R. v. E.H.S. Date:, 2013 BCPC 48

Citation: R. v. E.H.S. Date: 20130305 2013 BCPC 0048 File No: 156155-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.H.S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Laura M. Ford Counsel for the Defendant: Victor A. Simpson Place of Hearing: Victoria , B.C. Date of Hearing: February 19, 2013 Date of Judgment: March 5, 2013 [ 1 ] The Defendant E.H.S. was convicted after trial on the charge of sexual assault, contrary to s.271 of the Criminal Code . The

Crown prosecuted the matter by indictment. [ 2 ] A pre-sentence report was ordered after conviction, with a psychological component and a “Gladue” component to be included along with the basic material commonly provided by a probation officer. I now have all of the required documentation, together with a victim impact statement and a book of case authorities. [ 3 ] The Crown has submitted that a sentence of imprisonment in the range of 12 to 18 months would be appropriate in this case, followed by a lengthy period of probation.

The defence contends that all of the principles of sentencing could be adequately met by a lengthy suspended sentence and probationary conditions.

Counsel agree that a possible middle course, involving a conditional sentence order, is not available given the wording of ss. 742.1 and 752 of the Criminal Code and the fact that the Crown proceeded by indictment. [ 4 ] It is axiomatic that upon any sentencing proceeding the court is required to consider the nature of the offence charged, the particular circumstances under which the offence was committed in the case before the court, and the individual circumstances of the offender.

Those deliberations must take place against the backdrop of the sentencing principles set forth in ss. 718 to 718.2 of the Criminal Code . [ 5 ] As a matter of general consideration, it is clear that the offence of sexual assault is to be taken very seriously for sentencing purposes.

When prosecuted by indictment, as in this case, it is an offence which carries a maximum period of imprisonment of ten years. [ 6 ] Where the offence involves a victim under the age of 18 years, the court is specifically directed by s. 718.01 of the Criminal Code to give primary consideration to the objectives of denunciation and deterrence when imposing sentence. That is not a new development in sentencing.

The courts have always taken the view that the inequality of power between adults and children, the susceptibility of the child-victim to serious long-term consequences from sexual abuse, and the breach of trust aspect of the situation all cry out for denunciatory and deterrent sanctions to be imposed on the offender. Thus,

section 718.2 (a) (ii.1) already provides that the abuse of a person under the age of 18 years is to be considered an aggravating feature on sentencing.

Section 718.2(a)(iii) provides the abuse of trust or authority in relation to a victim is an aggravating feature on sentencing. [ 7 ] The fact that Parliament has found it necessary to specifically direct that denunciation and deterrence are always to be given primary consideration where the victim is under the age of 18 gives new urgency to the situation, however. Thus, in R. v.

Worthington 2012 BCCA 454 , Saunders, JA, speaking on behalf of the court, said this at paragraphs 32 and 34: [32] It would be fair, I think, to describe s. 718.01 and the other augmented provisions for offences concerning abuse of children as an attempt to re-set the approach of the criminal justice system to offences against children…. [34] ….I would say that the range of sentences drawn from a former era may not reflect the appropriate balance of principles now required by the Criminal Code …. [ 8 ] With those general comments in mind concerning the approach to be adopted in cases involving sexual abuse upon young persons generally I turn to the specific facts of the matter before this court. [ 9 ] E.H.S. is the biological father of the complainant L.S.

The complainant was born in June 1997. At trial, I found that the evidence proved that E.H.S. perpetrated two unlawful acts upon his daughter, the first in or about the month of December 2009 and the second perhaps a year later. Thus, L.S. was 12 years old when the first incident occurred and 13 years old when the second incident occurred. In my Reasons for Judgment convicting E.H.S., I summarized the evidence given by the complainant regarding the two incidents this way: [5] The first incident is said to have occurred near the end of the year 2009.

L.S. stated that at that time she lived with her mother R.J., her father E.H.S., her grandmother J.G., and her younger sister La.S. Her younger sister La.S. was away from home, however, staying with an aunt at the relevant time. [6] L.S. described that one particular evening her father had been drinking. Her mother left the home at some stage and did not return until the following morning. E.H.S. was angry at his wife’s action and got into an argument with her upon her return, as a result of which she left the house a second time. E.H.S. also went out for a time, leaving L.S. alone with her grandmother.

The grandmother at some point suggested that L.S. should go to sleep on a couch in the living room, which she did. [7] L.S. maintains that when her father returned to the house, he came to lie beside her under the blanket on the couch in the living room. On several occasion he then placed his hand inside her clothing, touching the part of her body which she identified as “the private”. L.S. was shown an anatomic diagram to illustrate her meaning, and as a result it is clear that she was referring to her genital area.

Each time her father touched her in this way, according to L.S., she removed his hand from her genital area, but each time he put it back inside her pants. Eventually she got so upset with her father’s actions that she pushed him off the couch. He then went to sleep on a separate couch in the same room. [8] L.S. testified that she smelled liquor on her father’s breath when the events occurred on the couch. When he eventually moved away to the second couch L.S. was cold because her father had taken the blanket with him. As a result, she went to her grandmother’s room

and asked her grandmother for another blanket. She says that she told her grand-mother what had happened, and that her grandmother angrily confronted her father about it soon afterward, perhaps the next morning. [9] L.S. testified that her grandmother also told R.J. about what E.H.S. had done and that her mother was so angry with E.H.S. that she nearly threw him out of the house. [10] The second incident which L.S. described occurred some time later, perhaps a year or so later.

On this occasion, according to L.S., her mother and her grandmother had gone to the casino, leaving her and her younger sister in E.H.S.’s care at home. She testified that she was watching television in her parents’ bedroom when her dad came up from his workshop to check on the girls. The younger girl, La.S. , happened to be out of the room at that moment. E.H.S. pushed on L.S.’s shoulder, causing her to recline backwards onto the bed. He then proceeded to put his hand inside her pants and her underwear, and to fondle her genital area once more.

He left the room of his own accord soon afterward and returned to his workshop downstairs. [11] L.S. was pressed for detail concerning her father’s actions on this second occasion. She stated that when he touched her his fingers were moving “in the hole”. When asked to identify “the hole” she described it as “the hole between the lips of the private”. She said it did not hurt but she did not like it. [ 10 ] Later on in the Reasons for Judgment, I found that the evidence given by L.S. on these matters, as summarized above, was essentially accurate.

E.H.S. may have engaged in other incidents of sexual misconduct involving L.S., but the girl’s evidence concerning any other incidents was vague and uncertain. Accordingly, E.H.S. is to be sentenced on the basis that only the two incidents occurred. [ 11 ] The incidents bear certain characteristics which should be specifically noted. As Crown Counsel concedes, there is no clear evidence that in his actions toward his daughter the Defendant was progressing along a line from less serious behaviour to more serious behaviour. The proven incidents are too few in number to allow for any such conclusion to be drawn.

The two essentially consisted of fondling, although the second incident was plainly more serious in that it involved digital penetration of the girl’s vaginal area. [ 12 ] It should be pointed out that in the first incident there is evidence that the Defendant smelled of alcohol, although L.S. made no comment on his relative state of sobriety or drunkenness. In neither instance was there any overt threat or act of violence.

The Defendant appears to have desisted in the first case because L.S. let it be known that she was most uncomfortable with the situation and pushed him away, while in the second instance he seems to have stopped of his own accord. Of course, these observations are not intended to minimize the seriousness of E.H.S.’s actions; they must nonetheless be noted for purposes of comparison with other cases. [ 13 ] One of the significant features of the fact pattern here, though, is decidedly unfavourable to the Defendant. L.S. was a particularly vulnerable victim because of her intellectual challenges.

The evidence before me allows for the clear conclusion that L.S. is faced with a number of developmental issues, such that she operates at an intellectual level that is several years behind her chronological age. She also appears to be a generally placid and compliant child. As her father, E.H.S. must surely have known that L.S. would not mount a forceful defence to his improper advances, that she would not likely be particularly speedy or insistent in expressing her displeasure with his actions, and that she would have trouble expressing herself if and when she ever did make any formal sort of complaint.

All of those things proved to be true. [ 14 ] Unlike the accused persons in some of the other cases that have been provided to me for comparison on this sentencing hearing, E.H.S. does not have the benefit of any mitigation of sentence arising out of the fact that he at least was able to spare his daughter the embarrassment and stress of testifying in court about the abuse which he inflicted upon her. I appreciate that E.H.S., like any other Defendant in a criminal prosecution, is entitled as of right to his day in court to see whether the Crown can prove its case.

But at the same time it cannot be denied that the effect of that choice was to require L.S. to relive her sad experiences all over again in this court, with both of her parents essentially blaming her for making false allegations. [ 15 ] The effect upon L.S. of enduring the abuse and then finding that she was disbelieved when she complained of it is set out in simple but profound language in the victim impact which she has provided to the court. In that statement, written shortly before the trial, she writes in part: When I lived with my Dad, I felt sad because he would touch me and I did not like it.

I was worried that my Dad would touch me when my Aunt …. and Mom would go out. I was angry that my Dad would touch me because Dad’s [sic] aren’t supposed to do that to their daughters…. Before I told my school counselor, I started to get scared that my dad would touch my sister too. When I told and was not allowed to go home, I was scared about who I would be living with…I am scared about going to court and wish that I didn’t have to.

I am worried that I will have to live with my Dad again or that my sister will have to live with my Dad and he will do it again. [ 16 ] It goes without saying that children should not have to put up with this sort of worry and fear. It robs them forever of a part of the beauty and innocence of childhood. [ 17 ] In this case, the wreckage goes further. The entire family has been torn asunder.

As a direct result of the Defendant’s actions, he has separated from his long-term partner, R.J., and both of the girls have gone into foster care. [ 18 ] It remains for me to consider the Defendant’s individual circumstances.

[ 19 ] E.H.S. is a 40-year old Aboriginal man. I refer to his Aboriginal status right away because it is, in my view, an important factor in this case, and one which I am bound by statute to consider in any case, bearing in mind the wording of s. 718.2 (

e) of the Criminal Code . Keeping it in the back of my mind for the moment, I will return to a more specific consideration of the issue after I have summarized the Defendant ’ s background and present circumstances. I must say that I am grateful to the authors of the pre-sentence report and the psychological report for this information, and I hope that my quick

summary does not do violence to their detailed and insightful reports. [ 20 ] E.H.S. belongs to the Snuneymuxw First Nations Band in Nanaimo. His mother ’ s family is originally from Kingcome Inlet but his mother and her parents moved to Nanaimo when his mother was fairly young. His father ’ s family has apparently been in the Nanaimo area for generations. [ 21 ] There are over 1600 members of the Defendant ’ s band. Some are scattered about four different reserves near Nanaimo, but about 65 per cent of them live off the reserve. [ 22 ] E.H.S. himself was raised by his maternal grandparents.

They lived off the reserve but did travel to attend native cultural events, such as potlatches in Port Hardy and Alert Bay. E.H.S. grew up with one full sibling, a slightly older brother, and three younger maternal siblings. The family practiced Christianity and attended church. [ 23 ] E.H.S. describes his formative years in positive terms. His grandparents had a good relationship with one another and he denies that there was any form of substance abuse, violence or sexual abuse in the home.

The home environment appears to have been a stable one in which the children were expected to follow household rules, perform chores, attend school and complete their homework. [ 24 ] Both grandparents stayed home to raise the children, but the grandfather supplemented the family social assistance income through woodcarving. It was the grandfather who taught the Defendant to carve when he was quite young. [ 25 ] Although the material before me is unclear, it does appear that the Defendant ’ s father was a student in a residential school. He was awarded a financial settlement as a result of the experience.

The Defendant himself was somewhat distanced from that experience, however, since he did not live with his father and did not attend a residential school himself. [ 26 ] The Defendant reported to the psychologist who prepared a report for this sentencing that he experienced the usual sibling rivalries when he was growing up. He also refers to some bullying at school. The bullying was apparently significant enough that the Defendant and his brother transferred to another school, although it should be noted that the source of the trouble appears to have been a member of the Defendant ’ s own extended family.

There is no specific mention in any of the material that the Defendant suffered abuse or prejudice due to his aboriginal background, although I will have more to say about this momentarily. [ 27 ] The Defendant did not complete high school. He became disinterested with educational pursuits in his teenage years and he left after grade 10. He says that he has no interest in completing any further formal education. He reports that he has worked at a number of jobs sporadically in his adult years, including stints as a dishwasher, a janitor and an auto detailer.

He does not appear to have been overly ambitious in that respect, but now works and supports himself, at least in part, as a First Nations carver. [ 28 ] The Defendant ’ s first partner, with whom he had a son, was tragically killed in a car accident about twenty years ago. Thereafter, the Defendant became involved with R.J. and that relationship lasted until 2011, producing the two daughters whom I have already mentioned. As a result of the matter before the court, the Defendant and R.J. have separated, although the Defendant has expressed some interest in re-uniting with her.

For the moment, he lives with relatives on the reserve near Nanaimo. The two girls are in foster care. [ 29 ] The Defendant admits that he has consumed alcohol, at least on a periodic basis, since he was fifteen years of age. He admits that when he does drink he often does so to considerable excess. There was evidence at the trial, repeated in the pre-sentence report, about an incident some years ago in which he was seriously injured as a result of a fall from a roof when he was intoxicated. It is unclear to what extent alcohol played a

part in the matters before the court. The Defendant maintains that he no longer drinks. [ 30 ] The Defendant ’ s history before the courts is something of a mystery. There are some references in the written material suggesting that he has an old, unrelated and minor court history, but those references are confusing indeed. In the circumstances, Crown Counsel has quite properly submitted that I should treat the Defendant as a first offender, and I intend to do so. [ 31 ] It is extremely difficult to assess the extent to which the Defendant takes responsibility for his wrongdoing.

As I have already said, he gave evidence in this case denying the accusations against himself. I did not believe him. He continued to deny his wrongdoing to the authors of both the pre-sentence report and the psychological report. [ 32 ] At the sentencing proceeding, however, his counsel performed something of an about-face. He advised the court that the Defendant was now prepared to concede that although he does not remember any of the incriminating events described by his daughter he feels that she must be telling the truth.

Since counsel went on to submit that “ alcohol is his problem ” , I understand the Defendant now to be saying that he believes that he must have been intoxicated to such an extent at the relevant times that he does not recall what happened. [ 33 ] It is natural to be suspicious of such a convenient change of direction on the Defendant ’ s part.

Plainly, it would be in his best interest at the sentencing proceeding to appear to take responsibility for his actions, whereas taking the opposite tack better served his interests at all earlier stages of the process. [ 34 ] In light of my own suspicions, I asked counsel if he had any objection to me speaking directly to the Defendant on the subject at the conclusion of the sentencing hearing, in open court. Counsel agreed that I might do so and a very brief discussion ensued.

At the end of that discussion, I must confess that I am no further ahead in assessing the Defendant ’ s sincerity. [ 35 ] I must give the Defendant some credit for articulating an acceptance of responsibility for his actions in open court, and I do so.

It cannot have been easy for him to say what he did, particularly after others have stood behind him and provided letters of support on hisbehalf. At the same time, the lateness of his admission prevents me from giving him full credit for his acknowledgment.

It comes onlyafter his daughter has struggled with her fears about the court process generally, and only after she has been put through all of the stressand anxiety associated with testifying against her father in the face of accusations by both her father and her mother that she was tellingtales. [36] I return, then, to the question of how to factor in the issue of the Defendant’s aboriginal status, as I am required to do. I mustconfess that I have always found this issue to be elusive indeed, and no less so now that I have read and re-read the decisions in R. vGladue, (SCC), [1999] 1 SCR 688, R. v.

Ipeelee, 2012 SCC 13 and R. v. R.L.W.,2013 BCCA 50 while considering mydecision in this case. [37] I take as the guiding principle the following statement found in the Gladue case, at paragraphs 80 and 81: [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: Forthis offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? What understanding of criminal sanctions is held by the community?

What is the nature of the relationship between the offenderand his or her community? What combination of systemic or background factors contributed to this particular offender coming beforethe courts for this offence? How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter ordenounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals betterachieved through healing?

What sentencing options present themselves in these circumstances? [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in thecircumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to takeinto account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. [38] In the Ipeelee decision, at paragraph 72, LeBel, J. for the majority neatly summarized the essence of the Gladue principles inthis way: Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part in bringingthe particular aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriatein the circumstances for the offender because of his or her particular aboriginal heritage or connection.

Both sets of circumstances bearon the ultimate question of what is a fit and proper sentence. [39] It is important to note that it is an error in principle to require an offender to establish a causal link between the backgroundsystemic factors and the commission of the current offence before being entitled to have those matters considered by the sentencingjudge.

In this respect, the majority in Ipeelee (at para. 83) quoted with approval the following passage from the report of the AboriginalJustice Inquiry of Manitoba (at page 86): Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadiangovernment’s treatment of aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw asimple and direct correlation between any one of them and the events which lead an individual aboriginal person to commit a crime or tobecome incarcerated. [40] It seems to me that that comment has particular relevance to the case at bar.

From the

summary of the Defendant’s backgroundwhich I provided above, it will be seen that there is no evidence of the Defendant being personally subjected to any of the gross forms ofabuse which aboriginal persons have suffered down through the years. It is true that he comes from a family of very modest means andhe was raised by his grandparents rather than his parents, but it is difficult to connect those features of the Defendant’s life to hisaboriginal status, even assuming that they have any relevance.

It may be equally important to take cognizance of the fact that theDefendant comes from a loving and relatively stable family background, with little if any evidence of negative influences in his family orcommunity background. [41] To the extent that the aboriginal connection is relevant in this case, I think it is rather subtle and difficult to gauge, just as theabove quote from the report of the Aboriginal Justice Inquiry suggests. It exists in the sense of dislocation which I sense when readingall of the material that has been presented to me concerning the Defendant.

Although the Defendant did not grow up on the reserve andalthough he has at times and to some extent been part of “white” society on Vancouver Island his aboriginal status remains central to hisexistence. He presently lives on the reserve in Nanaimo and supports himself by using the native woodcarving skills taught to him byhis grandfather. At the same time he expresses the hope to return to live in the urban surroundings of Victoria.

Without overstatingmatters or indulging in excessive flights of speculation, I think it quite likely, based on the information before me, that the Defendant issomewhat adrift between the two societies to which he has been exposed in his life.

[ 42 ] In the final analysis, I find it exceedingly difficult to maintain that the Defendant’s aboriginal status played a significant active role in bringing him before the courts in the present case, or that his status can be invoked to any great extent in mitigating his level of moral culpability.

On the contrary, it seems equally important to me to note, as the court did in the R.L.W. case (at paras. 127 and 128 ), that denunciation and deterrence, the conventional goals of sentencing in a case involving the sexual abuse of a child, are apt to be equally as compelling in the First Nations communities as they are in non-First Nations communities. [ 43 ] As I mentioned earlier, I have received a book of authorities dealing with sentencing cases somewhat similar to the present case.

Defence counsel did not provide any authorities to support his contention that a suspended sentence was an appropriate disposition here and I have found no recent authorities which allow me to adopt that course. The absence of any authority supporting a suspension of sentence confirms me in my view that such a sentence would not accord with the proper application of the relevant sentencing principles. [ 44 ] The cases provided by the Crown are carefully chosen and are of considerable assistance.

I do not propose to refer to any of them at length because of course every case is different, if for no other reason than that every offender is different. I would just say that I found the following cases to be of greatest assistance in the present circumstances: R v. W.R.G. , 2011 BCPC 330 R. v. B.(T.L.) , 2007 ABCA 61 ; R. v. Williams , 2011 194; and R. v.

Sutherland , 2009 BCCA 534 . [ 45 ] To the extent that it is possible to discern a relevant range of sentence from the above cases, I would describe that range broadly as involving custodial terms of between nine months and two years. [ 46 ] In the present case, it is my view that an appropriate sentence of imprisonment would be one year in length, and I so order.

That term of imprisonment will be followed by a term of probation 18 months in length. [ 47 ] The conditions of the probation order will be as follows: The statutory conditions (Condition 200 from the Standard Form): You shall keep the peace and be of good behaviour; you shall appear before the court when required to do so by the court; you shall notify the court or your probation officer in advance of any change of name or address, and you shall promptly notify the court or your probation officer of any change of employment or occupation.

Condition 201A: Within 48 hours after the completion of your jail sentence you shall report in person to the probation office nearest the place of your release from custody and after that you shall report as directed. Condition 203: When first reporting to the probation officer, you shall inform him or her of your residential address and phone number. Condition 207: You shall remain in the province of British Columbia unless you have received the written consent of your probation officer to go elsewhere.

Condition 213(b): You shall make reasonable efforts to seek and maintain employment satisfactory to the probation officer.

Condition 214: You shall make adequate provision for the support of your dependents; Condition 215: You shall have no contact or communication, directly or indirectly, with L.S. except in accordance with a family court order or the direction of a representative of the Ministry of Children and Families having supervision of your family’s case; Condition 219: You shall not be within 25 meters of any place which you know to be the residence, school or workplace of L.S., except in accordance with a family court order or the written direction of a representative of the Ministry of Children and Families having supervision of your family’s case; Condition 221: You shall not possess or consume any alcohol or any controlled substance as defined in

Section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician.

Condition 230: You shall have no contact or communication directly or indirectly with, nor be alone in the presence of any female person you know to be or who reasonably appears to be of the age of 16 years or less except as follows: a.) in accordance with a family court order or a written direction from a representative of the Ministry of Children and families having supervision of your family’s case; b.) with the advance written consent of your Probation officer; c.) in the presence of an adult third party, approved in writing in advance by the probation officer; or d.) in the presence of a third party adult who has knowledge of the reasons for your probation supervision Condition 234: You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer, which may include substance abuse counselling and/ or sexual offence prevention.

In making any referral pursuant to this condition, the probation officer shall give specific consideration to the availability of assessments, counselling or programs available through the Defendant’s band or other First Nations organization. [ 48 ] I wish to make one further comment regarding the counseling condition referred to immediately above. I appreciate that in the pre-sentence report the probation officer mentions that various aboriginal counseling programs are only available on a voluntary basis, and specifically are not available to persons who are required to attend as a result of court orders.

Recognizing these limitations, it is nonetheless my hope that the probation officer might be able to work creatively with the bands and with the Defendant in this case in order that the Defendant might obtain benefit of culturally-based counseling, since it is my view that counseling in that form is far more likely to achieve positive results for this particular individual. [ 49 ] I also direct that the Defendant shall provide DNA sample or samples, in accordance with s. 487.051 of the Criminal Code , for purposes of analysis and registration in the national data bank. [ 50 ] There will be a further Order, pursuant to s. 743.1 of the Criminal Code , that the Defendant not contact L.S. while he is in custody, except in accordance with a family court order or the direction of a representative of the Ministry of Children and Family Development having supervision of your family’s case. [ 51 ] Finally, I am making a direction for SOIRA registration pursuant to s. 490.102 of the Criminal Code . [ 52 ] During the course of submissions Crown Counsel requested that an Order be made, pursuant to s.109 of the Criminal Code , for a weapons prohibition.

The Crown has now abandoned that position, however, for reasons which are perfectly proper, and I will say no more about it. ______________________ E.C. Blake Provincial Court Judge