R. v. Blanthorne, 2024 BCSC 227

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Blanthorne, 2024 BCSC 227 Date: 20240110 Docket: 110606 Registry: Kamloops Rex v. Jacob Ross Blanthorne Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant referred to in this judgment by the initials I.T. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Coval Oral Reasons for Sentence Counsel for the Crown: L.A.

Drake Counsel for the Accused: P.W. Janzen Place and Date of Hearing: Kamloops, B.C. December 22, 2023 Place and Date of Judgment: Kamloops, B.C. January 10, 2024 Table of Contents Introduction .. 3 Mr.

Blanthorne's Circumstances .. 3 Victim Impact .. 4 Factual Findings .. 5 Legal framework . 5 Findings for sentencing purposes . 6 Sentencing Principles .. 10 Analysis .. 15 Aggravating factors . 15 Mitigating factors . 15 Comparable cases . 16 Crown cases . 16 Defence cases . 18 Conclusion .. 20 Ancillary Orders .. 22 Sex Offender Information Registration Act , S.C. 2004, c. 10 . 22 Non-communication while in custody order 24

Section 161 orders . 25

Weapons prohibition .. 26 DNA order 27 Introduction [ 1 ] THE COURT: On June 13, 2023, Mr. Blanthorne was convicted by a jury of the three counts charged. The counts were that, from June 28, 2016 to September 1, 2019, at or near Vavenby and Clearwater, British Columbia, he: • Count 1, sexually assaulted l.T., contrary to s. 271 of the Criminal Code , R.S.C. 1985, c.

C-46 ; • Count 2, for a sexual purpose, touched, directly or indirectly, with a part of his body or with an object, the body of l.T., a person under the age of 16 years, contrary to s. 151 of the Criminal Code ; • Count 3, for a sexual purpose, invited, counselled, or incited I.T., a person under the age of 16 years, to touch, directly or indirectly, with a part of his body, or with an object, his body, contrary to s. 152 of the Criminal Code . [ 2 ] The Crown seeks a penitentiary sentence of five to six years on Count 2.

On Count 1, it seeks a conditional stay because this count involves the same conduct as Count 2, which is the more serious and applicable offence. On Count 3, the Crown seeks a one-year concurrent sentence. Although it involved separate and different conduct, it was part of a single endeavour by the accused. [ 3 ] For Count 2, the defence submits that a sentence of two to three years is appropriate. The defence accepts the Crown's approach of staying Count 1 and a one-year concurrent sentence on Count 3, and I agree those are appropriate. Mr. Blanthorne's Circumstances [ 4 ] Mr. Blanthorne is 29.

He was 28 at the time of trial, and 23 and 24 when he committed these crimes. [ 5 ] He surrendered himself when charged and was released on bail. He has no previous criminal record, no breaches of his bail terms, and no allegations of subsequent wrongdoing or offending. [ 6 ] He has been gainfully employed since high school, except for parental leaves when his eldest two sons were born. They are now six and eight years old, and live with their mother, Ivy Blanthorne. The Blanthornes were married in December 2016 and separated in April 2021. [ 7 ] According to the pre-sentence report, Mr.

Blanthorne is now living with his girlfriend, Alysha Waller, in Alberta. She is aware of the charges against him and disputes their veracity. They have a one-year-old child and Ms. Waller was 12 weeks pregnant at the time of the PSR with the couple's second child. Ms. Waller also has an eight-year-old daughter, unrelated to Mr. Blanthorne, who is being parented by Ms. Waller's father. Ms. Waller has parenting of her in the summer and on holidays. [ 8 ] According to the PSR, Mr.

Blanthorne "denied any responsibility for the offences, expressed no remorse, and lacks plans to make amends to his victim as he says 'nothing happened'." [ 9 ] He described his mother and father as his closest family members, but declined to provide their information to the PSR writer. [ 10 ] Mr. Blanthorne told the PSR writer his long-term goals include expanding his family with Ms. Waller and buying a farm. Ms. Waller is reported to have made the surprising and concerning remark to the PSR author that it would be a pig farm because she is "madly in love" with serial killers and corresponds with Robert Pickton.

Victim Impact [ 11 ] I.T. provided a victim impact statement in October 2023. [ 12 ] I agree with the Crown's characterization that it reflects the devastating past, present, and future consequences of sexual violence to children described by the Supreme Court of Canada in R. v. Friesen , 2020 SCC 9 . [ 13 ] I.T. recounts that these events caused her to attempt suicide. She describes them causing her social anxiety, depression, flashbacks, panic attacks, insomnia, and an eating disorder which she believes is related to depression.

They have harmed her relationships with family and friends, and her ability to trust people. [ 14 ] She describes difficulty with family gatherings and holidays, among other triggers that she associates with Mr. Blanthorne and his abuse. Factual Findings

[15] Because of the duration and frequency of the abuse alleged by I.T., there is ambiguity regarding the number of incidents ofsexualized touching that the jury found proven beyond a reasonable doubt. [16] Regarding the findings to be made for sentencing, the Crown asserts that, looking at the jury's verdict in light of the evidence,submissions, and instructions, they found I.T. to be a credible and reliable witness.

The Crown submits that it is therefore appropriate forthis court to accept all of her evidence as proven beyond a reasonable doubt. [17] The defence argues against accepting two aspects of I.T.'s evidence for sentencing purposes: first, regarding I.T.'s allegations ofcertain specific incidents where there were discrepancies in her evidence; and, second, regarding her allegations of the frequency ofMr. Blanthorne's acts of sexual interference, because they were not supported by specific recollections or details.

Legal framework [18] Where a person is convicted by a jury, s. 724(2) of the Criminal Code governs fact-finding for the sentencing proceedings:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [19] In R. v. Ferguson, 2008 SCC 6, the Supreme Court of Canada tells us that two principles guide fact-finding for sentencingpurposes after a jury conviction: [17] … It was open to [the trial judge] under s. 724(2)(

b) of the Criminal Code to supplement the jury's findings insofar as this wasnecessary for sentencing purposes. However, it was not open to him to go beyond what was required to deal with the sentencing issuesbefore him, or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was it open to him to find facts inconsistentwith the jury's verdict or the evidence; a trial judge must never do this. …It is speculative and artificial to attribute a single set of factualfindings to the jury, unless it is clear that the jury must unanimously have found those facts.

Where any ambiguity on this exists, the trialjudge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury's findings. [20] The Crown relies on R. v. J.M., 2016 ONSC 5139, at paras. 9-11, and the cases cited there, for the principle that the sentencingjudge is not obliged to find only those facts that least implicate the accused "particularly if the weight of the evidence convinces a judgeof a more onerous foundation in the facts". Findings for sentencing purposes [21] I agree with the Crown that the reasonable

interpretation of the verdict, in the context of the case as a whole, is that the juryfound I.T. to be a credible and reliable witness and accepted her evidence. [22] First, as the Crown points out, this is not a case where an offender was convicted of some, but not all, of the offences charged, orwhere an offender was convicted of a lesser included offence. [23] Second, the jury was, of course, instructed to apply the W.(D.) framework (R. v. W.(D.), (SCC), [1991] 1 S.C.R.742), and so the verdict indicates they did not believe Mr. Blanthorne's testimony and that it did not raise a reasonable doubt.

Instead, theverdict indicates the jury accepted I.T.'s evidence, some of which was corroborated by Ivy Blanthorne's evidence, and that the overallCrown case left them without a reasonable doubt about Mr. Blanthorne's guilt on the charges. [24] Third, Mr. Blanthorne offered little more than a blanket denial of all of I.T.'s allegations.

From this perspective, there was noapparent reason to accept some, but not all, of her evidence. [25] To the extent that there might nevertheless be ambiguity in the factual implications of the jury's verdict, I find that I.T.'s evidenceregarding all of her allegations was credible, reliable, and consistent, and did not waiver in cross-examination. [26] I disagree that the discrepancies asserted by the defence support a finding that some of her allegations were not proven beyond areasonable doubt. Specifically, the defence relied on the following:

a) In the alleged incident where Mr. Blanthorne abused I.T. in his trailer, she testified that, at the time, she did not know what anerection was, but she saw the outline of his penis through his boxers and it was hard. However, in the preliminary inquiry when asked if she saw his penis, she said no. In my view, there is no clear discrepancy here. Seeing the outline of Mr. Blanthorne's penis through his boxers is, of course, not the samething as seeing his penis itself. In addition, the aftermath of this episode was corroborated by Ivy Blanthorne in a manner that stronglysupported I.T.'s allegations of what occurred and contradicted Mr. Blanthorne's denials.

b) In the camping trailer in Vavenby, Mr. Blanthorne sat on the couch between I.T. and her younger sister. There was a blanket over allthree of them. I.T. testified that, underneath the blanket, he touched her legs and vagina over her clothes. In cross-examination, she acknowledged that in her police statement she said that Mr. Blanthorne was rubbing her leg but did not mentiontouching her vagina.

I do not find this discrepancy to cast doubt on I.T.'s allegations. I.T. gave her statement to the police on September 21, 2020, when she had just turned 13. At trial, she testified that she was very scared and nervous at the time and did not think she was ready to tell the police every single thing that happened. Given the overall credibility and reliability of her evidence about her allegations, I accept this as a full explanation for the discrepancy in her two descriptions of what occurred.

c) I.T. described a kiss in Mr. Blanthorne's moving van near her grandmother's house. In cross-examination, she agreed this was when the Blanthornes were moving to the Lower Mainland and that in her police statement she said, "He did kiss me a lot, like the first time was outside my grandmother's house". Defence argues this indicates the very first kiss did not occur until the Blanthornes were moving to the Lower Mainland, which was inconsistent with I.T.'s evidence that he behaved sexually towards her almost every time they saw each other and kissed her many times on the lips.

I find this not to be a material discrepancy. The evidence is vague regarding whether the kiss she is describing at the time of the Blanthornes' move is the same as the first kiss she is describing outside her grandmother's house. [ 27 ] Turning to the defence submission that I.T.'s general allegations of the frequency of abuse should not be accepted because it is vague and unsupported by specifics, her evidence in that regard was that Mr. Blanthorne: (

i) behaved sexually towards her almost every time he saw her; (ii) kissed her many times on her lips; (iii) touched her vagina a lot, sometimes directly on the skin, though she could not recall the specific details of such an episode; (iv) showed her texts about how pretty she was and what he loved about her, and then deleted them; and (

v) when they drove in a car, including on the trip to Vancouver, if she was seated behind him, he would reach back and touch her legs from the ankles to the knees. [ 28 ] I find the weight of the overall evidence proved, beyond a reasonable doubt, that the general conduct I.T. described occurred frequently during the two years in question. Once again, I base this on the general credibility, reliability, and persuasiveness of I.T.'s evidence and the fact that Mr.

Blanthorne offered only a blanket denial, which I find raised no reasonable doubt about any of her allegations. [ 29 ] Having addressed the defence arguments regarding the aspects of I.T.'s evidence which were disputed for sentencing purposes, I find that her evidence, as corroborated by Ivy Blanthorne in some key respects, proved the following beyond a reasonable doubt. [ 30 ] I.T. was introduced to Mr. Blanthorne in around June 2017, when she was nine years old.

Ivy Blanthorne was a long-time family friend of her mother's and spent a lot of time with the Blanthornes after they moved to the area. [ 31 ] For approximately two years, when I.T. was between nine and 11, Mr. Blanthorne engaged in repeated sexualized behaviour and touching of her.

This started when the Blanthornes were living in the camping trailer in Vavenby, and continued after they moved to the Brookfield Trailer Park. [ 32 ] Regarding Count 1 and Count 2, he sexually touched her on a regular basis, including kissing on the lips, touching her legs, breasts, rear end, vagina, placing her body on top of his and moving her body back and forth over where his penis was, and twice taking her hand and making her touch his penis with her hand. [ 33 ] The abuse included the following specific incidents of sexualized touching: • In the Brookfield Trailer Park when Ivy Blanthorne had to leave, Mr.

Blanthorne told I.T. to lock the door. He took her to the bedroom and touched her sides, her legs, and her vagina. He took her shorts off. He took his pants off but kept his boxers on. He put I.T. on top of him and moved her back and forth. She could feel his erection underneath her. Ms. Blanthorne came home while this incident was occurring and saw Mr. Blanthorne with an erection a short time later. • In the Vavenby trailer, when I.T. was watching a movie with Mr. Blanthorne and her younger sister while Ivy Blanthorne was vacuuming, there was a blanket over them and Mr.

Blanthorne touched her leg and vagina underneath the blanket. • In the trailer in Clearwater, when Ivy was napping, Mr. Blanthorne lifted up a blanket I.T. had over her shoulders so her sister could not see, and kissed her behind the blanket. • In the laundry trailer, when he lifted I.T. up and was kissing her and touching her rear end, and moving her up and down on his body where his penis was. • He put an ice cube in his mouth and showed I.T. how to pass the ice cube between their mouths while he was kissing her and rubbing her leg. • On a trip to the Lower Mainland, while Ms.

Blanthorne took a nap, he touched I.T.'s legs, kissed her, and touched her breasts under her shirt. • In the Brookfield Trailer Park, when in a house he was working on, he lifted her onto a counter and stood between her legs, kissing her, touching her thighs, and touching her vagina. Then, back in Mr. Blanthorne's trailer, he put her on top of him. She could feel his erection against her vagina. She broke down and started crying, and he told her it would be okay and that she did not have to, and not to

tell anyone. • On one or two occasions, he made her touch his penis with her hand and taught her how to masturbate him. She did not know if he ejaculated. [ 34 ] Regarding Count 3, there were two incidents: one in a moving van in which Mr. Blanthorne typed out to I.T. a message on his phone and it read, "Can we kiss"; and another in the Vavenby house mudroom where Mr. Blanthorne asked I.T. multiple times if she wanted to kiss.

Sentencing Principles [ 35 ] Defence counsel generally accepted the Crown's submissions regarding sentencing principles, the applicable Criminal Code provisions, and aggravating and mitigating factors. [ 36 ] The maximum sentence for sexual interference is 14 years in jail (s. 151(a)). The mandatory minimum punishment of one year was struck down as unconstitutional in R. v. Scofield , 2019 BCCA 3 . The maximum sentence for invitation to sexual touching is 14 years.

The mandatory minimum punishment for invitation to sexual touching is one year: s. 152 (a). [ 37 ] Friesen tells us says that upward departure from prior precedents may well be required to impose fit sentences on child sexual offenders, and that mid-single-digit penitentiary terms for sexual offences against children are normal, and upper single-digit and double- digit penitentiary terms are neither unusual nor reserved for exceptional circumstances. [ 38 ] Friesen also identifies certain significant factors for consideration in sentencing for child sexual abuse:

a) likelihood to reoffend;

b) abuse of a position of trust or authority;

c) duration and frequency of abuse;

d) age of the victim;

e) degree of physical interference; and

f) the inability of children to consent. [ 39 ] The principles applicable to sentencing of child sexual offences were recently summarized by the Court of Appeal in R. v. C.K ., 2023 BCCA 468 , paras. 50-62 . [ 40 ] For the Court, Justice DeWitt-Van Oosten emphasized the importance of closely examining the harmfulness and wrongfulness of an offender's conduct, prioritizing denunciation and deterrence, and ensuring that the sentence reflects these considerations in the circumstances of the case.

Only then will a sentence properly reflect society's "deepened understanding of the wrongfulness and harmfulness of sexual violence against children … and the far-reaching and ongoing harm that it causes to children, families, and society at large." [ 41 ] I quote C.K . paras. 50-62 in full here, because I have used them as a guide to sentencing in this case: [50] The Criminal Code stipulates that all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 . In R. v.

Bissonnette , 2022 SCC 23 , the Supreme Court of Canada explained what this means: [50] … The sentence must be severe enough to denounce the offence but must not exceed “what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence” … Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system.

The application of this principle assures the public that the offender deserves the punishment received … [51] It follows that “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending” … In a similar vein … “striving for exemplarity to the detriment of evidence of the merit of rehabilitation objectives is incompatible with the principle of individualization” ...

Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate. [Internal references omitted.] [51] Specific to child sexual offences, judges are mandated to prioritize the sentencing objectives of denunciation and deterrence: s. 718.01. The meaning of denunciation and deterrence was also addressed in Bissonnette : [46] … the penological objective of denunciation requires that a sentence express society’s condemnation of the offence that was committed.

The sentence is the means by which society communicates its moral values … This objective must be weighed carefully, as it could, on its own, be used to justify sentences of unlimited severity … [47] As for the objective of deterrence , it has two forms. The first, specific deterrence, is meant to discourage the offender before the court from reoffending.

The second, general deterrence, is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender has been convicted … When this objective is being pursued, the offender is punished more harshly in order to send a message to the public or, in other words, to serve as an example. General deterrence is an

objective that must be weighed by a court, but the effectiveness of which has often been questioned. These legitimate reservationsnotwithstanding, the fact remains that the certainty of punishment, together with the entire range of criminal sanctions, does produce acertain deterrent effect, albeit one that is difficult to evaluate, on possible offenders … [Internal references omitted; emphasis added.] [52] In accordance with s. 718.2(

a) of the Criminal Code, sentences should be “increased or reduced to account for any relevantaggravating or mitigating circumstances”. Specific to child sexual offences, certain factors are statutorily deemed as “aggravating”: abuseof a family member (s. 718.2(a)(ii)); abuse of a person under the age of 18 (s. 718.2(a)(ii.1)); breach of trust or authority in relation to thevictim (s. 718.2(a)(iii)); and evidence of a significant impact on the victim, considering their age and other personal circumstances (s.718.2(a)(iii.1)). [53] The Criminal Code’s sentencing framework is supplemented by case law.

This includes Friesen, which is currently the leadingauthority on sentencing for child sexual offences in this country and directs sentencing courts to pay particular attention to the harmscaused by child sexual abuse: Friesen para. 50. [54] Friesen established a new analytical approach to sentencing for child sexual violence. It is an approach that “… places children,and the harm they suffer, at the centre of the discussion”: R. v. Bertrand Marchand, 2023 SCC 26 at para. 32, emphasis added.

TheFriesen framework reflects society’s deeper understanding of the immediate and long-term impacts of sexual abuse on children, theirfamilies, their communities, and society at large: at paras. 50, 60–67, 74–86. [55] These impacts include: harm to children’s “… personal autonomy, bodily integrity, sexual integrity, dignity, and equality …”;damage to their relationships with their caregivers and other social relationships; “profound harm” to parents, caregivers, and familymembers who may be left “feeling powerless and guilty” over their child’s experience; and “… broader harm to the communities inwhich children live and to society as a whole”: Friesen at paras. 51, 60–64. [56] On the latter point, Friesen recognizes that “… children who are victims of sexual violence may be more likely to engage insexual violence against children themselves when they reach adulthood …”: at para. 64.

These offences “… can thus fuel a cycle ofsexual violence that results in the proliferation and normalization of the violence in a given community …”: Friesen at para. 64. [57] The harms identified and accepted as true in Friesen “… impact both the gravity of the offence and the degree of responsibilityof the offender”: Friesen at para. 75. See also R. v. P.R.J., 2023 BCCA 169 at paras. 53–55 [P.R.J.]. [58] Consequently, the harmfulness and the wrongfulness of an offender’s conduct must be closely examined when determining a fitsentence for a child sexual offence.

It is not enough to acknowledge the relevance of these considerations. The harms that flow from theconduct and the wrongfulness (or blameworthiness) of the offender’s actions must be analyzed and applied to the individualcircumstances of the case. Critically, they must be reflected in the sentence itself: R. v. SADF, 2021 MBCA 22 at para. 34; Nystrom atpara. 53. [59] As aptly noted by the Ontario Court of Appeal in R. v.

T.J., 2021 ONCA 392 [T.J.]: [39]`… Friesen does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that thosefactors be reflected in a sentence that is of sufficient length to recognize them. [Emphasis added.] [60] Specific to moral blameworthiness, the Supreme Court of Canada said this in Friesen: [87] Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children intoaccount when determining the offender’s degree of responsibility. [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 … [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 … Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant toassessing the offender’s moral blameworthiness and to the sentencing objective of denunciation … [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 … Offenders recognize children’sparticular vulnerability and intentionally exploit it to achieve their selfish desires … [91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability.The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more” … First, as sexualassault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be lessmorally blameworthy in some cases than in others.

Second, the personal circumstances of offenders can have a mitigating effect. Forinstance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moralculpability … [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 … The systemic and background factors that have played a role in bringing the Indigenous person before the

court may have a mitigating effect on moral blameworthiness ... Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community ... [Internal references omitted; emphasis added.] [61] A sentencing analysis that does not give proper effect to moral blameworthiness is likely to result in a skewed proportionality analysis, one that “… risks the offender’s personal circumstances overwhelming the determination of a fit sentence”: P.R.J. at para. 53 .

The risk was explained this way in T.J. : [33] Where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen’s message. [62] I agree. In those circumstances, the sentence will not properly reflect society’s “… deepened understanding of the wrongfulness and harmfulness of sexual violence against children … and the far-reaching and ongoing harm that it causes to children, families, and society at large”: Friesen at para. 5 .

Analysis Aggravating factors [ 42 ] I agree with the Crown that the following aggravating factors are proven beyond a reasonable doubt:

a) the severity, frequency, and duration of Mr. Blanthorne's abuse, which are all significant aggravating factors;

b) I.T.'s young age at the time, which is a significant aggravating factor;

c) the serious psychological and emotional harm to I.T. – past, present, and future – which is a significant aggravating factor;

d) Mr. Blanthorne's position of trust relative to I.T. is an aggravating factor. While he was not in a parental-type role, he was in a position of some trust. I.T.'s mother allowed I.T. and her siblings to have frequent, unsupervised contact with Mr. and Ms. Blanthorne, including sleeping over at their house (see R. v. T.J ., 2021 ONCA 392 ); and

e) Mr. Blanthorne's grooming of I.T. He frequently told her not to tell anyone, in concert with telling her things like he loved her and making her feel special. [ 43 ] Crown counsel properly emphasized that Mr. Blanthorne's denial of his crimes and associated lack of remorse are not to be treated as aggravating factors. Mitigating factors [ 44 ] The Crown accepts as a mitigating factor the defence's submission regarding Mr. Blanthorne's lack of prior criminal record.

I do note, though, that this factor has reduced weight in circumstances such as here, where the offence was committed numerous times over a long period (see R. v. R.M ., 2019 BCCA 409 , paras. 23-25 ). [ 45 ] I accept the defence's submissions that additional mitigating factors are that Mr.

Blanthorne has been gainfully employed continuously since high school and is the sole supporter of his new family. [ 46 ] I also accept as a mitigating factor, based on the letters of reference from two aunts who have known him since childhood, that apart from the terrible crimes he committed here, he has been a good family man with a close relationship to his two sons to whom he is devoted. [ 47 ] There is no risk assessment in the PSR, because Mr. Blanthorne denies committing the offence.

Thus, there is not evidence from which to find proof of a likelihood to re-offend as an aggravating factor, nor is there evidence to suggest this consideration is a mitigating factor. I do accept though, as a mitigating factor, that the PSR indicates Mr. Blanthorne's willingness to take some counselling courses as directed. Comparable cases [ 48 ] Precedents provide useful guidance because sentences should be similar to those imposed for similar offences committed by offenders in similar circumstances. At the same time, two cases are almost never the same and sentencing is a fact-driven, individualized process.

One may sentence outside of the range suggested by prior decisions if doing so pursuant to the principles and objectives of sentencing: R. v. Nasogaluak , 2010 SCC 6 . Crown cases [ 49 ] The Crown proposes the following cases as guidance. [ 50 ] In R. v. S.S.M. , 2023 BCSC 1339 , S.M. was convicted, after a judge-alone trial, of sexual interference, invitation to sexual touching, and sexual assault of his younger cousin. He received four-and-a-half years concurrent for sexual interference and invitation to sexual touching.

[ 51 ] S.M. lived with the victim's family for a few years, and then he and his family lived nearby and visited frequently. [ 52 ] The sexual abuse for which he was convicted occurred on many occasions over three years when A.D. was between eight and 11. It included incidents of using his hand, penis, and tongue to touch areas of her body such as her bottom and vagina.

He inserted his fingers into her vagina, instructed her to hold his penis, and placed his penis in her mouth while pulling her head towards him. [ 53 ] The offender had no criminal record and had 14 letters of support at sentencing speaking to his good character. [ 54 ] This case resembles our case in important ways, including in terms of the age of the victim, frequency and duration of abuse, and victim impact.

As in our case, the offender had no prior record and continued to deny guilt, and so there was no evidence regarding likelihood of reoffending. [ 55 ] Overall, I view the degree of physical interference in S.S.M. somewhat more severe than this case. There were also some additional mitigating factors regarding S.M.'s youth at the time of the offence, and strong social and family network, and pursuit of education and training. [ 56 ] In R. v. Roper , 2020 ONSC 7411 , the offender was the boyfriend of the victim's mother.

He was convicted of sexual assault for three incidents involving the victim when she was nine years old, and sentenced to five-and-a-half years. [ 57 ] There were three episodes of abuse, including twice putting his hand inside the victim's underwear and rubbing her vagina, and rubbing his penis against her vagina, sometimes while it was outside of his clothes.

One episode also involved touching her nipples [ 58 ] The accused had no criminal record and maintained his innocence. [ 59 ] This case resembles ours in many ways, including aggravating and mitigating factors (see paras. 28-30) although the abuse was limited to three occasions. The court referred to no other cases in reaching its decision. [ 60 ] In R. v. Z.K. , 2021 BCSC 1926 , Z.K. sexually abused his daughter repeatedly for approximately once or twice a month for two years, from when she was in Grade 4 to Grade 6.

He was sentenced to seven years concurrent on each count [ 61 ] The sexual touching included touching her breasts, rubbing and penetrating her vagina with his fingers, masturbating in front of her, and ejaculating on her leg and forcing his penis into her mouth and ejaculating. [ 62 ] I find this case distinguishable from ours due to the severity of the abuse and the seriously aggravating factor that the perpetrator was the victim's father. As the court pointed out, he was therefore not only in a position of trust, but the person who was supposed to protect her and guide her through life.

Defence cases [ 63 ] Defence counsel relied on the following cases. [ 64 ] In R. v. D.A ., 2021 BCPC 317 , the victim was nine. The offender was her stepfather's brother, in his late thirties at the time. He received 20 months for three instances of sexual touching. [ 65 ] The abuse was less frequent and invasive than our case, and there were the important additional mitigating factors of an early guilty plea, cooperation with the police investigation, and expression of a desire for treatment. Mr.

Janzen, recognizing these differences, submitted that this case supported a sentence of two to three years in our circumstances. [ 66 ] In R. v. D.M. , 2021 BCSC 379 , the perpetrator received a sentence of 90 days for four incidents of abuse. The frequency, duration, and intrusiveness of the abuse was materially less than our situation and there was less emotional damage to the victim (see paras. 42, 49). The judge said, “I do not find that the duration and frequency of sexual contact in this case rises to the level of a significant aggravating factor.” [ 67 ] In R. v.

J.N.P., 2020 BCSC 570 , the abuse involved only one incident by an uncle on his niece when she was 15 years old, but it was severe and "profoundly demeaning". He was sentenced to three years. [ 68 ] The aggravating factors shared similarities to this case, including the impact on the victim (see para. 28), but also included that the victim was Indigenous. In terms of mitigating factors, the offender was Indigenous and referred in his evidence to growing up in a "cycle of violence" and not escaping "intergenerational trauma". [ 69 ] In R. v.

Josephson , 2021 BCSC 1947 , the abuse of a 10-year-old boy was severe and occurred twice. There was significant continuing victim impact, described by the judge as "life-changing". The perpetrator was his mother's boyfriend and in his early thirties. [ 70 ] The judge saw three years of incarceration as the appropriate sentence but, at the request of both sides, reduced it to two years less a day to maximize the period of probation. Many of the aggravating and mitigating factors were similar to this case, although an important difference was the finding of a low risk to reoffend.

There were only two episodes of abuse, but they were very severe. In my view, this differentiates the case somewhat from this case. [ 71 ] In R. v. T.C.S.T. , 2023 BCSC 1656 , the court accepted a joint submission of three years' imprisonment.

Although a joint submission, Justice Ker carefully analyzed the case in terms of the key factors identified in Friesen and found the recommended sentence was supported by the authorities provided, which "appropriately balances the aggravating and mitigating factors" and "properly reflects the principles of sentencing". [ 72 ] The victim was the perpetrator's 12-year-old stepdaughter. The abuse included numerous violations of her sexual and physical

integrity which were similar to this case, though perhaps somewhat more severe. The terrible impact on the victim was much like what has befallen I.T. [ 73 ] There were significant mitigating factors not applicable to our situation. The judge accepted the psychiatric evidence of a low risk to reoffend as a "significant mitigating factor".

There was an early guilty plea, and consistent, profound, and genuine acceptance of personal responsibility and remorse, and severe consequences had already faced the perpetrator, including no contact with his young son, a civil lawsuit, and damage to his business. [ 74 ] Finally, R. v. Gerrard , 2021 BCSC 1219 , was a sentence of 20 months. I do not find it helpful as it involved a single incident of less severity than our situation and a finding of "a very low risk to reoffend".

Conclusion [ 75 ] While taking into account all the aggravating and mitigating factors described above, it is particularly important that Mr. Blanthorne's sentence reflect his high degree of moral blameworthiness for the extent, frequency, and duration of his abuse of I.T. at her young age, and the terrible impact his crimes have inflicted on her.

His position as a trusted family friend is also significant. [ 76 ] The primary mitigating factor is lack of a prior criminal record, though this has reduced weight here for the reasons mentioned above. [ 77 ] Friesen tells us that sexual violence against children committed multiple times over a long period should attract significantly higher sentences that reflect the cumulative gravity of the crime: [131] … The frequency and duration [of sexual offending] can significantly increase the harm to the victim … [and] magnifies the severity of the offence.

It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults … [ 78 ] C.K. says that a sentencing analysis that does not give proper effect to moral blameworthiness "risks the offender's personal circumstances overwhelming the determination of a fit sentence". [ 79 ] In C.K. , DeWitt-Van Oosten J. concluded from her review of Friesen and the appellate sentencing cases that have followed it: [112] … [A] substantial penitentiary term is no longer treated as unusual or reserved for rare or exceptional circumstances, even for a first-time sexual offender: Friesen at para. 114 . [ 80 ] Bearing these principles in mind, and using the cases described above as guidance, I find the most comparable of the Crown's cases to be S.S.M. , a decision of this court, at four-and-a-half years.

Also instructive is G.M. at five-and-a-half years. [ 81 ] From the defence cases, I find T.C.S.T. instructive at three years, although the mitigating factors were weightier and I give it reduced weight for being a joint submission, despite Ker J.'s thorough analysis. I find Josephson at three years somewhat comparable, although in that case there were only two abusive episodes, though very severe in nature, which do differentiate it from our situation.

There was also a finding of low risk to offend. [ 82 ] Bearing all this in mind leads me to a conclusion that four-and-a-half years is the appropriate sentence in this circumstance. [ 83 ] Mr. Blanthorne, would you please stand. [ 84 ] On Count 2, I sentence you to a penitentiary term of imprisonment of four-and-a-half years, which is 54 months. [ 85 ] On Count 3, you are sentenced to a concurrent one-year sentence. [ 86 ] On Count 1, there is a conditional stay. [ 87 ] Thank you. You may be seated again.

Ancillary Orders Sex Offender Information Registration Act , S.C. 2004, c. 10 [ 88 ] A SOIRA order is mandatory in these circumstances. The issue is duration. The Crown says it should be for life and the defence says 20 years. [ 89 ] The Criminal Code sections pertaining to the imposition of a SOIRA reporting obligation were recently changed. Those now in force applicable to Mr. Blanthorne say: 490.012

(1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if (

a) the designated offence was prosecuted by indictment; (

b) the sentence for the designated offence is a term of imprisonment of two years or more; and

(

c) the victim of the designated offence is under the age of 18 years. [ 90 ] These conditions are all satisfied. A "designated offence" is defined in s. 490.011, and includes s. 151 , sexual interference, and s. 152 , invitation to sexual touching. Mr. Blanthorne was prosecuted by indictment. I.T. was under the age of 18. [ 91 ] The duration of the SOIRA order is governed by s. 490.013, which was created in response to R. v. Ndhlovu , 2022 SCC 38 , where the Supreme Court struck down the prior mandatory registration provisions. [ 92 ]

Section 490.013 says: Date order begins 490.013

(1) An order made under

section 490.012 begins on the day on which it is made. Duration of order — s. 490.012(1) or (3)

(2) An order made under subsection 490.012(1) or (3) (

a) subject to subsections (3) and (5), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years; (

b) subject to subsections (3) and (5), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and (

c) applies for life if the maximum term of imprisonment for the offence is life. Duration of order — offences in same proceeding

(3) An order made under subsection 490.012(1) or (3) applies for life if (

a) in the same proceeding, the person has been convicted of, or a verdict of not criminally responsible on account of mental disorder is rendered for, two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and (

b) the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature. If court not satisfied

(4) If paragraph (3)(

a) applies in the circumstances but the court is not satisfied as set out in paragraph (3)(b), the duration of the order is determined by applying paragraphs (2)(

a) to (

c) to the designated offence with the longest maximum term of imprisonment. Duration of order — other order or obligation

(5) An order made under subsection 490.012(1) or (3) applies for life if the person (

a) was previously convicted of, or previously received a verdict of not criminally responsible on account of mental disorder for, a primary offence or an offence under

section 130 of the National Defence Act in respect of a primary offence; or (

b) is, or was at any time, the subject of an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act. Duration of order — s. 490.012(2)

(6) An order made under subsection 490.012(2) applies for life. [ 93 ] There is no dispute that s. 490.013(3)(

a) is satisfied. Mr. Blanthorne was convicted of two designated offences in this proceeding in connection with which an order under s. 490.012(1) may be made. [ 94 ] Regarding (4), the Crown submits that his offences demonstrate that he presents an increased risk of reoffending by committing a crime of a sexual nature and, as such, the order should be for life.

If the court is not so persuaded, then as per s. 490.013(2)(b), the duration of the order should be for 20 years, as the maximum term of imprisonment for both offences for which he has been convicted is 14 years. [ 95 ] In my view, and taking guidance from the discussion about increased risk of reoffending in Ndhlovu , these offences demonstrate that Mr. Blanthorne presents an increased risk of reoffending by committing a crime of a sexual nature. I say this because of the frequency, duration, and severity of the sexual crimes which he committed against a child, and because of Mr.

Blanthorne's relatively young age. Defence pointed to nothing from which one might conclude that, despite all of this, he does not present an increased risk of sexual recidivism compared to the general population or others with a criminal record ( Ndhlovu , paras. 91-101 ). [ 96 ] Although, as I have said above, these considerations do not reach the level of proving beyond a reasonable doubt that the risk of offending should be an aggravating factor in sentencing, in my view they are sufficient evidence for purposes of s. 490.013(3)(b) [ 97 ] The SOIRA order is therefore made for life.

Non-communication while in custody order [ 98 ]

Section 743.21 allows for an order prohibiting Mr. Blanthorne from communicating, directly or indirectly, with any victim, witness, or other person identified in the order during the custodial period of the sentence. [ 99 ] The Crown seeks such an order for both I.T. and Ivy Blanthorne. Defence opposes the inclusion of Ms. Blanthorne. [ 100 ] Crown advises that Ms. Blanthorne has requested this order because she wishes to cease contact and is fearful of Mr. Blanthorne.

Defence says there has been no evidence or indications of threats or violence, and that they have the ongoing obligation to co-parent their two sons who, as I have mentioned, are around the ages of six and eight years old. [ 101 ] I decline to make the order regarding Ms. Blanthorne. I do this because of the principle of restraint in sentencing, because of the Blanthornes' need to continue cooperative parenting even while Mr. Blanthorne is incarcerated, and because of the lack of indication in the trial, PSR, or sentencing hearing of threats or violence towards her.

In terms of her fearfulness, the order would only apply, in any event, while he was in custody. [ 102 ] I therefore make a non-communication and non-contact order for the duration of the sentence, directly or indirectly, with I.T. alone.

Section 161 orders [ 103 ] The Crown seeks an order under s. 161(1)(a.1) that Mr. Blanthorne not be within two kilometres of where I.T. lives for the rest of his life. The defence did not oppose. I make that order. [ 104 ] Mr. Blanthorne currently resides in Alberta and has no apparent plans to move to where I.T. lives. This order should have little to no impact on his life, while simultaneously affording I.T. at least some measure of comfort she will not have to see him near her home ever again. [ 105 ] The Crown also seeks an order under s. 161(1)(

c) that Mr. Blanthorne be prohibited from having contact or communication with a person under the age of 16, unless he is supervised by an adult the court considers appropriate and except for incidental contact in a public place. [ 106 ] Defence opposed the order extending to Mr. Blanthorne's own biological children. [ 107 ] Based on the general principle of restraint in sentencing, I agree the biological children should be excluded. Our law recognizes the importance of the parental relationship for children and society.

The letters of support from his two aunts suggest he has been an involved, responsible, and even devoted parent. This was not contradicted by the evidence at trial where there was no evidence to suggest that Mr. Blanthorne was any threat to his own sons. [ 108 ] I think there should be some initial supervision, however, given the nature of the offences and the lack of indication of Mr. Blanthorne's remorse or insight, and Ms.

Waller's troubling comments, which I agree with the Crown are legitimate considerations for this ancillary order. [ 109 ] The order I will make, though I would like to hear from counsel in a moment if this raises any questions or concerns, is that once Mr. Blanthorne has served his custodial term, any contact with his biological children should be supervised for the first six months by an adult the court considers appropriate. I think that is an appropriate order regarding his two older sons, but it obviously raises concerns regarding his child with Ms. Waller and with the baby she is carrying.

I would like to hear from counsel about how they suggest dealing with that issue. Perhaps those children will still be young enough that no such order is required. [ 110 ] So the order under s. 161(1)(

c) is that, except with respect to his biological children, Mr. Blanthorne is prohibited from having contact or communication with a person under the age of 16, unless he is supervised by an adult the court considers appropriate and except for incidental contact in a public place. Weapons prohibition [ 111 ] Section 109(1)(a.1)(ii) makes a weapons prohibition order mandatory where a person commits an indictable offence in which violence is used, threatened, or attempted against a child. It is uncontested that sexual abuse of a child constitutes violence. [ 112 ] I therefore make that weapons prohibition order, for weapons in 109(2)(

a) for 10 years and 109(2)(

b) for life. DNA order [ 113 ] Sexual interference and invitation to sexual touching are both defined in s. 487.04 as primary designated offences for the purposes of making a DNA order. As such, s. 487.051 makes it mandatory to order the authorizing of the taking of bodily substances that are reasonably required for the purposes of forensic DNA analysis. I make that order. [ 114 ] All right, counsel, that concludes the sentencing decision, subject to any comments or questions you have, and then also just addressing the s. 161 order regarding the biological children with Ms. Waller.

Before we come to that last issue, any other comments, questions, or concerns raised by the sentencing decision, Ms. Drake? [ 115 ] CNSL L. DRAKE: No, Justice.

[ 116 ] THE COURT: Thank you. Mr. Janzen? [ 117 ] CNSL P. JANZEN: No, I would simply ask that the court waive the imposition of the victim fine surcharge. He's going to be in custody… -- [ 118 ] … [ 119 ] THE COURT: All right, so I will waive that charge. [ 120 ] All right, any submissions about how to deal with initial supervision regarding the two youngest -- or the one youngest child and perhaps the two? The obvious alternatives are either to make the same order, the six-month supervision order, apply to them as well, or to have no order apply there. [ 121 ] CNSL L.

DRAKE: Well, given the Crown's initial submission, the Crown would submit that a six-month order is appropriate if this court is willing to make it. I do note that the language of s. 161 certainly makes it possible. The court can put in any conditions or exemptions required, and the Crown's submission would be that such an order would be fit, especially immediately following the completion of a lengthy penitentiary sentence. [ 122 ] THE COURT: Thank you. Mr. Janzen? [ 123 ] CNSL P.

JANZEN: In part, I would oppose it on a principle of restraint, but the practical aspect of this is it makes little sense to have it with respect to some of his children and not all of his children, so I guess I would take no position. [ 124 ] THE COURT: Yes, I appreciate that, Mr. Janzen. [ 125 ] So I think then, and I think for the reasons Ms. Drake gives, that approach is the better one, and so the six-month supervisory order will apply with respect to all of Mr. Blanthorne's biological children. [ 126 ] All right, anything else then? [ 127 ] CNSL P. JANZEN: No, thank you, Justice. [ 128 ] CNSL L.

DRAKE: Nothing from the Crown. [ 129 ] THE COURT: All right, Mr. Blanthorne. [To the gallery] Thank you all for coming today. Thank you, Madam Registrar, we will adjourn. “Coval J.”