R. v. Nadeau Date:, 2017 BCPC 158

Citation: R. v. Nadeau Date: 20170515 2017 BCPC 158 File No: 169713-2-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEAN JACQUES NADEAU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: C. Fisher Counsel for the Defendant: K. Bradshaw Place of Hearing: Victoria , B.C. Date of Hearing: May 15, 2017 Date of Judgment: May 15, 2017

INTRODUCTION [ 1 ] Jean Jacques Nadeau is before this court facing an allegation on a three-count indictment, and specifically on Count 3, that he, on or about the 20th of September, 2016, at or near Esquimalt, British Columbia, in sexually assaulting S.F., caused bodily harm to S.F., contrary to s. 272(2) (

b) of the Criminal Code . [ 2 ] Mr. Nadeau (hereinafter referred to as the "Offender") has elected to have this matter dealt with before the Provincial Court of British Columbia. He has entered a plea of guilty on Count 3, as set forth above. The remaining two counts need to be dealt with by Crown. [ 3 ] The task of this court is to impose a fit sentence for this offence. Crown and defence both submit that this sentencing poses some challenges due to the fact that the sexual attack on S.F. (hereinafter referred to as the "Victim") was violent.

It was against a vulnerable young victim, unknown to the Offender, and it was perpetrated by an offender with a lengthy and serious, but dated, criminal record with several convictions for violence, but with no prior sexual offences. CIRCUMSTANCES SURROUNDING THE OFFENCES [ 4 ] Having entered the plea of guilty on Count 3, Crown then outlined the circumstances that are being relied upon for the purposes of sentencing. There is no material issue as between Crown and defence with respect to these circumstances. For the purposes of the reasons for sentence, I will provide a

summary of those circumstances that are before the court. [ 5 ] The offence occurred on September 20, 2016. The Victim was a young 18-year-old female. She was active in sports and, as I understand it, living in the Esquimalt area. [ 6 ] On the day in question, she attended to a local park known as High Rock Park around 8:00 p.m. for the purposes of running. She saw a man in the park with two dogs.

She did not recognize that individual, and, apparently, as she was running, she suddenly realized that she had been struck and found herself being grabbed by the back of her hoody and by her ponytail. [ 7 ] The person whom she had encountered was in fact the Offender in this case. He told her not to shout and threatened that if she did, he would kill her. He also said to her words to the effect, and I quote, "I am not going to kill you if you do what I say." [ 8 ] The Victim did not see anybody in the area who could assist her.

The Offender pulled her off of the pathway and cautioned her to be quiet while she was imploring him not to hurt her. He dragged her and pushed her down to her knees, at which point he again threatened her and she pleaded with him not to rape her. He said that he was not intending on raping her as that “would leave DNA.” At that point he forced her to perform fellatio on him. [ 9 ] During the course of that sexual assault, she was physically struck. The Offender was also continuing to make threats against her of bodily harm. He was burdened by having two dogs with him who were barking.

Following the first sexual assault, he grabbed the Victim by her ponytail and pulled her further from the path. [ 10 ] At that point, he straddled on top of her. Having pushed her down to the ground, he started to choke her around the neck. He grabbed at her body and groped her breasts above her clothes. He hit her several times on the face and choked her around the neck. At one point, she found herself being overcome and starting to black out. She struggled underneath him and he, again, threatened to kill her.

He was able to pull down her shorts and digitally penetrated her vagina with more than one finger. [ 11 ] She continued to scream and protest. Having come in and out of consciousness, she found herself with the opportunity to get out from underneath him. She then ran screaming to a neighbourhood house, which was located down below the elevated park area. In order to get there, she essentially performed a tuck and roll manoeuvre and rolled down a hill, landing close to a deck where she was able to get the attention of a neighbour.

That neighbour contacted or called 9-1-1 and the police attended at the scene. [ 12 ] The Victim was able to provide a brief description of her attacker, related the presence of the two dogs, and provided a description of those two dogs. That information resulted in the police conducting a sweep of the park, at which point they located the Offender. [ 13 ] The Offender spoke to the police, provided some information, and indicated spontaneously that he had a lengthy criminal record, but contended that he had been dropped off at the park facility by his spouse with one dog.

He also indicated that during the period of time while he was in the park, he took the opportunity to return home to drop off one of the dogs and then he returned to the park. [ 14 ] An investigation continued with the Offender being identified as a person of interest. A subsequent attendance at the home of the Offender by the police resulted in a discussion taking place with the Offender and with his spouse. The Offender had given an explanation as to certain events leading up to his attendance at the park and the number of dogs that he had in his possession.

He attempted to provide an explanation, which his spouse refused to corroborate, and she provided a different version of events. [ 15 ] That investigation led to his arrest on that evening. The Offender was arrested, I believe, on September 21, 2016, following the attendance at his residence. He has remained in custody since that time and has not sought bail. [ 16 ] A search warrant was executed at his residence which located certain items, including clothing which tested positive for the DNA of the Victim.

There was also a dog leash similar in nature to one located during the police investigation and the sweep of the park area. The dog leash that was located in the park was identified by the Offender's spouse as being one belonging to them. [ 17 ] As part of the Crown's case, a series of photographs were admitted into evidence. Those photographs depict, among other

things, the injuries sustained by the Victim and included injuries to her face, around her neck, her eye, her left ear, her right hip, her left leg which appears to have been seriously bruised and scratched as a result of having escaped from the scene by rolling down the hill. The marks around her neck appear consistent with the suggestion that she was choked in the course of the offence.

There is also an indication in the circumstances that the young Victim suffered a concussion as a result of this attack. [ 18 ] I will have more to say about some of the continuing injuries and matters which the Victim has had to endure since the attack when I discuss the Victim Impact Statement that she has provided. CIRCUMSTANCES OF THE OFFENDER [ 19 ] I do not have the benefit of a Pre-Sentence Report as none has been ordered or prepared in this matter. [ 20 ] However, I do have fairly detailed submissions about the background of this Offender from defence counsel. The Offender is, at present 41 years of age.

He was born and raised in the Ottawa area. He came from what can best be described as a very dysfunctional home and he was abandoned at a very early age by his mother. [ 21 ] He was raised by his father who failed to provide much in the way of a positive role model. He was, in infancy, placed in foster care until about age five. When he was between the ages of five to eight years of age, he resumed living with his father, who apparently was a tradesperson. However, the situation at home became extremely dangerous for this Offender.

He was victimized, both sexually and physically by a person whom I understand to have been a friend or tenant of the Offender's father. [ 22 ] As a result of that victimization, he was placed back into foster care at approximately age eight and, thereafter, it resulted in a lengthy hospitalization to deal with some mental and emotional issues that arose out of the abuse that he had suffered while residing with his father.

Following this hospitalization, he was then returned to foster care where he remained until approximately age 16 and thereafter essentially left to his own devices. [ 23 ] At the age of 16, he rejoined his father. At that point, it became apparent that his father was living a criminal lifestyle and was dealing in drugs. That had an adverse impact on the Offender, as he himself became both a user and a seller of drugs. Thus, from approximately 17 years of age, he was very much immersed in a criminal-type lifestyle. [ 24 ] That produced a criminal record which is before the court.

That criminal record discloses that as an adult, the Offender was in the Criminal Justice System, commencing about early 1994. He started off with property crimes, uttering threats, various breaches, and then also in 1994, he was convicted of robbery. It appears that he had two charges or two counts to deal with, and he received nine months on each charge, to run on a consecutive basis. There was also an assault with a weapon which appears to have been dealt with at the same time. [ 25 ] He had a further assault conviction arising out of an offence in September of 1994.

There were further convictions for trafficking in narcotics. Then, he was charged and convicted with uttering threats, possession of property obtained by the commission of a crime over $5,000, thefts and various attempts of theft, and failures to comply with probation orders. [ 26 ] In June 1999, he was sentenced to a significantly long-term sentence which required him to do Federal penitentiary time.

As I read the criminal record, that included a robbery charge for which he had received 10 months, with credit for pre-sentence time, and then seven robbery charges, each of them resulting in a sentence of 10 months, served all on a consecutive basis, and then a further robbery charge sentence for 16 months to be served, again, consecutively. [ 27 ] Thereafter, while in the Kingston Penitentiary, he was convicted of a number of other offences, namely, an assault with a weapon and an assault against a peace officer, whom I take it to be a member of the correctional staff, and some other offences including more assaults and possession of a

Schedule II substance. [ 28 ] As I understand it, in addition to the sentence that had been imposed upon him for the robbery charges, which was somewhere in the range of about eight years and some eight months, essentially, he attracted an additional two years of custodial time to that sentence while in the Kingston Penitentiary. [ 29 ] During his time in the Kingston Penitentiary, he did come to know a woman who became his spouse. When he was released, they moved from Ontario to British Columbia in around 2010.

The family that he became part of included a 23-year-old son and an 18- year-old daughter of his spouse. He became a step-father to both of those young people. His spouse was able to obtain a responsible position at a local fast food chain, rising to the position of assistant manager. [ 30 ] The Offender was also able to gain a position at that same chain at a different location, was promoted and eventually left that positon. In 2012, he started his own construction business. He became self-taught while working with other contractors.

He ended up hiring other individuals and things went well for the Offender between 2012 and 2016. [ 31 ] At that point, his marriage with his spouse fell apart. He started to suffer great emotional stress and, most unfortunately, made the fateful decision to return to drug use, which had been part and parcel of his problems as a youth when he had been using cocaine. He had also suffered addiction to heroin which was used while he was in the penitentiary.

He managed to remain free of drugs during his productive years between 2010 and 2016, but this ended prior to the time when the offence for which he is before the court occurred. [ 32 ] While his marriage, his family life, and his own emotional life began to fall apart, he found himself utilizing drugs, both by way of injection of cocaine and also by consuming the drug known as GHB. [ 33 ] It is submitted on behalf of the Offender that on the night of this particular offence, he found himself in the park alone having previously asked his spouse to walk with him in order to discuss their failing marriage.

She did not wish to do that. She left him alone at which time, apparently, he consumed cocaine and a large amount of GHB. He says that this resulted in him losing control and precipitated the attack on the Victim who was running in the immediate vicinity as part of her training and as a stress release for her.

[ 34 ] The Offender has had the opportunity to review the Victim Impact Statement with his counsel. I am told by defence counsel that, while in the course of reading the Victim Impact Statement, it was difficult for the Offender to get through it. On several occasions, he apparently lost his emotional composure. Through counsel, he expressed the view that he was extremely remorseful for having committed this offence against this particular Victim. He indicated through counsel that he is overcome with guilt and shame, and he expressed to his lawyer, Ms.

Bradshaw, who has conveyed it to the court, that he is genuinely remorseful for what he has done. [ 35 ] In direct comments to the court, the Offender relayed those same genuine feelings of remorse. He has said, directly to the court, that there is no excuse for what he has done, and he acknowledges that he has caused great harm to the Victim in this case. Victim Impact Statement [ 36 ] I will say at the outset that I have the opportunity of reading many Victim Impact Statements.

I can also say at the outset that this is perhaps one of the most well-written, insightful, comprehensive, and moving Victim Impact Statements that I have received and reviewed in the past several years. [ 37 ] As I had previously indicated at the outset, the Victim in this case was only about 18 years of age. I do not have extensive details about her personal life, but I can discern from the Victim Impact Statement that she is and has been a very active individual in sports and in performing theatre; she has what I take to be a very supportive family. She enjoys their company and support.

She seeks to be a productive member of both her family and of her community. [ 38 ] In her Victim Impact Statement, the Victim sets out details about the significant trauma that she has suffered as a result of this attack upon her by the Offender. She states that she finds it difficult to talk about what has occurred to her and about the very negative effects on her that have continued over the last several months. She characterized it by saying as follows, and I quote: Nobody tells you how to be a victim, how you are supposed to act or react or keep living. I feel like I’m letting everyone down. Constantly.

I’m not the friend or girlfriend I used to be or the coach or teacher. I’m not the daughter, the niece, the granddaughter I used to be. [ 39 ] She goes on to relay that following the attack, she was able to portray, to those around her, an ability to cope with the trauma that she had suffered. However, she also indicates that what she did not display to those around her was the resulting adverse effects, specifically, the fact that she was becoming increasingly depressed and despondent as a result of the attack that she had suffered. [ 40 ] She suffered a series of nightmares.

She found that she was having difficulty with her routines that she had previously cherished. She was unable to participate as an active member of her soccer team. She was forced to quit working out as regularly as she had previously done in order to maintain her feeling of physical well-being. She has only recently returned to that type of physical activity, but further indicating that she is only able to go on runs only in the morning, only in open places and only with friends. [ 41 ] The concussion that she received during the attack has had some extremely profound effects on her.

She indicated that this, her fifth concussion, was one of the worst. She has had problems with concussions since the 10th grade but this one has triggered a whole new set of symptoms, including the inability to focus on written words, feelings of disassociation even when she is not stressed, and also migraine headaches that have lasted full days. [ 42 ] Some of her pre-existing conditions have also gotten much worse, including what she describes as insomnia, anxiety, and depression.

Those symptoms have escalated to the point where it is even difficult for her to speak about them without seeming like she is exaggerating the adverse effects that she has suffered. [ 43 ] She goes on to indicate that there has been a very negative impact on her ability to complete her schooling. She finds it difficult to study online especially while using computer screens. She has suffered emotional anxiety to the point where she has participated in some self-harming which has caused her to have to take certain medications, including medications which are designed to allow her to sleep.

She indicates that her insomnia since the attack is some of the worst that she has ever had to experience. [ 44 ] She has continued to try to be active with three jobs, two being volunteer positions, and trying to maintain a full social life. But again, she has done this while hiding the harm and the hurt that she suffered, while putting on what I will describe as a “brave face” to all of those around her. [ 45 ] As I understand it, she has been very much engaged in teaching theatre to both middle school and high school students. This is something she cherishes.

She has attempted to continue it but has faced certain barriers in trying to do it and to maintain her ability to function at a high level. [ 46 ] She has had problems with flashbacks, a fear of being touched around the neck area, and problems with being able to swim because of her concerns that she cannot breathe. [ 47 ] She concludes her Victim Impact Statement with a passage which Crown has referred to and which I think very clearly sets out the context of the serious effect on her.

She expresses it in the following terms, and I quote: I do not hate the accused, but I hate that on the days I need to cry, and I can't because all I hear is, "don't cry or I'll kill you," which makes forcing myself to sob an even worse experience than I ever thought it could be, because there are days when I just need to cry - and there have been so many that I was physically not able to. I’ve been repressing emotions so much for so many months that sometimes it’s hard to feel anything at all.

Sometimes I’m just numb to the world, and for a while after the attack, I felt so numb I began self-harming as a way to force myself to feel things, all the while, people kept telling me how well I was keeping myself together. I was lying to people I loved because I didn't want them to worry about me. I was avoiding people I loved because I didn't want them to worry about me. [ 48 ] She then continues on with the following, and I quote:

Mr. Nadeau, I do not hate you, but I hate that your decision will mentally and physically debilitate me for the rest of my life. I never wanted this. I never wanted to be a victim. I never wanted to live my life in paranoia and exhaustion. I never wanted to be treated like a victim by my friends and family. I never wanted to not feel safe walking around the neighbourhood I was raised in. I never wanted to have nightmares that make me so scared to sleep I try to keep myself up for days to avoid them. I never wanted to feel as helpless, vulnerable, and scared of the world like I do now.

But I am all of these things now, I do all of these things now. And, yes, I will adapt, as I have already, and I will survive and I’ll continue to live.

And when people tell me that I did everything I could, that I did everything right, I will tell myself to smile, and remind myself that I am not at fault, and that I was not meant to die that night, and that the only way for my life to keep going, is for me to keep living, and I expect I will do that for the rest of my life. [ 49 ] It is not hard to understand that the Offender himself was moved with great emotion when he had the opportunity to read about and to understand the profound effect he has had on the Victim.

Joint Position of Crown and Defence on sentencing [ 50 ] I have what is essentially a joint submission before me. Crown and defence agree that a fit sentence for this Offender in these circumstances is a custodial sentence in a penitentiary of a duration of five years, less credit for one year, being the equivalent of the time served to date. Mr. Nadeau has been in custody for the equivalent of eight months now, and with time and a half, that would equate to credit of one year.

Accordingly, what is being proposed to the court is a custodial sentence which would amount to further time of another four years. [ 51 ] Because of the duration of the sentence, no period of probation is available and none is being sought. Case authorities relied upon by Crown and Defence [ 52 ] Crown and defence have referred to and relied upon 10 separate authorities as follows: 1) R. v. Kerr , 13 B.C.A.C. 161 ; [1992] B.C.J. No.1182 2) R. v. Kerr , 13 B.C.A.C. 165 ; [1992] B.C.J. No. 1181 3) R. v. Wren , 2004 BCCA 167 ; [2004] B.C.J. No. 526 4) R. v. Morgan , 2004 BCCA 628 ; [2004] B.C.J. No. 2561 5) R. v.

Chinneck , 2005 BCCA 346 ; [2005] B.C.J. No. 1389 6) R. v. J.R.S. , 2013 BCSC 2413 ; [2013] B.C.J. No. 2881 7) R. v. Latreille , 2009 BCSC 1892 ; [2009] B.C.J. No. 2825 8) R. v. Gamble , 2011 Carswell Sask. 936 (P.C.) 9) R. v. Gamble , 2014 SKCA 101 10) R. v. Crockett , 2001 BCCA 707 [ 53 ] While I may not make specific reference to a particular case, I have reviewed each of these cases, including the principles outlined in them and the authorities referred to in them, both in terms of making a finding as to what a fit sentence would be in this particular matter and in rendering that sentence on the Offender.

Purposes, objectiveS, and principles of sentencing [ 54 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the Offender ( see R. v. Shoker , 2006 SCC 44 at paragraph 14 and R. v. Angelillo , 2006 SCC 55 at paragraph 22 ). [ 55 ] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code , but also be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others ( see R. v.

McCormick , 2006 ABCA 410 at paragraphs 9 to 12 ). [ 56 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify the purposes and principles of sentencing and plainly state the intention and rationale for imposing particular sentences. [ 57 ]

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

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

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

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

d) to assist in rehabilitating Offenders;

(

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

f) to promote a sense of responsibility in Offenders, and acknowledgment of the harm done to Victims or to the community. [ 58 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the Offender's responsibility. [ 59 ]

Section 718.2, under the heading of "Other Sentencing Principles" states in part that, (and I quote): 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the Offender, and, without limiting the generality of the foregoing, . . . (ii.1) evidence that the Offender, in committing the offence, abused a person under the age of eighteen . . . . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar Offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to Victims or to the community should be considered for all Offenders, with particular attention to the circumstances of Aboriginal Offenders. [ 60 ] I note that it is a statutory aggravating circumstance when a victim is under the age of 18 years. That statutory circumstance is not specifically applicable to this case.

However, there is an indication from various case authorities to support the proposition that consideration of the age of the victim is important, even when the statutory aggravating factor is not applicable. [ 61 ] As I noted at the outset about this sexual assault charge under s. 272(2) (b), it involves causing bodily pursuant to s.272(1)(c). Therefore, it is an indictable offence. No firearm was used and the Victim was not under the age of 16 years. Therefore, there is no mandatory minimum sentence, and the maximum sentence is a term of imprisonment not exceeding 14 years.

Aggravating factors [ 62 ] Crown and defence have provided me with submissions on the aggravating factors in this case. I am of the view that there is no serious dispute about those aggravating factors.

Accordingly, the aggravating factors that I have taken into account and I think are applicable to this particular case are as follows: 1) that the offence committed by the Offender against the Victim was a serious and violent sexual attack and violation of her personal integrity; 2) that there was an aspect of randomness to this attack against the completely unsuspecting Victim; 3) that the attack took place in a public location, namely, a park; 4) that the attack was perpetrated by the Offender as a complete stranger to the Victim; 5) that the Victim was a young defenceless person, only in her youth, at only 18 years of age; 6) that the attack also consisted of the choking of the Victim; 7) that there was significant fear instilled in the Victim as a result of this random and senseless attack; 8) that there were significant injuries suffered by the Victim from a physical perspective, the visible nature of which may not have been overly major in terms of their duration, but there has been a very significant ongoing emotional harm caused to the Victim, as has been so eloquently described in the Victim Impact Statement and, of course, the continuing and debilitating impact of the concussion; and 9) the very serious and lengthy criminal record of the Offender must be considered as aggravating in these circumstances.

Mitigating factors [ 63 ] Again, there is little in the way of a dispute between legal counsel about the mitigating factors which the court should take into account in this case. Those mitigating factors that I accept as being relevant to this case are as follows:

1) the fact that the Offender experienced a very difficult upbringing, in which he became reliant upon foster care for a significant portion of his life including as a youth; 2) the fact that during an interlude in the course of that foster care, he was apparently seriously sexually abused with very negative consequences for him; 3) the fact that he had little in the way of positive guidance and support from either of his parents, his mother being absent from his upbringing and his father being a negative influence on him during his upbringing; 4) the fact that very early on in his life, he began using, and became addicted to, drugs, much to his detriment; 5) the fact notwithstanding that he has a lengthy criminal record, with several serious offences on it, and that he has no prior history of sexual offences, including matters of the nature presently before the court; and 6) the fact that he did lead a productive life for a significant period of time following his previous incarceration and after many years of institutionalization in the Canadian penal system.

ANALYSIS [ 64 ] In the decision of R. v. Latreille , supra , Mr. Justice Savage, then of the Supreme Court of British Columbia, makes the following observations with respect to sentencing principles involving a person charged with sexual offences in which similarly serious bodily harm was caused to the complainant contrary to s 272(1)(c), including choking. He notes that, at paragraph 12 of that decision: Particularly germane here is s. 718.2(

a) and (

b) and (

d) and (e). In my opinion there are aggravating circumstances relating to the offence, but I have also considered similar sentences on similar offenders in similar circumstances and whether less restrictive sanctions are appropriate and whether all available sanctions other than imprisonment are reasonable. With respect to the latter matters, in my opinion, considering the gravity of the offence, these factors militate in favour of a significant period of incarceration.

I agree with the Crown that the principles of sentencing that are paramount in this case are denunciation, specific and general deterrence, protection of the public, and the encouragement of a sense of responsibility in the offender. [ 65 ] He also goes on to say further in paragraph 12 that “to a lesser degree but of significance is the principle of rehabilitation.” [ 66 ] In the present case, I do not understand that either counsel is proffering a contrary view about the appropriate emphasis for sentencing in this type of case, than is stated by Mr.

Justice Savage in the Latreille decision. [ 67 ] The authorities presented to me highlight the difficulty that both counsel say exists in a case such as this with these rather unique set of circumstances as I have outlined above. Further reliance is placed upon these cases in support of the joint sentencing submission that a custodial sentence of five years is appropriate. [ 68 ] Specific reference is made to the decision of R. v. Kerr, supra . It deals with the appeal of the 5 year sentence imposed upon Mr. Kerr, the offender in that case, who possessed an unrelated criminal record.

That particular offender had been convicted of a very serious sexual assault causing bodily harm in which the complainant suffered a number of physical injuries and emotional trauma, arising from the vicious attack, described as being “at or close to the most serious end of the spectrum of conduct covered by the charge”.

There was also the imposition of a one-year concurrent sentence for unlawful confinement of the complainant. [ 69 ] In dealing with the sentence, the Court of Appeal upheld the sentence that was imposed at the trial level, being the sentence of five years of imprisonment, for the sexual assault conviction. It was acknowledged that the sentence upheld in these set of circumstances was at the higher end of the range, but it was justified in that particular case on the basis of the circumstances noted above. [ 70 ] In the decision of R. v.

Wren , supra , the sexual assault described in the facts by our Court of Appeal was physically somewhat more egregious than the one that is before me. It included a full penetration sexual assault, both vaginally and anally, for over a period of an hour, and with a high level of violence associated with it, including choking and the use of restraints. The appellant was also found to have forced fellatio on the complainant in that case. The decision that was being appealed was a sentence of five years' incarceration and that sentence was upheld by our Court of Appeal. [ 71 ] R. v.

Morgan , supra, involved an offence committed against a 16-year-old female complainant and involved non-consensual fellatio and sexual intercourse, accompanied by threats of serious physical violence and terror instilled in the victim. It, again, occurred over an extended period of time. At the end of the day, the 5 year imprisonment sentence that was imposed and upheld by our Court of Appeal emphasized denunciation and deterrence as the primary objectives in sentencing. The Court of Appeal did not consider the sentence to be unfit. [ 72 ] The case of R. v.

Chinneck , supra , is, again, a decision of our British Columbia Court of Appeal. It involved a sexual assault during which the accused had threatened the complainant with a knife. The accused in that case was a young man of 19 years of age. The complainant was 17 years of age. This accused was described as having few social skills, a troubled background, and no prior criminal record. He expressed immediate remorse and empathy towards the complainant.

The trial judge effectively imposed a four-year custodial sentence and the Court of Appeal upheld that sentence as being a fit sentence, noting several aggravating factors, which included such things as: the serious and violent nature of the attack and the use of a knife; the randomness of the attack and the fact that it occurred in a public place; and that it was inflicted on a complete stranger. [ 73 ] In R. v. J.R.S. , supra , a decision of Justice Verhoeven of our Supreme Court, the accused, J.R.S., was sentenced to five years and six months imprisonment for sexual assault causing bodily harm.

In that case, the sexual assault occurred while the accused was on bail, and it was planned and premeditated, and the court noted that the conduct of the accused in that case was purposeful and prolonged. The primary sentencing considerations were denunciation and deterrence, both general and specific.

[74] There was a concern that J.R.S., while showing a degree of remorse and acceptance of responsibility, still attempted tominimize and rationalize his conduct. [75] R. v. Latreille, supra, the aforementioned decision of Mr. Justice Savage, involved a vicious attack on a sex-trade worker whichresulted in significant injury to her. As I recall the facts, the sexual assault attack included punching her in the back of the head and theface, choking her and then forcibly penetrating her vaginally and anally and forcing her to perform oral sex on him.

The complainant inthat case suffered both emotionally and physically, with immediate and ongoing impact; her physical injuries were quite disfiguring. Inthat case, as noted above, the learned justice sentenced the Offender to five years' imprisonment. [76] The Supreme Court of Saskatchewan decision in R. v. Gamble, supra, upheld a Provincial Court finding and sentence for twocharges of sexual assault causing bodily harm against two separate complainants by an Aboriginal offender described as a young husbandand father of four with a limited criminal record.

He had never previously been sentenced to a period of incarceration and he had been aproductive and contributing member of society. However, the significant injuries caused, the viciousness of the attacks and thevictimization and the injuries suffered by the young, vulnerable complainants in that case resulted in the court upholding the decision offive years of incarceration for one offence and four years on the other against a separate victim, but to be served on a consecutive basis. [77] Finally, our Court of Appeal decision of R. v. Crockett, supra, was placed before me.

That decision was in the context, as Iunderstand it, of a review of a judicial interim release order made pending appeal. The complainant in that case was walking to schoolon a trail in a wooded area and she was grabbed from behind and pulled into the bushes. The attacker attempted sexual intercourse andforced her to perform oral sex, and when she bit him in the course of that part of the attack, he then struck her several times.

As Iunderstand, the trial judge in that particular matter had sentenced the appellant to three years of imprisonment on the sexual assault andsix months concurrent for unlawful confinement. Counsel refers to this case because of some similarities in the facts and the resultingsentence at trial. CONCLUSIONS [78] I have taken into account all the circumstances in this particular case as noted above; I have considered the applicable purposes,objective, and principles of sentencing; and I have considered the submissions that I have received from counsel, including the caseauthorities relied upon by them.

Specifically, I am mindful that it is a joint submission. Following the guidance and direction of ourSupreme Court of Canada as set out in R. v. Anthony-Cook, 2016 SCC 43 , [2016] S.C.J.

No. 43, I am of the view that departingfrom the joint submission before me is not warranted in this case. [79] I am particularly mindful that there are some very unique circumstances in this case involving a particularly violent sexualattack, with some devastating consequences for the young Victim by the Offender not known in any way to the Victim and whopossesses a very troubled personal background and a troubling criminal record. Overall, I am of the view that the sentence range for thisOffender in these circumstances is within an appropriate range that being proposed jointly by counsel.

SENTENCING [80] I am going to ask Mr. Nadeau to please stand. Mr. Nadeau, based on all of the foregoing, the sentence that I am imposing uponyou will be a five-year custodial sentence.

You will receive credit of one year for pre-trial and pre-sentence time served, leaving fouryears of new custodial time to serve. [81] In addition to that, there will be certain collateral orders and relief as outlined by the Crown. [82] First of all, I believe there is a mandatory order required by s. 109(1) of the Criminal Code, and so I am imposing upon you alifetime firearms prohibition. [83] Secondly, pursuant to s. 487.051(1) of the Criminal Code, you are required to provide bodily samples for the purpose offorensic DNA analysis as may be reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1)of the Criminal Code. [84] Next, there will be an order under the Sex Offender Information Registration Act (“SOIRA”).

It requires that I shall, onapplication of the prosecutor, make an order that you comply with that Act, because you have been convicted of a designated offence inthis case under s. 272(2)(

b) of the Criminal Code. No issue was taken about this form of order by defence, and therefore, I am satisfiedthat the impact on your privacy or liberty would not be disproportionate to the public interest.

Therefore, pursuant to s. 490.012 and490.013 of the Criminal Code, you are required to comply with the SOIRA for a period of 20 years. [85] Then the final order that is being sought is pursuant to s. 743.21, and I am being requested, and I will make an order that youare prohibited from communicating, directly or indirectly, with -- and it will be S.F., (her full name will appear in the form of the order)during the custodial period of the sentence. I do not think there are any exceptions being sought and none will be made. [86] That leaves the Victim Fine Surcharge.

Given the lengthy duration of the sentence and the likely resulting financial impact onthe Offender, I am of the view that it is an appropriate request and I am willing to entertain the submission and follow the procedures ofJudge Gove of our court outlined in R. v. Bailey, [2013] B.C.J. No. 2760; 2013 BCPC 326. [87] MS. BRADSHAW: Yes, I would ask you to do that. [88] THE COURT: All right, so you are asking me to make an immediate payment of -- [89] MS. BRADSHAW: Forthwith. [90] THE COURT: -- the Victim fine surcharge forthwith, in default one day, that day to be served on a concurrent basis --

[ 91 ] MS. BRADSHAW: Yes. [ 92 ] THE COURT: -- with the sentence that I have imposed today, is that correct? [ 93 ] MS. BRADSHAW: Yes, thank you. [ 94 ] THE COURT: All right. That leaves the remaining counts on the information by way of indictment. [ 95 ] MS. FISHER: Direct a stay of proceedings on those. [ 96 ] THE COURT: All right, that is a stay of proceedings recorded on Count 1 and on Count 2. Are there any other matters that I need deal with? [ 97 ] MS. BRADSHAW: I don't believe so, Your Honour. [ 98 ] MS. FISHER: I don't believe so. [ 99 ] THE COURT: All right. [ 100 ] MS.

BRADSHAW: Thank you very much. [ 101 ] THE COURT: Thank you; Mr. Nadeau, I have told you earlier what I think you have to do in order that you can serve your time on a productive basis; I wish you well in terms of serving that time and in returning and integrating successfully back into the community. [ 102 ] MS. FISHER: Your Honour, if we could just discuss briefly the no-contact order, and if her initials can remain in that order itself. For the bail order, there was a no contact ever since he has been taken into custody.

The police contacted the jail and gave the jail sufficient information to ensure there was no contact from the facility. I do not believe he has had the name of the Victim up until now and I would not want it to be read to him by way of the order. [ 103 ] THE COURT: I see. All right, well, on that basis, does defence have any -- [ 104 ] MS. BRADSHAW: No, that's fine. [ 105 ] THE COURT: Then the Victim's name will continue in that order to be identified as S.F., as -- [ 106 ] MS. FISHER: Thank you. [ 107 ] THE COURT: -- laid out in the indictment. [ 108 ] MS. FISHER: Thank you. [ 109 ] THE COURT: All right.

That completes all matters. (REASONS CONCLUDED)