likelihood to reoffend. [ 64 ] As stated earlier, it is a principle of sentencing that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. [ 65 ] In support of its submission that a three- to four-year sentence is a fit and appropriate sentence in this case, the Crown referred the court to the sentencing decisions in R. v. Gratton , 2022 MBPC 56 , a four-year custodial sentence; R. v.

K.M. , 2020 NSSC 278 , a five-year custodial sentence; and R. v. Brozer , 2023 BCSC 134 , a three-year custodial sentence. These three cases involved victims under the age of 16 and oral or vaginal penetration. [ 66 ] As defence counsel points out and I accept, Gratton involved a particularly vulnerable victim, a more significant age gap, and a higher level of deliberation on the part of the offender. [ 67 ] As defence counsel points out and I accept, K.M. involved a higher level of physical violence as part of the circumstances of the sexual offence. [ 68 ] Defence counsel brought the case of R. v.

C.J.J. , 2020 BCPC 201 , to the court's attention. Although there may be some factual similarities between C.J.J. and the case at bar, in terms of circumstances of the offence, I find the case is not particularly helpful. The sentencing judge in C.J.J. imposed a suspended sentence of 24 months after accounting for the impact of the COVID-19 pandemic. The offender's circumstances in C.J.J. were dramatically different than Mr.

Knight's circumstances. [ 69 ] In my view, the sentencing decision of Justice McDonald in Brozer is helpful because it shares some factual similarities with the case at bar: the age gap between the offender and victim are similar; both offences involved one occurrence of invasive sexual contact; and both victims suffered significant psychological harm as a result of the offence. [ 70 ] In terms of distinguishing features, in Brozer , the sexual violence included penile/vaginal penetration without a condom, in addition to digital penetration and oral sex. Mr.

Brozer knew that the victim was 15 years old when he committed the offence. On the other hand, Mr. Brozer had no criminal record. [ 71 ] I am mindful that my task as a sentencing judge is to craft an appropriate sentence for this particular offender with regard to the circumstances both of the offender and the offence, together with the principles of sentencing I referred to earlier. Imposition of Sentence [ 72 ] Mr.

Knight, please stand, as I am now going to impose a sentence. [ 73 ] On the charge of sexual interference of E.M., contrary to s. 151 of the Criminal Code , which is Count 2 of the indictment, I impose a custodial sentence of three years. From this 36 months, you will have credit of 183 days' time served at a rate of one and a half, which is 275 days. [ 74 ] With respect to ancillary orders, the following mandatory orders are made:

a) the taking of a DNA sample pursuant to s. 487.051(1) of the Criminal Code ;

b) a prohibition on possessing weapons for a period of not less than 10 years after Mr. Knight's release from prison for the offence of sexual interference, and a lifetime prohibition on possessing prohibited and restricted weapons, pursuant to ss. 109(1) and (2) of the Criminal Code ; and

c) compliance with the Sexual Offender Information Registration Act for a period of 20 years, pursuant to ss. 490.011(1) , 490.12(1), and 490.013(2) (

b) of the Criminal Code . [ 75 ] I also order that Mr. Knight have no contact or communication, directly or indirectly, with E.M. for the duration of his custodial sentence pursuant to s. 743.21 of the Criminal Code . [ 76 ] With respect to other ancillary orders sought by the Crown, the defence accepts and I agree that it is appropriate to order, pursuant to s. 161 of the Criminal Code , that for a period of 10 years, Mr. Knight shall not be within 50 metres of any dwelling house where E.M. resides. [ 77 ] The Crown sought further orders pursuant to s. 161 of the Criminal Code to restrict Mr.

Knight from employment where he would be in a position of trust or authority towards persons under the age of 16 years and to restrict his contact and communication with a person under the age of 16 years, unless that person is an immediate family member or such contact is authorized by further court order. I

am not satisfied that these additional ancillary orders would be proportionate or appropriate in this case, given the circumstances of the offence and the offender. The absence of evidence of advance planning or luring militates against such an order. This is Mr. Knight's first conviction for a sexual offence, and there is no evidence that he has a propensity to commit such crimes or that he is at an elevated risk to reoffend. The proposed restriction on Mr. Knight's freedom for such an extended period after completing a lengthy period of incarceration is not warranted in this case. “Lamb J.”