R. v. Palmer, 2023 BCSC 1818

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Palmer, 2023 BCSC 1818 Date: 20230706 Docket: 93435-2 Registry: Kelowna Rex v. Regis Patrick Palmer Restriction on Publication: Pursuant to 486.4(2) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Counsel for the Crown: P. O'Neil Counsel for the Accused appearing by videoconference: M. La Flamme Place and Date of Hearing: Kelowna, B.C. June 9 & July 6, 2023 Place and Date of Judgment: Kelowna, B.C.

July 6, 2023 TABLE OF CONTENTS Introduction .. 3 The Circumstances of the Offences .. 4 Application of the Kienapple Principle .. 5 Impact on the Victim .. 8 Circumstances of the Offender .. 10 Background and Current Circumstances . 10 Risk to Re-offend . 11 Legal Framework and Governing Principles .. 14 Maximum and Minimum Penalties . 14 Principles of Sentencing . 15 Consecutive Sentences . 17 Specific Considerations for Sentencing in Cases Involving Sexual Offences Against Children 17 Position of Parties .. 18 Analysis and Decision .. 20 The Analytical Framework Established by Friesen . 20 (

a) Likelihood to Re-offend . 20 (

b) Abuse of a Position of Trust or Authority . 21 (

c) Duration and Frequency of the Abuse . 22 (

d) Age of the Victim .. 23 (

e) Degree of Physical Interference . 24

(

f) Victim Participation .. 24 Mitigating Circumstances . 24 Lack of a Criminal Record . 24 C.W.

Was Not Required to Testify . 25 Risk to Re-offend . 26 Compliance on Release . 26 Aggravating Factors . 26 Duration and Frequency of the Abuse . 26 Ignoring Repeated Pleas to Stop . 26 High Degree of Physical Interference . 27 Breach of Trust 27 Vulnerability of the Victim .. 27 Impact on the Victim .. 27 Location of the offences . 27 Grooming Behaviour 28 Psychological Manipulation . 28 Additional Children Depicted in Images . 28 Sentencing Authorities . 28 Sentences . 35 Ancillary Orders . 37 [ 1 ] These Reasons for Sentence were delivered as oral reasons. They have since been edited for distribution.

Introduction [ 2 ] THE COURT: Mr. Palmer is a 67-year-old first-time offender who committed serious sexual crimes against a vulnerable young person over a period of six years. Following a protracted trial, on February 13, 2023, I convicted Mr. Palmer of all three counts on this indictment. Specifically, I convicted him of sexual assault, possessing child pornography, and making child pornography.

He is here today to be sentenced. [ 3 ] The Crown takes the position that a global sentence of 13 years' imprisonment, reduced to ten years through the application of the totality principle, is a fit and proportionate sentence for these offences. The defence contends that a fit global sentence, adjusted for totality, is five to six years' imprisonment. The parties are agreed on the ancillary orders to be made. [ 4 ] Many courts have discussed the difficult task faced by a sentencing judge.

To craft a proportionate sentence in accordance with the purpose, principles, and objectives the law requires in each unique case has been described as one of the most delicate and difficult stages of the criminal justice process in Canada. Although my task is governed by s. 718 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ] and although the objectives set out in those sections guide me and are clearly defined, sentencing nonetheless involves the exercise of a broad discretion by the court in balancing all the relevant factors in order to meet the sentencing objectives being pursued: R. v.

Lacasse, 2015 SCC 64 at para. 1 . [ 5 ] Fundamental to this task is to ensure that the sentence is proportionate to the gravity of the offence or offences, and the degree of responsibility of the offender. [ 6 ] I will begin by summarizing the circumstances of the offences. The Circumstances of the Offences [ 7 ] My reasons for judgment on conviction are indexed at 2023 BCSC 453 (the “Trial Reasons”). In the Trial Reasons, I detailed the circumstances of Mr. Palmer's crimes and will only set them out in brief

summary here.

[8] In 2009, at a time when the offender was about 53 years old, he met and became good friends with a man named B.W. B.W.'sson, C.W., was 12 years old at the time. C.W. is a person with a mental disability who suffers from developmental delays. C.W. was ingovernment care, visiting his father on weekends, when he met Mr. Palmer. [9] Mr. Palmer sexually assaulted C.W. on many occasions during those years. While there is no way of knowing precisely howmany instances of touching and sexual assaults took place, they happened regularly during the years when C.W. was between the ages of12 or 13 and 19 years of age. The touching ranged from:

a) Mr. Palmer removing C.W.'s clothing;

b) Mr. Palmer kissing C.W. on the neck;

c) Mr. Palmer shaving C.W.'s pubic hair;

d) Mr. Palmer masturbating C.W.'s penis and making C.W. masturbate his penis, sometimes one at a time and sometimes both at thesame time;

e) Mr. Palmer performing oral sex on C.W.'s penis and making C.W. perform oral sex on his, sometimes one at a time and sometimesboth at the same time; and

f) Mr. Palmer penetrating C.W. anally with his penis. [10] Many of the incidents occurred at C.W.'s father's home when both C.W. and Mr. Palmer stayed overnight there at the same time,and while C.W.'s father was sleeping. Others occurred in Mr. Palmer's vehicle and another occurred in a movie theatre. C.W. protestedagainst these sexual assaults many times, but Mr. Palmer nevertheless persisted, reassuring C.W. that what they were doing felt good andwas okay. [11] The offender also took photographs of C.W.'s naked body and penis in 2011, at a time when C.W. was 14 years old. Mr.

Palmerkept those photographs after he took them, until they were found on a memory card inside his camera, when seized by police during thecourse of their investigation years later. Mr. Palmer also sent C.W. photographs of his own penis and asked for similar photographs inreturn. [12] When C.W. was 19 years old and living in a Community Living of British Columbia (“CLBC”) home, he disclosed this abuse tohis caregiver. Police became involved and Mr. Palmer was ultimately arrested, charged, and brought to trial.

Application of the Kienapple Principle [13] With that high-level overview of the offences, I will now address whether a conditional stay of proceedings should be entered oneither Count 2 or Count 3, based on the rule against multiple convictions for the same cause or matter. This rule is also referred to as theKienapple rule or Kienapple principle: R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. [14] The Crown takes the position that convictions should be registered on both counts, that is Counts 2 and 3. Mr.

Palmer, throughhis counsel, takes the position that a conditional stay should be entered on one of the counts. [15] The Kienapple principle was recently explained by the Court in R. v. Mohsenipour, 2023 BCCA 6, at paras. 282-283: [282] The Kienapple principle is a legal principle that reflects a long-standing recognition in Canadian criminal law that multipleconvictions should not be entered for offences involving the same “delict” (cause or matter).

When someone is charged with more thanone offence that has the same or substantially the same elements, the Kienapple principle must be considered unless Parliament hasclearly expressed its intention to displace the principle by providing for multiple convictions arising from the same matter: R. v. Prince,[1986] 2 S.C.R. 480, (SCC) at paras. 13, 35.

Canadian courts “have long been concerned to see that multiple convictionsare not without good reason heaped on an accused in respect of a single criminal delict”: Prince at para. 17. [283] Whether Kienapple applies is determined case-by-case and contextually informed: Prince at para. 24. The assessment willgenerally require that a trial judge consider the statutory provisions that create the relevant offences, and the application of thoseprovisions to the circumstances of the case: R. v. Kinnear, (ON CA), 2005 CarswellOnt 2423 (O.N.C.A.), [2005]O.J.

No. 2434 at para. 36. [16] Where Parliament has not displaced the Kienapple principle, the Supreme Court established an analytical framework for me tofollow in R. v. Prince, (SCC), [1986] 2 S.C.R. 480. The Court in Mohsenipour summarized this framework at para. 284: [284] …Trial judges must ask: First, whether there is a “factual nexus” between the offences at issue. The answer to this question is generally determined byconsidering whether the same act grounds each of the charges . . . If a case involves continuing offences in which the offending behaviour occurred or subsisted over a period of time, or the act(

s) thatmake up the offences are described only in general terms, determining whether a “factual nexus” exists may require a trial judge toconsider factors such as the remoteness or proximity in time and place between offences, the presence or absence of relevant interveningevents, and whether the acts underlying the offences were related to each other by a common objective . . . Second, once a trial judge is satisfied of a sufficient “factual nexus”, they must then ask whether there is also an “adequate legal nexus”between the relevant offences. This is because a “single act of an accused can involve two or more delicts against society which bear

little or no connection the one to the other”: Prince at para. 28. In those circumstances, conditionally staying one of them would not beappropriate.

There will only be an “adequate legal nexus” between offences if there is “no additional and distinguishing element thatgoes to guilt contained in the offence for which a conviction is sought to be precluded”: Prince at para. 36; When offences are factually and legally connected, but distinguishable because they are of “unequal gravity”, it may be appropriate toconditionally stay the lesser offence if that offence does not include additional and distinct elements from the more serious offence:Prince at para. 37; How does a trial judge determine whether the elements of an offence are (or are not) “additional and distinct”?

There are at least threeways (Prince at paras. 39–42):

a) an element of one offence may simply be a particularization of an element that forms the foundation for another offence;

b) multiple offences may reflect the fact that there is more than one method to prove a single delict; or,

c) Parliament may have deemed a particular element of an offence to be satisfied by proof of another “because of social policy orinherent difficulties of proof”. Elements of an offence that “serve only as an evidentiary proxy for another element cannot be regarded asdistinct or additional elements for the purposes of the rule against multiple convictions”. [17] Applying all of these principles, I conclude that the Kienapple principle is not applicable to Counts 2 and 3. [18] Mr. Palmer took photographs of C.W.'s naked body, including his genitals, on July 2, 2011.

C.W. was 14 years old at the time.Having done so, Mr. Palmer made child pornography that day. While there is some factual overlap in that by making the childpornography that day he also possessed child pornography the same day, what sets the two offences factually apart is that Mr. Palmerkept those nine photographs. His possession of them began on July 2, 2011, when he made them, but his possession of the imagescontinued on for the next several years. When police executed their search warrant on Mr. Palmer's home in 2018, they found the imagesstored on a memory card inside of Mr. Palmer's camera. Mr.

Palmer knew enough about digital cameras to know that digital copies ofthe photographs would be stored on any memory card that was inside the camera at the time he took the photos. He continued to use thatcamera, with that memory card, after he made and initially possessed the child pornography on that day in 2011. He kept those images sohe could look at them any time he wanted without C.W.'s knowledge or consent. [19] In R. v. Inksetter, 2018 ONCA 474, the Court found at para. 22 that an offender's continued possession of child pornographyrepresents a continued and separate harm from the making of the images.

This is because children are revictimized every time theevidence of their exploitation is viewed. I agree with this and I find it applies to the case at bar. [20] This is consistent with the position taken in R. v. Taber, 2022 BCSC 652. In that case, the court accepted the joint submission ofCrown and defence that convictions should be registered for both possessing and making child pornography. The court agreed. Like Mr.Palmer, Mr.

Taber was arrested in possession of child pornographic photographs and, in his case, videos that he had previously created.At para. 17, the court accepted that “child pornography that is kept in a state to be accessed or viewed and out of control of the victim is adifferent act and not out of the same offending behaviour as the making of the child pornography”. Again, I agree and find it applicableto the case at bar. [21] I conclude the principles from Kienapple do not apply here. Convictions will be registered on all three counts.

Impact on the Victim [22] Despite the efforts of Crown counsel and Probation Services, C.W. did not provide a formal victim impact statement. Nor did hisfather, a man who once considered Mr. Palmer a very close family friend, a person he trusted to spend time alone with hisdevelopmentally-delayed son. I accept Ms. O'Neil's submissions that, from her own interactions with C.W., his caregivers, and hissupport workers, that C.W. has significant difficulty talking about the offences. I do not find this surprising. C.W. has manyvulnerabilities.

He endured many intrusive acts of sexual violence over a period of six years by someone who was a trusted and closefamily friend. It took him many years to talk to police and his caregiver about what happened to him. He is traumatized repeatedly by theretelling. [23] In R. v. Friesen, 2020 SCC 9, the Court discussed the harm caused to children by sexual violence. The Court observed at para. 51that sexual violence against children is wrongful because it invades their personal autonomy, violates their bodily and sexual integrity,and gravely wounds their dignity.

The Court went on: [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus theirattention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotionaland psychological harm that, as this Court held in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, "may often be morepervasive and permanent in its effect than any physical harm" (p. 81). [57] A number of this Court's decisions provide insight into these forms of harm. In R. v.

L. (D.O.), (SCC), [1993] 4S.C.R. 419, L'Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence(pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of "the violation of the child victim'sintegrity and sense of self-worth and control over her body" that the child victim experienced as a result of being sexually assaulted whilesleeping (para. 111).

The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trustothers and fear that ... people could and would abuse her and her body" (para. 113). [58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment andhealthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to

overcome adversity ( Sharpe , at paras. 158, 184-85 and 188, per L'Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at s. 12.64). For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life" ( Stuckless (2019), at para. 136, per Pepall J.A.).

As Otis J.A. explained in L. (J.-J.), at p. 250: [TRANSLATION] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result - in the long term - in suffering, distress and the loss of self-esteem. [ 24 ] In addition to these harms, C.W. is also subject to the unique harms experienced by boys and young male survivors of sexual violence.

As the Court observed in Friesen at para. 69 : [69] …Victimization can be particularly shameful for boys because of social expectations that males are supposed to appear tough (Ontario, The Cornwall Public Inquiry, Report of the Cornwall Inquiry, Phase 1: Facts and Findings , vol. 1 (2009), at p. 28). Embarrassment, humiliation, and homophobia form a particularly toxic and stigmatizing combination for male child victims (see L. (D.O.) , at p. 442, per L'Heureux-Dubé J.; R. v.

Viszlai , 2015 BCCA 495 , 333 C.C.C. (3d) 234, at para. 23 ). [ 25 ] I do not require a formal victim impact from C.W. to be satisfied that he has suffered all these harms. I saw C.W. speak about the offences. I bore witness, as we all did in this courtroom, to his pain, discomfort, confusion, embarrassment, humiliation, and concerns about homophobia. His distress, his suffering, was plain to see. A formal victim impact statement is unnecessary for me to find, and I do, that these offences have had a significant impact on C.W. He has suffered emotionally and psychologically for many years.

I have no doubt he will continue to suffer for many years to come. Not only has C.W.'s personal autonomy, physical integrity, sexual integrity, and psychological well-being been significantly negatively affected, perhaps for the rest of his life, Mr. Palmer's conduct has, to borrow the words of a colleague, “robbed him of a significant and formative period of his childhood”: R. v. T.A.P. , 2023 BCSC 316 at para. 27 . [ 26 ] I am also satisfied that these offences caused significant harm to C.W.'s father and other family members. Mr. Palmer had a close friendship with C.W.'s father, he was treated like family. Mr.

Palmer's offences deeply betrayed that friendship and that trust and, as the Crown submits, their revelation undoubtedly caused significant harm to B.W. and the entire W. family: Friesen at para. 63 . Circumstances of the Offender Background and Current Circumstances [ 27 ] Mr. Palmer was between 54-59 years old at the time he offended against C.W., 62 at the time of his arrest, and 67 years old now. He has a high school education, worked in various occupations over the years, and now is supported by CPP and OAS. He was raised in Ontario. He moved to British Columbia permanently in 1996.

He has no prior criminal record. Mr. Palmer's parents and two siblings have all passed away. He appears, from the information I have been provided, to have had a healthy childhood free from abuse or neglect. He has no history of substance misuse or mental health concerns or any current difficulties with those matters. [ 28 ] Mr. Palmer is not married. He does not have any children. He has very few community supports. He has one significant person in his life, Cindy Lord, a person that Mr. Palmer describes as having “intellectual disabilities”. Mr. Palmer has referred to Ms.

Lord throughout these proceedings variously as his spouse, or perhaps his girlfriend, or a close platonic friend. Ms. Lord says that they are just friends. Ms. Lord, although supportive of him, does not believe that he has committed the offences for which he has been convicted, nor does she believe that he is capable of such conduct. [ 29 ] Mr. Palmer reports having another supportive friend in this community and other friends in Ontario, but none of them are aware of his offences. He also revealed that he spends time with another adult man, a person Mr.

Palmer describes as “developmentally delayed”, but he does not see this man as a source of social support. Mr. Palmer reports that he exercises, plays sports, and engages in some community volunteer work; however, he no longer involves himself in any community activities, citing a loss of ambition for participation in community theatre, as he once had done. [ 30 ] As he did at trial, Mr. Palmer continues to deny that he committed these offences. Nevertheless, he expresses a willingness to participate in correctional programming and to comply with court-ordered conditions. When he addressed the court, Mr.

Palmer said that he hopes C.W. will get the help he needs and will recover from “whoever” it was that did these things to him. Risk to Re-offend [ 31 ] Dr. Cooper, a forensic psychologist, prepared a psychological risk assessment dated May 24, 2023. He is qualified to provide opinion evidence about Mr. Palmer's risk of sexual recidivism and to make recommendations about managing that risk. No issue was taken with the doctor's qualifications, the facts upon which he relied, the tests he employed, his

interpretation of them, or any of his opinions. I accept his opinions. [ 32 ] Dr. Cooper began by explaining the Personality Assessment Inventory, a measure that was administered to Mr. Palmer. Dr. Cooper described it as a measure of personality/psychopathology that provides information regarding the possible presence of symptoms of a major mental disorder. Dr. Cooper discussed Mr. Palmer's results at page 8. He wrote: The results of the PAI indicate that Mr. Palmer appropriately attended to the content of the test items and produced consistent responses to similar questions.

There was no evidence of negative impression management. However, according to the PAI results, Mr. Palmer’s responses suggest he presented with significant positive impression management (e.g., denying problem areas that most people would endorse; presenting himself in a positive light). Thus, any clinical hypotheses from the PAI results alone may underestimate any challenges he may experience. In this regard, Mr. Palmer’s clinical profile on the PAI is within normal limits, which does not suggest the presence of psychopathology. The results suggest his motivation for treatment is relatively below average.

However, the according to the

PAI results, if Mr. Palmer does commit to treatment, he has some strengths that may positively impact the therapeutic process. [ 33 ] Dr. Cooper utilized both the STATIC-99R and the Risk for Sexual Violence Protocol (“RSVP”) actuarial tools to provide an opinion about Mr. Palmer's risk of sexual recidivism. [ 34 ] The STATIC-99R is an actuarial tool designed to assist in the prediction of sexual recidivism among adult males charged with at least one sexual offence.

As the name suggests, it is based upon static risk factors found to be related to recidivism, and provides explicit rules for combining risk factors to obtain a risk assessment. It consists of ten items and produces estimates of future risk based on the number of risk factors present in any one individual.

These risk factors include: age at release from index sexual offence; ever lived with a lover; any index convictions for non-sexual violence; any prior convictions for non-sexual violence; prior sexual offences; the number of previous sentencing dates; convictions for non-contact sexual offences; having unrelated victims; having stranger victims; and having male victims. Mr. Palmer received a score on the Static-99R that placed him in the "below average" risk category. [ 35 ] Dr. Cooper also used the RSVP, which is a measure that includes dynamic variables. Dr.

Cooper described the RSVP at page 12 as: . . . an evidence-based structured professional judgement guideline that facilitates the comprehensive assessment and management of the risk of sexual recidivism in clinical and forensic settings; it can be utilized with men who have a known or suspected history of sexual offending.

Research has shown the RSVP to be useful in predicting and managing risk of sexual recidivism in males (Hart & Jackson, 2008; Kropp, 2001). [ 36 ] The RSVP consists of 22 factors organized around five domains: sexual violence history (five factors); psychological adjustment (five factors); mental disorder (five factors); social adjustment (four factors); and manageability (three factors). Dr. Cooper discussed all 22 factors extensively at pages 12-21 of his report. [ 37 ] Dr. Cooper opined that Mr.

Palmer's actual risk is likely better reflected by the results of the RSVP as it involves the evaluation of more variables, that is more than the STATIC-99R, including dynamic variables. [ 38 ] Dr. Cooper's opinion, based on the RSVP assessment, is that Mr. Palmer should be viewed as a moderate risk for sexual re- offence, albeit on the lower end of moderate. Dr. Cooper noted that Mr. Palmer has a few protective factors, such as an attraction to adult women, but that these factors are not sufficient on their own to mitigate his risk. [ 39 ] Dr. Cooper further opined that if Mr.

Palmer commits another sexual offence, it would likely be triggered by factors such as relationship challenges or failing to manage his deviant sexual desires. The victims of any sexual re-offending, he opined, would most likely be an adolescent or teenaged boy, possibly one with neurocognitive deficits. [ 40 ] Although Mr. Palmer denies having any sexual attraction to children, Dr. Cooper observed that sexually deviant interests can be inferred from behaviour, particularly a pattern of behaviour. Despite Mr. Palmer's denials, Dr.

Cooper opined that the facts underlying the offences suggest that he has a sexual attraction to prepubescent or pubescent children. Dr. Cooper also states that sexual deviance is typically of a relatively fixed nature. In other words, because sexual deviance tends to persist, the risk of recidivism does not disappear simply because the offences were committed many years ago. [ 41 ] Dr. Cooper recommends that Mr. Palmer complete a sexual offender program and participate in individual therapy with a licensed professional experienced in treating sexual offenders.

He also recommends that the court consider imposing conditions prohibiting Mr. Palmer from having unsupervised access to children and adolescents, and from attending areas they are likely to frequent. Legal Framework and Governing Principles Maximum and Minimum Penalties [ 42 ] In July 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 which amended provisions of the Code to increase the maximum sentences for sexual offences against children.

The dates of the offences at bar straddle these amendments. [ 43 ] The parties agree that by operation of s. 11(1) of the Canadian Charter of Rights and Freedoms , s. 8,

Part 1 of the Constitution Act , 1982 [ Charter ], Mr. Palmer must be sentenced according to the maximum sentences that applied at the time the offences began: R. v. R.O. , 2023 BCCA 65 at para. 51 and T.A.P . at para. 45 . Accordingly, the following maximum sentences apply to the offences committed by Mr. Palmer: • Count 1 (sexual assault): ten years' imprisonment; • Count 2 (possessing child pornography): five years' imprisonment; and • Count 3 (making child pornography): ten years' imprisonment. [ 44 ] Count 1, sexual assault, did not carry a mandatory minimum sentence (“MMS”) when Mr.

Palmer first began sexually assaulting C.W. in approximately mid-2009. Accordingly, there is no MMS in respect of Count 1. [ 45 ] The parties agree that Count 2, possessing child pornography, carries a MMS of 45 days' imprisonment. As Ms. O'Neil points out at para. 29 of her written submissions, in July 2011 when Mr. Palmer first possessed the child pornography depicting C.W., this offence carried a 45-day MMS. Although subsequent increases to the MMS have been struck down as unconstitutional, the 45-day MMS for

offences occurring between November 11, 2005 and August 8, 2012, remain in force. There is, therefore, a MMS of 45 days' imprisonment in respect of Count 2. [ 46 ] Count 3, making child pornography, had a one-year MMS in July 2011. However, I struck it down as unconstitutional in R. v. K.M. , 2022 BCSC 360 . [ 47 ] With respect to Count 3, making child pornography, there is no MMS. Principles of Sentencing [ 48 ] The determination of a just and appropriate sentence is a highly individualized exercise. It goes beyond any mathematical calculation.

Imposing a just and proportionate sentence involves a careful balancing of a variety of factors in the context of a particular set of circumstances in respect of a particular offender. This balancing process occurs within a legislative framework, one that is informed by common law principles. The legislative framework, which is set out in ss. 718 - 718.2 of the Code , enumerates the purpose, objectives, and principles to be considered in sentencing. [ 49 ]

Section 718 provides that: 718 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.

The objectives are: denunciation of unlawful conduct; deterring the offender and other persons from committing offences; separating offenders from society where necessary; assisting in rehabilitating offenders; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in offenders and acknowledging the harm done to victims or to the community. [ 50 ]

Section 718.01 of the Code requires me to give primary consideration to the objectives of denunciation and deterrence in this case because the offences involved the abuse of a person under the age of 18 years. [ 51 ] Though not in force at the time of Mr. Palmer's offences, a relatively new provision, s. 718.04, came into force in September 2019.

It provides: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female − the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 52 ] This provision represents a codification of applicable sentencing principles involving the abuse of vulnerable persons. C.W. was a child or a youth in government care at the time of Mr. Palmer's offending against him.

He also was a child or youth with disabilities. He was particularly vulnerable, for both of these reasons, to sexual exploitation: Friesen at paras. 71-72 . Although the statutory provision was not in force at the time of Mr. Palmer's offending, the principles that underlie it do apply: R v. Milne , 2020 BCSC 2101 , and R. v. C.C.C. , 2021 BCSC 599 at para. 28 . [ 53 ]

Section 718.1 of the Code sets out the proportionality principle, which directs that a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. The proportionality principle is fundamental to Canadian law. Whatever weight I might wish to accord to the objectives listed in s. 718 , the resulting sentence must respect the fundamental principle of proportionality: R. v. Nasogaluak , 2010 SCC 6 at para. 40 ; R. v. Parranto , 2021 SCC 46 at paras. 11-12 ; and Friesen at para. 30 . [ 54 ]

Section 718.2 of the Code enumerates, in a non-exhaustive list, a number of other sentencing principles. Pursuant to s. 718.2 (a), sentences are to be increased or reduced to account for any aggravating or mitigating circumstances. Two of the statutorily aggravating factors are engaged in this case: s. 718.2(a)(ii.2), abuse of a person under the age of 18, and s. 718.2 (a)(iii), abuse of a position of trust. [ 55 ]

Section 718.2(

b) sets out the parity principle, which requires that sentences should be similar for similar offences committed by similar offenders in similar circumstances. While I am mindful of this principle, I am also mindful not to lose sight of the individualized nature of the assessment of the case before me: an assessment that requires me to weigh the objectives of sentencing in a manner that best reflects the circumstances of this case and of this offender: Nasogaluak at para. 43 . [ 56 ]

Section 718.2(

c) sets out the totality principle, which requires that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

Section 718.2(

d) and (

e) emphasize the need for restraint in the use of imprisonment. These provisions require that an offender not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. I must consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community, with particular attention to the circumstances of Indigenous offenders. Mr. Palmer is not an Indigenous offender. Consecutive Sentences [ 57 ] As Ms. O'Neil correctly points out in her written submissions, Mr.

Palmer's offences also straddle the July 2015 enactment of s. 718.3(7) of the Code . This provision requires me, when sentencing an offender at the same time for more than one sexual offence committed against a child, to direct that the sentence of imprisonment I impose for a pornography offence be served consecutively to the other sexual offence. [ 58 ] Although I am not statutorily required to impose consecutive sentences in this case because Mr. Palmer's offences straddle the amendment or the enactment, it is clear that s. 718.3(7) merely codified common law principles supporting consecutive sentences for

child pornography offences to reflect the separate and distinct harm they cause victims and society: T.A.P . at para. 51 . Specific Considerations for Sentencing in Cases Involving Sexual Offences Against Children [ 59 ] I have been given clear direction in Friesen on “how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children”: Friesen at para. 1 .

The Supreme Court sent a very strong message about the need for change in the approach to sentencing in this type of case, writing in part at para. 5: [5] . . . we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose 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 of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the [page 441] far-reaching and ongoing harm that it causes to children, families, and society at large. [ 60 ] Three of my colleagues, Justices Devlin, Duncan, and Ker, recently reviewed the sentencing principles engaged in this type of case. Justice Devlin reviewed them in R. v. Coban , 2022 BCSC 1810 at paras. 94-97 ; Justice Duncan reviewed them in R. v.

Z.K. , 2021 BCSC 1926 at paras. 36-48 ; and Justice Ker also reviewed them at T.A.P . at paras. 95-105 . [ 61 ] I adopt my colleagues' eloquent articulations of the overarching principles engaged in sentencing for sexual offences against children. All of these principles apply in this case.

Position of Parties [ 62 ] Prior to any application of the totality principle, the Crown submits that a fit sentence for each count would be as follows: Count 1 (sexual assault): nine years' imprisonment; Count 2 (possessing child pornography): one year imprisonment, consecutive; and Count 3 (making child pornography): three years' imprisonment, consecutive. [ 63 ] On Count 1, sexual assault, the Crown submits that a sentence close to the applicable maximum sentence is justified in this case. Ms. O'Neil relies on several post- Friesen cases where sentences ranged from about five to 12 years' imprisonment.

These sentences were imposed for sexual assault or sexual interference involving multiple acts of sexual violence against one victim with whom the offender was in a relationship of trust. Specifically, I have been referred to: Taber , where the offender was sentenced to five years' imprisonment as part of a total sentence of seven and a half years; R. v. J.K.D. , 2020 BCPC 211 , where the offender was sentenced as part of a total sentence of 11 years, to seven years' imprisonment on the sexual offence: R. v. B.L.J. , 2023 BCPC 39 , seven years' imprisonment; R. v.

J.S.S. , 2022 BCPC 96 , eight years' imprisonment; R. v. Adams , 2022 BCSC 1519 , ten years' imprisonment; and R. v. A.H.K. , 2022 BCSC 1563 , 12 years' imprisonment. [ 64 ] Emphasizing several aggravating factors, including that Mr.

Palmer's offending against C.W. occurred frequently over a period of six years starting at a young age, and that it involved a significant breach of trust of a vulnerable child with a developmental disability who suffered profound harm, the Crown submits that such a sentence would be consistent with guidance in Friesen (at para. 114 ) that upper single digit and double digit penitentiary terms for sexual offences against children should neither be unusual nor reserved for rare or exceptional circumstances. [ 65 ] On Count 2, possessing child pornography, the Crown submits that a sentence of one year imprisonment is consistent with the post- Friesen case of Taber , which involved an offender creating, maintaining and possessing a number of similar images. [ 66 ] On Count 3, making child pornography, the Crown submits that a sentence of three years' imprisonment falls within the post- Friesen sentences imposed for this offence which so far have ranged between two and three years. [ 67 ] Overall, the Crown submits that consecutive sentences could be justified for all three offences, given the distinct and separate harm that they caused.

However, Ms. O'Neil acknowledges that a total sentence of 13 years' imprisonment could be considered unduly harsh when compared to sentences imposed in other cases. The Crown submits it would fail to credit Mr. Palmer for conducting his defence in a way that spared C.W. from testifying. Accordingly, Ms. O'Neil submits that the totality principle can be respected by reducing the sentence on Count 1 to eight years' imprisonment and on Count 3 to two years' imprisonment, and ordering that the sentence on Count 2 be served concurrently, for a total sentence of ten years' imprisonment.

The Crown also seeks a number of ancillary orders, none of which are contested by the offender. [ 68 ] The defence submits that a total sentence of five to six years' imprisonment is a fit and proportionate sentence in this case. Mr. La Flamme emphasizes mitigating factors such as Mr. Palmer's lack of criminal record, his age, his willingness to undergo any programs recommended (although he denies the offences), his good performance on pre-trial release and, significantly, his decision to spare C.W. from the necessity of testifying at trial. The defence relies upon several authorities, including: R. v.

M.P. , 2021 BCSC 2335 , where a sentence of four years' imprisonment was imposed; R. v. M.S.C ., 2006 BCPC 452 , a sentence of one year imprisonment followed by three years' probation was imposed; R. v. C.T.P. , 2023 BCSC 416 , where a sentence of three years' imprisonment was imposed; and R. v. Reed , 2023 BCSC 595 , where a global sentence of 38 months' imprisonment was imposed. I will be discussing these cases in more detail in a few moments. Analysis and Decision

The Analytical Framework Established by Friesen [ 69 ] In Friesen , the Court established an analytical framework of non-exhaustive factors to guide sentencing judges in their determination of a fit and appropriate sentence for sexual offences against children. I will consider these factors now. (

a) Likelihood to Re-offend [ 70 ] At paras. 122-124 of Friesen , the Court addressed the issue of an offender's likelihood to re-offend. Where there is an increased likelihood of re-offending, the imperative of preventing further harm to the public calls for emphasis on the sentencing objective of separating the offender from society, as set out in s. 718 (

c) of the Code . [ 71 ] I have already discussed Dr. Cooper's opinions, I will not repeat them here. I accept his unchallenged opinion that Mr. Palmer should be viewed as a moderate risk for sexual reoffence, albeit at the lower end of moderate. While Mr. Palmer does have, as the doctor points out, a few protective factors such as an attraction to adult women, these factors are not sufficient on their own to mitigate his risk. This is evidenced by the fact, as the Crown points out, that Mr. Palmer appears to have been in a relationship with Ms.

Lord, an adult woman, at the time he committed the offences. [ 72 ] I accept Dr. Cooper's opinion that if Mr. Palmer commits another sexual offence, it would likely be triggered by factors such as relationship challenges or failing to manage his deviant sexual desires. I also accept his opinions that victims of any sexual re-offending would most likely be adolescent or teenage boys, possibly ones with neurocognitive deficits. [ 73 ] I also accept Dr. Cooper's opinions that, despite Mr.

Palmer's denials, the facts underlying the offences suggest that he has a sexual attraction to prepubescent and pubescent children and his opinion that sexual deviance is typically of a relatively fixed nature. In other words, because sexual deviance tends to persist, the risk of recidivism does not disappear simply because the offences were committed many years ago. (

b) Abuse of a Position of Trust or Authority [ 74 ] Trust relationships arise in varied circumstances and should not all be treated alike. Referring to a “spectrum of positions of trust”, the court in Friesen offered this guidance at paras. 125-126:: [125] . . . Trust relationships arise in varied circumstances and should not all be treated alike . . . Instead, it makes sense to refer to a “spectrum” of positions of trust . . . An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time . . .

In some cases, an offender’s grooming can build a new relationship of trust, a regular occurrence in child luring cases where children are groomed by complete strangers over the Internet, or move an existing trust relationship along the spectrum. Even where grooming does not exploit an existing relationship of trust or build a new one, it is still aggravating in its own right. [126] Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.

As Saunders J.A. reasoned in D.R.W., the focus in such cases should be on “the extent to which [the] relationship [of trust] was violated” . . . The spectrum of relationships of trust is relevant to determining the degree of harm. A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender . . .

This is likely to be the case in what might be described as classic breach of trust situations, such as those involving family members, caregivers, teachers, and doctors, to mention a few. [ 75 ] I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Palmer was in a position of trust or authority over C.W. before and during his offending against him. While not on the highest end of the trust spectrum, he nevertheless occupied a fairly high position of trust in relation to C.W. Mr. Palmer was a very close friend of C.W.'s father.

He was treated like family, invited to gatherings, and stayed overnight at B.W.'s home frequently. Mr. Palmer took advantage of the trust that C.W.'s father placed in him when he was allowed to care for C.W., to sleep in the same room as C.W., and to spend time alone with him. Mr. Palmer groomed C.W. Over the course of years, he was given access to him, exploiting the existing trust relationship, normalizing his abusive behaviour, and manipulating C.W. As a result of this closer relationship and relatively high degree of trust between Mr. Palmer and C.W., C.W. suffered even greater harm.

The breach of trust is an aggravating factor. Mr. Palmer's degree of responsibility for the offences he committed and his moral blameworthiness are elevated. (

c) Duration and Frequency of the Abuse [ 76 ] The frequency and duration of sexual violence against a child can significantly increase the harm to the victim. The number of assaults committed compounds both the immediate harm and the long-term emotional and psychological harm.

This factor further increases the gravity of the offence and the offender's moral blameworthiness, as additional harm to the victim is a reasonably foreseeable consequence of multiple violations of the victim's physical and sexual integrity: Friesen at para. 131-132 . [ 77 ] The Court in Friesen summarized at para. 133 : [133] . . . sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults to become a statistic.

Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children. As Abella J.A. (as she then was) wrote in Stuckless (1998) , where the offender has committed numerous assaults, the court cannot shy away from assessing the full dimensions of the wrong but must give effect to the “staggering” and “systematic” nature of the sexual violence in the sentence imposed (p. 116).

[ 78 ] This applies to this case. The sexual violence Mr. Palmer perpetrated against C.W. occurred repeatedly, too many times for C.W. to count, over about six or seven years. As I have indicated, it began when C.W. was 12 or 13 years old, when he was living in foster care and visiting his father on weekends. It continued throughout his teen years and after he aged out of government care. It only ended when C.W. told a trusted caregiver about what had happened to him. This frequent and long-term violence included significantly intrusive sexual violence. In an effort to normalize his abuse, Mr.

Palmer gave C.W. things, took him on outings, told him he loved him, and told him that what they were doing was okay. He made C.W. feel he was special. [ 79 ] Mr. Palmer made choices. He made deliberate choices. He made deliberate choices each time he victimized C.W. over and over again, over several years. He made these choices over and over again to perpetuate this violence purely for his own self-centred and depraved reasons. (

d) Age of the Victim [ 80 ] Another factor outlined in Friesen is the age of the victim, which can be an aggravating or significantly aggravating factor: paras. 134-136. (

e) Degree of Physical Interference [ 81 ] As Justice Ker summarized in T.A.P ., the Court in Friesen avoided creating any type of hierarchy for sexual offences. While the degree of physical interference is recognized as an aggravating factor, the Court warned against placing undue emphasis on the type of physical interference at the expense of the psychological harm caused by less physically invasive acts. [ 82 ] In this case, C.W. was repeatedly abused over about six years or so. The degree of physical interference was the most significant, involving acts of penetrative anal intercourse without the use of a condom. It also involved many other acts, as I have described earlier. (

f) Victim Participation [ 83 ] Victim participation and the notion of de facto consent was addressed in Friesen at paras. 148-154 . C.W. was incapable of providing consent when he was under a certain age, and he was convinced to engage in the various acts with Mr. Palmer through the various means as I have described. This is all evidence of grooming behaviour and is considered an aggravating factor: Friesen at paras. 153-154 . [ 84 ] I turn now to outlining the mitigating circumstances.

Although I have reviewed a number of aggravating factors present in this case under the Friesen framework already, I will then outline the specific aggravating factors I find to be engaged in this case. Mitigating Circumstances Lack of a Criminal Record [ 85 ] This is a mitigating factor. I do not find it to be an overly significant one, but it is mitigating. As the Court in R. v. R.M. , 2019 BCCA 409 , recognized, a criminal record may have little or a reduced significance where the first offence occurred over the course of several years.

This is because either or both of the rationales for treating the absence of a criminal record as mitigating are absent. The first rationale for treating the absence of a criminal as mitigating is that a lack of prior conviction can be indicative of otherwise good character. The second rationale relates to the fact that a first-time offender has not had the benefit of the corrective effect of a previous conviction, and may therefore be, to some degree, less culpable than someone who has already been reprimanded for such behaviour.

A “lack of prior interaction with the criminal justice system, then, may be reduced by the severity of the sanction necessary to achieve the goal of specific deterrence”: R.M. at para. 21 . [ 86 ] In the present case, the first rationale is absent. Mr. Palmer's offending occurred many, many times over the course of about six years. To keep it hidden, he was required to use considerable manipulation and deceit. Given this, it cannot be said that Mr. Palmer's actions were out of character.

However, the second rationale for treating his first-time offender status as a mitigating factor nonetheless continues to apply in this case. As the Court put it in R.M. , Mr. Palmer has not yet “had the wake-up call of the conviction”: para. 24. He has not yet had the opportunity to demonstrate that exposure to the justice system has been of benefit, resulting in deterrence and rehabilitation. [ 87 ] In these circumstances, where Mr.

Palmer's manipulative, deceitful, and sexually violent criminal activity persisted often, and over a long time, the significance of his having no prior criminal record is diminished, but it cannot and should not be ignored completely. C.W. Was Not Required to Testify [ 88 ] Mr. Palmer conducted his defence in a manner which spared C.W. from testifying in court. He admitted C.W.'s video-recorded statements to police to be considered for the truth of their contents. He explicitly waived his right to test this evidence through cross- examination.

The fact that C.W. was spared the traumatizing experience of testifying in court is mitigating. However, the mitigating effects are, as the Crown argues and I agree, slightly attenuated; they are less than those provided by a guilty plea where the offender admits responsibility, spares witnesses from testifying, and saves court time. Many witnesses were required to testify over several days during the course of the voir dires and at trial. Risk to Re-offend [ 89 ] I have discussed this factor earlier. Mr. Palmer is a relatively low risk to re-offend.

Compliance on Release [ 90 ] I also consider that Mr. Palmer has complied with the terms of his release while awaiting trial. I do not consider his conditions to be very restrictive but, nevertheless, consider his successful performance as a mitigating factor. Aggravating Factors [ 91 ] The Crown points to several aggravating factors, all of which I am convinced of beyond a reasonable doubt. I have discussed many of these factors already, so will only briefly review them here. Duration and Frequency of the Abuse [ 92 ] I have discussed this. Mr. Palmer regularly sexually assaulted C.W. over a period of six years.

Given the frequency of his visits to the W. home, it is difficult to say how many times he sexually assaulted him, but on C.W.'s evidence, what I have accepted, there could well be many dozens of sexual assaults, each one representing Mr. Palmer's choice and his constantly renewed choice to victimize C.W. to satisfy his own urges: T.A.P . at para. 128 . Ignoring Repeated Pleas to Stop [ 93 ] Mr. Palmer repeatedly ignored C.W.'s pleas for him to stop. Such behaviour has been described as, in itself, constituting “demeaning behaviour and contemptuous disregard for the personal integrity of the complainant”: R. v.

Garrett, 2014 ONCA 734 and R. v. G.M. , 2015 BCCA 165 at paras. 18-19 . These words resonate in this case and I adopt them. High Degree of Physical Interference [ 94 ] I have discussed this already. Mr. Palmer violated C.W.'s body in ways that were highly invasive, including forced penile-oral and penile-anal penetration. He caused C.W. significant physical and psychological pain and discomfort. Breach of Trust [ 95 ] I have already discussed this feature of the case. Mr. Palmer was an effective member of the W. family. He betrayed the position of trust he held in that role.

Not only did he betray the friendship he had with B.W., he cultivated and exploited a close personal relationship with C.W. by showing him affection, bringing him gifts, taking him places, telling him he loved him, and making him feel special. All of this made C.W. want to spend more time with Mr. Palmer. All of this made C.W. more likely to keep their secret. All of this made it easier for Mr. Palmer to abuse C.W. for years. Vulnerability of the Victim [ 96 ] I have discussed this already as well.

C.W. was, as the Crown submits, an exceptionally vulnerable victim, both as a child in foster care and as a person with a disability. He had a relatively high degree of dependence on the adults in his life. He enjoyed having weekend visits with his father, and was understandably worried about losing those visits if he disclosed the abuse he was suffering at the hands of his father's friend. His unique and exceptional vulnerability made it so much easier for Mr. Palmer to target, to exploit, and to manipulate this child. Impact on the Victim [ 97 ] I have discussed this factor at length.

The offences caused C.W. and his family profound harm that will undoubtedly persist for a very, very long time. Location of the offences [ 98 ] While some of the sexual assaults occurred elsewhere, such as Mr. Palmer's car and a movie theatre, Mr. Palmer primarily offended against C.W. during C.W.'s visits to his father's residence, a place where C.W. had the right to expect “privacy, safety, and respect for [his] personal autonomy and physical and sexual integrity”: T.A.P . at para. 160 . Grooming Behaviour [ 99 ] In addition to the gifts and affection I discussed already, Mr.

Palmer groomed C.W. by instructing him about various sexual acts. C.W. had no sexual experience prior to Mr. Palmer sexually assaulting him. As well as instructing him on how to perform acts, he also showed C.W. pornography, sent him photographs of his own penis, and demanded to receive similar photographs in return. Psychological Manipulation [ 100 ] Mr. Palmer ordered C.W. to remain silent about the sexual violence to protect Mr. Palmer's reputation. At the same time, Mr. Palmer tried to manipulate C.W. into believing that the sexual violence was “okay” and “felt good”.

Additional Children Depicted in Images [ 101 ] The SanDisk memory card that police seized held not only those pornographic photographs of C.W., but photographs of unknown

young girls who were nude or partially nude. Sentencing Authorities [ 102 ] I touched on the sentencing authorities provided to me by counsel already. They have provided a number of sentencing authorities for my consideration. Some of them were provided for their general principles. I have reviewed them all. No case is factually on all fours. I have indicated the Crown relies on several post- Friesen cases where sentencing ranges between five and 12 years' imprisonment were imposed in similar circumstances.

They also rely on some post- Friesen decisions with respect to making and possessing child pornography. [ 103 ] Ms. O’Neil has, in her written submissions, fairly and accurately summarized these authorities. I adopt her summaries, starting with Taber , at paras. 43-44 , a decision of Justice Matthews. Ms. O’Neil wrote: 43. In Taber , the offender was convicted after trial of sexual interference as well as making and possessing child pornography. The victim was the daughter of the offender’s intimate partner, and the offender babysat the victim on several occasions when she was between eight and nine years old.

The offender took 23 photographs and five videos of himself touching the victim’s chest and of the victim being forced to masturbate the offender’s penis. Audio recording from one of the videos suggested he had also touched the victim’s vagina with his fingers and mouth. The offending came to light when the victim’s mother noticed Internet search histories related to child pornography on the offender’s computer. A subsequent warranted search of his computer and cellphone revealed the evidence of the offences. 44. The offender had no prior criminal record.

He continued to deny the offences and did not express any remorse or insight. He was assessed at a low to moderate risk of reoffending. The Court imposed a total sentence of seven-and-a-half years imprisonment, consisting of five years for sexual interference, one year for possessing child pornography, and two-and-a-half years for making child pornography. The sentences for possessing and making child pornography were concurrent to one another but consecutive to the sentence for sexual interference. [ 104 ] J.K.D. is a decision of Justice Brecknell of the Provincial Court. Ms. O’Neill summarized: 46.

In J.K.D , the offender pled guilty to sexual interference, making child pornography, distributing child pornography, and arranging by telecommunication to commit a sexual offence against a child. The offender and her co-accused spouse carried out a pre-arranged plan to persuade a single mother to allow her child to stay at their residence for sleepovers. On two occasions while the child was sleeping, they took photographs and videos of themselves sexually touching the child. They kept these materials in printed and digital form and shared them with one another via text message.

The offender cooperated with the police and confessed in a warned statement. 47. The offender had no prior criminal record. She had come from a dysfunctional family and suffered from mental illness at the time of the offence. Although she initially minimized her responsibility by blaming her drug use and the co-accused for her actions, she eventually expressed genuine remorse.

The Court imposed a total sentence of 11 years and three months, consisting of seven years for sexual interference, two-and-a-half years each for making and distributing child pornography, one-and-half years for arranging by telecommunication to commit a sexual offence against a child, and three months for an escape attempt. [ 105 ] B.L.J. , a decision of the Provincial Court of British Columbia, is summarized by Ms. O'Neil at paras. 48-51 of her written submissions: 48. In B.L.J. , the offender was convicted after trial of sexual interference and invitation to sexual touching. The victim was his grandniece.

He inflicted sexual violence on the victim on four occasions when she was between the ages of six and 11 years old. The offences included forced manual, oral and vaginal intercourse as well as showing the victim pornography. The offences had a devastating and enduring impact on the victim. 49. The offender had no criminal record. He continued to deny the offences and did not express any remorse or insight. He was assessed at a low risk to reoffend. 50.

At paras. 27-30 of his reasons for sentence, Judge Tam helpfully canvassed several post- Friesen authorities where offenders were sentenced for sexual offences committed in relationships of trust. 51. The Crown submits that the case at bar warrants a higher sentence than the one imposed in B.L.J. because Mr. Palmer’s abusive behaviour was repeated on many more occasions. [ 106 ] J.S.S. , a decision of Judge Koturbash, is summarized by Ms. O'Neil at paras. 52-55: 52. In J.S.S. , the offender pled guilty to sexual interference of his daughter, for whom he was the sole caregiver.

He sexually violated her many times over a period of six years when she was between the ages of six and 11 years old. The offending behaviour included forcing her to masturbate him, touching her buttocks and vagina, digitally and orally penetrating her vagina, and attempting to force penile-vaginal and penile-anal penetration. The offences stopped after the victim told a friend which eventually led to the offender’s arrest. Upon arrest, the offender confessed to the police in a warned statement, which provided details of additional sexual violence not disclosed by the victim. 53.

The offender had an unrelated criminal record. Although he lacked insight, he was remorseful and prepared to participate in rehabilitative programming. He was considered an average risk to reoffend. 53. The offender had an unrelated criminal record. Although he lacked insight, he was remorseful and prepared to participate in rehabilitative programming. He was considered an average risk to reoffend. 54. The Crown observes that the offender in J.S.S. pled guilty, a mitigating factor not present in the case at bar.

55. The Crown concedes that the breach of trust in J.S.S. was more significant than in the case at bar. The Supreme Court of Canada in Friesen (at para. 125 ) recognized that relationships of trust exist on a spectrum. Arguably, there is no relationship of trust more profound than that between a parent and their child. [ 107 ] Adams , a decision of Justice Williams, is accurately summarized by Ms. O'Neil at paras. 56-58: 56. In Adams , the offender was convicted after trial of sexual assault and sexual interference. The victim was his adopted daughter. The sexual violence took place in the family home.

It included at least two acts of sexual intercourse and multiple other acts of non- penetrative touching over a 10-year period. The abuse had a devastating impact on the victim and the rest of the family. 57. The offender had no prior criminal record. He continued to deny the offences and had no remorse or insight. He was assessed at a low risk of reoffending. He had significant support from his parents, his new partner, and her family. 58.

As with J.S.S. , the Crown concedes that the breach of trust in Adams was more significant than in the case at bar. [ 108 ] A.H.K. , a decision of Justice Ker, is again accurately summarized by Ms. O'Neil at paras. 59-61 of her submissions: 59. In A.H.K . , the offender was convicted after trial of incest, sexual assault, and assault. The victim was his biological daughter. After the victim’s mother died, she moved from Sudan to Canada to live with the offender, whom she had never previously met.

The sexual violence started when she was nine or 10 years old with kissing, groping, forcing her hand onto his penis, penetrating her vagina with his finger, and placing his mouth on her vagina. When she was 11, the offender began forcing vaginal intercourse her,

an act he repeated regularly over a period of many years. The offender also physically assaulted the victim by slapping her when she struggled with her schoolwork and choking her when she refused to submit to his sexual advances. 60. The offender had no prior criminal record. He had witnessed many atrocities in Sudan before coming to Canada which had deeply affected him. Since coming to Canada, he had a good work history. His wife and other children depended upon him for support. The Court found him to be a low risk to reoffend. He continued to deny the offences. 61.

The Crown concedes that the case at bar warrants an overall sentence shorter than the one imposed in A.H.K . Like in J.S.S. and Adams , A.H.K. involved the abuse of a child by their parent. A.H.K. also involved the infliction of serious physical violence, including choking, separate from and in addition to the inherently violent sexual assaults. [ 109 ] With respect to the making and possessing child pornography counts, the Crown relies on R. v. B.T. , 20221 BCSC 948 and K.M. , two of my decisions which I am well familiar. Ms.

O’Neil also relies on Taber , accurately summarized at para. 66 of her written submissions: 66. In Taber , as discussed earlier, the offender was convicted after trial of sexual interference and making and possessing child pornography. He took 23 photographs and five videos of himself sexually touching his girlfriend’s daughter who was between the ages of eight and nine years old.

He received sentences of 30 months imprisonment for making child pornography and one year imprisonment for possession of child pornography, concurrent to one another but consecutive to five years imprisonment imposed for sexual interference. [ 110 ] The Crown also relies upon T.A.P. , accurately summarized at paras. 67 and 69 of Ms. O’Neil’s written submissions: 67. In T.A.P ., the offender was convicted after trial of sexual offences against three children, including two counts of making child pornography.

The victims were his two young daughters and another female child with whom he was in a relationship of trust. In addition to inflicting repeated and invasive sexual violence against all three victims when they were between the ages of seven and 14 years old, the offender also coerced them into posing for naked and sexualized photographs. […] 69. The Court imposed a total sentence, after adjustment for totality, of 18 years imprisonment.

For each count of making child pornography, the Court imposed a sentence of 3 years imprisonment. [ 111 ] The defence relies upon authorities where sentences imposed ranged from one to four years' imprisonment. [ 112 ] In M.P. , the offender entered guilty pleas to one count of sexual interference, one count of possession of child pornography, and one count of making child pornography. This offender was the grandfather of his very young victim. She was under four years of age at the time of the offending.

The offender's own daughter, the victim's mother, found images on the offender's phone that showed him having sexual contact with her child. Police seized video-recordings and images of the offender having sexual contact with his granddaughter. They also seized other still images of an adult male engaged in sexual contact with a girl under the age of 16. [ 113 ] In that case, the court accepted a joint submission of four years.

Part of the circumstances behind the joint submission included the difficulties the Crown believed it may have in proving its case and the offender's full acceptance of responsibility, in writing. [ 114 ] Reed is another decision relied upon by the defence. It was also a case involving a guilty plea. This offender pled guilty to one count of sexual interference and one count of wilfully obstructing a peace officer in the execution of his duty. The facts of this case are very different than the case at bar. The offender was 22 years old and the victim was 15 years old at the time of the offences.

There was no breach of trust. The two met on social media and commenced a sexual relationship, but the victim was 14 years old at the time. The offending occurred over the period of about a month. The Crown took the position that three years' imprisonment was an appropriate sentence for the offence of sexual interference and the defence sought a sentence in the two-year range. The court agreed with the Crown’s position. [ 115 ] Another decision relied upon by the defence is C.T.P. I find this is a very factually distinguishable case from the one at bar.

[ 116 ] In C.T.P. , the offender was 25 years old. He sexually assaulted a 15-year-old stranger on one occasion. In that case, the Crown proceeded summarily. The maximum sentence was, of course, different, as was the sentencing ranges. The trial judge sentenced the offender to the maximum sentence of two years' imprisonment on each of the sexual assault counts. Sentences for the other offences were ordered to be served consecutively, for a global five-and-a-half-year sentence.

On appeal, Justice Saunders found the individual sentences to be fit, but allowed the appeal upon consideration and application of the totality principle. The global sentence was reduced to three years' imprisonment. [ 117 ] The other authority relied upon by the defence is M.S.C. I find that this 2006 Provincial Court decision has no precedential value. It pre-dates Friesen by many years and the factual underpinnings are vastly different. This offender pled guilty to sexually assaulting his granddaughter over a seven-year period.

The victim was between the ages of seven and eight and 13 during the offence period. This offender confessed to police, wrote a letter of apology to his granddaughter, and pled guilty. That case, again I emphasize, pre-dates Friesen . The Crown sought a short period of incarceration and the defence sought a non-custodial sentence. The court imposed a one-year period of imprisonment followed by probation. [ 118 ] As the sampling of authorities relied upon by counsel demonstrates, sentencing is a highly individualized process.

Overall, though, I find the circumstances in the case at bar, and of this particular offender, are much more in line with the authorities presented by the Crown. Some of the cases presented by the Crown with sentences in the lower range have mitigating factors not present in our case or did not have certain aggravating features that are present in our case. For example, Mr. Palmer's offending is more aggravated than in Taber . It occurred over a much longer period of time. It occurred more frequently and was more physically invasive.

As another example, in J.K.D. , the offender confessed to police, entered a guilty plea and expressed genuine remorse, which is not present in our case. Mr. Palmer's offending was also more aggravated than in B.L.J. in that it was repeated on many more occasions. [ 119 ] Some of the authorities presented by the Crown in the higher range have aggravating features not present in our case. For example, the breach of trust in Adams was more significant than the breach of trust in our case, as it was as well in A.H.K .

A.H.K. also involved the additional infliction of serious physical violence, including choking, which of course is separate from and in addition to the violence inherent in the sexual assaults in that case. As I have outlined, I find the authorities relied upon by the defence to be very factually distinguishable. [ 120 ] Denunciation and deterrence are the primary sentencing objectives here. The legislation requires it and the circumstances demand it. In light of Mr.

Palmer's personal circumstances, including the mitigating factors I have discussed, including his sparing C.W. from testifying, I do not, however, lose sight of rehabilitation and the need for restraint. [ 121 ] I am to impose a proportionate sentence that reflects the gravity of Mr. Palmer's offences, as well as his degree of responsibility. [ 122 ] Mr. Palmer's offences are very grave. He repeatedly victimized an exceptionally vulnerable child in his home, repeatedly, and over a long period of time.

Not only are these offences inherently wrongful and violent in all of the ways described by the court in Friesen , but C.W. and his family suffered actual harm which will undoubtedly continue for many years to come. [ 123 ] Mr. Palmer's moral responsibility in committing these offences is very high. The intentional sexual exploitation and objectification of children is highly blameworthy conduct, precisely because children are vulnerable and because there is such a profound power imbalance between a child and an adult. Mr.

Palmer used his close friendship with C.W.'s father, the trust he was given to sleep in their home and spend time alone with C.W., to gain access to this very vulnerable child. He manipulated, exploited, and preyed upon C.W. for years. He assaulted him repeatedly over C.W.'s protests. He had C.W. keep their secret. He took pornographic photographs of him. He stored those photographs in order to be able to view them again. He had possession of other pornographic images of unknown children. To borrow the words of Justice Baird in R. v.

Scribner , 2020 BCSC 1685 at para. 21 , this conduct shows a “persistent determination” by Mr. Palmer to “achieve his harmful and illegal purpose, and a commitment to sexual offending that requires sharp and decisive correction”. Sentences [ 124 ] Mr.

Palmer, I am going to ask you to stand, please, sir. [ 125 ] Having considered all of the principles, objectives, and factors I must, exercising the maximum degree of restraint that I consider to be appropriate in the circumstances, and giving you the benefit of every consideration, I find that eight years' imprisonment is a proportionate sentence in respect of Count 1, the count of sexual assault.

I find that one year imprisonment is a proportionate sentence for Count 2, the count of possession of child pornography, and three years' imprisonment is a proportionate sentence for Count 3, the count of making child pornography. [ 126 ] I am satisfied that these sentences are commensurate with the gravity of these offences and with the degree of your responsibility. However, I am of the view that to have all of these sentences served consecutively (which would be appropriate), for a total sentence of 12 years' imprisonment would be unduly harsh when compared to other sentences imposed in other cases.

In order to not offend the totality principle, I would reduce the sentence on Count 2 to two years. [ 127 ] So, sir, I sentence you to eight years' imprisonment on Count 1, to run consecutively to a two-year sentence of imprisonment on Count 3. The sentence on Count 2 of one year imprisonment will remain, but again bearing in mind the totality principle, this sentence will run concurrently to the other sentences.

Your total sentence is, therefore, ten years' imprisonment. [ 128 ] This is a sentence that considers all aggravating and mitigating factors I have outlined and is crafted to achieve the primary objectives of denunciation and deterrence, while not losing sight of rehabilitation and the need for restraint. Although it is an individualized sentence, I think it also satisfies the principle of parity and, with the adjustments I have made, does not offend the totality principle. [ 129 ] Mr. Palmer, it is my sincere hope that you will be provided with the supports that you require while in custody, and that you will

avail yourself of those supports and any programming that will be made available to you. [ 130 ] You can have a seat, sir, while I impose the ancillary orders. Ancillary Orders [ 131 ] Pursuant to the provisions of the Code , I am ordering you to comply with the requirements if the Sex Offender Information Registration Act, S.C. 2004, c. 10 [ SOIRA ] for 20 years in respect of Counts 1 and 3, and for ten years in respect of Count 2. [ 132 ] All three offences are primary designated offences within the meaning of s. 487.04 of the Code .

I make orders under s. 487.051 in Form 5.03, that you provide a sample of your DNA for inclusion in the National DNA Data Bank, in respect of all three counts. [ 133 ] I turn now to the prohibition orders under s. 161 of the Code , agreed to by the defence. I agree with counsel that they are appropriate, in the durations that have been set out and agreed to by the defence for all of the reasons Ms.

O'Neil has articulated at paras. 91-98 of her written submissions. [ 134 ] Specifically, pursuant to s. 161(1)(a): You must not go to any public park, public swimming area, daycare centre, schoolground, playground, theatre, or community centre where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present, for a period of ten years. [ 135 ] Pursuant to s. 161(1)(a.1): You must not go to or be within 100 metres of any place where you know C.W. lives, works, attends school, worships, or happens to be, for a period of ten years. [ 136 ] Pursuant to s. 161(1)(b): You must not seek, obtain, or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in any capacity that involves a position of trust or authority towards persons under the age of 16, for a period of ten years. [ 137 ] Pursuant to s. 161(1)(c): You must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 16, for a period of ten years. [ 138 ] Turning now to the forfeiture orders.

The Crown seeks forfeiture of a number of items that were used in the commission of the child pornography offences pursuant to s. 164.2 of the Code and/or are related to the commission of all three offences pursuant to s. 490.1 of the Code . I have received a draft form of order that has been signed by both counsel, which I will endorse. I am satisfied that the following property was used in the commission of an offence under s. 163.1 of the Code , and/or is related to the commission of offences within the meaning of s. 490.1 of the Code : 1. Trial Exhibit 12, the silver Nikon camera; 2.

Trial Exhibit 13, SanDisk memory stick; 3. Trial Exhibit 16, portable DVD player. I just note on the forfeiture order it says "plater". It should read "player". I will just make that amendment and initial it; 4. Trial Exhibit 26, Apple iMac computer; 5. Police Exhibit 16, collection of pornographic DVDs; -- collectively "the Property". [ 139 ] I order that following the expiry of any statutory appeal period, the Property is forfeited to His Majesty in Right of the Province of British Columbia and shall be disposed of as the Attorney General, as defined in the Code , directs. [ 140 ] THE COURT: Thank you. Now, Mr.

Palmer, since you have been in pre-sentence custody for 18 days now, I give you enhanced credit for that time at a rate of one to one and a half days, in the amount of 27 days. [DISCUSSION ABOUT CALCULATING THE SENTENCE FROM YEARS TO DAYS] [ 141 ] THE COURT: Your sentence will be converted to days. Count 1, the eight-year sentence is the equivalent of 2,920 days. From that sentence I give you credit for 27 days of pre-sentence custody. Therefore, your time left to serve on the sentence imposed on Count 1 is 2,893 days. The other two counts will be converted to days as well. [ 142 ] All right. I will star

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