R. v. Yanulik, 2018 BCSC 1361

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Yanulik, 2018 BCSC 1361 Date: 20180618 Docket: 169729-1 Registry: Victoria Regina v. Anthony Todd Yanulik Restriction on publication: Pursuant toss. 486.4(2) and 486.4(3) of the Criminal Code Before: The Honourable Mr. Justice Davies Oral Reasons for Sentence Counsel for the Crown: J. ByrneCounsel for the Accused: D. McKayPlace and Date of Trial/Hearing: Victoria, B.C. April 30, 2018Place and Date of Judgment: Victoria, B.C.

June 18, 2018 [1] THE COURT: Anthony Todd Yanulik was convicted by a jury of sexual interference involving B.S., a female under the ageof 16 years, under s. 151 of the Criminal Code, R.S.C. 1985 c. C-46 as well as for the sexual assault of B.S. contrary to s. 271 of theCode. [2] Mr. Yanulik was in addition convicted of the related charge of juvenile prostitution contrary to s. 286.1(2) of the Code forobtaining for consideration the sexual services of B.S. or communicating with her or with J.R. for that purpose. [3] Application of the principles in R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, requires that the sexual assaultconviction be conditionally stayed. [4] Mr. Yanulik is accordingly now before the court for sentencing on the sexual interference and the juvenile prostitutionconvictions. [5] B.S. was 13 years old and Mr.

Yanulik was 54 years old on October 19, 2016, when the offences for which he was convictedoccurred. [6] J.R., who was also involved in his criminal offending, was then 17 years old. [7] The circumstances out of which this offending occurred are somewhat unusual. [8] On October 19th, 2016, B.S. was in temporary foster care living in a home with her newfound older foster sister, J.R. [9] At that time, B.S. was suffering from anxiety and depression and was not attending school.

She was under a doctor's care withprescribed antidepressant medication. [10] J.R. was a low-functioning teen who suffered from Crohn’s disease. The two were close friends but they had only been friendsfor a short period of time given the short time that B.S. had lived with J.R. [11] Both B.S. and J.R. are very small young girls. That was especially so in 2016. [12] B.S. and J.R. met Mr. Yanulik by chance at a bus stop in Esquimalt on October 19th, 2016. J.R. had previously engaged insexual activity with Mr. Yanulik for which she received money and cigarettes on what they called “dates.” [13] Mr.

Yanulik expressed interest in a “date” with J.R. She was uninterested because her Crohn’s disease was acting up and toldhim so. Mr. Yanulik then immediately turned his attention towards B.S. [14] Both testified that Mr. Yanulik asked how old B.S. was. J.R, testified that she told him B.S. was 13 and B.S. testified that shetold him she was 15.

[ 15 ] Mr. Yanulik denied those assertions and defended the allegations against him on the basis of an honest but mistaken belief in B.S.’s age. [ 16 ] The jury rejected that defence. [ 17 ] The very young appearance of both girls and especially that of B.S. leads me to conclude that there was overwhelming evidence upon which the jury could conclude that Mr. Yanulik did not reasonably believe that B.S. was over the age of 16. [ 18 ] Mr. Yanulik also advanced a defence of consent because B.S. eventually agreed to have a “date” with him. [ 19 ] When B.S. and J.R. went to his home with him, Mr.

Yanulik surreptitiously took them into his bedroom to avoid detection by his roommate. [ 20 ] It is noteworthy that Mr. Yanulik showed B.S. a knife in his bedroom. While he did not threaten her in any way with that knife, she did testify that she was unsure of what he might do. It made her nervous and afraid. [ 21 ] Mr.

Yanulik then proceeded to engage in a myriad of sexual conduct with B.S. including digital vaginal penetration, vaginal penetration with a vibrator, and fully unprotected sexual intercourse. [ 22 ] For reasons that remain unclear to me, J.R. videotaped the whole of that sexual activity on B.S.’s cell phone. [ 23 ] While the defence sought to assert that taping was for the purpose of blackmail or some other nefarious purpose by the two girls, I reject that submission.

The actions of both girls after the event do not support those assertions. [ 24 ] The jury did not have to make a specific finding about why the incident was videotaped. The tape itself is, however, clear evidence that whatever initial willingness B.S. may have exhibited to sexual activity with Mr.

Yanulik, it did not include willingness to engage in all of the escalating sexual activity in which he chose to engage. [ 25 ] I accept the Crown’s submission that having determined that he could engage in some sexual activity with a young girl he knew was under the age of 16 and whom he had paid or was going to pay for a “date”, Mr. Yanulik believed he could engage in whatever sexual activity he then chose. [ 26 ] Mr. Yanulik did not stop any of his activities notwithstanding B.S.'s clear signs of distress and expressions of pain which are plainly evidenced on the videotape. [ 27 ] After Mr.

Yanulik had sexually assaulted and interfered with B.S., he paid her $30 and tried to arrange another date with her. [ 28 ] When they left his apartment, B.S. was distraught and vomited. She was eventually taken by ambulance to hospital and was unable to be interviewed by the police that night due to her condition. She was interviewed the next day. [ 29 ] J.R. disclosed the existence of the videotape to the police over B.S.’s objections and was held for three days on charges of procuring and making child pornography.

The Crown did not approve those charges. [ 30 ] The police interview of B.S on October 20th was adduced as part of the Crown’s evidence at trial. It was stark evidence of how young B.S. was at the time of Mr. Yanulik's offending against her. [ 31 ] B.S. testified at trial with the assistance of a support person. [ 32 ] The principles of sentencing are well known.

To the extent applicable in this case, they provide: 718 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 down 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. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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 years … (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. [ 33 ] In this case, obvious aggravating circumstances are the age of Mr. Yanulik who was 54 and the age of B.S. who was only 13 and looked it. [ 34 ] The fact that Mr. Yanulik did not honestly believe that B.S. was over 16 years of age is also an aggravating circumstance. [ 35 ] Additional aggravating circumstances and factors are: Mr.

Yanulik's grooming of the two girls with coffee and cigarettes; his engaging in unprotected vaginal sex with a virgin; although he did not threaten B.S. with it, showing her a knife in a small room; his predatory and callous continuation and escalation of sexual activity when B.S. demonstrated pain and unwillingness; and, his demeaning sexual objectification of B.S. as a sexual commodity. [ 36 ] There are, in my view, no mitigating circumstances. [ 37 ] While Mr.

Yanulik told the presentence report author that, while he believes he is guilty for his actions, he is “adamant that he was soliciting sex from an adult prostitute.” [ 38 ] Although Mr. Yanulik expressed willingness to comply with any ordered dispositions by the court, he also expressed “a firm belief that he does not need sex offender treatment.” [ 39 ] Further disturbing and indicative of Mr.

Yanulik’s failure to comprehend the damage he has caused to B.S. is a statement that he believes that the community is suffering a loss because his current court involvement has stopped his ability to give back to the community by volunteering. [ 40 ] That statement, together with the fact that Mr.

Yanulik met J.R. at the Rainbow Kitchen and, also the fact that in 2014, he had warnings from social workers as a consequence of his inappropriate association with two young girls, one of whom he had met at the Rainbow Kitchen, shows not only lack of insight into his offending, but deliberate disregard for social norms. [ 41 ] The fact that Mr.

Yanulik desires to continue to work at or near the Rainbow Kitchen is extremely disturbing in all of the circumstances. [ 42 ] That concern with respect to his lack of insight into his offending also arises from the fact that in 2001, 15 years before he committed these offences Mr. Yanulik was convicted of assault. [ 43 ] When Mr. Yanulik pleaded guilty to that assault charge, he had initially been charged with sexual assault in a case involving two minor girls.

He was referred to sex offender treatment through the Forensic Psychiatric Commission and considered to be a good candidate for the program but was unwilling to cooperate. That resulted in a rejected referral. [ 44 ] I next turn to the positions of the Crown and the defence. [ 45 ] The Crown submits that an appropriate sentence for Mr. Yanulik's offending is in the range of five-and-one-half years comprised of a five-year sentence for sexual interference followed by a consecutive six-month sentence for the juvenile prostitution conviction. [ 46 ] Mr.

Yanulik asserts that a provincial sentence in the range of 18 months after application of time served post-conviction would be appropriate. He seeks that sentence in part so that he can continue with programs in the provincial system in the Victoria area including the Right Living Community Program. [ 47 ] Mr. Yanulik also seeks to serve his time in Victoria because he has an association to a local medical doctor who could assist in his need for foot surgery for a long-term disability and so that his ailing parents can visit him while he is incarcerated. [ 48 ] While I appreciate Mr.

Yanulik's desires to serve time in a local provincial corrections facility and avail himself of a program that he believes would assist him as well as his desire to have contact with his present surgeon and his parents, I am satisfied that a

sentence of two years less a day would not appropriately address the applicable principles of sentencing to which I have referred. [ 49 ] Such a sentence would not sufficiently address either personal or general deterrence or the protection of the community or adhere to the obligations of the court addressed in ss. 718.01 and 718.2(a)(ii.1) to which I have referred. [ 50 ] In reaching that conclusion, I have considered the numerous authorities to which I was referred by the Crown as well as the two authorities referred to by Mr.

Yanulik. [ 51 ] Other decided cases are, of course, important to the consideration of an appropriate range of offending and in respect of a particular sentence, but no one case is determinative. Each sentence must specifically address and respond to the circumstances of the offender, the nature of the offending, and must have regard to the applicable principles of sentencing that are engaged in that offending. [ 52 ] While the two authorities relied upon by Mr. Yanulik, R. v. Craig , 2013 BCSC 2098 , and R. v.

Scofield , 2018 BCSC 419 , do support the imposition of a provincial sentence in some sexual assault and sexual interference cases, they are, in my opinion, entirely distinguishable not only because of the age of the offenders in those cases, but also due to the mental disability suffered by Mr. Scofield. [ 53 ] Although some cases referred to me by the Crown indicate that a sentence in the provincial range may be appropriate in some circumstances, in my view, the circumstances in these cases do not reflect the nature or extent of Mr.

Yanulik’s offending or the impact of his offending against B.S. [ 54 ] While counsel for Mr. Yanulik took issue with the Crown's characterization of Mr. Yanulik's conduct as “predatory”, choosing instead to call it “opportunistic”, I am satisfied that Mr. Yanulik’s conduct had an element of both. [ 55 ] The submission that his offending arose from opportunity, seeks to continue Mr. Yanulik’s assertions that there was consent and that he was mistaken as to his belief, in B.S.’s age both of which assertions are not supported by the evidence and were rejected by the jury. [ 56 ] I find that Mr.

Yanulik abused the age imbalance and his relationship with J.R. to advance his own sexual interest without regard to B.S.’s age or her circumstances. He turned his sexual attention to her immediately after he knew that J.R. was not available to him that day.

To that extent his actions were opportunistic but to the extent that his actions with B.S. escalated as he chose to exploit her vulnerability they were predatory. [ 57 ] Crown counsel referred me to many authorities that amply support a sentence in the range asserted by the Crown in the circumstances of this case. [ 58 ] I include as Appendix A to these reasons a list of the decisions that I have considered both for the statements of principle contained in them and the range of sentences. [ 59 ] For the present more specific purposes, however, I refer to the following cases. [ 60 ] In R. v.

Allen , 2012 BCCA 377 , in which at para. 59, the court stated: … society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. … A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code .

At para. 60 the court went on to say: Parliament has made it very clear that the protection of children is a basic value of Canadian society which the courts must defend. [ 61 ] In R. v. D.R.W. , 2012 BCCA 454 , the court upheld a four-year sentence for an offender who pleaded guilty. At para. 45, the court noted that penetration is an aggravating factor and that the sentence of four years imposed by the judge: … for the offence before her, which on her findings included digital penetration and sexual intercourse, was below, or at best at the very low end, of the appropriate range of sentence. [ 62 ] In R. v.

B.S.B. , 2010 BCCA 40 , the Court upheld a sentence of two years less a day. However, the Court also opined that the appropriate range for sexual assault involving intercourse is from 2 to 6 years. [ 63 ] In R. v. Thomas , 2017 BCSC 982 , the accused, who had no prior record and concerns about deportation, was sentenced to 4.5 years for sexual assaults on two girls, one involving sexual intercourse. Aggravating factors were the accused supplying of the girls with alcohol and drugs. The court discussed the range of sentence for this kind of offence and accepted the range of sentence as set out in R. v.

B.S.B. and other authorities as being 2 to 6 years and imposed a sentence of four years as appropriate to express denunciation and deterrence. [ 64 ] In R. v. Gill , 2015 BCSC 1907 , the offender, a taxi driver, was involved in a single sexual assault incident. He abused his position of trust with an intoxicated female passenger by digitally penetrating her. He received a three-year sentence notwithstanding his lack of prior record and a risk of deportation. [ 65 ] In R. v. Corson , 2003 BCCA 430 , a sentence of 30 months’ imprisonment on top of six months’ dead time was upheld for a

sexual assault involving the accused performing oral sex, and then having sexual intercourse with a 16-year-old girl who was a stranger to him. [ 66 ] Having considered those cases, and others in Appendix A and also having considered the totality of the circumstances, together with Mr. Yanulik's history and his lack of insight into his offending, I have concluded that Mr.

Yanulik must be sentenced under Count 2 to four years, for sexually interfering with B.S. on October 19, 2016. [ 67 ] I am also satisfied that he must serve a sentence of one year for his crime of juvenile prostitution under s. 286.1(2) of the Code . [ 68 ] I have, however, determined that that juvenile prostitution sentence should be served concurrently with Count 2, rather than consecutively, because of the close factual association of the two crimes in time and place. [ 69 ] I also order that these sentences reflect the six months of post-conviction incarceration that has been imposed upon Mr.

Yanulik after the verdict was entered. [ 70 ] Accordingly, the remaining effective sentence will be three-and-a-half years on Count 2 to be served in a penitentiary together with six months concurrent for the crime of juvenile prostitution. [ 71 ] I also make the following ancillary orders: (1) a mandatory DNA order under Count 2 as a designated primary offence; and (2) a, Sex Offender Information Registration Act , S.C. 2004, c. 10, [ SOIRA ] order for life because of the two offences on the indictment for which Mr.

Yanulik was convicted. [ 72 ] I will also make the order sought under s. 743.21 of the Code that Mr. Yanulik have no contact from jail with B.S., J.R., or his roommate Zoe Clint, or any other person under the age of 18 years of age. [ 73 ] I decline to make the s. 109 firearms and weapons restrictions sought by the Crown. I do so with some reluctance given the existence of the knife in Mr. Yanulik’s room.

However, given that there was no evidence that the knife was used I do not believe it would be appropriate to also make the s. 109 prohibition order sought. [ 74 ] The Crown has additionally sought a ten year order under s. 161 of the Code prohibiting Mr. Yanulik from many aspects of public life that might involve him having contact with persons under the age of 18 years. [ 75 ] I am satisfied that, in the circumstances of this case, such a broad order should not be made. It would be potentially vague and very difficult to enforce. I do not wish circumstances to result in offending by Mr.

Yanulik which is not intentionally sexual in nature. [ 76 ] I do, however, believe that the protection of the public requires that Mr. Yanulik be precluded from volunteering or being employed with any agency which has as part of its mandate the providing of service to children under the age of 18 years of age for a period of ten years. That includes, without question, the Rainbow Kitchen. [ 77 ] Mr. Yanulik, I sincerely hope that you will never be before the courts again.

I can tell you from my experience in these courts that you are on a pathway that if not corrected could you lead you to much, much more serious consequences. You must come to grips with what is in reality a sexual proclivity that is dangerous. “Davies J.” Appendix A Case Authorities 1) R. v. Rich , 2014 BCCA 24 . 2) R. v. Allen , 2012 BCCA 377 . 3) R. v. Lamb , 2013 BCCA 372 . 4) R. v. D.R.W. , 2012 BCCA 454 . 5) R. v. B.S.B. , 2010 BCCA 40 . 6) R. v. Akumu , 2017 BCSC 1502 . 7) R. v. Thomas , 2017 BCSC 982 . 8) R. v. M.P.S. , 2016 BCSC 1175 . 9) R. v. Leger , 2016 BCSC 293 . 10) R. v. Athey , 2016 BCSC 1449 .

11) R. v. P.D.W. , 2015 BCSC 660 . 12) R. v. Gill , 2015 BCSC 1907 . 13) R. v. Lowney , 2015 BCSC 1721 . 14) R. v. F.E.H. , 2015 BCSC 175 . 15) R. v. Aimee , 2010 BCSC 1463 . 16) R. v. Florence , 2010 BCSC 1010 . 17) R. v. Goodliffe , 2005 BCCA 426 . 18) R. v. Corson , 2003 BCCA 430 . 19) R. v. Hajar , 2016 ABCA 222 . 20) R. v. Gashikanyi , 2017 ABCA 194 . 21) R. v. Deck , 2006 ABCA 92 . 22) R. v. Lyons , 2005 ABCA 258 . 23) R. v. Miller , 2016 SKCA 32 . 24) R. v. Norton , 2016 MBCA 79 . 25) R. v. Brar , 2016 ONCA 724 . 26) R. v. Mullings , 2012 ONCA 911 . 27) R. v. Woodward , 2011 ONCA 610 . 28) R. v.

K.M. , 2017 ONSC 2690 . 29) R. v. R.G. , 2017 ONSC 1676 . 30) R. v. Pouce Coupe , 2014 BCCA 255 .