R. v. P.C., 2022 BCPC 105

Citation: R. v. P.C. 2022 BCPC 105 Date: 20220519 File No: 110059-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.C. BAN ON PUBLICATION: s. 486.4(2) of the CRIMINAL CODE OF CANADA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: K. Bouchard Counsel for the Defendant: J. Steele Place of Hearing: Kamloops , B.C. Date of Hearing: May 8, 2022 Date of Judgment: May 19, 2022 Introduction:

[ 1 ] P.C. appeared before me for sentencing on March 8, 2022 in relation to Information 110059-1 at which time he pled guilty to one count of sexual assault. After hearing from Crown and defence, I reserved judgment until today. Joint Submission: [ 2 ] When this matter was last before the court, counsel came before me with a joint submission– the proposed sentence being a conditional discharge with two years of probation, and an ancillary DNA Order. Sentencing Range: [ 3 ] There are a broad range of sentences available in respect of sexual assault offences, and in the case of this

summary conviction offence the range extends from a discharge to a jail sentence of 18 months. Circumstances of the offence: [ 4 ] The circumstances of the offence are admitted and can be summarized as follows: that on the evening of May 13, 2020 P.C. was socializing with the victim at the victim’s home. By way of background, the victim was P.C.’s friend, and someone with whom he had worked some years ago. Both individuals had consumed substances at the time – the victim had consumed alcohol and the accused had consumed a marijuana edible apparently for the first time.

With the victim’s consent he gave her a foot massage, and then a back massage (again with her consent) and then she fell asleep. When she awoke P.C.’s hand was on her genitals and on her breast area. The victim immediately told P.C. to get away and leave. He stopped, and he did leave. Before leaving, however, he apologized and in doing so blamed his actions on the edible. He later texted the victim to apologize.

The victim did not want to have contact with the accused and subsequently reported the matter to the police. [ 5 ] At the outset of the joint submission, crown advised that P.C. is not a Canadian citizen but rather a permanent resident of Canada, and that the Immigration and Refugee Protection Act ( IRPA ) applies. IRPA provides the Immigration and Refugee Board of Canada with jurisdiction to hear and decide cases on immigration and refugee matters. [ 6 ] Section 36(1) of IRPA is relevant in that it states that a permanent resident or foreign national is inadmissible on grounds of “serious criminality” if (

a) convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of 10 years imprisonment. [ 7 ] Section 36(3) goes on to say that for the purpose of subsection (1), where an offence may be prosecuted either summarily or by way of indictment, the offence is deemed to be an indictable offence, even if it has been prosecuted summarily. [ 8 ] Turning back to this case, sexual assault is a hybrid offence. If the Crown had proceeded with this charge by indictment, it would carry with it a potential of a 10 year maximum sentence and that would equate to the accused being inadmissible to Canada on grounds of serious criminality pursuant to s. 36(1) (

a) of IRPA . [ 9 ] Put another way, if P.C. is convicted for this offence he would likely face deportation. [ 10 ] Defence counsel has raised a secondary concern that, aside from the probability of deportation, the accused works as a financial advisor.

Defence counsel submits that the accused’s ability to carry on with his employment could be seriously impacted by a criminal record. [ 11 ] Given those factors, the fact that the accused comes before the court with no criminal record, that the allegation involves one incident which is suggested to be at the lower end of the continuum of sexual assaults, the fact that the assault occurred over a very short span of time, and the early guilty plea, Crown and defence jointly propose a conditional discharge. [ 12 ] In her submissions, Crown explained that both she and defence counsel have spent a considerable amount of time trying to come up with a suitable joint submission on this matter, and both counsel have presented me with case law that supports a conditional discharge as an appropriate sentence.

Victim Impact Statement: [ 13 ] During submissions, Crown presented a victim impact statement wherein the victim describes the emotional anguish that she experienced as a result of being victimized. She stated she missed time from work which created financial hardship for her, she lost weight from stress, and she became fearful of leaving the house on her own. She makes a reference in her statement to the accused making several attempts to apologize to her after the events, and says that she was terrified of his presence. Circumstances of the Offender: [ 14 ] P.C. is 30 years of age.

He moved to Canada approximately eight years ago from southern India. I am told that he does not come from a violent or abusive background and this his parents were loving and caring individuals who remain supportive of him today. As I noted earlier, he works as a financial advisor. I am told he has promising career aspirations and that he is at a position where he can apply for citizenship and that he intends to do so. His plan is to remain in [omitted for publication]. He is in a new relationship.

I am told he has worked very hard to engage himself in Canadian culture and that he intends on becoming more involved in the community as a way to give back to society. [ 15 ] It is undisputed that immediately after the events occurred P.C. sent apologetic text messages to the victim, that he has remained apologetic and that he has continued to show remorse ever since. [ 16 ] P.C. did not want to retraumatize the victim by having her testify, and his guilty plea relieves her of the need to do so. As I noted P.C. has no criminal record, and both counsel agree that he has had no issues with the police.

[ 17 ] Significantly, P.C. acknowledges through his counsel that consent was not sufficiently communicated. I am told that he understands now (more than ever) what kind of communication is necessary to establish consent.

Caselaw: [ 18 ] I will preface my next remarks by recognizing that sexual assault, no matter how low on the continuum it is, is a serious and traumatizing offence and a fit and just sentence must reflect this. [ 19 ] Having said that, the four British Columbia case authorities that counsel presented to me (including the one appeal decision) are all authority that support a conditional discharge as an appropriate disposition for sexual offences that lack aggravating features, or said differently, that are at the lower end of the continuum for sexual assaults. [ 20 ] Of the four cases provided, R. v.

Elmazini , [2019] B.C.J. No. 43 and R. v. Hartman , [2018] B.C.J. No. 3344 involve more egregious sexual assaults, and circumstances where the accused abused a position of power and/or trust, or alternatively where the accused persisted to act inappropriately not only without the complainant’s consent but in the face of repeated resistance from the complainant. None of those circumstances are present here. [ 21 ] In R. v. T.J.H. [2012] B.C.J. No. 849 , the accused sexually assaulted his friend’s fiancé by touching her in a sexual manner.

Like the case at hand, the accused acknowledged that he had crossed the line, and he pled guilty at an early state thereby eliminating the need for the complainant to testify at trial. In that case that the accused found himself in a situation where the opportunity arose and he acted inappropriately in that moment. He did not go looking for a victim and he was noted not to be of the sort of character that would go looking for a victim.

The accused was employed, his employer spoke well of him, and the court found that a conviction could affect his ability to be employed in the future or to continue in the same employment. The court commented that it was quite convinced that if it imposed the conditions that were suggested that the accused was not going to offend against anyone else in the future. [ 22 ] The fourth case, R. v. Bougraine , [2020] B.C.P.C. 2243 is the closest case on the circumstances of the assault. The offender was at a bar and the victim was a server at the bar.

The allegations involved a single sweeping motion of the offender’s hand over the victim’s pants, from her crotch area up her back side. The victim immediately turned around and protested. The accused immediately apologized and the two parted ways. Crown in that case sought a six month jail sentence followed by one year of probation while defence counsel sought a conditional discharge with onerous and rehabilitative conditions. Several letters were placed before the court attesting to the accused’s good character, his respect for women and his positive lifestyle.

The accused was noted to be a devoted husband and father, a contributing member of the community who also had a positive reputation in the local soccer community where he played and coached. He was noted to be a gifted instructor with a passion for what he does, and in the circumstances the court noted that a conviction may very well limit his opportunities and his ability to pursue his chosen coaching profession. Sentencing Objectives: [ 23 ] A fit and just sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender especially in the case of Indigenous offenders.

I have not been made aware of any Gladue considerations. [ 24 ] The fundamental purpose of sentencing is outlined in s. 718 of the Criminal Code , and includes objectives to denounce unlawful conduct and the harm done to victims, to deter the offender and other persons from committing offenses, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community . [ 25 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence for the offender. [ 26 ] The mitigating factors in this case include: • The guilty plea.

Through his guilty plea P.C. has spared the time and expense of trial. I note that the victim identifies as suffering from a general anxiety disorder. I was told by Crown that these proceedings were causing her additional, significant stress.

The guilty plea also makes it unnecessary for the victim to go through the trauma of testifying. • The accused continues to be remorseful and apologetic. • He has taken responsibility for his actions. • He has no prior criminal record and is a first time offender – he has no history of police interactions of any kind. • The accused has expressed a willingness to take counselling including sexual offence prevention. • This event was an isolated incident. It occurred between two individuals who knew each other as friends. • Throughout these charges the accused has been co-operative.

He has indicated a willingness to participate in an extensive community work service program as part of his probation. [ 27 ] The aggravating factors in this case include: • The sexual assault took place at the victim’s home. M embers of society should not have to be concerned about being inappropriately touched against their will, under any circumstances, but particularly when in their own home.

A home in particular is a place where individuals are entitled to feel comfortable, respected, and safe. • The sexual assault took place while the victim was asleep; that placed her in a vulnerable position where she was unable to consent. As I noted already the accused acknowledges that consent was not sufficiently communicated and he is prepared to participate

in counselling and education to help prevent any further occurrences of this nature. • The accused was not drinking that evening, but did consume an edible. I balance this against defence counsel’s submissions thatthe accused is prepared to be bound by an abstention term as part of his probation. • Nature of the crime.

The accused committed a crime that is all too prevalent and the court must focus on deterrence. [28] Finally, I am mindful of the sentencing principle that all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community should be considered for all offenders. Joint Submission: [29] Before I can order a conditional discharge I must be satisfied that it would be in the best interests of the accused and that grantinga discharge would not be contrary to the public interest (R. v. Fallofield, (BC CA), [1973] B.C.J.

No. 559). [30] A conditional discharge would be in the best interest of an accused when the offender has no prior criminal record, when he isconsidered to be someone of generally good character, and where it is not necessary to enter a conviction against him in order to deterhim from re-offending in the future or to rehabilitate him. It may also be appropriate where the conviction may have significant adverseconsequences such as, in this case, the risk of deportation. [31] I accept that P.C. has no criminal record and is generally of good character.

I appreciate as well that a conviction would likelycause P.C. to face deportation (worst case scenario).

Alternatively, I am satisfied that a conviction would likely impair or restrict theaccused’s employment prospects including, potentially, his ability to continue to work as in wealth management (best case scenario). [32] I am therefore satisfied that a conditional discharge would be in the accused’s best interests. [33] The second part of the test requires me to assess whether a conditional discharge would be contrary to public interest. [34] Counsel before me suggest that a reasonably informed member of the general public would not find the proposed sentence to becontrary to the public interest.

I concur. [35] The public does not need to be warned about P.C. P.C. exercised poor judgment. He cannot blame the marijuana edible for hisactions – it may be an explanation for his behaviour it is not an excuse – for P.C. to have suggested that somehow the edible wasresponsible for his actions only deflects the blame. He was in control of the entire chain of events that evening and it all started when hechose to eat the edible. Nonetheless, he has accepted responsibility from the moment the events took place.

He acknowledged his wrongdoing by his guilty plea and by sparing the victim from having to come to court. [36] The definition of public interest was explained by the British Columbia Court of Appeal in R v.

Fallofield (supra), and it includesan essential concern with respect to whether the discharge is a sufficient deterrent to others. [37] I am satisfied that a reasonably informed member of the public would find that the probation conditions that I am about toimpose in these circumstances are onerous, both in duration and in substance, and that they will have the necessary denunciation anddeterrent effect both on the offender and on others in the community. [38] Lastly, I refer to R. v. Anthony-Cook, 2016 SCC 43 , 2016 S.C.C. 43.

That case reminds trial judges that a jointsubmission should not be rejected lightly unless it is contrary to the public interest, and would bring the administration of justice intodisrepute. That is an undeniably high threshold that I find has not been met. Sentence: [39] On Information 110059-1 I am granting you a conditional discharge and I am placing you on probation for a period of 24 months. [40] The terms of the probation order are as follows: a) 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 theofficer of any change of employment or occupation. b) 2101 - You must report in person to a probation officer at [omitted for publication] Community Corrections by 3:00 pm today (May19, 2022) and after that you may report by phone, as directed. c) 2202 - When first reporting to your probation officer, you must provide them with the address where you live and your phonenumber.

You must not change your address or phone number without notifying your officer in writing in advance of any change. d) 2002 - You must have no contact or communication, directly or indirectly with A.A. – no exceptions. e) 2005 - You must not go to or be within 50 m of any place where A.A. lives, works, attends school, worships, or happens to be.

If yousee them, you must leave their presence immediately without any words or gestures. f) 2401-2 – You must no possess or consume drugs except with a medical prescription. g) 2501 - You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by yourprobation officer. This may include counselling or programming for sexual offence prevention. h) 2509 - You must complete 100 hours of community work under the direction of your probation officer. Your community work

service must be completed within the first 12 months of your probation. i) 2610 - You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including : a. firearms and ammunition; b. cross-bows, prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation of all the above, including any compressed air guns or BB/pellet guns; or e. any related authorizations, licenses and registration certificates, and you must not apply for any of these. [ 41 ] Count 1 on Information 110059-1 is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. [ 42 ] You must attend at the RCMP station in [omitted for publication] on or before May 31, 2022 (Tuesday or Thursdays at 10:00 a.m.) and submit to the taking of the samples. This order is valid until executed. [ 43 ] I am not making a s. 110 weapons prohibition order. I do not see it as necessary in the circumstances given that there was no violence or weapons involved and I have included a no weapons condition in the probation order. [ 44 ] I am not making any SOIRA orders.

I agree with and adopt the submissions of counsel that it does not apply in these circumstances because I have not entered a conviction against P.C. [ 45 ] I have given both Crown and Defence counsel the opportunity to respond to my comments about an increased victim fine surcharge. After hearing submissions, I am ordering a victim fine surcharge as it is appropriate in the circumstances. Pursuant to s. 737(3) there will be a victim fine surcharge in the amount of $500. This is reflective of the violation that sexual assault victims suffer and the costs to society.

It must be paid to the clerk of the court within 60 days. ________________________ L. Bennett Provincial Court Judge