R. v. T.A.P., 2023 BCSC 316

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. T.A.P., 2023 BCSC 316 Date: 20230123 Docket: 179528-9 Registry: Victoria Rex v. T.A.P. Restriction on Publication: Pursuant to 486.4(2) C.C.C. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(2) 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. Before: The Honourable Madam Justice Ker Oral Reasons for Sentence Counsel for the Crown: P.J. Cheeseman Counsel for the Accused: G.D.

Simair Place and Date of Hearing: Victoria, B.C. November 14-15, 2022 Place and Date of Judgment: Victoria, B.C.

January 23, 2023 Table of Contents Introduction .. 3 Circumstances of the Offences .. 4 Impact on the Victims .. 7 Circumstances of the Offender .. 10 Date Range of Counts and Legislative Amendments to the Sentencing Provisions .. 14 Minimum and Maximum Sentences and s. 718.3(7) of the Code .. 15 Positions of the Parties .. 16 The Crown .. 16 The Defence . 19 The Governing Legal Principles .. 21 Principles of Sentencing . 21 Specific Considerations for Sentencing in Cases Involving Sexual Offences Against Children 23 The Kienapple Principle . 30 Analysis .. 33 Does the Kienapple principle apply? . 33 The Analytical Framework Established by Friesen .. 35 (

a) Likelihood to reoffend . 35 (

b) Abuse of a position of trust or authority . 36

(

c) Duration and frequency of the abuse . 37 (

d) Age of the victim .. 38 (

e) Degree of physical interference . 39 (

f) Victim participation .. 40 Mitigating Circumstances .. 41 Aggravating Circumstances .. 44 Denunciation, Deterrence, Protection of the Public .. 46 Rehabilitation .. 46 Proportionality and Parity of Sentence .. 47 Concurrent vs. Consecutive Sentences .. 50 Adjustments to Reflect the Totality Principle .. 59 Disposition .. 60 [ 1 ] These Reasons for Sentence were delivered as oral reasons. They have since been edited for distribution. Introduction [ 2 ] T.A.P., whom I may also refer to as “the offender”, is before the Court for sentencing on an eight-count indictment.

He was charged with offences of incest, sexual assault, sexual touching, and sexual interference, and making child pornography in respect of three complainants. The general time period covered by the indictment is August 9, 2012, through August 9, 2019, with some variations in some of the counts. [ 3 ] Following a 12-day trial in the first quarter of 2022, I convicted the offender on all eight counts on June 20, 2022. My reasons for judgment in respect of the convictions are indexed at 2022 BCSC 2356 . [ 4 ] My reasons for judgment detail the circumstances of the offences.

I will refer to the circumstances of the offences in brief compass in this set of reasons. My reasons for judgment in entering the convictions informs my reasons for sentence, and they are incorporated into these reasons without the need to repeat them in their entirety. [ 5 ] As I noted, T.A.P. is before this Court for sentencing for eight offences that pertain to three different victims. Two of the victims, B. and E., are the children of the offender. The third victim, T., is the childhood friend of B. and the daughter of M., a friend and former intimate partner of T.A.P.

The victims were between the ages of 14 and 17 years of age when they testified at this trial. B. and T. were between the ages of seven and 14 years of age when the offender committed the offences in Count 1, 2, 3, and 5 through 7 of the indictment. E. was between the ages of eight and 12 years of age when the offender committed the offences in Count 4 and 8 of the indictment.

B. was between the ages of 11 and 14 years of age when the offender committed the offences in Count 1 of the indictment. [ 6 ] The eight offences that T.A.P. is now before the Court for sentencing are: • incest contrary to s. 155(2) of the Criminal Code , R.S.C. 1985, c.

C-46 [ Code ], (Count 1); • sexual assault contrary to s. 271 of the Code , (Count 2 and Count 5); • invitation to sexual touching contrary to s. 152 of the Code , (Count 3 and Count 6); • sexual interference contrary to s. 151 of the Code , (Count 4); • making child pornography contrary to s. 163.1(2) of the Code , (Count 7 and Count 8). [ 7 ] The Crown contends that a global sentence of 37 years' imprisonment is appropriate to impose, reduced to 20 to 25 years by application of the totality principle. [ 8 ] The defence contends that the appropriate global sentence, after adjusting for totality, is 12 to 15 years' imprisonment.

Such a sentence, argues the defence, satisfies all the principles and objectives of sentencing, including rehabilitation, and is not so crushing as to extinguish any hope for T.A.P. Circumstances of the Offences [ 9 ] As noted earlier, the circumstances of the eight offences that T.A.P. has been found guilty of are detailed in my reasons for

judgment delivered on June 20, 2022. [ 10 ] T.A.P. was the father of B. and E; T. was B.'s best friend and on weekends would often spend overnights at T.A.P.'s home with B. All the offences, save the last attempt at intercourse with B. in an Abbotsford hotel on August 2, 2019, occurred in T.A.P.'s home when he had parenting time with his daughters. [ 11 ] Starting in August 2012, when B. and T. were about seven years old, the offender would either bribe the girls with candy and treats or withhold the same in return for them posing naked, and permitting him to take pictures of them and letting him touch them.

The invasiveness of the behaviour gradually escalated in a fashion akin to grooming, such that T.A.P. was: touching B. and T.'s breasts; touching their vaginal areas; inserting his finger into T.'s vagina; having B. and T. touch his penis; having T. fellate him, and the like. [ 12 ] Sometime after B. was 11 years old and after she started menstruating, T.A.P. proceeded to have sexual intercourse with his daughter on multiple occasions. B. did not keep track of the number of incestuous acts engaged in between January 1, 2016, and August 9, 2019, but it was certainly more than three or four occasions.

Sometimes it was three times a month. The last time T.A.P. tried to have intercourse with B. was on August 2, 2019, at a hotel in Abbotsford. B. fought her father off. B.'s inability to recount the number of times her father had sexual intercourse with her does not detract from the gravity of the offences. B. coped by trying to block the events from her memory. Frankly, whether the forced sexual intercourse occurred five times, 10 times, 50 times or more is largely irrelevant.

The point is that the offender forced sexual intercourse on his daughter on numerous occasions starting when she was 11 years old, and continued until August 2019 when B. was 14 years old. [ 13 ] I have noted previously that such

an act is a violation and constitutes extremely blameworthy conduct. Repeated acts of incest and sexual assault over years is vile, evil, and reprehensible: R. v. A.H.K., 2022 BCSC 1563 at para. 37 . [ 14 ] The sexual assaults, sexual touching, and making child pornography offences commenced when B. was seven years old and continued until she was 14 years old. The sexual assault offence against B., Count 2, covers activity distinct from the incest offence.

This offending relates to T.A.P.'s repeated acts of touching B.'s breasts – including grabbing them – as well as repeated acts of touching her vagina. [ 15 ] The offending started out at a young age for both B. and T., and seemed innocuous to the young girls at the time, clothed as it was in exchanges for candy and treats. If the girls let T.A.P. touch them, or if they touched him or let him photograph them naked, he would give them treats or candy.

If they did not oblige, he would withhold same. [ 16 ] The sexual touching, Count 3, pertains to repeated acts of the offender having his daughter touch his penis over the same timeframe as the sexual assault offending and in largely the same circumstances. [ 17 ] The making of child pornography offence, Count 7, in respect of B. and T. together, occurred in T.A.P.'s first residence.

Once T.A.P. moved into his second residence in the summer of 2018, the photographing of T. ceased but the photographing of B. continued. [ 18 ] The offending against T., Counts 5, 6, and 7, commenced when she was seven years old and continued until she was between 13 and 14 years of age.

The offending against T. stopped, save for one attempt, after T.A.P. had moved into his second residence. [ 19 ] The sexual assault offending pertains to the multiple instances over the years in respect of T.A.P. touching T.'s vagina and inserting his finger into her vagina, one instance of endeavouring to engage in mutual oral sex (the "69 incident"), and one attempt at inserting his penis into T.'s vagina.

The sexual touching offence in respect of T. relates to T.A.P.'s numerous instances of having T. rub, suck, and lick his penis. [ 20 ] In so far as the offending against E. is concerned, the sexual interference offence relates to the one-year period of time preceding E.'s statement to the police on August 9, 2019, wherein T.A.P. repeatedly inserted his finger into E.'s vagina, and explained to her that it was done to “help her grow her parts”. While E. was unable to provide the exact number of occasions this occurred, I accept that it happened many more times than once.

E. was approximately 11 years old when this offending started. She was, however, between the ages of eight and 12 years of age when her father started photographing her naked, including having her sit either on the bathtub or his bed with her legs spread. This photography included focusing on her vaginal area, and accounts for the conviction on Count 8. The photography sessions often occurred on Monday nights after E.'s bath and when B. was at basketball practice.

These photo sessions occurred over a number of years starting when E. was in Grade 3 or 4. [ 21 ] Thus, T.A.P.’s offending occurred over years on three different victims. Two of the victims were his own daughters, and one was the daughter of a close friend and former intimate partner. The offending involved grooming these three girls from a young age, normalizing the behaviour with rewards of candy and special meals when engaging in the offending conduct, or withholding same if the girls refused.

The offending conduct is insidious, highly blameworthy, and a gross and continuing betrayal of significant trust relationships. Impact on the Victims [ 22 ] The harm flowing from these offences is not limited to the direct impact on B., E., and T. [ 23 ] T.'s mother, M., filed a victim impact statement that outlined the toll that T.A.P.'s offending against T. has taken on M.

It has caused irreparable harm to their mother/daughter relationship, and has also resulted in M.'s own sense of loss – betrayal by her former best friend, the offender. [ 24 ] B., E., and T. did not complete victim impact statements for the sentencing. I do not find that surprising in the circumstances. These young women – young girls at the time the offending commenced – have had their sexual and physical integrity repeatedly violated by the offender, and their sense of trust utterly betrayed by his actions. The absence of victim impact statements in the

circumstances of this case does not mean the offences have no impact on them. To the contrary, I find the offences had a significantnegative impact on all three victims. [25] The emotional and psychological consequences of these offences will no doubt haunt all three for years to come, if not for therest of their lives. [26] In R. v. Friesen, 2019 SCC 9, the Supreme Court of Canada observed at para. 51 that sexual violence against children iswrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.

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

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

The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trustothers and fear that . . . people could and would abuse her and her body" (para. 113). [58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment andhealthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities toovercome adversity (Sharpe, at paras. 158, 184-85 and 188, per L'Heureux-Dubé, Gonthier and Bastarache JJ.; G.

Renaud, TheSentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexual violence can"permanently alter the course of a child's life" (Stuckless (2019), at para. 136, per Pepall J.A.).

As Otis J.A. explained in L. (J.-J.), at p.250: [translation] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a veryfragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem. [27] Suffice to say I have no hesitation in concluding that these offences have likely had very significant negative consequences foreach victim, not only in respect of their personal autonomy, physical integrity, sexual integrity, and psychological well-being, but also inrespect of damage to their relationship with their families and friends.

They no doubt will be dealing with the psychological repercussionsof the offending for years to come, if not for the rest of their lives. The offender's conduct in using these young girls for his own sexualgratification has robbed them of a significant and formative period of their childhood. [28] In A.H.K. I addressed the ability to take judicial notice of the significant negative impact that sexual offences against childrenhave upon the victims: [43] In R. v.

J.L., 2020 ONCJ 456, Justice Doody commented on the court's ability to take judicial notice of the profoundly injuriousimpact that sexual offences committed by adults can have on children: [7] I can take judicial notice of the effects on children of being preyed upon sexually by adults. The Ontario Court of Appealendorsed, at para. 37 of R. v. D.(D.) (2002), (ON CA), 58 O.R. (3d) 788, the words of the Alberta Court of Appeal inR. v. S.(W.B.) and R. v.

P.(M.), (ABCA), 73 C.C.C. (3d) 530 at p. 535: When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in seriouspsychological harm to the victim. When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it isreasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or brokenbones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship withanother adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or herrather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child-victim'semotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse.

We have onlythe recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships totheir having been abused sexually when they were children. Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as heor she had been treated as a child -- that is, he or she may abuse a child sexually. There is no empirical way of proving that a particularchild-victim, when he or she becomes an adult, will do to some child what had been done to him or her.

We do know that sentencingjudges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both)who had stood in a parental relationship to him or her when he or she was a child. [8] The Supreme Court of Canada has held in its recent decision in R. v. Friesen, 2020 SCC 9 at para. 86, that: Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which toanalyze the significance of many particular aggravating factors.

Courts may be able to find actual harm based on the numerous factualcircumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach oftrust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or

their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors. [44] I echo and adopt Justice Doody's observations on this point. Circumstances of the Offender [ 29 ] T.A.P. recently turned 39 years old. The offending occurred when he was between 28 and 35 years of age. [ 30 ] His parents separated when he was between 11 and 12 years old.

He has a close relationship with his mother and stepfather. [ 31 ] T.A.P. graduated from high school, and given his facilities with computers and information technology, a field he has been involved in from a young age, he eventually started his own business that provides computer services in the voice over internet protocol (“VOIP”) industry.

His business has been successful enough to both employ others, and provide the financial stability to purchase his own home and support his family. [ 32 ] T.A.P. is leaving his business with his mother and employees and hopes to be able to return to it when he is released from his sentence of imprisonment. T.A.P. has always been gainfully employed. [ 33 ] In addition, he has a long history of community involvement in both the local ham radio community, as well as the local emergency response program.

His expertise with information technology and in the ham radio community has also been a springboard for his hours of volunteer commitment to significant community sporting events in the Greater Victoria area.

T.A.P. employs both his information technology knowledge and his ham radio skills in organizing and coordinating the communication systems for the first aid, ambulance, and mechanical aid groups involved in these large community events. [ 34 ] Letters of support for T.A.P. from colleagues in both the ham radio community and the emergency radio group community who know T.A.P. describe him as a major and highly-valued volunteer, who contributes countless hours to both radio program groups.

They worry about the effect of the inevitable sentence to be imposed, both in respect of the impact on T.A.P., and of the numerous community events for which T.A.P. volunteers his services. [ 35 ] One of T.A.P.'s colleagues in the emergency radio community commented on the importance of T.A.P. to the community, writing: T.A.P. has been a very valuable member of my emergency radio group since 2017, volunteering most Wednesday evenings to practice disaster communication via amateur radio with other members of our team and with other municipalities in the greater Victoria region. . . .

As with any volunteer group, it's often difficult to get people to donate their time and our program is no exception. T.A.P. is a major contributor to the emergency radio program, willing to attend every week and any time l need extra help. For example, some weekends are required to perform extra maintenance on radio and antenna equipment. The only time T.A.P. has not been available to me is when he's volunteering with the [content redacted] for some upcoming event.

As the former Vice President of [content redacted], I have insight into just how incredibly valuable T.A.P. has been and continues to be in his role as Public Service Coordinator. T.A.P. spends many, many hours arranging the 30-40 radio operators that are required to help run events such as the [content redacted] to name a few. I don't know how he manages to maintain his own business given the amount of time he gives to both [content redacted].

It will be extremely difficult to find somebody to replace him who will put even half the effort in. [ 36 ] Similarly, glowing letters of support were provided by friends in the ham radio community, including one from a director of one of the community events that T.A.P. volunteers at, long-time family friends, an employee, a pastor, and T.A.P.'s mother. I have reviewed them all while this matter has been under reserve. [ 37 ] All of the authors appear to be aware of T.A.P.'s convictions and express shock and surprise at this development.

Quite simply, they find the convictions to be incongruous and out of character for the person they know. This is not an unusual phenomenon in these types of cases. The authors of the support letters describe T.A.P. as a quiet, thoughtful, serious, generous, and calm individual dedicated to serving his community and raising his daughters.

All provide lay opinions as to the unlikelihood of T.A.P.'s risk of reoffending and all urge in their own ways that the Court exercise leniency when it comes to imposing sentence in this case. [ 38 ] T.A.P.'s mother provided a letter of support that outlines the general biographical details of T.A.P.'s life and career.

She poignantly describes the difficulties that the charges have created for navigating family gatherings, and the conflict created by trying to support both her son and her granddaughters through this process. [ 39 ] A former intimate partner, and another female friend, describes the toll that the charges and bail conditions have placed on T.A.P.: Since the arrest and charges happened, and all through the trial, T.A.P. has become a shell of his former self.

He has gone through depression, has pulled back socially, and is scared to go anywhere for fear that he may be inadvertently breaking his conditions of bail if any underage people show up unexpectedly. His normally very quick mind has become a fog and he's unable to make decisions or do any research, which he used to love to do. He is just going through the motions of life without any enjoyment.

He is not a rule breaker and has taken extra precautions to ensure that he is abiding by all his terms, including not even pulling the weeds in his garden and washing his car at 5am for fear that the neighbours might try to have a conversation with him (which has been banned). The few moments of relief have been when he has been able to volunteer for races and other activities that require a radio operator. The

distraction of being able to be of service to the community have given him something to look forward to and take his mind off the hell that he has been living through. This is the real T.A.P. that I know, someone who wants only to help others and to be able to use his incredible technical skills. I do not fear T.A.P. or feel that anyone is in danger in his presence. He's a kindhearted guy who only wants to help people. His energy level is not angry or aggressive. He is calm and inquisitive and normally happy (aside from all of this).

He is great with computers and technology and is happy to help others with technical problems they are experiencing. He's easy going and enjoyable company, always teaching us something new. [ 40 ] T.A.P. has been released on bail since August 11, 2019, and he has complied with the terms imposed. They have included fairly onerous terms of no contact with children under the age of 16 years. The initial bail did not create exceptions for T.A.P.'s volunteer work or the various community events outlined previously, until it was varied in February 2020.

Even with the February 2020 variation to his bail conditions that permitted his volunteer work to continue, the bail conditions of no contact with children under the age of 16 years created complications and difficulties for extended family events where young children might be present. [ 41 ] I accept that the charges and the bail conditions have had a negative impact on T.A.P.'s mental and emotional health, and his ability to freely participate in family gatherings and community events. [ 42 ] One of the more significant collateral consequences of the no-contact provisions arose in March 2020, when a new bail supervisor became concerned about T.A.P.'s home being adjacent to a residence with a 14-year-old boy.

The bail supervisor wanted T.A.P. to change his address. Such a suggestion was unrealistic given that T.A.P. owns his home. [ 43 ] Another instance arose when someone contacted the police because they thought T.A.P. was interacting with someone under the age of 16 years. That information was inaccurate, but as a result T.A.P. adopted a more isolated existence, keeping largely to himself. [ 44 ] Given the nature of the charges T.A.P. was facing and the level of knowledge about it in the local community, T.A.P. has experienced negative and harassing feedback from individuals who felt compelled to confront T.A.P.

I accept that T.A.P.'s time on bail has not been easy and that a collateral consequence of the nature of the charges and his bail conditions has caused T.A.P. to withdraw into himself such that his world has shrunk to largely his work and his home. Date Range of Counts and Legislative Amendments to the Sentencing Provisions [ 45 ] Crown and defence counsel very helpfully summarized the July 2017 legislative amendments to the Code that changed the penalty provisions for the offences that T.A.P. is to be sentenced upon.

Because the indictment contains "between date" offences that straddle the legislative amendments, the issue of determining the maximum penalty available could have been quite confusing, but counsel's helpful submissions have eliminated that complicating factor. [ 46 ] Similarly, another legislative provision, s. 718.3(7) of the Code , was added with this suite of amendments. It addresses the issue of consecutive sentences in respect of sexual offences committed against children under the age of 16 years.

There is some issue between counsel as to what s. 718.3(7) of the Code means in the context of multiple victims, multiple sexual offences, and more than one making child pornography offence, as arises in this case. I will address this point later in my reasons for sentence.

At this point, I will simply refer to the legislative changes as they relate to the indictment, as summarized in Crown counsel's written submissions. [ 47 ] On July 17, 2015, s. 718.3(7) of the Code came into force and the maximum term of imprisonment for offences under ss. 152 , 163.1(2) and s. 271 , where the victim is under the age of 16, all changed from 10 years to 14 years. Counts 2, 3, 5, 6, and 7 straddle this change in legislation. [ 48 ]

Section 718.3(7) of the Code provides: 718.3

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

a) that a sentence of imprisonment it imposes for an offence under

section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another

section of this Act committed against a child; and (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under

section 163.1. [ 49 ] Counts 1, 4, and 8 cover offences that occurred after this legislative amendment. Because the offences committed in Counts 2, 3, 5, 6, and 7 straddle the change in maximum sentences, T.A.P. is entitled to the benefit of the lower maximum penalty of 10 years on these counts pursuant to s. 11(

i) of the Charter : Canada (Attorney General) v. Lalonde , 2016 ONCA 923 at paras. 10–25 , and R. v.

Chicoine , 2019 SKCA 104 at paras. 41–52 . [ 50 ] Because the offences committed in Counts 2, 3, 5, 6, and 7 straddle the implementation of s. 718.3(7) , that provision of the Code does not apply to these counts and therefore the Court is not required to impose consecutive sentences on these counts: Chicoine at paras. 36–56 . [ 51 ] However, the Crown contends that the Court should impose consecutive sentences for sexual offences against different victims and for child pornography offences, as s. 718.3(7) of the Code is simply a codification of a significant body of case law to this effect: see

R. v. D.C. , 2016 MBCA 49 at paras. 41–44 , and Chicoine at paras. 95–100 . Minimum and Maximum Sentences and s. 718.3(7) of the Code [ 52 ] On Count 1, T.A.P. faces a maximum penalty of 14 years' imprisonment and a mandatory minimum penalty of five years' imprisonment. [ 53 ] On Counts 2 and 5, T.A.P. faces a maximum penalty of 10 years' imprisonment and no mandatory minimum penalty, as the mandatory minimum was struck down in R. v.

E.R.D.R. , 2016 BCSC 1759 . [ 54 ] On Counts 3 and 6, T.A.P. faces a maximum penalty of 10 years' imprisonment and a mandatory minimum penalty of one-year imprisonment. [ 55 ] On Count 4, T.A.P. faces a maximum penalty of 14 years' imprisonment and no mandatory minimum penalty, as the mandatory minimum was struck down in R. v. Scofield , 2019 BCCA 3 . [ 56 ] On Count 7, T.A.P. faces a maximum penalty of 10 years' imprisonment and no mandatory minimum penalty, as the mandatory minimum was struck down in R. v.

K.M. , 2022 BCSC 360 . [ 57 ] On Count 8, T.A.P. faces a maximum penalty of 14 years' imprisonment and no mandatory minimum penalty, as the mandatory minimum was struck down in K.M . [ 58 ] The Crown contends that by virtue of s. 718.3(7) of the Code , the sentences on Counts 1, 4, and 8 must be imposed consecutively to each other.

Positions of the Parties The Crown [ 59 ] The Crown contends that if considered individually, an appropriate global sentence for the offences against B. would be 15 years, the appropriate global sentence for the offences against E. would be 11 years, and an appropriate global sentence for the offences against T. would be 11 years.

Although the Crown contends it would be proper to impose these sentences consecutive to each other, given that they involve different victims, the Crown concedes a global sentence of 37 years would be crushing and should be reduced by the Court in accordance with the principle of totality. [ 60 ] The Crown argues that, after applying the totality principle, an appropriate global sentence in this case is somewhere between 20 and 25 years. [ 61 ] The Crown also seeks the following ancillary orders: • An order to comply with the Sex Offender Information Registration Act , S.C. 2004 c. 10 [ SOIRA ] which is mandatory for all eight counts, pursuant to s. 490.012 of the Code .

The duration of the order should be for 20 years pursuant to s. 490.013(2) (

b) as the maximum term of imprisonment for the offences for which T.A.P. has been convicted are 10 and 14 years.

Section 490.013(2.1) is no longer in force, given the recent decision in R. v. Ndhlovu , 2022 SCC 38 ; • A mandatory firearms prohibition order pursuant to s. 109 of the Code for Counts 1 through 6; • A no-contact order pursuant to s. 743.21 of the Code with respect to B., E., T., T.'s mother, and B. and E.'s mother; and • A prohibition order pursuant to ss. 161 (

b) and (

c) of the Code for a period of 10 years. [ 62 ] The Crown also seeks forfeiture of a number of items under s. 164.2 or alternatively s. 490.1 of the Code . At the sentencing hearing on November 15, 2022, T.A.P. consented to the forfeiture of a number of items outlined in the Crown's forfeiture application. A number of other items that were not examined or not tendered as evidence in the trial remain the subject of the Crown's forfeiture application.

Submissions have yet to be made in respect of these items and so these reasons for sentence do not address this forfeiture issue. [ 63 ] The Crown relies upon the following cases to support its position in respect of the lengthy term of imprisonment sought in this case: • Friesen ; • A.H.K. ; • R. v. O. , 2020 ABQB 497 ; • R. v. A.A.J.T. , 2021 MBQB 3 , affirmed 2022 MBCA 47 ; • R. v. Norberg , 2021 BCSC 2425 ; • R. v. S.H.B. , 2022 BCSC 441 ;

• R. v. Z.K., 2021 BCSC 1926; • R. v. R.D.W., 2021 BCSC 1851; • R. v. B.C.M., 2008 BCCA 365; • R. v. K.R.J., 2014 BCCA 382, rev’d in

part 2016 SCC 31; • R. v. E.A.M., 2019 ABCA 413; • R. v. L.M., 2008 SCC 31; and • R. v. C.A.M., [1996] 1 S.C.R. 500, (S.C.C.). [64] The Crown also contends that the principles from Kienapple do not apply to any of the counts in the indictment: R. v. Kienapple,[1975] 1 S.C.R. 729, (S.C.C.). [65] In

summary, the Crown argues that Count 1 refers to the sexual intercourse that T.A.P. had with B., and Count 2 refers to theother sexual assaults committed against B., including the attempted sexual intercourse in the hotel room in Abbotsford. These countsrefer to separate delicts. [66] The s. 152 charges in respect of B. and T., Counts 3 and 6, do not engage the Kienapple principle with respect to sexual assault orincest charges, as invitation to sexual touching is a different offence, targeting different behaviour, than sexual assault or sexualinterference: R. v.

T.L.P., 2017 BCSC 1868 at paras. 84–95, aff’d 2021 BCCA 36. [67] The Crown argues that there is no legal nexus between the offences of sexual assault, incest, or sexual interference and invitationto sexual touching. These are different offences targeting different criminal behaviour.

Section 152 criminalizes the actus reus ofcounselling or invitation of a child to engage in sexual activity, while ss. 151, 155, and 271 criminalize the actus reus of physical sexualviolation of a child. [68] The Crown acknowledges that T.A.P. has spent almost five days in custody on these charges. By virtue of s. 719(3.1) of theCode, T.A.P. is entitled to have 7.5 days, which will be rounded up to eight days, deducted from the global sentence imposed.

The Defence [69] Counsel for T.A.P. contends that a total sentence of between 12 and 15 years is the appropriate length of sentence to impose inthis case, after adjusting for the totality principle. [70] In so far as the ancillary orders that the Crown seeks in this case are concerned, the defence acknowledges and agrees that theDNA order, the SOIRA order, and the firearms prohibition order sought by the Crown must be imposed. [71] As far as the non-communication order is concerned, the defence argues that if it is ordered, it should contain an exception thatpermits B. and/or E. to contact their father if they choose to do so. [72] Counsel for T.A.P. contends that a prohibition order pursuant to ss. 161(

b) and (

c) of the Code is not warranted in this case. [73] Defence counsel relies upon the following cases to support their position in respect of a 12 to 15 year period of imprisonment: • R. v. Adams, 2022 BCSC 1519; • R. v. Brown, 2020 BCSC 2168; • R. v. B.T., 2021 BCSC 948; • R. v. Burch, 2021 ONSC 484; • R. v. C.B., 2021 ONSC 187; • R. v. F.M., 2020 BCSC 1884; • R. v. H.C.T.T., 2020 BCCA 366; • R. v. J.F., 2021 ONSC 7613; • R. v. J.S.S., 2022 BCPC 96; • R. v. R.G.S., 2021 BCSC 1333; and • R. v.

Taber, 2022 BCSC 652. [74] In so far as the applicability of the Kienapple principle is concerned, counsel for T.A.P. acknowledges that Kienapple does notapply to any of the offences covered by Counts 3 through 8 of the indictment. He maintains, however, that Count 1, the charge of incest,is also encompassed within Count 2, the charge of sexual assault against B. As such, counsel contends that Kienapple applies to Count 1and a conditional stay ought to be entered on that count.

[ 75 ] In addressing the issue of consecutive sentences and the applicability of s. 718.3(7) of the Code , counsel for T.A.P. acknowledges that s. 718.3(7) (

a) mandates sentences for child pornography be consecutive to other offences committed. [ 76 ] Defence counsel agrees s. 718.3 only applies to Counts 1, 4, and 8. Counsel contends, however, that s. 718.3(7) (

b) requires sentences for separate victims be consecutive, but excludes child pornography offences. Read in its entirety, s. 718.3(7) requires child pornography sentences to be consecutive to sentences for a given victim, but not consecutive to sentences for other victims. [ 77 ] To put it in context, counsel for T.A.P. agrees that the operation of s. 718.3(7) (

b) of the Code requires that any sentence on Count 4 would have to be consecutive to Count 1. However, while Count 8 should be consecutive to Count 4, it ought to be concurrent to all other offences. [ 78 ] Crown counsel and counsel for T.A.P. thoroughly – indeed exhaustively – reviewed all the cases they relied upon and distinguished the authorities provided by the opposing side, both in their written submissions and during the course of oral argument. I have considered the authorities provided.

Many are distinguishable on a number of factors, including the duration of the offending, the age of the victim during the offending, the number of victims, whether or not child pornography offences were part of the sentencing, and whether or not incest was one of the offences where convictions were entered.

In a number of instances, incest was not charged and, although the offending was incestuous in nature, the convictions entered were for sexual assaults which have a lesser maximum sentence of 10 years' imprisonment instead of 14 years for incest. [ 79 ] Additionally, some of the Crown's authorities predate the decision in Friesen . Although such decisions are of limited assistance, they in effect establish what might be viewed as the bottom end of the range now.

The Governing Legal Principles Principles of Sentencing [ 80 ] 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 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. [ 81 ] This balancing process occurs within a legislative framework that is informed by common law principles. The legislative framework, which is set out in ss. 718 through 718.2 of the Code , enumerates the purpose, the objectives, and the principles to be considered in sentencing. [ 82 ]

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 victims or to the community. [ 83 ]

Section 718.01 of the Code mandates that because the offences in this case involve 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.A.P. [ 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: R. v. Nasogaluak , 2010 SCC 6 at para. 40 ; R. v. Parranto , 2021 SCC 46 at paras. 11–12 ; Friesen at para. 30. [ 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, as two of the victims were T.A.P.'s daughters and the third victim was the daughter of one of his closest friends. The third victim was also one of B.'s closest friends. [ 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: Nasogaluak at para. 43 .

Specific Considerations for Sentencing in Cases Involving Sexual Offences AgainstChildren [90] In its ground-breaking decision in Friesen, the Supreme Court of Canada provided clear direction on "how to impose sentencesthat fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children": Friesen at para. 1. [91] The Supreme Court of Canada could not have been clearer about the need for change in the approach to sentencing for sexualoffences committed against children.

Their direction is pointedly articulated in Friesen: [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children'svulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts mustimpose 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 ofsexual 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. [92] Recently in R. v. Coban, 2022 BCSC 1810, Justice Devlin reviewed a number of features of the principles of sentencing engagedin sentencing for sexual offences committed against children.

In particular, she reviewed the harm that such offences cause, writing: [94] Friesen detailed the many forms of harm that come from sexual offences against children—both in childhood and in adulthood—and underscored that the harms of child sexual offences "can be so profound that children are 'robbed of their youth and innocence'": atpara. 80.

The Court emphasized some of the long-term harms that victims of child sex offences can carry into adulthood, including thatthey are more likely to struggle with mental illness, suicidal ideation, and substance abuse: Friesen at para. 81. [95] Additionally, in sentencing for sexual violence against children, courts must focus their attention on not only physical harm, butalso on emotional and psychological harm, the effect of which "may often be more pervasive and permanent" than that of any physicalharm: Friesen at para. 56, citing R. v.

McCraw, [1991] 3 S.C.R. 72, . [96] As well, the Court in Friesen instructed sentencing judges to not lose sight of the harms engendered by sexual violence againstchildren to victims' families. In the Court's words: [63] The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondaryvictims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers' trust in friends,family, and social institutions and leave them feeling powerless and guilty (R. v.

C. (S.), 2019 ONCA 199, 145 O.R. (3d) 711, at para. 6;Rayo, at para. 39; D. (D.), at para. 13). The harm to parents' relationship with their children can also be profound. For instance, childrencan react to the sexual violence by shutting their parents out of their lives (Rafiq, at para. 40). Parents and caregivers may also bear thefinancial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges (see D.(D.), at paras. 11-13).

In the words of one mother of a child victim, the sexual violence "has taken many years from my son's life and Iknow this will hurt me for the rest of my life" (D. (D.), at para. 11). [97] In sum, the sentence imposed for sexual offences against children must reflect the Court's findings in Friesen. It must reflect thecontemporary understanding of sexual violence against children.

It must recognize the wrongfulness and harmfulness of sexual violenceagainst children and the life-altering harms to the victim's personal autonomy, bodily integrity, sexual integrity, dignity, and equality thatoften flow from sexual violence. In short, the sentence must be commensurate with the gravity of sexual offences against children. Asnoted in Friesen: [76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient forcourts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of theoffender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v.Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity ofsexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences;(2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of theseoffences.

We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm,even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [93] And in Z.K. at paras. 36–48, Justice Duncan comprehensively reviewed and addressed the purposes and principles of sentenceapplicable in the context of sentencing in cases involving sexual offending against children.

In particular, Duncan J. addressedproportionality, stating: [43] When applying the principles of proportionality, sentencing judges must take into account the wrongfulness and harmfulness ofsexual offences against children which impact both the gravity of the offence and the degree of responsibility of the offender (at para.75).

Sentencing judges must also impose sentences that are actually commensurate with the gravity of sexual offences against children,rather than simply stating the offences are serious (at para. 76). [44] The degree of responsibility of the offender must not be discounted by relying on outdated stereotypes that minimize theharmfulness or wrongfulness of sexual violence against children: [88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to beaware that this action can profoundly harm the child.

In assessing the degree of responsibility of the offender, courts must take intoaccount the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey,at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders willusually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child(Scalera, at paras. 120 and 123-24).

[89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involvethe wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim'shuman dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L'Heureux-Dubé J. reasoned in L. (D.O.),"the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women" precisely because both forms of sexualoffences involve the sexual objectification of the victim (p. 441).

Courts must give proper weight in sentencing to the offender'sunderlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objectiveof denunciation (Benedet, at p. 310; Hajar, at para. 67). [90] The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitationand objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2S.C.R. 3, at para. 153). As L'Heureux-Dubé J. recognized in R. v.

L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, "As to moralblameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crimedemonstrating the worst of intentions" (para. 31, quoting R. v. L.F.W. (1997), (NL CA), 155 Nfld. & P.E.I.R. 115(N.L.C.A.), at para. 117, per Cameron J.A. ("L.F.W. (C.A.)")). Offenders recognize children's particular vulnerability and intentionallyexploit it to achieve their selfish desires (Woodward, at para. 72).

We would emphasize that the moral blameworthiness of the offenderincreases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that facediscrimination or marginalization in society. [45] At the same time, a sentencing judge must not overlook factors that may reduce an offender's moral culpability, as in the case ofcognitive limitations, or where the principles in Gladue may have a mitigating effect on an offender's moral blameworthiness.

There areno such factors present in Z.K.'s personal circumstances. [46] The Court in Friesen noted that Parliament has been steadily increasing sentences for sexual offences against children since 1987and that to respect those increases: [100] … courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximumsentences.

As Kasirer J.A. [as he then was] recognized in Rayo in the context of the offence of child luring, Parliament's view of theincreased gravity of the offence as reflected [TRANSLATION] in the increase in maximum sentences should be reflected in "toughenedsanctions" (para. 175; see also Woodward, at para. 58).

Sentencing judges and appellate courts need to give effect to Parliament's clearand repeated signals to increase sentences imposed for these offences. [47] Another reason why an upward departure from precedents may be required is that the understanding of the gravity andharmfulness of sexual offences against children has deepened and even more recent precedents may be treated with caution if they simplyfollow more dated precedents that inadequately recognize the gravity of sexual offences against children (at para. 110 of Friesen). [48] Sexual offences against children should generally be punished more severely than sexual offences against adults (at para. 107).Upper-single and double-digit penitentiary sentences should be neither unusual nor reserved for rare or exceptional cases (at para. 114). [94] I adopt the review of the overarching principles engaged in sentencing for sexual offences against children as articulated by bothJustices Devlin and Duncan.

These principles apply in the sentencing of T.A.P. [95] Friesen makes it clear that denunciation and deterrence are the primary objectives of sentencing for sexual offences againstchildren, given the wrongfulness of such offences and the serious physical and psychological harm they cause. The Supreme Court ofCanada explained that denunciation embodies the communicative and educative role of the law. Denunciation reflects the fact thatCanadian criminal law is a system of values.

Where a denunciatory sentence is imposed, it represents the condemnation of offenderswhose offences have encroached on society's basic code of values. Such expressions of approbation instill the basic set of communalvalues shared by all Canadians.

The protection of children is one of the most basic values of Canadian society: Friesen at paras. 101–105. [96] Sexual assault of a child is a crime that is so abhorrent to Canadian society that society's condemnation of those who commitsuch offences must be communicated in the clearest of terms: Friesen at para. 105. [97] As noted earlier, the primacy of the objectives of denunciation and deterrence have now been codified in s. 718.01 of the Code,which came into effect in September 2019. [98] Of course, the objectives of rehabilitation and restraint are not to be ignored. They, too, inform the analysis.

Rehabilitationrelates to the idea that the offender has been able to change their personal circumstances towards ensuring they will not reoffend in thefuture. Although the objective of rehabilitation cannot be discounted or ignored where there is evidence that it exists, in some seriouscases where denunciation and deterrence are the primary objective, rehabilitation may be ascribed a reduced weight in the calculus ofdetermining an appropriate sentence. [99] I will conclude this review of the principles of sentencing by returning to the fundamental principle of proportionality. [100] In R. v.

Pham, 2013 SCC 15, the Supreme Court of Canada discussed proportionality and its interplay with the sentencingobjectives and other principles as follows: [7] LeBel J. explained proportionality as follows in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This isclosely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. . . .Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other.

[8] In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform thesentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v.Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 92.Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigatingcircumstances (s. 718.2(

a) of the Criminal Code), as well as objective and subjective factors related to the offender's personalcircumstances. [101] The Supreme Court of Canada emphasized this again in R. v. Lacasse, 2015 SCC 64 at para. 53, instructing sentencing judges thatproportionality is to be determined both on an individual basis (i.e. in relation to the offender themselves and to the offence committed),as well as by comparison with sentences imposed for similar offences committed in similar circumstances.

The concept ofindividualization and parity of sentences must be reconciled for a sentence to be proportionate. [102] More recently in Parranto, the Supreme Court of Canada returned to the principles of proportionality, parity, and the purpose ofsentencing ranges. The majority of the Court reiterated that the concepts of sentencing ranges and starting points are simply toolsproviding non-binding guidance for sentencing judges and appellate courts.

Accordingly, they are navigational buoys or, put anotherway, they are tools and not straitjackets: Parranto at paras. 3, 4, 16–28, 36–37, 41, and 205. [103] Regarding the purpose of sentencing ranges, the majority in Parranto held that ranges and starting points are tools that convey anappreciation of the gravity of the offence and offer judges "a place to begin their thinking". They are to be restricted to offence-basedconsiderations and are to speak only to the gravity of the offence: Parranto at paras. 44, 46, 47, and 205. [104] Over a decade ago in R. v.

R.A.J., 2010 BCCA 304, Justice Bennett noted the following: [30] The primary principle of sentencing is proportionality: a sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender: s. 718.1. A sentence must not exceed what is just and appropriate given the moralblameworthiness of the offender and the gravity of the offence: Nasogaluak at para 40-42.

I cannot conceive of a more morallyblameworthy act than a parent sexually offending against his or her child, particularly, as here, commencing at a young age and beingrepeated many times over a course of years. [105] The majority in Parranto also provided a reminder that proportionality is the primary animating principle, while parity andindividualization are secondary principles which inform the proportionality assessment: at paras. 9–12, and 105. The gravity of theoffence may be constant, but the individual offender varies.

Thus, the question in sentencing is: does the sentence reflect the gravity ofthe offence, the degree of responsibility of the offender, and the unique circumstances of each case? Sentencing remains anindividualized process and so parity is secondary to proportionality: Parranto at paras. 9, 38, and 205. [106] When I turn to the analysis mandated in determining the appropriate sentence for the offences committed by this offender, I willbear all these principles in mind.

Before doing so, however, I must address whether a conditional stay should be entered on any of thecounts based on the rule against multiple convictions for the same cause or matter. The rule is governed by what is known as theKienapple principle. The Kienapple Principle [107] Recently the Kienapple principle was addressed in both R. v. Mohsenipour, 2023 BCCA 6, and R. v. P.R.J., 2023 BCCA 13.

InMohsenipour, Justice DeWitt-Van Oosten, writing for the Court, succinctly summarized the principle from Kienapple as follows: [282] The Kienapple principle is a legal principle that reflects a long-standing recognition in Canadian criminal law that multipleconvictions should not be entered for offences involving the same "delict" (cause or matter).

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

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

No. 2434 at para. 36. [284] Where Parliament has not expressly displaced the Kienapple principle, there is an analytical framework to follow in decidingwhether a conviction should be conditionally stayed. The Supreme Court established the framework in Prince. Trial judges must ask: First, whether there is a "factual nexus" between the offences at issue.

The answer to this question is generally determined by consideringwhether the same act grounds each of the charges: Prince at paras. 21, 24; [Emphasis in original] If a case involves continuing offences in which the offending behaviour occurred or subsisted over a period of time, or the act(

s) thatmake up the offences are described only in general terms, determining whether a "factual nexus" exists may require a trial judge toconsider factors such as the remoteness or proximity in time and place between offences, the presence or absence of relevant interveningevents, and whether the acts underlying the offences were related to each other by a common objective: Prince at para. 24; Second, once a trial judge is satisfied of a sufficient "factual nexus", they must then ask whether there is also an "adequate legal nexus"between the relevant offences.

This is because a "single act of an accused can involve two or more delicts against society which bearlittle or no connection the one to the other": Prince at para. 28. In those circumstances, conditionally staying one of them would not beappropriate. There will only be an "adequate legal nexus" between offences if there is "no additional and distinguishing element that goesto guilt contained in the offence for which a conviction is sought to be precluded": Prince at para. 36; [Emphasis in original]

When offences are factually and legally connected, but distinguishable because they are of "unequal gravity", it may be appropriate toconditionally stay the lesser offence if that offence does not include additional and distinct elements from the more serious offence:Prince at para. 37; How does a trial judge determine whether the elements of an offence are (or are not) "additional and distinct"? There are at least threeways (Prince at paras. 39–42):

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

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

c) Parliament may have deemed a particular element of an offence to be satisfied by proof of another "because of social policy orinherent difficulties of proof". Elements of an offence that "serve only as an evidentiary proxy for another element cannot be regarded asdistinct or additional elements for the purposes of the rule against multiple convictions". See also R. v. Andrew (1990) (BC CA), CarswellBC 120, 57 C.C.C. (3d) 301 (B.C.C.A.) at paras. 11, 14. [285] In R. v.

Heaney, 2013 BCCA 177, this Court identified three factors that, subject to Parliament's clear intention to the contrary,will generally "defeat a claim that different offences have the legal nexus to warrant the application of Kienapple": at para. 26. They are:(

a) where the offences are designed to protect different societal interests; (

b) where the offences involve violence against differentvictims; and (

c) where the offences proscribe different consequences: at para. 26. [emphasis in original.] [108] In Mohsenipour, the Court entered conditional stays on four counts in the indictment, having concluded there was a close factualand legal nexus between the two sets of counts.

Seemingly, the reason for the first set of counts – 6, 7, 13, and 14 – and the second set ofcounts – 8, 9, 15, and 16 – was to capture the December 6, 2014 legislative change of amendments to the Code repealing ss. 212(1)(j)and (h) (the living on the avails of prostitution counts) and replacing them with s. 286.2 (the material benefit from sexual servicescounts). Significantly, the offending behaviour in Mohsenipour was a continuing joint venture that spanned both legislative regimes.

Butfor the legislative changes that occurred on December 6, 2014, the appellants would have been charged with the first set of counts, butover a broader time period. The offences covered by both sets of counts were "linked in the scheme" such that they "were related to eachother by a common objective": Mohsenipour at paras. 301–309. [109] In P.R.J., Justice Frankel writing for the Court addressed the Kienapple principle in the context of convictions for sexualinterference, invitation to sexual touching, and sexual assault.

The events grounding the indictment related to only one incident betweenthe appellant and her eight-year-old daughter. The trial judge convicted the appellant on all three counts in the indictment, but entered aconditional stay on the sexual assault count on the basis of Kienapple. The trial judge convicted the appellant of both sexual interferenceand sexual touching: P.R.J. at para. 1. [110] The Court of Appeal entered a conditional stay on the invitation to sexual touching count as the act of the appellant taking hold ofher daughter's hand was done for a sexual purpose and in doing so, committed both offences.

Justice Frankel reasoned as follows: [52] As discussed in R. v. Prince, (SCC), [1986] 2 S.C.R. 480, the Kienapple principle precludes multipleconvictions for different offences when there is both a factual and legal nexus connecting them. In this case, the critical question iswhether there is a sufficient legal nexus. More particularly, the question is whether, in a situation where the s. 152 offence is made outthrough

an act of touching, it can be said that there is an "additional and distinguishing element" between the s. 151 and s. 152 offencesthat would refute a sufficient legal nexus: Prince at 498. As Justice Doherty stated in R. v. K. (R.) (2005), (ONCA), 198 C.C.C. (3d) 232 at para. 36 (Ont. C.A.), "[t]he sufficiency of the legal nexus between offences will depend on an

interpretationof the statutory provisions that create the offences and the application of those statutory

definitions to the circumstances of the case"[emphasis added]. [53] Both s. 151 and s. 152 were enacted to protect children against sexual abuse and exploitation.

Section 151 requires the offender tohave touched, either directly or indirectly, the complainant for a sexual purpose.

Section 152 requires the offender to have communicatedwith the complainant in an effort to have the complainant touch them or another person for a sexual purpose. That communication can beverbal or non-verbal and, as discussed above, non-verbal communication can involve the offender touching the complainant. [54] In the present case, the communication (i.e., essential element) underlying P.R.J.'s conviction under s. 152 involved her touchingP.'s hand for a sexual purpose. That touching satisfied the essential element of the s. 151 offence of which P.R.J. was also convicted.

Inthese circumstances, there are no additional or distinguishing elements between the two offences and there is, to use the language ofChief Justice Dickson in Prince, "sufficient correspondence between [the] elements [of the two offences] to sustainthe Kienapple principle": at 501. To conclude otherwise would mean that a case in which the Crown proved only that the offender tookthe complainant's hand and placed it on their own genitals would result in the offender standing convicted under both s. 151 and s. 152, ifthe Crown chose to proceed on both charges.

In my view, that result would run counter to the fact, recognized by the Chief Justice,that "Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused inrespect of a single criminal delict": Prince at 489–490. [111] Justice Frankel concluded that in the circumstances of P.R.J., that the offences in that case described different ways ofcommitting the same criminal wrong: [62] To sum up, in this case the trial judge found that on that night, P.R.J. sexually interfered with P., thereby committing the offencecharged in Count 1 of the indictment.

P.R.J. did so by digitally penetrating P.'s vagina, kissing P.'s vagina, and placing P.'s had on hervagina. While the taking of P.'s hand satisfied the element of the offence of invitation to sexual touching charged in Count 2, toparaphrase Dickson C.J. in Prince, to separately convict P.R.J. of that offence would be to heap multiple convictions on her in respect toa single criminal act without good reasons. What occurred that night was a single act of child abuse that should result in a single

conviction. The offence of sexual interference best captures the totality of P.R.J.'s conduct. Analysis Does the Kienapple principle apply? [ 112 ] As outlined above, the Kienapple principle precludes multiple convictions for different offences when there is both a factual and legal nexus connecting them. The question in this case is whether there is a sufficient legal nexus between incest and sexual assault.

While it is true that the authorities establish that sometimes the Crown elects to charge only sexual assault where offences of incest are factually made out in some of the cases, in my view that does not mean that incest and sexual assault cannot be charged on the same indictment. Nor does it mean that incest will be automatically subsumed by the offence of sexual assault. [ 113 ] The offence provisions actually cover very distinct behaviours.

Incest is the more reprehensible offence, where the offender has sexual intercourse with a person that is related by blood to the offender – in this case, father and daughter. The offence of sexual assault contains different legal elements and covers a far greater range of sexual activities than sexual intercourse. While an incest offence can possibly be captured by a charge of sexual assault, examining the statutory provisions that create the offences and the application of the statutory

definitions to the circumstances of this case, reveals distinct and different offences that have neither a factual or legal nexus. The offence of sexual assault in this case factually encompasses all of T.A.P.'s sexual activity with B., the touching of her breasts and vaginal area, but not the sexual intercourse with her.

Much like the circumstances in A.H.K. , the sexual assault offending here started years before the sexual intercourse with B. commenced, and so the factual and legal nexus between the two offences is not established. [ 114 ] Moreover, the sexual assault offence against B., which is wider both in terms of scope and length of the activity, is not subsumed by the incestuous activity captured by Count 1. They are distinct delicts covering different types of actus reus in respect of the sexual violation of the child.

Accordingly, I conclude the principles from Kienapple do not apply and I decline to enter a conditional stay on Count 1. [ 115 ] With all of the sentencing principles previously outlined firmly in mind, I now turn to the determination of an appropriate sentence for the eight offences committed by this offender. [ 116 ] Crown and defence counsel provided several authorities for the Court to consider. Both counsel recognize that no two cases are alike and, unsurprisingly, have not been able to find a case that is factually identical to the case at bar.

Both counsel provided several cases which address the sentencing principles in these types of cases, their application in those cases, as well as a general range of sentences. These authorities are listed earlier in these reasons. Both counsel thoroughly reviewed these authorities in their written and oral submissions. I do not intend to review them further here, but I have read and considered both the authorities provided and counsel's

interpretations of them, including similarities and distinguishing features of the cases. The Analytical Framework Established by Friesen [ 117 ] In Friesen , the Supreme Court of Canada established an analytical framework to guide sentencing judges in their determination of a fit and appropriate sentence for sexual offences against children. While the Court described the framework as containing significant factors to consider, they noted their comments are neither a checklist nor an exhaustive set of factors: Friesen at para. 121. These factors are considered below. (

a) Likelihood to reoffend [ 118 ] At paras. 122–124 of Friesen , the Court addressed the issue of the offender's likelihood to reoffend. Where there is an increased likelihood of reoffending, the imperative of preventing further harm to the public calls for emphasis on the sentencing objective of separating the offender from society, as set out in s. 718 (

c) of the Code . [ 119 ] A related and equally important consideration is the fact that the objective of rehabilitation cannot be overlooked and should be encouraged as this is an important part of protecting the public. Given the ranges proposed by counsel in this case, a probation order is not available for T.A.P. as his sentence will undoubtedly exceed the maximum two-year period contained in s. 731(1) (

b) of the Code . [ 120 ] In this case, I have little information about T.A.P.'s likelihood of reoffending, apart from the letters of support from T.A.P.'s family, friends, and colleagues. Overall, I am left with some uncertainty as to T.A.P.'s likelihood of reoffending. Certainly there might be a modicum of risk, but I do not find it to be anything much beyond a low risk to reoffend and so it is a neutral factor in this case. (

b) Abuse of a position of trust or authority [ 121 ] At paras. 125–130 of Friesen , the Court refers to the spectrum of trust relationships. The closer the relationship and the higher the degree of trust between the child and the offender, the greater the likelihood the child will suffer more harm from the sexual violence. The abuse of a position of trust increases both the harm to the victim and the gravity of the offence. It may inhibit children from reporting abuse, particularly where the perpetrator lives with the victim and is a parent or caregiver.

The abuse of a position of trust increases the offender's degree of responsibility and enhances moral blameworthiness. All things being equal, the abuse of a position of trust to commit a sexual offence against a child should result in a lengthier sentence than where an offender is a stranger to the child. [ 122 ] In this case, T.A.P. repeatedly abused his two daughters in their own home. Compounding this point is the fact that B. and E. were abused by their father when they were spending parenting time with him. Thus, as noted by the Crown, he was the sole adult

responsible for their well-being when they were in his house. [123] A further abuse of a position of trust lies in the offending against T., B.'s close friend at the time and the daughter of M., T.A.P.'sformer intimate partner. Other compounding factors under this point in the Friesen analytical framework include the fact that B. and E.were reluctant to disclose the abuse as the Ministry of Children and Family Development had returned them to their father when othercomplaints about his parenting methods were raised with a social worker.

And, that B. made T. promise not to tell anyone because shedid not want to lose her dad. Finally, B. did not trust T.'s mother, so did not disclose the abuse to her. As a consequence, the three victimswere isolated from adults they should have been able to rely upon to protect them. This, in turn, provided T.A.P. with cover to continuehis predations upon all three girls. [124] The breach of trust relationship between T.A.P. and his two daughters and the daughter of his former intimate partner is anextremely aggravating factor.

T.A.P.'s degree of responsibility for the offences he committed and his moral blameworthiness areextremely elevated. (

c) Duration and frequency of the abuse [125] At paras. 131–133 of Friesen, the Court notes that the frequency and duration of sexual violence against a child can significantlyincrease the harm to the victim. The immediate harm is multiplied or compounded by the number of the assaults committed. Long-termemotional and psychological harm is also compounded where the sexual violence is repeated and prolonged.

This factor further increasesan offender's moral blameworthiness, as additional harm to the victim is a reasonably foreseeable consequence of multiple violations ofthe victim's physical and sexual integrity. [126] As Chief Justice Wagner and Justice Rowe noted in Friesen: [133] In sum, sexual violence against children that is committed on multiple occasions and for longer periods of time should attractsignificantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults tobecome a statistic.

Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risksof long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violentlyvictimize children. As Abella J.A. (as she then was) wrote in Stuckless (1998), where the offender has committed numerous assaults, thecourt cann

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