R. v. N.A.L. Date:, 2018 BCPC 52

Citation: R. v. N.A.L. Date: 20180306 2018 BCPC 52 File No: 103400-1-K Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. N.A.L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. A. Janse Counsel for the Accused: Ms. M. Stanford Place of Hearing: Kamloops , B.C. Date of Hearing: February 1, 2018 Date of Judgment: March 6, 2018 [ 1 ] N.A.L. is charged with the sexual assault of D.L., his wife, on December 19, 2016. The Crown proceeded by indictment, and seeks a six month conditional sentence order recognizing that a jail sentence is appropriate in these circumstances. The Defence seeks a

conditional discharge. [ 2 ] D.L. reported that she had been resting on their bed with their sleeping newborn nearby. She was only one month post-operative for her caesarean

section and had been warned not to have sexual intercourse. N.A.L. attempted to impose himself upon her. When she protested and told him to stop, he insisted that he was going to take what is his. The struggle continued but N.A.L. did eventually stop after D.L. struck him. [ 3 ] D.L. did not report this sexual assault to the police until later when N.A.L.’s psychiatrist, Dr. Chale, called her to advise her that N.A.L. had homicidal thoughts that included D.L. and their newborn son. [ 4 ] The L. have been separated since this incident and D.L. has moved on to a new relationship.

N.A.L. had a history of mental illness and prior instances of suicidal ideation. However, it is his diagnosis of Adrenoleukodystrophy (ALD) that compels the Crown to its sentencing position. It is identified in the pre-sentence report as a deadly genetic disease. While the Crown recognizes that the sexual assault is on the lower end of the range, Ms.

Janse argued that the circumstances are aggravated by the domestic nature of the assault, the post-surgery condition of the complainant, and N.A.L.’s antiquated attitude toward his proprietorial rights over his wife. [ 5 ] D.L. advised the report writer in October 2017 that she was nervous about a new relationship, that she has consistently had nightmares and was regularly attending counselling monthly. [ 6 ] There were some troubling observations made in the pre-sentence report which was completed November 7, 2017.

N.A.L. advised Patricia Reinsdorf, the report writer, that he loved jail because he was used to being told what to do and that he fit in. Ms. Stanford explained that this was in the context of a prior conviction, and not any desire to spend more time in jail. [ 7 ] Ms. Reinsdorf observed no victim empathy in N.A.L. He commented to Ms. Reinsdorf that D.L. had another boyfriend and had moved on as though he did not exist. He felt she just wanted to end the relationship with him and that he did not do anything forcible. It is an astonishing lack of insight.

His wife was compelled to strike him to fend off his attack. She was in a vulnerable physical state. He then expressed homicidal thoughts toward her and their new born child. He sees how the matters before the court have drastically changed his life, and not how they must have impacted D.L. [ 8 ] The Crown sought a number of protective, denunciatory and rehabilitative terms in its submission for a CSO. Ms. Stanford argued that requiring N.A.L. to register as a sex offender was disproportionate to the allegations. He is a unique offender in unique circumstances.

Accommodations should be made so that he can have contact with his child. A curfew is not necessary because he has been under a curfew for 13 months already. He is agreeable to counselling but had not considered a Rogers order that would require him to keep his mental health properly monitored. His medical condition makes it unnecessary for him to be bound by curfews, Rogers orders and otherwise. [ 9 ] N.A.L.’s explanation for his conduct toward D.L. grossly minimizes her experience of the events. He claimed to be advancing in an amorous way and did not realize his advances were unwanted.

He did not retaliate when she punched him. He has no explanation for his insistence that he would take what is his. [ 10 ] N.A.L.’s father had tried to have N.A.L. admitted to Royal Inland Hospital for depression on three occasions prior to the incident. N.A.L. was finally admitted in January 2017 where he remained until sometime in February 2017. [ 11 ] Counsel also argued that D.L. did not report the incident to the police for 19 days. In that time, she had been texting him, hugging him and going for lunch.

These were actions that counsel claim did not show fear or substantiate the impact of the offence claimed by D.L. Evidently, N.A.L. was blindsided by her wanting to leave the marriage but accepts her version of the events. He is upset that she moved on so fast and has not been there for him during his illness. In fact, it appears the only reason N.A.L. was charged with this offence is because D.L. was interviewed by the police after N.A.L. made homicidal comments directed toward her and the child.

We are well past the point of condemning complainants for waiting to report sexual assault offences, especially by a spouse. [ 12 ] Ms. Stanford said it was difficult for N.A.L. to be empathetic toward the complainant because he has been depressed and stressed while adjusting to the terminal illness he has been diagnosed with. This does not on any level excuse his conduct toward her or his complete lack of insight for the impact his actions had on her. [ 13 ] Ms. Stanford provided a number of documents in support of N.A.L.

The first is a letter from Catherine Cloutier, a counsellor at Sandstone Counselling Centre. Ms. Cloutier confirmed that she has been providing counselling services to N.A.L. over the course of several years as a counsellor at Thompson Rivers University and then again in her private practice at Sandstone Counselling Centre. She found N.A.L. to be a sincere and honest client suffering from symptoms of severe depression, suicidal ideation, anxiety and social isolation.

She identified severe abuse and neglect in his family of origin, resulting in him being fragile but dedicated to working through his concerns and working toward decreasing his symptoms. As a result of suffering effects of physical and emotional abuse by his mother, he was left vulnerable to engaging in similarly abusive relationships in his young adulthood. [ 14 ] Ms. Cloutier stated that N.A.L. believed D.L. felt threatened by their counselling relationship and disapproved of him connecting with and establishing friendships with both men and women. This is, of course, one-sided and as reported by N.A.L.

It does not appear Ms. Cloutier ever engaged with D.L. She also described a secondhand report of an incident where D.L. spoke harshly to N.A.L. in a public setting. This is nothing less than victim blaming. It is an appalling form of support for conduct that cannot be excused, no matter what one-sided views Ms. Cloutier may have formed of D.L. [ 15 ] There is also an e-mail from D.C. and L.C., who are an aunt and uncle to N.A.L. They described someone who is mannerly and willing to help. They have observed him struggle daily with pain but he pushes onward and reaches his daily goals.

They described him as a very kind hearted person. While this assists in visualizing N.A.L. as it relates to his character in the community, it does not assist in addressing sentencing for an offence that so often happens behind closed doors - as in this case. [ 16 ] There is a reference letter from Y.C., who is N.A.L.’s grandmother. She finds it hard to understand his offence as he has always

been well mannered and liked by all who knew him. She had never observed him hurt anyone. After being diagnosed in the Spring of 2016 with ALD, he became very depressed. He is in constant pain and has difficulty walking. She was dismissive of the medical profession who, when helping him with his depression, “just gave him pills to take”. She described N.A.L. as someone who is always kind and courteous to everyone. [ 17 ] N.A.L.’s younger brother, S.L., described a close childhood relationship marked by the usual rivalries, but observed N.A.L.’s patience and determination to see his younger brother grow.

He said that his brother demanded the best out of him whether it was sports or academics, was always the person he could count on, and always watched out for him. He described his brother as always loyal, supportive and caring. [ 18 ] K.L. is N.A.L.’s father. He provided a description of the disease which will ultimately kill N.A.L. He described the pain that N.A.L. will experience now and in the future, his balance issues, and his exhaustion. K.L. described the emotional impact the charges and the disease have taken on N.A.L. who is devastated, severely depressed and heartbroken.

His son had focused his energy on his wife and extended family, went to university to better himself, and persisted in getting top marks even after his diagnosis. These are helpful and compelling insights. [ 19 ] What is most telling and disturbing, though, is K.L.’s comment that “N.A.L. is unable to come to terms with his wife abandoning him and having his disease confirmed”.

He described the loss that N.A.L. has had because he has been unable to hold his infant son before his disease progresses to the point that he is physically unable to do so. [ 20 ] K.L. continued with a denial of N.A.L.’s capacity to harm anyone in this fashion: All N.A.L. [sic] life he has always shown to be a well mannered, caring and considerate person. N.A.L. is not the type of person ever to hurt women, or anyone. He loved his wife and tried to do everything he could for her… This charge is completely out of character for N.A.L.

But everything changed after learning about the disease for N.A.L. and his wife. [ 21 ] K.L. highlighted that it is difficult enough to know that their son is going to die from this rare disease “but this charge on top of everything else is almost unbearable. Not sleeping for a year and thinking about this charge, 24 hours a day, has taken everything out of our family.” This may be so, but it is also devoid of insight into D.L.’s experience or of empathy toward her.

In fact, nowhere in this letter is there any acknowledgment of N.A.L.’s wrongdoing or the considerable impact it has had on D.L. [ 22 ] Under s. 271 of the Criminal Code if the Crown proceeds by indictment, the maximum penalty is 10 years. There is no minimum sentence. The Crown started by proceeding by indictment and is now proceeding summarily. A conditional sentence order is available where the Crown proceeds summarily. [ 23 ]

Section 718 of the Criminal Code provides as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 24 ]

Section 718.2 also provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) 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 … [ 25 ] In other words, I must consider this an aggravating factor that the assault occurred in a domestic relationship.

I must also consider that N.A.L. should not be deprived of liberty if less restrictive sanctions may be appropriate and I must consider all available sanctions other than imprisonment. [ 26 ] It is essential when sentencing a person who has committed a sexual assault against a domestic partner that general and specific deterrence be paramount considerations in sentencing. Assaulting a partner is a breach of trust and an aggravating factor. [ 27 ] A conditional discharge is one of the options the court must take into consideration where appropriate. The factors to be

considered were set out in R. v. Fallofield, (BC CA), [1973], 13 C.C.C. (2d) 450 B.C.C.A.: 1. The

section must be used in respect of any offence other than an offence for which a minimum punishment is prescribed by lawor the offence is punishable by imprisonment for 14 years or for life or by death. 2. The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation. 3. Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation. 4.

The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. 5. Generally, the first condition would presuppose that the accused person is a person of good character, without previousconviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, andthat the entry of a conviction against him may have significant adverse repercussions. 6.

In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions. 7. The powers given by s. 662.1 [now 730] should not be exercised as an alternative to probation or suspended sentence. 8.

Section [730] should not be applied routinely to any particular offence. This may result in apparent lack of uniformity in theapplication of the discharge provisions… [28] I have already addressed the fact that a conditional sentence order is available for this offence. Similarly, a conditionaldischarge is available. It is not the severity of the offence that determines whether a conditional discharge is available. [29] It seems clear that a conditional discharge would be in N.A.L.’s best interests, although it may not be particularly helpful to hisrehabilitative prospects.

For it to be in his best interests presupposes that he is a person of good character without previous conviction.The law has evolved somewhat since Fallofield in this regard. A prior conviction is not an obstacle to a conditional discharge. However,the component of “good character” should not be distilled. His support letters, albeit biased, do suggest he is otherwise a person of goodcharacter. [30] It may not be necessary to enter a conviction against N.A.L. in order to deter him from future offences, but I have significantdoubts about the denunciation or rehabilitative components.

I am also not satisfied that a conviction would have any more significantadverse repercussions for N.A.L. than a conviction entered against anyone else would have. [31] The issue over the prospects of rehabilitation are tied to the attitude he has expressed, the attitude of his supporters, and thepublic interest. By attitude of his supporters, I refer to the fact that while some of the references do acknowledge they are aware of thecharges, none of them reflect any empathy or insight into the impact this offence has had on the victim.

More troubling, they do notreveal any such observed empathy or insight on N.A.L.’s part. Two of the references cast blameworthiness on the victim. That the focusof N.A.L.’s concerns seem to be on D.L.’s desertion of N.A.L. at a time that he has been diagnosed with a critical illness fails to reflectthe reality of D.L.’s circumstances: she was sexually assaulted by her husband who then threatened her life and that of her newbornchild. While he has expressed remorse to the court, this is not at all reflected in the pre-sentence report or support letters.

Rather, hisbitterness over D.L. leaving him for another man and the impact this has had on N.A.L. during his considerable illness is his entire focus.It directly impacts his prospects for rehabilitation which are a critical component of my consideration of the appropriateness of aconditional discharge. [32] The public interest is addressed when ensuring that there is appropriate denunciation, deterrence and protection of the public.Deterrence must be both general and specific. The message must be sent that partners are not property. When a partner says no, theanswer is absolutely no.

No partner should be required or expected to remain with someone who is sexually abusive toward them. ThatN.A.L. and some of his supporters are so dismissive of this offence cries out for sterner denunciation. [33] I was referred to a number of cases including R. v. J.L.B., 2017 BCPC 24 , 2017 B.C.P.C. 24, where the courtconsidered the possible impact on immigration for a person who had been convicted of sexually assaulting a young employee.

Havingconsidered the immigration impacts and his efforts towards obtaining sexual offender counselling, the court determined that aconditional discharge was not contrary to the public interest. While N.A.L. has been seeing a psychiatrist and a counsellor, the focus ofhis counselling has been on coping with a debilitating and terminal disease rather than his offending. He has none of the compellingmitigation found in J.L.B. [34] In R. v.

T.J.H., 2012 BCPC 115 , 2012 B.C.P.C. 0115, the court dealt primarily with whether it was appropriate toorder a Sex Offender Information Registry Act (SOIRA) order where a conditional discharge had been granted. Where a conditionaldischarge is not granted, a SOIRA order is required. [35] The decision of R. v. Carrillo, 2015 BCCA 192 , 2015 B.C.C.A. 192, addressed exceptional and unusualcircumstances. The case was not a sexual assault one but one for possession of cocaine for the purposes of trafficking.

The defence hadsought a community based sentence and the crown had argued that there were no exceptional or unusually compelling circumstances towarrant one. The court considered Mr. Carrillo’s status as a refugee as well as his medical conditions and other mitigating factors whensuspending passing of the sentence and imposing a period of probation. At paragraph 37 of Carrillo, the court cited from R. v. D.E.S.M., (BC CA), [1993] B.C.J. No. 702 (B.C.C.A.) from paragraph 20 of that decision:

20 There is no suggestion that the accused is a danger to anyone so he need not be isolated in order to protect the public. By convicting him, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminal proceedings.

The Court has been saying what most lawyers and criminologists have known all along, that a public charge, trial and conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way society brings offenders to account for their misconduct. [ 36 ] I accept that it is appropriate in these circumstances to impose a sentence in the community. N.A.L. is very ill and does not pose a danger to society that requires his separation from it.

However, the lack of empathy for D.L. and the focus on his own suffering rather than the impact of his offence upon D.L. preclude consideration of a conditional discharge. I similarly see no special circumstances that would make the SOIRA order any more onerous or any less appropriate than for anyone else charged with this offence. [ 37 ] I am imposing a six month conditional sentence order on the following terms: 1) 3001 - You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. 2) 3101 - You must report in person to the conditional sentence supervisor at Kamloops, British Columbia by 3:00 PM on March 7, 2018, and after that, you must report as directed by the conditional sentence supervisor. 3) 3201 - When first reporting to the conditional sentence supervisor, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your conditional sentence supervisor. 4) 3209 - For the duration of this order, y ou must remain inside your residence, or within 10 metres of the front door of your residence, between the hours of 10:00PM and 6:00AM, each day . You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order.

You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the house arrest hours. You may also be away from your residence during the house arrest hours:

a) While in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide a conditional sentence supervisor with details of your employment, including location and hours of work;

b) In the event of a scheduled medical appointment, scheduled counselling, or a medical emergency and then only while at a health care facility, doctor office or counsellor’s office, or when traveling directly to, or returning directly from that office or facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the appointment or facility, signed by a representative of the doctor, counsellor or facility to which you went; or

c) In the presence of a person approved in writing by your conditional sentence supervisor. You must carry the written permission with you when you are away from your residence during the house arrest hours. 5) 3002(c) - You must have no contact or communication, directly or indirectly, with D.L., except with a further order of this court. The exceptions are as follows:

c) in accordance with a Family Court Order made by a judge who has reviewed this order and has been made aware of the circumstances leading to this order. You must forthwith file a copy of this order in any family proceeding in which you are a party or become a party. 6) 3005 - You must not go to any residence, school or workplace of D.L., except with a further order of this court. The exceptions are as follows:

c) in accordance with a Family Court Order made by a judge who has reviewed this order and has been made aware of the circumstances leading to this order.

You must forthwith file a copy of this order in any family proceeding in which you are a party or become a party. 7) 3401 - You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription. 8) 3403 - You must not enter any liquor store, beer and wine store, bar, pub, lounge, night club, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence. 9) 3501 - You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the conditional sentence supervisor which may include forensic psychiatric counselling, spousal abuse prevention and respectful relationships. 10) 3610 - You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licences or registration certificates.

11) 3616 - You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment. [ 38 ] This will be followed by a period of probation for 12 months on the following terms: 1) 2001 - You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. 2) 2101 - You must report in person to a probation officer at Kamloops, British Columbia within 12 hours of completion of your conditional sentence order unless directed to another date and time by your probation officer, and after that, you must report as directed by the probation officer. 3) 2201 - When first reporting to the probation officer, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your probation officer. 4) 2002 - You must have no contact or communication, directly or indirectly, with D.L., except with a further order of this court. The exceptions are as follows:

c) in accordance with a Family Court order made by a judge who has reviewed this order and has been made aware of the circumstances leading to this order. You must forthwith file a copy of this order in any family proceeding in which you are a party or become a party. 5) 2005 - You must not go to any residence, school or workplace of D.L., except with a further order of this court. The exceptions are as follows:

c) in accordance with a Family Court order made by a judge who has reviewed this order and has been made aware of the circumstances leading to this order. 6) 2401 - You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. 7) 2403 - You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence. 8) 2501 - You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer, which may include forensic psychiatric counselling, spousal abuse prevention and respectful relationships. 9) 2610 - You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licences or registration certificates. 10) 2616 - You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment. [ 39 ] Under s. 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years. [ 40 ] This is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. [ 41 ] Under s. 487.051, you must attend at the RCM Police Station in Quesnel, British Columbia on March 8, 2018 at 9:00 AM and submit to the taking of the samples. This order is valid until executed. [ 42 ] Under s. 110, you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for five years. ________________________________ S.D. Frame Provincial Court Judge