R. v. O.R.R., 2023 BCSC 2325

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. O.R.R., 2023 BCSC 2325 Date: 20231208 Docket: 111734-2 Registry: Kamloops Rex v. O.R.R. 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. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: The text of the judgment was redacted at paragraph 19 and page 11 to anonymize the accused’s name for publication purposes on January 19, 2024.

Before: The Honourable Mr. Justice Branch Oral Reasons for Sentence Counsel for the Crown: T.A. Livingston Counsel for the O.R.R.: C. McLaughlin Place and Date of Hearing: Kamloops, B.C. December 8, 2023 Place and Date of Judgment: Kamloops, B.C. December 8, 2023 Table of Contents I. INTRODUCTION .. 3 II. SENTENCING PRINCIPLES .. 4 III. APPLICATION .. 6 A. Criminal Record . 6 B. Likelihood to Reoffend . 6 C. Intimate Partner Violence . 6 D. Duration and Frequency of the Abuse . 7 E. Age of the Victim .. 7 F. Degree of Physical Interference . 7 IV. SENTENCING PARITY .. 7 V. ANCILLARY ORDERS .. 9

SCHEDULE “A” . 11 I. INTRODUCTION [ 1 ] O.R.R. (the “Offender”) was convicted of sexual assault contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ]. These are my reasons on sentencing.

[ 2 ] The circumstances of the offence are addressed in my reasons at 2023 BCSC 1683 . In terms of additional information provided at the sentencing hearing:

a) The Offender was born in Kamloops. He had some difficulty completing high school, but he has since obtained his high school equivalency and a number of college credits and certificates;

b) The Offender has only a very distant and unrelated criminal record for failing to provide a breath sample;

c) The Offender has long struggled with alcoholism, of which there is a long family history;

d) The Offender has suffered medical difficulties, including a spinal injury in 2008, which eventually led to a diagnosis of an ongoing spinal condition;

e) He has two adult children with whom he is still in touch, and who provided letters of support for this hearing;

f) For about the past year, the Offender has been able to get his alcohol problem under control. He has attended and continues to attend Alcoholics Anonymous meetings and has a sponsor providing him with support;

g) The Offender lost his job working for an autism organization in part due to these proceedings, but has tried to return to a construction awning business, in which he was involved previously;

h) The Offender has parenting time with K. regularly, and he is paying child support. However, it appears that the family litigation which is ongoing has been, perhaps not surprisingly, quite contentious.

i) There were several letters of support provided, which were all very positive and indicative of a reasonably good support system. However, it was difficult to attribute full weight to these letters, as there is no indication that the writers were aware of this particular offence. II. SENTENCING PRINCIPLES [ 3 ] Justice Ker recently summarized the relevant principles in the context of sexual abuse claims in R. v. T.C.S.T. , 2023 BCSC 1656 : [48] The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond any mathematical calculation.

Many courts have recognized that imposing a just and proportionate sentence in serious cases like this one is one of the most challenging responsibilities that judges must exercise. It involves the 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 that is informed by common law principles. [49] The legislative framework, which is set out in ss. 718 through 718.2 of the Code , enumerates the purpose, objectives, and principles to be considered in sentencing. [50]

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

These 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 the victims or to the community. [51]

Section 718.01 of the Code mandates that because the offences in this case involved the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence in sentencing T.C.S.T., and I do. [52] I recently addressed the principles of sentencing in R. v. T.A.P ., 2023 BCSC 316 . . . . [84]

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. Thus, whatever weight a judge might wish to accord to the objectives listed in s. 718, the resulting sentence must respect the fundamental principle of proportionality . . . [85]

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.

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. [86] Sections 718.2(

c) through (

e) promote restraint in sentencing.

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. Sections 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. [87] Accordingly, courts should 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. [88] As noted, s. 718.2(

a) enumerates a number of statutory aggravating factors. At least two of the statutory aggravating factors are engaged in this case: s. 718.2(a)(ii.2), abuse of a person under the age of 18, as all three victims were under the age of 18 years; and s. 718.2(a)(iii), abuse of a position of trust . . .

[89]

Section 718.2(

b) of the Code addresses the parity principle. While I am mindful of it, I also must not 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 . . . [ 4 ]

Section 718.04 provides that 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 objective of denunciation and deterrence of the conduct that forms the basis of the offence. I accept that the victim was in a vulnerable position given that she had invited the Offender over in order to care for their child so that she could sleep, and she was sleeping or trying to sleep when the offence occurred.

Therefore, the need to emphasize the objectives of denunciation and deterrence are squarely in view. [ 5 ] In terms of the sentencing range, both Crown and defence agree that the normal range for offences of this type, being sexual assault involving penetration of an adult, is 2-6 years, relying on R. v. G.M. , 2015 BCCA 165 at para.22. The Crown proposes a 2-year sentence. The defence proposes a Conditional Sentence Order ("CSO”) of 2 years less a day, as well as probation. If a transcript is ordered, I will include the Offender’s proposed conditions and terms of probation as

Schedule A to these reasons. III. APPLICATION [ 6 ] I review next the most applicable factors identified by Ker J., including any aggravating and mitigating circumstances. A. Criminal Record [ 7 ] The lack of a material criminal record is a mitigating factor. B. Likelihood to Reoffend [ 8 ] It is difficult to say too much about this factor one way or the other. While it is true that there was no prior indication of any risk, the reality is that the offence occurred.

There was no independent risk assessment provided to assist in determining whether the Offender has faced and accepted the reality of what he has done, and the Offender did not seek to make a formal expression of remorse today. To clarify, I do not find the fact that the Offender has not accepted his guilt should be treated as an aggravating factor, but simply that the lack of evidence of insight prevents me from saying that there is little likelihood of reoffending: R. v. C.G. , 2020 ONCJ 459 at para. 29 . I simply do not know whether he has "learned his lesson": R. v. Tayo Tompouba, 2020, BCSC 308 at para. 65 .

C. Intimate Partner Violence [ 9 ]

Section 718.2(a)(ii) provides that it is an aggravating factor that the victim was an intimate partner. That is certainly engaged here. [ 10 ] Although not a classic trust position case, Crown submitted that this should be further informed by the fact that the victim was in a vulnerable state, as discussed above: C.G. at para. 32 . It also involved persistence by the Offender and pressure being placed on the victim: C.G. at para.36.

The additional element increases the weight to be applied to this aggravating factor, while acknowledge that I should not “double count” this along with the more express “abuse of trust” aggravating factor set out in s. 718.2(a)(iii). D. Duration and Frequency of the Abuse [ 11 ] There was a single incident on a single day. E. Age of the Victim [ 12 ] The victim was an adult. F. Degree of Physical Interference [ 13 ] There was penetration, as well as ejaculation following penetration. IV. SENTENCING PARITY [ 14 ] The authorities provided by both sides were largely distinguishable on various bases:

a) not involving penetration: R. v. Chen , 2017 BCCA 426 ;

b) involving the abuse of a child: R. v. Cadman , 2018 BCCA 100 ; R. v. C.B.A. , 2021 BCSC 2107 ; Chen ;

c) engaging immigration concerns: Tayo Tompouba at paras. 53, 75, and 77 ;

d) the court concluding that the offender "honestly but mistakenly believed that the complainant consented": Tayo Tompouba at

paras.71 and 74. See also R. v. G.D.L., 2022 BCSC 940 ;

e) involving situations where the Crown only sought a sentence below 2 years ( G.D.L . at para. 20 ) or where they effectively created a cap by the Crown's choice to proceed summarily;

f) were decided before the Supreme Court of Canada's decision in R. v. Friesen , 2020 SCC 9 , which "gave emphasis to the seriousness of all forms of sexual assault and the emotional and psychological harm to the victim": R. v. S.S. , 2023 BCCA 207 at para. 25 . [ 15 ] While I accept that the range allows for exceptions, and that the facts are sufficiently moderated to push this case to the bottom of the range, I do not see anything particularly exceptional that would cause me to push this case outside of the range.

At a certain level, this case is squarely, but sadly, within the usual fact patterns that have considered these provisions, involving the abuse of a partner, where the Offender has children to care for and where the Offender has some support from the broader community. There simply is not enough for me to say that the Offender should benefit from anything beyond a determination that the case deserves to be at the bottom end of the range.

While I accept that some parliamentary intention can be drawn from the fact that CSOs may now be issued in such circumstances, I do not find that this alone should be treated as a basis to fall outside the usual range expressed in G.M. The CSO tool is available where the usual custodial range does not make sense, but in this case, I find that a position at the bottom of the range makes sense in the circumstances, particularly given the heightened attention to be paid to deterrence and denunciation in this context.

To use the words of Justice Marchand (as he then was) in Toya Tompouba , there are no "particularly compelling circumstances" requiring a sentence "below the usual range" ( at para. 53). There is a key mitigating factor, being the lack of a relevant record, but also a key aggravating factor, being the fact that this case involved an intimate partner in a vulnerable state. [ 16 ] Sir, could you please stand. I sentence you to a two year term of incarceration in a federal facility for the offence of sexual assault. V.

ANCILLARY ORDERS [ 17 ] You will also be subject to the following ancillary orders requested by the Crown, being:

a) a 10-year SOIRA order under ss. 490.011, 490.012(3), and 490.013(2)(a);

b) an order pursuant to s. 487.051 requiring the Offender to provide bodily samples as are reasonably required for the purposes of forensic DNA analysis;

c) an order pursuant to s. 109(2) prohibiting the possession of a firearm for 10 years. [ 18 ] Counsel, just before concluding on the ancillary orders, we had not discussed the victim surcharge. [ 19 ] CNSL T. LIVINGSTON: Given that the Offender is currently not working and will be spending some time in custody, the Crown takes no position on its being waived. [ 20 ] CNSL C. MCLAUGHLIN: And for the same reasons, we would ask that it be waived. [ 21 ] THE COURT: Yes, I find that waiving the victim surcharge is appropriate in the circumstances.

Anything else, counsel? [ 22 ] THE CLERK: Sorry, just the duration of the SOIRA order? I didn't catch that. [ 23 ] THE COURT: 10 years, or were you wanting to make a submission on the 10 years? [ 24 ] CNSL C. MCLAUGHLIN: At this point, I don't have any SOIRA submissions, however, I will note that we take no position and we're not necessarily endorsing it. [ 25 ] THE COURT: Very good. [ 26 ] CNSL C. MCLAUGHLIN: That being said, I do just want to clarify, if I may, when you say a sentence of two years, are you intending for that to be federal or provincial? [ 27 ] THE COURT: Federal. [ 28 ] CNSL C.

MCLAUGHLIN: Thank you. [ 29 ] THE COURT: Any other issues? [ 30 ] THE CLERK: Just one more thing, does the Offender have to sign the documents? [ 31 ] THE COURT: Any submission on whether you want a signature? [ 32 ] CNSL T. LIVINGSTON: I don't know what documents Madam Clerk is referring to. [ 33 ] THE CLERK: That would be to the SOIRA -- [ 34 ] CNSL T. LIVINGSTON: SOIRA order. [ 35 ] THE CLERK: -- and the firearms.

[ 36 ] CNSL T. LIVINGSTON: I don't think it's usually required, Justice. [ 37 ] THE COURT: Yes, I am prepared to confirm, to the extent that it is normally required, that it is not required in this situation. Thank you both for your helpful submissions. “The Honourable Mr. Justice Branch”

SCHEDULE “A”