R. v. Aeichele, 2023 BCSC 253

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Aeichele, 2023 BCSC 253 Date: 20230110 Docket: 53619-2 Registry: Vernon Rex v. Douglas Rick Leonard Aeichele Restriction on Publication: Pursuant to 486.4 C.C.C. Before: The Honourable Mr. Justice Betton Oral Reasons for Sentence Counsel for the Crown: M. Cissell Counsel for the Accused: L. McPheeters Place and Date of Trial/Hearing: Vernon, B.C. June 28 and November 7, 2022 Place and Date of Judgment: Vernon, B.C. January 10, 2023 [ 1 ] THE COURT (by videoconference): Mr. Aeichele is before me today to be sentenced, having pled guilty to two offences.

They are, from the indictment, Counts 1 and 3. Count 1 is that he, between July 1, 2018 and November 16, 2018, near Spallumcheen, British Columbia, did, by means of communication, communicate with a person who he believed was under the age of 16 years, identified as E.G., for the purposes of facilitating the commission of an offence under s.151 or 152, all contrary to s. 172.1(1) (

b) of the Criminal Code . Count 3 is that, between July 1, 2018 and March 1, 2019 at or near Salmon Arm, British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of E.G., a person under the age of 16 years, contrary to s. 151 of the Criminal Code . [ 2 ] The Crown seeks a three-year global sentence. Mr. Aeichele, through his counsel, had initially sought an 18 to 23-month conditional sentence order followed by two years of probation. That position was revised following the Supreme Court of Canada decision from November 4, 2022, in R. v.

Sharma, which upheld the validity of the provisions of the Code that preclude the imposition of a conditional sentence order for these two offences as they have maximum punishments of 14 years. The position then presented by Mr. Aeichele through his counsel was for a 90-day intermittent sentence or, failing that, a sentence of no more than 18 months. Background [ 3 ] The facts of the offences come primarily from the admissions of fact which was entered as an exhibit. They are brief. Paragraphs 11, 12, and 13 set them out as follows: 11.

Douglas Aeichele met with E.G. aka [I.R.] a number of times in person from the 1st. day of July 2018 up to and including the 1st. day of March 2019. 12. Douglas Aeichele engaged in sexual intercourse with E.G. on more than one occasion when they met. 13. Douglas Aeichele knew from the 1st. day of July 2018 up to and including the 1st day of March 2019 that E.G. (aka [I.R.]) was under the age of 16 years. [ 4 ] Included within the admissions of fact and referenced at paragraph 9 are a number of reports generated from analyzing the content of the phones of Mr. Aeichele and the victim.

I will refer to some of them to give a context for the nature of the communications. [ 5 ] On the date identified as 07-09-2018, the victim inquired of Mr. Aeichele, “how old are you??? im 15”. Mr. Aeichele responded, “Old lol 40 wondering why you were texting me”. [ 6 ] There were a significant number of communications that followed, including requests of Mr. Aeichele for sexualized images or photographs to be sent. They include, on 11-13-2018, a query from him, “Have you told anyone about me . . .”.

The victim responds, “omg same baby i wish i could too i dont wanna have to hide this but society sucks i havent told anyone but my friends seen me get into ur car but i told them ur my uncle . . . love u baby so so muchhhu!!!!! . . .”.

[ 7 ] Included in the communications on August 12 from Mr. Aeichele, “So do i get that pic yet . . .”. A photograph of some sort was sent and he responds, “Sorry lol was hoping for one of you in the mirror looking sexy . . .”. [ 8 ] There are, as I indicate, a significant number of communications contained within the reports attached to the admissions of fact, but those give some flavour of the nature of the communications. From that, it is apparent that Mr. Aeichele did not initiate the Facebook communications or the communications, but certainly proactively pursued them thereafter. [ 9 ] Mr.

Aeichele was born in 1973, making him 48 or 49 years of age. [ 10 ] I have a number of reports to assist me in these sentence proceedings. Included among them is a pre-sentence report. Within that report, dealing with background, the pre-sentence report says: Forty-eight-year-old Douglas Rick Leonard Aeichele was born in Vernon . . . to Leonard Aeichele and Joyce Rideout. He has an older biological sister, Tiffany, and a stepbrother . . . And I am selecting only portions of what is contained in the report.

Doug Aeichele stated his parents argued frequently and his father was physically violent towards his mother and the children . . . His parents separated before he was ten years of age and he and his sister remained with [his] mother. Doug Aeichele stated he had minimal contact with his father and his mother remarried Herb Rideout when he was 14. [ 11 ] Mr. Aeichele was previously married. He met his now-estranged wife, Chancee Hammer, and they were married in 2009.

She had a three-year-old daughter from a previous relationship, and together they had a set of twins who were, at the time of the pre-sentence report, 14. At the time he was arrested, he was separated from his wife and his children. [ 12 ] He has a Grade 12 education from a Vernon high school. He had various labouring jobs. He has worked at the Tolko sawmill since 1999, working a permanent nightshift. [ 13 ] The pre-sentence report describes Mr. Aeichele as having experienced a turbulent, chaotic, and abusive childhood with exposure to substance abuse and family violence.

It says he revealed he was diagnosed with anxiety and depression, and at the time of the interview for the report had been prescribed Wellbutrin, which he found helpful. [ 14 ] With respect to substances, he advised the probation officer that he began consuming alcohol at age 10 and drank on weekends. At 18, he began using cannabis, which led to cocaine, psilocybin, lysergic acid, methamphetamine, until he was married at 31. [ 15 ] He did not engage in substance abuse treatment until compelled to do so by his employer.

Although not initiated by him, by all accounts, he found that to be a very positive and helpful experience. [ 16 ] The report also indicates that Mr. Aeichele has a limited and unrelated prior record associated with drinking and driving. [ 17 ] With respect to his attitude and understanding regarding the offence, the report includes comments that he had engaged in the Facebook communications. When he met the victim in person, he described her as having ran and jumped on him.

He indicated that he took her shopping to buy her things. [ 18 ] He advised the probation officer that he did not know if his actions had any impact on the victim. [ 19 ] Mr. Aeichele has Aboriginal family connections. Those are described in the pre-sentence report and dealt with further in a Gladue report that was ultimately acquired. From the pre-sentence report, it indicates Mr. Aeichele advised that his mother had been a member of the Turtle Mountain Band of North Dakota and had dual citizenship.

He recalled that his mother had attended a Sacred Heart school in Regina, which he believed to be a residential school, but the probation officer was unable to confirm that. [ 20 ] Mr. Aeichele indicated he was unaware of whether his mother experienced abuse while at the school. He advised that he had not experienced the aboriginal culture growing up, indicating he would like to know more about it for his children. [ 21 ] The Gladue report indicates as a child Mr. Aeichele experienced violence in the home, normalization of substance abuse, instability, verbal and physical abuse.

It goes on to describe that he has a sister, Tiffany. He advised that he was not close to his father, that his father drank a lot, that he had a positive relationship with his mother when she was not drinking. She did drink with his father, and that his father became violent when drinking with his mother. [ 22 ] His grandparents were described as raging alcoholics. Mr. Aeichele indicated he had a positive relationship with his paternal grandparents. [ 23 ] Mr.

Aeichele’s mother, after separating from his father, remarried, and he indicated a positive relationship with his stepfather, and that his mother had essentially stopped drinking at that point in her life. She ultimately passed away from a brain tumour when Mr. Aeichele was 19 years of age. [ 24 ] He separated from his wife in 2019 after 14 years of marriage, because of the incidents and the charges, and he described himself as having a very difficult time, that he felt awful and ashamed. [ 25 ] As indicated, he has since attended residential treatment, found it to be a positive experience.

He has ceased the use of alcohol and cocaine since he attended the treatment, and his relationships with his ex-wife and his family have improved significantly since then. [ 26 ] He currently resides in Kamloops and attends AA, and the Wellbriety meetings at the Kamloops Aboriginal Friendship Centre. [ 27 ] I also have a psychiatric evaluation that was completed, which is also of assistance in understanding Mr. Aeichele’s

circumstances. [ 28 ] The report writer there describes Mr. Aeichele as having a rather vague account of the index offence cluster, and impressed as a generally poor historian. It says when asked to describe the progression of the relationship, Mr. Aeichele could not articulate clearly when nor how the relationship became sexual in nature, but acknowledged that he was aware that the victim was 15 years of age at the time of their sexual relationship. [ 29 ] The report indicates while Mr.

Aeichele’s insight with respect to his offending behaviour impressed as partial and limited, he acknowledged his actions were “foolish” and that he exhibited “poor judgment”. He said that he did not understand why this happened and that he did it without thinking. [ 30 ] The report indicates that Mr. Aeichele seemed to describe a period of low mood corresponding with the index offences, that he described feeling sad or more apathetic and unhappy at or around the time of the index offences.

He also described significant dissatisfaction or unhappiness with respect to his marital relationship and reported significant intimacy deficits within his marital relationship at or around the time of the index offence. [ 31 ] In terms of

summary, the report includes these comments: In my opinion, Mr. Aeichele’s current risk for sexual recidivism falls within the Average range; his risk for sexual recidivism is neither high nor low . . . It appears Mr. Aeichele’s offending behaviour was associated with at-least some degree of sexual preoccupation, sexual novelty-seeking, sexualized coping, and intimacy deficits. Depressed mood, and serious substance misuse were also associated with his offending behaviour. Mr.

Aeichele would likely benefit from moderate intensity sex offence-specific treatment. [And] Continued treatment for . . . substance abuse . . . [and] for depression . . . [ 32 ] Also provided to me in the course of the sentencing was a victim impact statement.

Within that, attributed to the victim, is an indication that she has, since these events, a lot of trust issues with friends and family, intimate relationships have been made difficult, “emotionally I have really, really bad days when I think of the offender.” [ 33 ] In terms of financial consequences, she advises, “It’s hard for me to work, or be around lots of people. Especially older men so I haven’t worked much. I get intense anxiety.” [ 34 ] All, I would infer, are relatively predictable consequences. [ 35 ] Further, I have letters of support for Mr. Aeichele.

They include one which is thoughtful from his sister, who speaks highly of his changes and, in part, she says: My brother has made incredible changes in his life since four years ago, before he used to be very quiet and withdrawn and since he stopped drinking, he has become a totally different person, he’s always very happy and pleasant to be around. And I am so proud of his changes, and the commitment to change. [ 36 ] There is also a letter from his father and a close friend of his sister’s with whom Mr. Aeichele has a relationship, as well as his ex-wife. [ 37 ] Chancee Aeichele, his ex-wife, says: . . .

I am in no way minimizing or excusing his behaviour as it has affected my children and me in so many horrible ways. But he has made many efforts to fix what he has broken. He has gone to rehab, counseling and has been paying me child support. I allow him to see our kids under my supervision and it has gone well. I see him trying to make . . . amends and I will continue to facilitate visitation with him and out children. . . . The Law [ 38 ] In terms of relevant legal principles, a very important decision is the relatively recent decision of the Supreme Court of Canada in R. v. Friesen .

Within it, there are large portions which state principles and observations and references to studies and authorities which are relevant. I do not intend to review any of those in length.

I would, however, indicate that if my reasons are transcribed, I may choose to insert larger quotes from the decision. [ 39 ] Early in the decision, the court notes: We wish to convey three overarching points in these reasons. . . . [ 40 ] I reference specifically the third, which is stated at paragraph 5 of the decision as follows: [5] Third, 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 far- reaching and ongoing harm that it causes to children, families, and society at large. [ 41 ] The decision does not change the principles of sentencing that are set out in the Criminal Code and that are applicable in every case, but rather addresses shortcomings in how those principles have been applied prior to the Friesen decision, and specifically in the context of sexual offences against children. It recognizes how modern technology has become a tool for offenders to expose the

vulnerability of children. That vulnerability is central to the seriousness of such offences and has relevance, obviously, to this case. [ 42 ] At paragraph 154, the court notes: [154] Finally, a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults . . . We would adopt the words of Fairburn J. (as she then was) in R. v.

D.(J.) . . . [an Ontario decision which is quoted as follows]: Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them.

Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims. [ 43 ] In R. v. G.T.A. , 2021 BCCA 425 decision, the circumstances were that the accused and the complainant had worked together at a fast food restaurant and had developed a friendship that had evolved into a sexual relationship. The accused was 23 and 24; the complainant was known to him to be age 15. [ 44 ] There had been a guilty plea and expression of remorse.

The accused was described as having mental health issues, immaturity, family support, employment, and prospects for rehabilitation. He was described as having serious anxiety and depression. [ 45 ] At paragraph 84, the Court noted: [84] In this case, by virtue of the agreed statement of facts, the judge was aware there had been some level of cooperation between the parties prior to the sentencing hearing. He understood [the accused] was a youthful first - time offender with mental health problems who had taken responsibility for his actions.

He was aware [the accused] had made progress while on bail and had generally performed well. He gave credit to [the accused] for saving the court time and the complainant anguish by pleading guilty. He accepted that [the accused] was remorseful, had family support and had an “excellent opportunity to fully rehabilitate”. [ 46 ] The appeal of the sentence was dismissed. [ 47 ] The accused, in his submissions, referenced the decision R. v. Voong for its discussion about exceptional circumstances.

I am aware of no case that has applied that specific reasoning in the context of sexual offences against children post- Friesen , with the possible exception of R. v. Vaux , 2021 BCSC 1773 . There, Madam Justice Devlin did not specifically reference the Voong decision. She did, however, look specifically at Mr.

Vaux’s mental disabilities as reducing his moral culpability. [ 48 ] She referenced, at paragraph 54, the Friesen decision, and paragraph 91 of that decision that noted that the comments of the Supreme Court of Canada should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. This included reference to an example of offenders who suffer from mental disabilities that impose serious cognitive limitations as likely reducing moral culpability. [ 49 ] Reference is also made to the Badhesa decision of the B.C.

Court of Appeal at paragraph 56, where the Court of Appeal had said: When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability . . . [ 50 ] Reference is also made at paragraph 58 to the Williams decision of the Court of Appeal, where Justice Abrioux was quoted as indicating: First, as noted in Badhesa , mental health issues may reduce a sentence because the offender’s moral culpability is attenuated.

But this factor must be considered in light of Friesen , in particular the comments of the Court at para. 75 . . . [ 51 ] At paragraph 68, Madam Justice Devlin in Vaux said this, in part: [68] I agree with Mr. Vaux’s counsel that his moral culpability was significantly reduced as a result of his cognitive deficits, which Dr. Burnett described as “impaired social cognition, poor social judgment, limited social skills, and limited social competence”. . . . She goes on to say: . . . Both Mr. Scofield and Mr.

Vaux engaged in sexual activity with young girls while they were chronologically adults, but were cognitively closer in age to the age of the victims . . . Indeed, I find that, like in Scofield , Mr. Vaux’s particular and peculiar personal circumstances are exceptional, and I am satisfied that Mr. Vaux’s cognitive and social disabilities are a mitigating factor that significantly reduce his moral [culpability]. [ 52 ] I have also been provided with a copy of the decision in R. v. Williams , 2021 BCSC 705 .

There the accused was described as being 40 years of age, a member of the Gitxsan First Nation, raised by his paternal aunt because both his mother and father were severe alcoholics. His father attended a residential school. That because of events involving a girlfriend at age 19, he had been unable to trust women and had not had any relationships. [ 53 ] In that decision, the court references Gladue in paragraphs 34 to 37, and quotes at some length from the decision in R. v. West . Those comments are similar to observations made by the Court of Appeal in the R. v. Elliott decision, 2015 BCCA 295 .

In that decision, that is Elliott , the court notes: [10] An offender’s Aboriginal heritage can affect an appropriate sentence in two ways. First, the “unique systemic and background

factors which may have played a

part in bringing the particular Aboriginal offender before the courts” may bear on the “moral blameworthiness” of the offender . . . Courts must take judicial notice of the history of colonization and racism that has embedded systemic difficulties and social and economic deprivation within the Aboriginal community . . . . . . [12] The second way in which an Aboriginal offender’s background can affect the sentencing decision is in the "effectiveness of the sentence itself" . . .

Aboriginal offenders may enter the criminal justice system with a “fundamentally different world view”, such that traditional incarceration does not achieve the purpose of assisting in rehabilitation in the same way it would for a non-Aboriginal offender . . . This must be taken into account when crafting sentences. [ 54 ] At paragraph 16 of the decision, the court notes: [16] A sentencing judge must take judicial notice of the systemic and background factors that affect all Aboriginal persons in Canada, including lingering institutional racism and the historical effects of past policies and injustice.

But this does not mean that every offence committed by an Aboriginal offender is motivated by or a consequence of these factors to any extent. Nor does every offender with some Aboriginal heritage hold a worldview that reduces the rehabilitative effects of incarceration. In every case, the sentencing judge must create a fit sentence for this particular offender committing this particular crime. [ 55 ] I note as well the decision of the Court of Appeal in R. v. S.C.W. , and particularly paragraph 36: [36] I agree with the approach of the Ontario Court of Appeal.

Parliament has expressly legislated that the age of the victim is an aggravating factor on sentencing. [There, the victim’s] age was relevant to assessing her degree of vulnerability and the age difference between A.D. and the appellant is relevant to assessing his degree of culpability. Considering the age of the victim at the sentencing stage, despite it being an element of the offence, aligns with the purposes and principles of sentencing.

If sentencing is to be an individualised process and sentences are to be proportionate to the gravity to the offence, the specific circumstances of each offence must be taken into account at sentencing, even where those circumstances overlap with the elements of the offence. The egregiousness of the sexual offence against a child increases as the age of the child decreases.

Taking into account the age of the victim is an appropriate consideration of the specific facts of the individual offence. [ 56 ] In addition to those case authorities, as I have noted, the principles of sentencing as set out in paragraphs 718 to 718.2 of the Criminal Code must be applied.

Those are reviewed in the Vaux decision that I quoted earlier at paragraphs 36 to 43 [and I do not intend to quote them at length, but would insert that excerpt if my reasons are to be transcribed]: [36] Sections 718 to 718.2 of the Code set out the fundamental principles and purposes to be considered by the courts in sentencing. [37]

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

These objectives include: denunciation of unlawful conduct; deterrence of the offender and of other persons from committing offences; separation of offenders from society, where necessary; assistance in the rehabilitation of offenders; provision of reparations for harm done to victims or to the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. [38] Pursuant to s. 718.01, the Court is required to give primary consideration to the objectives of denunciation and deterrence when imposing sentence for an offence that involved the abuse of a person under the age of 18 years. [39] Pursuant to s. 718.1, a sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender. [40]

Section 718.2 sets out a number of specific principles that a court must take into consideration in sentencing. An important principle is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2(a)). [41] Another important principle is parity of sentence, which requires that a sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)).

I am mindful that I am not to lose sight of the individualized nature of the assessment 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: R. v. Nasogaluak , 2010 SCC 6 at para. 43 . I am also mindful, as I will discuss in more depth below, of the Court’s comments in Friesen that “[u]pward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence”: at para. 107. [42] Subsection 718.2(

c) outlines what is referred to as the totality principle, which requires that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [43] Subsections 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, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders. The Court of Appeal in R. v.

Bosco , 2016 BCCA 55 at para. 35 stated that the restraint principle “encourages caution and moderation in the imposition of custodial sentences”; that pursuant to this principle, sentencing judges “should treat imprisonment as a sanction of last resort and limit any custodial period imposed to the lightest term reasonable in the circumstances”, and that the purpose of such restraint is “to reduce Canada’s historically high incarceration rates and avoid sentences that are unduly harsh”, citing R. v. Proulx , 2000 SCC 5 at paras. 16- 17 . Given Mr. Vaux’s Métis heritage, this is an important factor to consider.

Analysis [ 57 ] With all of that, I turn then to my analysis of these matters. These are serious offences engaged in over a period of time. The 48-year-old accused, Mr. Aeichele, knew the victim’s age from the outset. Despite that, he pursued a sexual relationship. [ 58 ] The psychiatric report places his mood and substance misuse in context. Page 6 of that report that I earlier referred to summarizes his self-report, and paragraph 9.1, which I also referenced, sets out the writer’s conclusions. Mr.

Aeichele points out that that report assumes facts which are not entirely consistent with the agreed statement of facts. To be clear, I am proceeding on the basis of the agreed statement of facts with respect to the frequency of sexual intercourse as identified there, simply being more than once.

It is not clear to me that the psychiatric evaluation was influenced in any way by the discrepancy between the agreed statement of facts and the facts referenced in it. [ 59 ] It is my view that none of the evidence before me, including the psychiatric report or the circumstances, put the accused’s circumstances into what would be described, as was done by Madam Justice Devlin in Vaux , as exceptional. They do not reduce the accused’s moral culpability so as to justify a reduced offence.

The very nature of the offence in Count 1 includes elements of thoughtful deliberation aimed at committing the other offence to which there has been a guilty plea, that is Count 3. [ 60 ] Although Mr. Aeichele did not initiate first contact, he knew at that time that the complainant was age 15 and began the conduct that constitutes the offence in Count 1, which led to engaging in sexual intercourse on, as is referenced in the agreed statement of facts, more than one occasion.

This was not, as occurs in some circumstances, an opportunistic one-time offence influenced by substance use on those isolated occasions. [ 61 ] There are mitigating factors: the fact of the guilty plea, the absence of any relevant criminal history, a long period of compliance with bail conditions, solid work history, substantial family support, and endorsement by him of what he learned from rehabilitation for substance abuse, even though he was reluctant to go there.

It is a positive sign that he found that to be of assistance. [ 62 ] It is also of note that these events occurred over a period of time. [ 63 ] Having regard to all of the circumstances and the authorities, it is my conclusion that a global sentence of 30 months’ incarceration is required, and Madam Clerk, for clarity, I impose a sentence of one year on Count 1 and 30 months on Count 3, concurrent. [ 64 ] I decline to make a s. 109 order, being available but not mandated. [ 65 ] There will be a 20-year SOIRA order. [ 66 ] There is to be no communication, directly or indirectly, by Mr.

Aeichele with the victim. [ 67 ] I will make a 10-year order prohibiting attendance in accordance with s. 161; that is attendance at parks, playgrounds, schools, or other locations where youth or children are likely to attend. [ 68 ] Counsel, those are my conclusions in this matter. Are there any issues that I have not addressed that need to be addressed, or ancillary orders that are required? I should note that I have a copy of a forfeiture order that was presented to me. Given the remote location, I am not in a position to provide that to the clerk at this point. Subject to the comments of Ms.

McPheeters, I would be inclined to simply endorse that order and provide it to the court registry. [ 69 ] CNSL L. MCPHEETERS: Yes, that’s agreeable, Justice. [ 70 ] THE COURT: All right. Is there anything else that needs to be addressed before we conclude? [ 71 ] CNSL M. CISSELL: Mr. Justice, I just want to be clear, are we talking about making an order under -- of no communication under 743.21, while he is incarcerated? [ 72 ] THE COURT: Yes. [ 73 ] CNSL M.

CISSELL: And then with regards to the s. 161, we had a 10-year prohibition in addition to the children with regards to parks and playgrounds, is that also by -- with regards to where the complainant, the victim resides. [ 74 ] THE COURT: Yes. [ 75 ] CNSL M. CISSELL: And the Crown also requested on that 161 the 10 years to prevent working or volunteering with persons under the age of 16 where he is in position of trust or authority. [ 76 ] THE COURT: Yes. [ 77 ] CNSL M. CISSELL: Thank you, Mr. Justice. [ 78 ] THE CLERK: Mr. Justice, it’s Madam Clerk. On 161(1)(

a) is it just to include public parks, schoolgrounds, playgrounds, or did you also intend to include the other, the

section says swimming area, daycare centres, and community centres. [ 79 ] THE COURT: Sorry, Madam Clerk, I am having difficulty hearing. My intention is to include all of those components as outlined in s. 161. I do not have that provision in front me, but I intended to include all of those locations. [ 80 ] THE CLERK: Thank you, and the s. 161 and the SOIRA order, are they to attach to Counts -- both 1 and 3?

[ 81 ] THE COURT: Yes. [ 82 ] THE CLERK: Thank you, and then I have two outstanding counts. [ 83 ] CNSL M. CISSELL: The Crown would be entering a stay of proceedings. If I could just have a minute, Mr. Justice, to consult with my friend with regards to the 161 to make sure that we have it correctly. [ 84 ] Mr. Justice, we are not including -- I have 161 in front of me. We are not including (c), which is having any contact, including communication by any means, with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

The Crown was not requesting that. Is that something the court is ordering? [ 85 ] THE COURT: No, sorry. [ 86 ] CNSL M. CISSELL: Thank you. And under -- [ 87 ] THE COURT: My intention was to make the order in accordance with what the Crown had proposed. [ 88 ] CNSL M. CISSELL: Okay. [ 89 ] THE COURT: And I apologize, I did not have those details. So no, (

c) can be excluded. [ 90 ] CNSL M. CISSELL: And as well, (

d) being excluded which was using the internet or other -- [ 91 ] THE COURT: Yes. [ 92 ] CNSL M. CISSELL: -- digital network. [ 93 ] THE COURT: Yes, that can be excluded. [ 94 ] CNSL M. CISSELL: Thank you. [ 95 ] THE CLERK: But Justice, under that section, we were doing a no-contact with the complainant, is that correct? [ 96 ] THE COURT: Sorry, Madam Clerk, I can barely hear you. [ 97 ] CNSL M.

CISSELL: We’re -- we’re doing, under that section, under 161, the clerk just wants to be clear that we are doing the 161(a), which is attending public parks; 161(a.1) being within two kilometres or any other distance specified in the order -- [ 98 ] THE COURT: (a), (a.1), and (b). [ 99 ] CNSL M. CISSELL: And (b). Thank you, Mr. Justice. [ 100 ] THE COURT: Thank you. [ 101 ] CNSL M. CISSELL: The Crown has nothing further. [ 102 ] CNSL L. MCPHEETERS: Mr. Justice, there’s just one thing. There will be two victim fine surcharges payable on these matters. They will be $200 each. I’d ask you to waive those since Mr.

Aeichele will be incarcerated for the next 30 months or there -- [ 103 ] THE COURT: I am prepared to make that order. [ 104 ] CNSL L. MCPHEETERS: Thank you. [ 105 ] THE COURT: Thank you. “Betton J.”