R. v. B.T.J.N., 2021 BCPC 44

Citation: R. v. B.T.J.N. 2021 BCPC 44 Date: 20210311 File No: 108756-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.T.J.N. BAN ON PUBLICATION S. 486.4(2) C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: B. MacDonald Counsel for the Accused: E. Rines Place of Hearing: Kamloops , B.C. Date of Hearing: January 20, 2021 Date of Judgment: March 11, 2021 [ 1 ] The crown has proceeded by Indictment on a charge that B.T.J.N. did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of A.J., a person under the age of 16 years, contrary to s. 151 of the Criminal Code between

June 13, 2015 and June 30, 2019. B.T.J.N. has pled guilty to this charge. [2] The crown seeks a sentence of six months incarceration, followed by a two year probation order. The defence seeks a one yearconditional sentence order, followed by a two year probation order. [3] Both counsel have provided me with case authorities for my consideration as follows: R. v. Friesen, 2020 SCC 9 , 2020S.C.C. 9 ; R. v. Plehanov, 2020 BCCA 249 , 2020 B.C.C.A 249; R. v. Plehanov, 2017 BCSC 2176 , 2017B.C.S.C. 2176; R. v. Chen, 2019 BCSC 1290 , 2019 B.C.S.C. 1290; R. v. L.W., 2018 ONCJ 399 , 2018 O.N.C.J. 399;R. v.

J.H., 2020 NUCJ 33 , 2020 N.U.C.J. 33; and R. v. R.L.K., 2019 BCPC 260 , 2019 B.C.P.C. 260 CanLII. With theexception of Friesen, I will not review these cases. While they address ranges and sentencing considerations, they are too dissimilar to becomparatives.

In addition, the cases all pre-date Friesen so, while they address denunciation and deterrence it is not with the sameconsiderations urged upon sentencing judges by the Supreme Court of Canada. [4] I also have the benefit of the Victim Impact Statement provided by A.J.’s mother, J.J. and 15 letters of reference provided onbehalf of B.T.J.N. [5] I expressed concern at the sentencing hearing that neither sentencing position of either counsel really address the serious natureof this offence. Both have made submissions advancing their sentencing positions.

Both have highlighted the balance that must beachieved in light of R. v. Friesen, 2020 SCC 9 , 2020 S.C.C. 9 decision but also in light of the codified sentencing principles, aswell as the decisions in R. v. Gladue, 2005 BCPC 365 , 2005 B.C.P.C. 365 and R. v. Ipeelee, 2012 SCC 13 , 2012S.C.C. 13, [2012] 1 S.C.R. 433. [6] B.T.J.N. is 28 years old. He is the biological father of three children and the stepfather to A.J. A.J. was born in 2008 and is now12 years old. This offending began when she was seven.

B.T.J.N. is in a position of trust as her stepfather. [7] Both B.T.J.N. and A.J. are Indigenous. [8] While the degree of physical interference was relatively low, it occurred over a period of three or four years. This is a case wherethe degree of interference does not correlate to the degree of harm, particularly with the protracted nature of the offending. The violationsof both A.J.’s trust and her body have had a profound effect on A.J. [9] According to the Victim Impact Statement, J.J. reports that A.J. missed a lot of school, stayed in her room and shut downemotionally.

She cried a lot and asked her mother about depression, and if she had it. Now A.J. is angry, scared, sad and hurt. She quither activities such as football and jiu-jitsu. She stopped seeing her friends. She stopped drawing and putting effort into her art. Shestopped attending places that gave her pleasure such as the park and the petting zoo. She no longer asks to go on hikes or walks.Eventually, A.J. moved out of town to live with her father because living in the same town as B.T.J.N. was too hard on her.

The VictimImpact Statement says that A.J. is going to need counselling when she is ready, which suggests she has not engaged in it. This isconcerning because she is evidently isolated in the community where she lives. [10] B.T.J.N. struggles to explain his actions. One of the motives suggested was that A.J.’s mother had slept with his best friend. A.J.is evidently the “spitting image” of her mother. B.T.J.N. does not entirely embrace this explanation. It would be very concerning if hedid. He understands there is nothing he can do to take back the harm he has caused to A.J.

In his allocution B.T.J.N. said that he wasreally sorry and that it “eats at me. If I could take it back, I would”. He cannot sleep at night with the realization that he has hurt A.J. andcannot take it back. [11] B.T.J.N. provided a full and frank statement on his arrest and has never resiled from accepting his guilt. From the start, he hasintended to plead guilty. He did not want to obtain a Gladue report because he was anxious about speaking to strangers about this offencebut Mr. Rines submits that it in no way minimizes his awareness of the impact.

It may impair his rehabilitation, however, which is alsoconcerning. [12] B.T.J.N. was born in Lillooet and is a member of [omitted for publication] First Nation. B.T.J.N. has three children ages seven,five and four. When the allegations arose, the Ministry of Child and Family Development conducted an assessment and evidentlydetermined that he was not a risk. He continued to parent his children until the sentencing position was known. After that, the childrenwere sent to live with their grandmother but he has not been removed as a guardian.

One of the consequences to B.T.J.N. is that thefamily is trying to distance the children from him and he has not seen them since Thanksgiving. [13] I do not have any evidence before me of a risk assessment. I do not know what kind of investigation or assessment MCFDconducted. I cannot rely on their course of action as indicative in any way of whether B.T.J.N. is at risk of re-offending. [14] B.T.J.N. reports that his parents were together until he was five. He related that there was a lot of fighting and occasions when hismother had to bar the door when his father was angry.

When his parents separated, his father went to Mount Currie and his mother wentto Kamloops. B.T.J.N. spent the next year and a half going back and forth between the residences. Eventually he and his brother weresplit up, with B.T.J.N. going to live with his grandmother. Around the age of 7, he began living with his mother, moving to Kamloops,Barriere, and back. In Grade 6, there was a stabbing incident at his mother’s home and he was sent to live with his father. [15] The first six months living with his father were a positive experience.

However, when B.T.J.N. attempted to reconnect with hismother, it created jealousy with his father’s partner. She became physically abusive until B.T.J.N. was about 15. At 16, B.T.J.N. ranaway to live with his mother. She got him a home but left him to his own devices. It was thereafter that his substance abuse cycles began.At first it was alcohol, then ecstasy and cocaine. [16] B.T.J.N. was fortunate to enrol in Aboriginal Youth and Tourism Programme and went to Ottawa.

While there, he made thedecision to get completely clean and sober, which he was able to do because he was away from home. [17] On his return to British Columbia, he went to Mount Currie. He was able to put his education to use with employment at a

museum in Whistler. In this time, he reconnected with a childhood friend, J.J. They would travel to Lillooet and eventually he becameengaged in partying while there. They began dating. This created some tension between J.J. and A.J.’s father. As a result, J.J. moved toMount Currie and A.J. remained with her father. [18] When J.J. registered in a program in Kelowna, both she and B.T.J.N. moved there in an effort to get away from the alcohol anddrugs. They both got clean and sober while there but could not afford to stay in Kelowna. Back in Lillooet, their first child was born.

Onmoving to Kamloops after that, they had their second child. B.T.J.N. felt there was better work for him and support for the children inKamloops. He also felt it was far enough away to be away from Lillooet’s troubles and lack of employment but still close enough to gowhen they wanted. [19] As I said, I do not have a risk assessment before me. I am only told that B.T.J.N. understands the impact of his actions on A.J.This seems to have flowed from A.J.’s own efforts to put a distance between herself and him. Although he sought mental healthcounselling, it appears to have been to address his own depression.

I cannot safely say that he has taken steps that would assist inensuring that he has rehabilitated or begun the rehabilitation process related to this offending. [20] B.T.J.N. was hospitalized in February 2019 for suicidal ideation. He was prescribed medication which he then overdosed on atone point. He does still see a counsellor but this must be done over the telephone because of COVID. [21] B.T.J.N. is employable and did have seasonal employment. However, he does not want to seek out long term permanentemployment with the sentencing pending.

He has engaged with an online service for members actively looking for employment andskills. He would like to move into an education and motivation role to assist others with a similar upbringing to his. [22] The principles of sentencing for offences of this nature are set out in the Friesen decision as follows: [42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offencesagainst children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests arerespected (Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 67). AsOtis J.A. stated in R. v. L. (J.-J.) (1998), (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [translation] “the protection ofchildren constitute[s] one of the essential and perennial values” of Canadian society (p. 250). Protecting children from becoming victimsof sexual offences is thus vital in a free and democratic society (R. v.

Mills, 2019 SCC 22, at para. 23). [43] This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children.Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is at this stagethat the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence(C. L. M. Boyle, Sexual Assault (1984), at p. 171).

It is important for this Court to provide guidance so that sentencing judges imposesentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall, “SexualAssault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths thatParliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at thesentencing stage (R. P. Nadin-Davis, “Making a Silk Purse?

Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p. 46).This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, andcommunities, and the public at large (see Lacasse, at para. 3)… [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodilyintegrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in thecontext of the production of child pornography.

As this Court reasoned, the production of child pornography traumatizes children andviolates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime(para. 92, per McLachlin C.J., and para. 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.).

Sexual violence against children is thuswrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (seeSharpe, at paras. 172, 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). [23] In A.J.’s case, she suffered this violation of her autonomy, dignity and physical being not only during the offences themselves,but in the times between the offences fearing further violation, and now in the aftermath of disclosure. [55] These developments are connected to a larger shift, as society has come to understand that the focus of the sexual offencesscheme is not on sexual propriety but rather on wrongful interference with sexual integrity.

As Professor Elaine Craig notes, “This shiftfrom focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification,exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as wasmore the case when the law’s concern had a greater focus on sexual propriety)” (Troubling Sex: Towards a Legal Theory of SexualIntegrity (2012), at p. 68). [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). [24] The emotional harm suffered by A.J. continues to impact her significantly today. [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Becausemuch sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trustrelationship (R. v.

D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexualviolence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim(see “The ‘Statutory Rape’ Myth”, at p. 292). Children who are or have been in foster care may be particularly vulnerable since makingan allegation can result in the end of a placement or a return to foster care (see R. v. L.M., 2019 ONCA 945, 59 C.R. (7th) 410).

Evenwhen a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional (R. v. D.

(D.) (2002), (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 45). For instance, siblings and parents can reject victims ofsexual violence because they blame them for their own victimization (see Rafiq, at para. 38). Victims may also lose trust in the ability offamily members to protect them and may withdraw from their family as a result (Rafiq, at paras. 39-41). [61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in thecommunities and people they know.

They may be reluctant to join new communities, meet new people, make friends in school, orparticipate in school activities (C.-A. Bauman, “The Sentencing of Sexual Offences against Children” (1998), 17 C.R. (5th) 352, at p.355)… [25] A.J. is believed by her mother but that relationship has been harmed by this offending. A.J. is now isolated from her mother, hercommunity, her friends and her social engagements. In her new home, she is relatively isolated. This may change once she is able toengage in counselling.

For the time being, her life is altered significantly. [70] Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate thedisadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at adisproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10).

Canadian governmentpolicies, particularly the physical, sexual, emotional, and spiritual violence against Indigenous children in Indian Residential Schools,have contributed to conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence(see British Columbia, Representative for Children and Youth, Too Many Victims: Sexualized Violence in the Lives of Children andYouth in Care (2016), at p. 8 (“Too Many Victims”); The Sexual Exploitation of Children in Canada: the Need for National Action, atpp. 29-33)… [75] In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children whenapplying the proportionality principle.

Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur,2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence andthe degree of responsibility of the offender.

Taking the wrongfulness and harmfulness into account will ensure that the proportionalityprinciple serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects andcondemns their role in the offence and the harm they caused” (Nasogaluak, at para. 42). [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 gravityof sexual 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. [77] As this Court recognized in L.M., violence is always inherent in the act of applying force of a sexual nature to a child (para. 26).Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference withthe child’s sexual integrity to the interference with the child’s bodily integrity.

Physical contact of a sexual nature with a child alwaysmeans that the offender has interfered with both the child’s “security of the person from any non-consensual contact or threats of force”and the child’s bodily integrity, which “lies at the core of human dignity and autonomy” (R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330, at para. 28; see also McCraw, at p. 83). Such physical sexual contact is also a form of psychological violenceprecisely because bodily and psychological integrity are closely linked (see Ewanchuk, at para. 28; L.M., at para. 26).

The degree ofphysical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases. However,any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it isnot accompanied by additional physical violence and does not result in physical or psychological injury.

Courts must always give effectto this inherent violence since it forms an integral component of the normative character of the offender’s conduct (M. (C.A.), at para.80). [26] So while the degree of physical interference in this case was not physically harmful, it was protracted and deeply emotionallyharmful. [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexualviolence against children (see Ipeelee, at paras. 84-86).

The systemic and background factors that have played a role in bringing theIndigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternativesanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [27] This is where the friction lies. The impact on A.J. cannot be minimized. At the same time, the mitigating effects on B.T.J.N.’smoral blameworthiness must be taken into consideration.

This friction is highlighted in this admonition: [116] While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against childrenshould be punished more severely. First, Parliament has prioritized deterrence and denunciation for offences that involve the abuse ofchildren (Criminal Code, s. 718.01). Second, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravatingfactor (Criminal Code, s. 718.2(a)(ii.1)).

Third, Parliament has identified the abuse of a position of trust or authority as an aggravatingfactor; this is more common in sexual offences against children than in sexual offences against adults (Criminal Code, s. 718.2(a)(iii);L.V., at para. 66). Fourth, Parliament has used maximum sentences to signal that sexual violence against persons under the age of 16should be punished more severely than sexual violence against adults.

The maximum sentence for both sexual interference and sexualassault of a victim under the age of 16 is 14 years when prosecuted by indictment and is 2 years less a day when prosecuted summarily.In contrast, the maximum sentence for sexual assault of a person who is 16 years or older is 10 years when prosecuted by indictment and18 months when prosecuted summarily (see Criminal Code, ss. 151(

a) and (b), and 271(

a) and (b)). This is a clear indication in the

Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislativesignals reflect Parliament’s recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability. [28] The sentence the crown seeks is lower even than the maximum sentence had it proceeded summarily. It reflects a recognition ofthe degree of interference, the denunciatory requirements of this offence, and recognizes B.T.J.N.’s Gladue factors.

There is also thematter of risk of reoffending: [123] Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventingfurther harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718(

c) of theCriminal Code. Emphasizing this objective will protect children by neutralizing the offender’s ability to engage in sexual violence duringthe period of incarceration (see K.R.J., at para. 52). The higher the offender’s risk to reoffend, the more the court needs to emphasize thissentencing objective to protect vulnerable children from wrongful exploitation and harm (L.M., at para. 30; S. (J.), at paras. 39 and 84). [124] The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718(

d) of the Criminal Code.Courts should encourage efforts toward rehabilitation because it offers long-term protection (Gladue, at para. 56). Rehabilitation mayalso weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourableto rehabilitation than prison (see Proulx, at paras. 16 and 22). At the same time, depending on the offender’s risk to reoffend, theimperative of providing immediate and short-term protection to children may preclude early release.

In these cases, efforts atrehabilitation must begin with such treatment or programming as is available within prison (see R. v. R.M.S. (1997), (BC CA), 92 B.C.A.C. 148, at para. 13). In some cases, the only way to achieve both short-term and long-term protection of childrenmay thus be to impose a lengthy sentence (see R. v. Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19, per Cromwell J.A., as hethen was). [125] We also wish to offer some comments on the factor of the abuse of a position of trust (Criminal Code, s. 718.2(a)(iii)).

Trustrelationships arise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para.27). Instead, it makes sense to refer to a “spectrum” of positions of trust (see R. v. R.B., 2017 ONCA 74, at para. 21 ). Anoffender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum overtime (see R. v. Vigon, 2016 ABCA 75, 612 A.R. 292, at para. 17).

In some cases, an offender’s grooming can build a new relationship oftrust, a regular occurrence in child luring cases where children are groomed by complete strangers over the Internet, or move an existingtrust relationship along the spectrum. Even where grooming does not exploit an existing relationship of trust or build a new one, it is stillaggravating in its own right. [126] Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.

As Saunders J.A. reasoned inD.R.W., the focus in such cases should be on “the extent to which [the] relationship [of trust] was violated” (para. 41). The spectrum ofrelationships of trust is relevant to determining the degree of harm. A child will likely suffer more harm from sexual violence where thereis a closer relationship and a higher degree of trust between the child and the offender (see R. v. J.R. (1997), (NLCA), 157 Nfld. & P.E.I.R. 246 (N.L.C.A.), at paras. 14 and 18).

This is likely to be the case in what might be described as classic breachof trust situations, such as those involving family members, caregivers, teachers, and doctors, to mention a few. [29] B.T.J.N.’s unwillingness to discuss the offence does not bode well for counselling, but does not itself reflect a degree of risk. Healso does not argue that he was in a position of trust to A.J., though he says he was not permitted to act in a parenting capacity. Thatbeing said, he was an adult in authority living in her home in the capacity as stepfather to her and father to her siblings.

His actionsharmed not only the sanctity of her home, but her ability to remain within this community. [129] The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender whostands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach ofthe duty of protection and care thus enhances moral blameworthiness (R. v. S. (W.B.) (1992), (AB CA), 73 C.C.C.(3d) 530 (Alta. C.A.), at p. 537).

The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, whichis especially morally blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22). [30] This impacts the assessment of B.T.J.N.’s moral blameworthiness even in the context of his Gladue factors. [131] The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration cansignificantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the numberof assaults.

Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where thesexual violence is repeated and prolonged (see Scalera, at para. 123; R. v. O.M., 2009 BCCA 287, 272 B.C.A.C. 236, at para. 7;Bauman, at p. 359). This increased harm magnifies the severity of the offence.

It also increases the offender’s moral blameworthinessbecause the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults (see Scalera, at para. 123).Moreover, repeated and prolonged assaults show that the sexually violent conduct is not an isolated act, a factor which increases theoffender’s degree of responsibility (see L. (J.-J.), at p. 246; Parent and Desrosiers, at pp. 107-9). [31] This offending took place over a space of approximately three years.

It did not stop despite B.T.J.N. recognizing his actions werewrong, until A.J. began to distance herself from him and protest his violations. [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 cannot shy away from assessing the full dimensions of the wrong but must give effect to the “staggering” and “systematic” natureof the sexual violence in the sentence imposed (p. 116). [134] The age of the victim is also a significant aggravating factor.

The power imbalance between children and adults is even morepronounced for younger children, whose “dependency is usually total” and who are “often helpless without the protection and care of

their parents” ( R. v. Magoon , 2018 SCC 14 , [2018] 1 S.C.R. 309, at para. 66 ). Their personality and ability to recover from harm is still developing (Renaud, at § 12.64; L. (J.-J.) , at p. 250). Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life. [135] These realities flowing from the age of the victim are relevant to both the gravity of the offence and the degree of responsibility of the offender.

Sexual offences against children are wrongful precisely because the perpetrators recognize and exploit children’s special vulnerability ( Woodward , at para. 72). It follows that the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence. [ 32 ] A.J. was only 7 when B.T.J.N. began offending. [142] Second, courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim.

In assessing the significance of the degree of physical interference as a factor, as Christine Boyle writes, “judges should think in terms of what is most threatening and damaging to victims” (p. 180). Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell , an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause (paras. 111-15).

Sexual violence that does not involve penetration is still “extremely serious” and can have a devastating effect on the victim ( Stuckless (1998) , at p. 117). This Court has recognized that “any sexual offence is serious” ( McDonnell , at para. 29 ), and has held that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant” ( R. v. J.A. , 2011 SCC 28 , [2011] 2 S.C.R. 440, at para. 63 , per McLachlin C.J., and para. 121, per Fish J.).

The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity ( R. v. Jarvis , 2019 SCC 10 , [2019] 1 S.C.R. 488, at para. 127 , per Rowe J.). [ 33 ] The evidence before me reflects the profound emotional harm B.T.J.N.’s offending has had on A.J. This cannot be minimized. His guilty plea prevented A.J. having to testify and that must be recognized as well. [ 34 ] B.T.J.N. endured a very difficult upbringing.

Alcohol, domestic violence, and inconsistent parenting contribute to the Gladue factors that reduce his moral blameworthiness. His stated remorse is credible. He is young and has a young family. The consequences of his actions have been destructive to his family life. [ 35 ] B.T.J.N. provided a number of letters of support that speak highly of him. He is kind, friendly, helpful, and hardworking. He is engaged in his cultural and traditional activities.

B.T.J.N. has lived a largely productive and responsible life, showing insight into what path he needs to follow to address such issues as alcohol and drugs as they arose. He now needs to address his own trauma and sex offending in that same responsible manner. Clearly, incarceration is not required to guide B.T.J.N. along a rehabilitative path. It is the denunciation and deterrence component that must be given paramount consideration, though. [ 36 ] A conditional sentence order is a jail sentence in the community. It is a substitution for actual incarceration.

The consequences of breaching a term of the conditional sentence order can be significant. Terms can be onerous. A conditional sentence order, though, does not carry the same denunciatory and deterrent effect as a jail sentence where denunciation and deterrence are the primary focus. It does not send the same deterrent message to either the accused or the community that the significant harm of these offences are not to be minimized. [ 37 ] I do not mean to say that a conditional sentence order is not appropriate in some circumstances for this offence.

However, where the victim was so young, the offending occurred over a period of years, and where the victim has been so horribly impacted, a conditional sentence order is not adequate. [ 38 ] The sentence sought by crown is well under the maximum sentence for this offence. That is a reflection, in my view, of the degree of interference, B.T.J.N.’s guilty plea, and his own Gladue considerations. It is the appropriate sentence in this case. [ 39 ] I sentence B.T.J.N. to six months in custody followed by a 24 month probation order.

The terms of the order are as follows: 1. 2001 - You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. 4. 2002 - You must have no contact or communication, directly or indirectly, with A.J. 5. 2005 - You must not go to or be within two kilometres of any place where A.J. lives, works, worships, or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. 6. 2104 - You must report in person to a probation officer at Kamloops, British Columbia within 12 hours of release from custody, unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer. 7. 2202 - When first reporting to your probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your officer. 8. 2304 - You must not have any contact, communication directly or indirectly, or be in the presence of any person under the age of 16. The exceptions are as follows:

a) With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons. You must

carry the permission, which can be in electronic format, with you at all times.

b) They are your biological children. The crown asked for the parenting time of the children to be in accordance with the supervision requirements of the Ministry of Child and Family Development but, absent a supervision order to that effect, the social workers are not in a position to monitor the parenting time under this order. 9. 2501 - You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for sexual offence prevention. [ 40 ] This is a primary designated offence. Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you while you are in custody and you must submit to the taking of those samples. [ 41 ] Pursuant to

section 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. [ 42 ] Pursuant to

section 161 of the Criminal Code , you are prohibited for six years commencing on the date you are released from custody from being within two kilometres of any residence, school or workplace of A.J. [ 43 ] I have not acceded to crown ’s request for a larger safety zone for A.J. in the probation order. This is because a 200 kilometre ban would amount to banishment from B.T.J.N.’s home community. That would not be an appropriate outcome under this sentence. B.T.J.N. will require the supports he has in both of his communities to succeed on this path of rehabilitation. ________________________________ S.D. Frame Provincial Court Judge