R. v. Loewen, 2023 BCSC 2154

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Loewen, 2023 BCSC 2154 Date: 20231102 Docket: 92818-3 Registry: Abbotsford Rex v. Reinhard Loewen Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Caldwell Oral Reasons for Sentence Counsel for the Crown: T.M.M. Roy Counsel for the Accused: W.M.

Finch, K.C. Place and Dates of Trial/Hearing: Abbotsford, B.C. July 21, 2023 August 25, 2023 Place and Date of Judgment: Abbotsford, B.C. November 2, 2023 [ 1 ] THE COURT: Mr. Loewen is a 59-year-old man who is before me for sentencing on six counts of sexual assault involving a total of 12 women. [ 2 ] The offences occurred between approximately September 2018 and October 2020. They occurred under the guise of massage therapy sessions which targeted women, often pregnant women, with social media and other offers of discount or free sessions and services. [ 3 ] Mr. Loewen used a position of trust.

That trust was associated with the very role of a massage therapist. It was coupled with a location of isolation and an imposed or encouraged position of unclothed vulnerability to touch and impose himself on the complainants in a sexual manner and without their consent. [ 4 ] He has entered a guilty plea to specific counts which are before me. That plea was entered on January 24, 2023.

AGREED FACTS [ 5 ] A 12-page document entitled "Admission of Facts for Sentencing" was filed as Exhibit 1 at the beginning of the sentencing submissions. [ 6 ] Before detailing the numerous counts, that document reveals the following: • Mr. Loewen took a one-week massage course designed to allow him to give massages to family and friends; • approximately two months after graduating, he opened “Bud's Massage Therapy” in a separate and private room in a basement suite of a home in Abbotsford; • a hair salon was located in another

section of that basement suite but was not associated with the massage business; • Mr. Loewen advertised his services on Facebook and took word-of-mouth referrals; and • he offered promotional contests for free massages, and also offered promotions for a reduced rate and free massages without participation. The ads also targeted specifically pregnant women and services for pregnant women. [ 7 ] The statement of admissions goes on to catalogue the various counts and the circumstances of each count. I will not read them in

their entirety, but the

summary is as follows. [ 8 ] Count 1 involved a single complainant who was assaulted on her third session with Mr. Loewen in September 2018. That incident involved him rubbing the inside of her thighs, touching or bumping up against what she referred to as her "private parts" eight to 10 times, lowering her underwear, rubbing her buttocks, rubbing her stomach area, and down below her waistline to include touching her vagina over her underwear. She says that the touching was "literally on top of my clitoris". She was "frozen" and did not know what to do in the circumstances.

Following that incident, he contacted her through Facebook and offered her free sessions should she wish to return. [ 9 ] Count 2 involved, again, a single complainant. That complainant had won a free massage. It occurred in May 2019, shortly after she gave birth. She was lying on her stomach and was touched high between her legs, under her underwear. On being told to turn over, she was massaged on her stomach. Upon asking Mr. Loewen to stop, she was told it would help her uterus to return to normal. He did not stop as requested. Later he began to massage her pubic area and along her C-section scar.

Again, she told him to stop. He replied it was good to massage the scar tissue. Still later, he moved his hands to her vaginal area and ran his hands on the outside of her labia. This time when told to stop for the third time, he "kinda backed off", and finished the massage. Again, following the incident, he contacted her through Facebook offering her a free session should she wish to return. [ 10 ] That complainant provided a victim impact statement. Without reading it in its entirety, she says, among other things, that: Being a victim of this sexual assault crime has impacted me in many ways.

My relationship with my spouse has been strained. I don't like to be touched in any way. I sometimes feel fearful or completely zoned out when trying to connect with [my spouse]. … [I have] physical symptoms of anxiety… [I] second guess every interaction with another human [being]. [ 11 ] That is but a few of the comments. [ 12 ] Count 3 involved two complainants. Complainant 1 had several sessions prior to her last, which occurred on July 8, 2019. Mr. Loewen touched her arm and breast while she lay on her back. He then massaged her upper thighs at her vagina.

He put his thumbs under her Spanx underwear and touched the outside of her vagina. He lowered her underwear and began to massage her pubic bone area, but did stop when asked to do so. [ 13 ] The second complainant in Count 3 was a university athlete who had several sessions prior to the sexual assault. Although she had uncomfortable feelings in some of those, she did not register a complaint. In July or August 2019, she agreed to a "full body massage". On that occasion, she was lying on her back when Mr.

Loewen began rubbing her vagina and clitoris through her underwear with one hand, while massaging her breast with the other. She froze momentarily and told him to stop, and again on that occasion he did. That person also provided a victim impact statement saying, among other things: After the incident, I was overwhelmed with embarrassment and shame … I was in shock. I couldn't make eye contact with Bud as I left. I drove to the river and sat in my car, crying for a long time. Other people knew I was a client of Bud's. I had even suggested to several people that they should get a massage from him.

After [that] day, I felt it necessary to unrecommend him … I was a student [at] a Christian university. I was concerned Bud would do something inappropriate to them. … The days after the incident were awful. I knew I needed my church, so I wrote an email to my pastor. He was on summer break, as the auto-response told me. The next day I went to the church early for the Saturday night service to go to the prayer room. A kind woman helped me. [ 14 ] Count 4 involved again two complainants. The first of the two had one successful and respectful session with Mr.

Loewen prior to the incident. [ 15 ] On her second attendance, which occurred in September 2019, she was on her back wearing only panties and with a towel covering her breasts. Mr. Loewen massaged her stomach and then lowered her panties, moved his hands lower on her body, and began to touch the top of her vagina and over her underwear. She squirmed and moved over. He again repeated the action. This time, she closed her legs tightly, rolled onto her side, and said that she had to go.

He put his arm around her and apologized for making her uncomfortable. [ 16 ] The second complainant on that count—I am sorry, before we do that, there is a victim statement from that complainant that says [as read in]: Since that day I have had a hard time trusting men. A man behind the counter of a gas station asked how my day was and I felt defensive and I felt a need to protect myself. I loved getting massages. I used to go every 2-3 months and treat myself. Since then, I have gone twice. The first time I went, I ended up having a full-blown panic attack and left about 30 seconds after starting.

Now every time I see a man with a bald head and glasses, my heart starts racing and I can't breathe. My anxiety has gotten so bad, I am on medication to be able to function from day to day. One of the worst parts for me is keeping it from my children and not letting them see that the man at the gas station reminds me of him, or I get an update and we're still out waiting and he is out enjoying his life. It was hard having to tell my mom that her baby was hurt. [ 17 ] Complainant 2 on that count attended two sessions with Mr. Loewen in November 2019. No, I am sorry, Complainant 2 attended on November 27, 2019.

She was, at the time, eight months pregnant. She was drawn to him by his posted Facebook offer of a free massage. He massaged her breasts, telling her that it would stimulate milk production. Later he massaged her thighs and buttocks, slowly moving to touch the outside of her vagina and labia. She felt that he was very close to penetration. [ 18 ] Count 5 involved three complainants. The first had several sessions, the last being in August 2021. She had felt uncomfortable at earlier sessions, but again did not make a specific complaint. After that, she usually had her boyfriend accompany her at massage sessions.

During the last two sessions, she was alone with Mr. Loewen. She complained of neck problems as her reasons for needing a

massage. He focused on rubbing the inside of her upper thighs, her pelvis, and her buttocks. She finally had to ask him to move up and focus on her neck where she had initially requested the massage. [ 19 ] Complainant 2 attended in June 2020. She was seven months pregnant and had back pain. COVID had limited her options for massage. Mr. Loewen's Facebook ad offered free pregnancy massages. She attended. She removed her clothes including her bra, but kept her panties on. While she was lying on her back, he began massaging her pregnant belly.

He then moved down, touching her panties, and eventually trying to put his hands under her panties. She pushed his hands away. He moved down to her legs and massaged up towards her groin area. He again touched her panties and attempted to put his hands under them, whereupon again, for the second time, she pushed his hands away. [ 20 ] She felt vulnerable, naked, pregnant, without her glasses, and completely unable to contact her husband. Her cellphone had been left with her clothing. She remained on her back. Mr.

Loewen again massaged up her other leg, onto her panties, and again tried to put his hand underneath them, requiring her to push his hand away a third time. [ 21 ] Complainant 3 had several successful sessions with Mr. Loewen prior to her final occasion on July 8, 2020. Prior to that session, he had contacted her to say that she had won a free massage. She was six-and-a-half months pregnant. When she attended, he told her that most of his clients were naked during massages, so she completely disrobed.

While laying on her right side, he began massaging her feet, moved up her legs, and then between her thighs, touching her labia. She shifted and he moved to another part of her body. [ 22 ] Her victim impact statement says that she has a lot of trust issues now: I cannot even think about ever going back to a massage therapist ... I feel vulnerable and violated … At the time of the offence, I was pregnant with my daughter and that [was] for the first time too. I felt a lot more protective over her and fear for her safety every day.

I am still not able to provide her the freedom that a child should have. … I was pregnant at the time and bodies are more sensitive with more hormonal changes, [that] made [it] worse for me. I was taking anti-depressants … just to cope ... I changed the locks [on my house]. [ 23 ] Count 6 also involved three complainants. The first of them, Complainant 1, won a free couples' massage, but scheduling conflicts required separate appointments. Her appointment was in September 2020. She was fully naked under a blanket. During the massage, Mr.

Loewen began massaging her legs, pulled them wide apart, and began massaging high on the inside of each leg, rubbing up against her vagina. He then massaged her stomach, moving his hands lower to rub on top of her pubic bone, then up to massage the top of and between her breasts, nearly touching the nipples. [ 24 ] Complainant 2 responded to a free pregnancy massage ad and booked for September 21, 2020. She left her underwear on. Mr. Loewen began massaging her legs, lifted the blanket, and began massaging her upper and inner thigh area, rubbing along the inside of her vagina.

He then moved up her body and onto the top of her bare breasts. The victim impact statement for that individual says: I want to say that I can no longer see male RMTs, I felt like he violated my baby. That was my last pregnancy. I didn't want anyone to touch my bump so it didn't just affect the 1 pregnancy, but [all] subsequent pregnancies. [ 25 ] Complainant 3 on the final count was contacted and told that she had won a free massage. That massage and several subsequent massages occurred without incident. She was charged $20 to $45 a session.

The massages often involved contact with or exposure of her breasts, but she was not overly concerned. [ 26 ] On September 26, 2020, she had her final session. She was lying on her stomach. He pulled her panties down, spread her buttocks, and massaged between them. She said it felt weird. She then turned over on her back. He massaged her legs, beginning below and moving up, eventually touching her vagina. He sat on the massage table and again began to massage her legs. He lowered her panties until her vagina was fully exposed. He placed his hand directly on her vagina, held it there, and pushed down forcefully.

She grabbed his hand and pushed it away. He apologized and pulled her panties up. After leaving, she drove away but pulled her car over and broke down crying. [ 27 ] The final victim statement refers to the actions of Mr.

Loewen having caused catastrophic problems to her life: I had the absolute worse panic attack that my body was trying to curl up in a ball … I had to sit in a ball for about 20 minutes and then I threw up. … Weeks passed … I wouldn't even come out of my room … His actions completely robbed my children of their mother, my job, my trust, my self care and self worth. … Eventually I couldn't do my job anymore. … A lot of who I am died that day … he killed my trust.

I was molested by my grandfather as a child … And further: I almost booked my 16-year-old daughter in with him, but he touched me inappropriately before I could book her so thank God for that. [This] was my silver lining I could take from the whole thing, but the devastation sits very deep in me when I think what if I booked her and it was her that was hurt by him. MR. LOEWEN'S PERSONAL CIRCUMSTANCES [ 28 ] Mr. Loewen, as indicated previously, is 59.

He was born in Paraguay, emigrated to Canada with his parents and three older siblings at approximately age two. [ 29 ] His siblings all reside in the Lower Mainland of B.C. He was raised in a loving, supportive, community-oriented, and religious family. He struggled academically in school but was a popular student. He graduated Grade 12 from Mennonite Educational Institute. He has been married since 1986. He has three children, four grandchildren, and no prior criminal record.

[30] He is a successful now-retired businessman. He is well known in the Abbotsford area. He has a longstanding involvement in hischurch and in his Christian faith. He served on the elders' council of his church from 2000 to 2012. He contributes regularly to theAbbotsford food bank, to local pregnancy centres, and international charitable works in countries such as Uganda, Peru, and Brazil. Hehas travelled to these countries to further support such work.

He has been and continues to be active in church-based men's groups,focused on, among other things, social issues, personal issues, and accountability. [31] Following media attention to the present charges, he and his family have experienced both considerable public outcry, shunning,and shaming from some, as well as unquestioned and continuing support from other members of the Abbotsford and church communityand from his family. [32] In this regard, some 30 “character reference letters” were provided to me by family, friends, other clients of Bud's Massage, andother acquaintances.

It is important to know that the authors of those letters were all made aware of the circumstances of the mattersbefore me. They were aware of the charges that are currently before the court. I have read and reviewed each of those letters in detail.Many, if not all, of them speak to Mr. Loewen as being a generous, selfless, true leader and a man of great faith and great integrity. Theyalso speak to observation regarding his expressed regret and repentance, his seeking forms of counselling, and even his desire to use hisexperience to counsel others who find themselves in similar circumstances.

CRIMINAL RECORD [33] As noted, Mr. Loewen has no criminal record. An offender's criminal record or lack thereof is relevant to sentencing. Generally,first-time offenders are to be dealt with as lightly as possible. One of the many cases dealing with that is R. v. Stein (1974), (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.). Strangely, a second case that is oft quoted in this area is R. v. Loewen (1992), (BC CA), 15 B.C.A.C. 42. [34] It is to be noted, however, that the first-offender principle is not as clearly applied or applicable in offences of breach of trust dueto the nature of such a crime.

The opportunity for the offence would not likely have been present had there been a criminal record. It isharder for a person to be placed in a position of trust if they have a criminal record. The absence of that record allows them to be exposedto those trust situations. The leading case on that: R. v. Mulvahill (1991), (BC CA), 5 B.C.A.C. 1. [35] The current situation here clearly involves numerous breaches of trust by a physical healthcare provider against vulnerablecomplainants, often in response to direct advertisement and solicitation and often for payment of services.

PRESENTENCE DOCUMENTATION [36] There was no presentence report sought or prepared in regards to Mr. Loewen and the offences that appear before the court.There was, however, a risk assessment report prepared by Dr. Mark Bodnarchuk on July 18, 2023. I have reviewed that report in detailand I note the following in particular as regards Mr. Loewen's expressed views as itemized in that report. [37] He thinks that his case is viewed through the perspective of those who have been wronged and he has not been able to explain hisperspective, which he believes is pivotal to him legally and personally.

He knows that he crossed boundaries and did some very wrongthings. He admits touching women inappropriately for his own satisfaction and visual pleasure. He did not want to make the women'slives terrible. He did not intend to do them any harm, has expressed a great deal of regret, and believes it is important to takeresponsibility. He believes that he has to take steps to correct his behaviour and is willing to take any counselling deemed necessary. [38] He stated that his touching of the women's vaginas was only for seconds and was transient. It was not continuous or of longstanding.

He said there was a progression towards massaging the women's private areas and he made assumptions about their level ofcomfort. He said that he did not experience sexual arousal from the touching, did not have fantasies, and did not masturbate following theincidents. [39] It is worthy of note that Dr. Bodnarchuk comments that this is unlikely to be the case and that Mr. Loewen, like other sexualoffenders, likely has difficulty accepting full responsibility for his behaviour.

He indicates that he is upset that all of the focus has beenon what he has done wrong, not on the positive things that he has done in his community. [40] Dr. Bodnarchuk commented that he himself did not believe that Mr. Loewen had told others what he has specifically engaged inor the full nature of his behaviour.

He commented at page 12 of his report and I quote from that: He has a positive attitude about the possibility of personal change, the value of therapy, and the importance of personal responsibility.He has strengths that are usually positive indications for a smooth treatment process with a reasonably good prognosis. On the otherhand, he may also not be experiencing sufficient distress to feel that treatment is warranted. [41] In terms of risk to reoffend, Mr. Loewen scores at the high end of the low category.

Put in perhaps more practical terms, hislikelihood of reoffending within five years is 2.4 to 9.9 percent, and within 10 years is 2.6 to 15.6 percent. In terms of case prioritization,dealing with the need for intervention and/or for treatment, Mr. Loewen is rated as being moderate. He needs sexual-offence specifictreatment, community supervision, prohibition from providing massages, and full monitoring of his social media presence.

SENTENCING POSITIONS [42] The Crown seeks a term of imprisonment of two years plus a three-year term of probation with statutory terms, as well as termsregarding contact with the complainants, use of social media, residence requirements, counselling and treatment, bans or limitation on

providing massage services. They also seek firearms prohibitions, provision of a DNA sample, and listing with the Sexual Offender Registry for 20 years, and a surcharge payment for victims. [ 43 ] The defence takes little issue with the probation terms nor with the ancillary orders sought by the Crown. In fact, they do not take great issue with the length of the sentence. They submit, however, that it would be more appropriate in the range of 18 months to two years less a day, but that it should be served as a conditional sentence, known in general terms as "house arrest", rather than in a prison or penitentiary setting. PRINCIPLES OF SENTENCING [ 44 ]

Section 718 of the Criminal Code provides the purposes laid out for sentencing. It says: 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

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

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and [lastly] (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 45 ] The next

section of the Criminal Code , s. 718.1 , provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 46 ] In this case, the offences are serious, both in nature and in number, and Mr. Loewen is entirely responsible for the planning and carrying out of each and every one of those offences. [ 47 ]

Section 718.2 goes on to identify certain specific aggravating circumstances which the court must consider in arriving at an appropriate sentence. These include evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, as well as evidence that the offence had a significant impact on the victim considering their age and other personal circumstances including their health and their finances. [ 48 ] The next subsections in that

section of the Criminal Code provide directions which are given that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 49 ]

Section 742.1 of the Criminal Code provides the imposition or availability of the imposition of a conditional sentence in certain referenced circumstances, including that the sentence to be imposed is one of less than two years.

Two of the remaining primary considerations for the court involve an assessment of whether such a sentence would endanger the community, and whether it would be consistent with the fundamental purpose and principles of sentencing that I have already referred to in ss. 718 and 718.2. [ 50 ] Crown counsel does not dispute that those provisions of the Criminal Code not prohibit me from imposing a conditional sentence for the offences charged in this case. They say, however, that the circumstances in this case dictate that actual imprisonment is indicated, if not in fact required.

They say that such imprisonment is a more appropriate disposition. They seek a federal term of imprisonment for two years which, if I find it to be appropriate, would disentitle Mr. Loewen to the option of a conditional sentence because that would only apply to sentences of less than two years. PRINCIPLES OF SENTENCING Case authority and parity [ 51 ] In R. v. Proulx , 2000 SCC 5 , the Court considered the matter of conditional sentences. There the consideration was in the context of a charge of dangerous driving causing death and bodily harm. A useful

summary of the Court's discussion and reasoning is provided at para. 127 of that decision. I have considered all of the decision in Proulx , including importantly the summaries at para. 127, and I agree that in principle and in keeping with the Criminal Code provisions, a conditional sentence to be served in the community is available and is required to be appropriately considered by this Court in the current case. [ 52 ] I have carefully considered the imposition of such a sentence along with the options provided by the Crown.

I have, in particular, noted the comments contained in para. 127(8) to (10) of Proulx . Those comments are as follows: 8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of

the offender's conduct or to deter similar conduct in the future. 9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. 10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved.

However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. [ 53 ] I have reviewed the numerous authorities other than Proulx , as well, that were provided by defence counsel. I find them, in large part, to be distinguishable and of limited assistance.

Two involve a joint submission by Crown and defence for a conditional sentence. One involves a situation where the Crown itself was suggesting a conditional sentence. Other of the authorities involved a single or very few counts and/or matters which were proceeded with by

summary conviction rather than by indictment or were somewhat aged. [ 54 ] I found the Crown authorities to be more applicable to the facts before me and to the present case, and to be of more assistance in addressing parity and the matter of an appropriate sentence. [ 55 ] In R. v. Baltazar , 2021 ABQB 879 , the Alberta Court of Queen's Bench was dealing with a situation very similar to the present. It, however, involved adult male complainants rather than adult female complainants. Importantly to me, that decision was cited with approval by Justice Riley in R. v. Gaglardi , 2023 BCSC 96 .

At para. 104 and referring to Baltazar , Riley J. said the following: The offender in R. v. Baltazar … was a registered massage therapist who was convicted after trial of 11 counts of sexual assault. The offences involved inappropriate sexual touching of the genital areas of 11 separate victims, during massage therapy sessions. All of the victims were adult males. The offender was in his early 40s at the time of sentencing. The sentencing judge found that he had no insight into the nature of his offences or the impact on his victims.

The offender had community support but the sentencing judge considered that to be of little weight given that sexual offences of this sort can be perpetrated by individuals who might otherwise present as [being] upstanding members of the community. The judge found that the conduct was predatory and involved an abuse of trust. As in the case at bar, there was compelling evidence of the negative impact that the offences had on a number of the victims.

The sentencing judge [there] determined that the appropriate sentence for each count ranged from two to six months in jail to be served consecutively, for a total of 42 months, which the judge then reduced under the totality principle to produce a net sentence of 31 months in jail. [ 56 ] I note that was after a trial and perhaps with less insight into the effect on the victims. [ 57 ] In Baltazar , there were a total of 11 counts, nearly double the number of counts in the present case. However, in Baltazar , each count related to only one victim.

The result is that in the present case, I am dealing with the victimization of one person more than in the Baltazar case. [ 58 ] The court in Baltazar also pointed to and relied on the fact that there were multiple victims, they suffered emotional and psychological harm, they were vulnerable individuals, the assaults took place over an extended period of time, and the accused was in a position of trust in relation to each of the victims. The court also noted the mitigating fact that the accused had no criminal record. [ 59 ] Those same factors, each and every one, are present in the current case. [ 60 ] In R. v.

Khan , 2016 ONCJ 282 , the court dealt with a single count of sexual assault, this time by a non-registered massage therapist. The court commented that the offence involved again a breach of trust and a victim who was in a vulnerable position, alone and naked in a small room with the accused. The event had significant impact on the victim, and again the accused had no criminal record. The sentence in that case was six months' imprisonment. [ 61 ] In R. v. Ramirez , 2017 BCPC 278 , the court was dealing with a single count again of sexual assault, again arising in the context of a massage setting.

The accused in that case had solicited clients by advertising on Groupon and offered massages at low rates. The victim attended, disrobed, and was so comfortable in that case that she fell asleep, awaking to the ongoing sexual assault.

The court commented on the trust relationship and vulnerability of the victim and imposed a sentence of 12 months' imprisonment. [ 62 ] One of the common threads which arises and runs through each of these cases that I have referred to is that while all of the principles of sentencing must be considered, in cases such as the present one, the principles of denunciation and deterrence are particularly important and necessary of consideration. [ 63 ] In R. v.

Collins , 2007 NBQB 169 , the court stated simply and succinctly: In my view … the imposition of a conditional sentence for this offence would not be consistent with the fundamental purpose and principles of sentencing and particularly the primary considerations of deterrence and denunciation that I believe must apply to this case. The abuse of trust by treating specialists or therapists who sexually assault their patients must be denounced categorically.

A strong clear message must be sent to those who are inclined to abuse such trust that such conduct carries with it severe consequences, including incarceration. AGGRAVATING FACTORS IN THE PRESENT CASE [ 64 ] Somewhat repetitively, but I will go over the aggravating factors specifically and expressly.

[ 65 ] Reference to s. 718.2 of the Criminal Code reveals that two statutorily recognized aggravating factors are present in this case. These are not case authorities; these are directed by statute. Mr. Loewen clearly abused a position of trust or authority in relation to these victims. In fact, he relied on the trust bestowed on healthcare workers such as massage therapists to actually attract his victims.

Secondly, the offences clearly had a significant impact on most, if not all, of these victims. [ 66 ] In addition to the statutory aggravating factors, I consider the following to also qualify as significant aggravating factors in this particular case: 1. Mr. Loewen's actions were planned and deliberate. He did not simply happen on victims. He actively advertised for clients and offered them financial incentives to use his services. 2.

He targeted financially and physically-vulnerable individuals, including women in late stages of pregnancy or recently post partum, and rendered them even more vulnerable by isolation and by having them disrobe either fully or partially. 3. He alone was solely responsible for his actions and the assaults. 4. This was not a single or a couple of incidents. These assaults took place over an extended period of some two years and involved 12 different women. MITIGATING FACTORS IN THE PRESENT CASE [ 67 ] There are also present in this case, mitigating factors.

I have considered the following in determining an appropriate sentence: 1. Remorse: I acknowledge that Mr. Loewen's indications of remorse are present, but I also temper that somewhat with the context of the previously-noted comments of Dr. Bodnarchuk as to his likely lack of acceptance of full responsibility and full disclosure. 2. It is a mitigating factor that Mr. Loewen pled guilty. 3. It is mitigating and laudable that Mr. Loewen was compliant with all of his bail conditions. There have been no difficulties since his arrest. 4. Mr. Loewen has no prior criminal record.

I have noted the limitations on that mitigation already. 5. It is undoubted that he has strong support from his family and from at least a certain sector of his social and faith-based acquaintances.

DETERMINATION OF A FIT SENTENCE FOR EACH COUNT [ 68 ] I agree with the authorities that conclude that in situations such as the present, where the offences involve vulnerable victims and an offender who was in and exploited a position of trust relative to those victims, the primary focus on sentencing must be denunciation and deterrence. [ 69 ] I am concerned about portions of the risk assessment, as already indicated. I share the author's concern that Mr.

Loewen has not yet accepted full responsibility for these offences, that he feels aggrieved that the position of the victims is being given priority over his concerns, and that he has not yet been fully candid with others, including the author of the assessment. [ 70 ] The report does say, and I accept, through both that and his counsel's submissions, that Mr. Loewen is willing to accept and pursue counselling. Mr. Loewen was in and used a position of trust to lure women, many of them vulnerable, into his work area where they found themselves even more isolated and vulnerable.

In that setting, he sexually assaulted them, sometimes repeatedly over the course of a session, and often in the face of their spoken and/or physically exhibited protests and directions to him that he stop. He continued this practice over the course of two years. It is clear those women suffered emotional and psychological injury as a result of his actions. [ 71 ] These are the actions of a calculating, committed, long-term, serial sexual predator.

I am of the view that in these circumstances, a conditional sentence simply would not and could not adequately meet and fulfil the purposes and principles which are catalogued in ss. 718 , 718.1 , and 718.2 of the Criminal Code . [ 72 ] I am also of the view that for the purposes of Mr. Loewen's further understanding and appreciation of his actions and his pursuit of rehabilitation, a lengthy term of probation following imprisonment is required.

That overall goal is best accomplished by the overall sentence suggested by Crown counsel, although I have modified some of the individual counts to account for the circumstances in each. [ 73 ] Mr. Loewen, would you please stand. [ 74 ] Mr. Loewen, I sentence you as follows: • Count 1, three months in jail consecutive to all other counts; • Count 2, four months in jail consecutive to all other counts; • Count 3, three months in jail consecutive to all other counts;

• Count 4, four months in jail consecutive to all other counts; • Count 5, five months in jail, again consecutive to all other counts; and • Count 6, five months in jail consecutive to all counts. [ 75 ] Accordingly, the total jail sentence is, as suggested by Crown counsel, 24 months or two years. [ 76 ] Having considered the totality principle, I am of the view that the total of 24 months is neither unduly harsh nor out of proportion, given the offences committed, their circumstances, and your circumstances. [ 77 ] In addition to this term of imprisonment, I impose a 36-month term of probation to follow your release, sir.

The terms and conditions of that probation order will be as follows: • You must comply with the probation order for a period of 36 months. • You must keep the peace and be of good behaviour. • You must appear before the court when required to do so by the court. • You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. • You must report in person to a probation office in the Abbotsford area, the address will be available through your counsel, within two business days after your release from custody, unless you have obtained before your release from custody written permission from the probation office to report elsewhere or within a different timeframe.

After that, you must report as directed by your officer. • You must have no contact, communication, directly or indirectly, with any of the following: L.M.D., D.H., C.W., C.E.W., B.P., R.B., R.T.F., L.P., K.G., M.C.W., J.A.E., or S.L.M. • You must not distribute, publish, post, or make publicly available in any way information, including comments and images, which refer to or in any way offer any services related to massage or massage therapy. • Within 24 hours of your release from custody, you must take all necessary steps to remove from any network, including the internet, any website, social media page, or posting which you have created, maintained, or contributed to, which contains any words or images which refer to or offer any services related to massage or massage therapy. • You must not go to any place where any of L.M.D, D.H., C.W., C.E.W., B.P., R.B., R.T.F., L.P., K.G., M.C.W., J.A.E., or S.L.M. lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. • When first reporting to your probation officer, you must provide them with the address where you live and with your phone number. You must not change your address or phone number without notifying your probation officer in writing at least 14 days in advance of any move. • You must provide your probation officer with the details of your employment status.

You must inform your officer within two business days of any change in your employment status. • You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer, which may include but is not limited to counselling, programming, or mental health and for sexual offence prevention. • You must not advertise or engage in any massage therapy services or body manipulation services, including but not limited to these examples: heated stone treatment, reiki, assessment of the body, treatment and prevention of physical dysfunction, pain, injury, and disorders, and other manual methods. • You must not seek or maintain employment in any facility that provides any massage therapy services or body manipulation services. • You are not to receive massage treatments unless the treatment provider is informed of your convictions by your probation officer and you have an additional male with you present in the room of the massage, that person to be informed of your charges by the probation officer prior to the appointment. • You are to advise your probation officer of any massage treatment in advance and receive consent of that person to attend the treatment in writing with the named informed adult who is to attend the treatment with you.

You shall carry the prior written permission of your probation officer at the massage treatment and show it to the massage therapist prior to the treatment. Further, the written permission may be in electronic format, must be immediately shown to a peace officer who requests to see it. [ 78 ] Finally, I make the following ancillary orders: 1. Under s. 109 of the Criminal Code , Mr. Loewen, you are prohibited from possessing any firearms or weapons as provided for and detailed in that

section for a period of 10 years. 2. Under s. 487.051 of the Criminal Code , you are to provide a DNA sample as provided for and detailed in that section.

3. Under s. 490.012 of the Criminal Code , you are to comply with the Sex Offender Information Registration Act as provided by and detailed in that

section and that Act, with such registration being for a period of 20 years as provided for and detailed in s. 490.013 of the Criminal Code . 4. Under s. 743.21 of the Criminal Code , you are prohibited from communicating, directly or indirectly, with any of the named victims during the period of your sentence, which includes the incarceration. [ 79 ] Lastly, there is a victim surcharge for each of the offences in the amount of $200. The total of that, given that there are six counts, is $1,200. I will allow 60 days for the payment of that. [ 80 ] Counsel, is there anything further? [ 81 ] CNSL T.

ROY: No, thank you, Mr. Justice. [ 82 ] CNSL W. FINCH: May I have just a moment with my client? No, thank you, Justice. [ 83 ] THE COURT: Thank you. “Caldwell J.”