R. v. C.K.A., 2019 BCPC 285

Citation: R. v. C.K.A. 2019 BCPC 285 Date: 20191114 File No: 17164-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.K.A. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Ban on Publication 486.4(2) CCC Counsel for the Crown: D. McKay Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Hardy , B.C. Date of Hearing: September 5, 2019 Date of Judgment: November 14, 2019 A Corrigendum was released by the Court on December 4, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction: [ 1 ] C.K.A. had pleaded guilty to touching J.C. and H.C. for a sexual purpose between 2011 and 2015, contrary to s. 151 of the Criminal Code . Crown proceeded by way of indictment. There were at least four incidents involving J.C. when she was approximately 11 or 12 years old and two incidents involving H.C. when she was somewhere between 9 to 14 years old. J.C. is two years older than H.C. and they are sisters. C.K.A. is their [omitted for publication].

Positions of Counsel: [ 2 ] Crown asserts that a fit and just sentence is a custodial sentence of 24 to 28 months for the offences against J.C. and 12 to 14 months for the offences against HC.

They would be consecutive to each other resulting in a total sentence of 36 to 42 months. [ 3 ] Ancillary orders are also sought – a DNA order, an order that C.K.A. comply with the Sex Offender Information Registration Act for life and a firearms prohibition for 10 years. [ 4 ] Crown also seeks a prohibition order pursuant to s. 161 of the Criminal Code for 5 years. [ 5 ] Defence counsel says that a fit sentence is a conditional sentence order for two years less a day followed by probation for two years.

A conditional sentence is still considered a jail sentence but one that is served in the community as opposed to a correctional facility. Circumstances of the Offence: [ 6 ] The circumstances are summarized in the Admissions of Fact as follows: [ 7 ] J.C. first told someone while she was undergoing treatment at the [omitted for publication] Treatment Centre in September, 2017, that C.K.A. used to touch her inappropriately.

I do not know the circumstances leading to her admission to the centre but I am aware that it is a specialized medical facility for youth who have mental health and/or behavioral problems. [ 8 ] Further investigations resulted in J.C. disclosing four incidents that she could clearly recall. The first incident occurred while she was sleeping. She was awakened by C.K.A. who touched and digitally penetrated her vagina for approximately 3 to 4 minutes.

On another occasion while she was sleeping, she awoke to find that C.K.A. had pulled her pajama bottoms down and was performing oral sex on her. [ 9 ] On a third occasion C.K.A. sat next to her on a couch and put his hand down her shorts. When she tried to cross her legs to stop him, he pulled them apart and rubbed her vagina with his fingers. [ 10 ] On a fourth occasion C.K.A. was playing with her by giving her a piggyback ride to her mother’s room. He turned the light out and laid her on the bed. He pulled off her pants, underwear and removed her shirt.

He again performed oral sex on her and placed his hand under her bra and touched her chest. She said there were other incidents of touching but these were the only four that she could describe specifically. She did not know what to do when this happened and as is so often the case, didn’t tell anyone what was occurring. [ 11 ] Following J.C.’s disclosure, the resulting investigation revealed that J.C.’s sister H.C. had also been sexually abused by C.K.A. [ 12 ] H.C. recalled two incidents. During the first incident, C.K.A. laid beside H.C. while she was watching TV in the living room of her grandmother’s house.

He tried to kiss her mouth and put his hand down her pyjama bottoms to touch her vagina. She was afraid and called out to her sisters J.C. and V.C. Upon their appearance, C.K.A. stopped and left the room. [ 13 ] The second incident occurred in H.C.’s home. C.K.A. tried to kiss her on her mouth and placed her hand inside his pants and on his penis.

This lasted only a couple of seconds because she had the presence of mind to pull her hand away and ran upstairs. [ 14 ] Like her sister, H.C. never told anyone about what had occurred. [ 15 ] C.K.A. told the police that he didn’t know why he abused [omitted for publication] and that he regretted what he had done. [ 16 ] Neither of the victims or their families have provided a victim impact statement. Circumstances of Offender: [ 17 ] I have had the benefit of a thorough pre-sentence report prepared by Mr. Steve Wallace.

The report is dated April 10 2018 but I believe that should be April 10, 2019 as it was filed April 12, 2019 and the Information was sworn on March 15, 2018. I have been provided with a Forensic Psychiatric Services prepared by Dr. Lopes, Registered Psychologist dated May 22, 2019 as well as a Gladue Report from Ms. Kimberly Gee dated August 11, 2019. [ 18 ] C.K.A. is now 51 years old. He was in his late 40’s when the offences against J.C. and H.C. occurred. [ 19 ] A thorough Gladue report was helpful in providing insight into C.K.A.’s past and current life. He is a member of the [omitted for publication] nation.

The report provided a very brief history of this nation. Mr. Wallace’s report provided additional and important history to help me understand how that may have affected C.K.A. particularly as it relates to the sexual abuse of [omitted for publication]. Originally two distinct communities, the federal government moved them from their traditional homes at [omitted for publication] to what is now called the [omitted for publication]. Although this was not mentioned by Ms. Gee, I am aware that to prevent them from returning, their homes were burned to the ground by government officials. [ 20 ] Mr.

Wallace succinctly summarized what happened to the people upon arriving to their new home: The Canadian Government, at the time of amalgamation, said they would no longer help the [omitted for publication] with housing, schooling and medical help if they stayed on their traditional lands, but would help them if they moved to the [omitted for publication] Reserve. However upon relocation, there was a lack of adequate housing, which resulted in overcrowding and displacement.

Moreover, like many First Nations communities in BC the [omitted for publication] were subject to the abuse, neglect, poverty and assimilation in the residential school system and were governed by discriminatory social policies and practices. As the people suffered they turned to alcohol to cope; alcohol use resulted in issues of violence, domestic and sexual abuse, as well as family dysfunction which are ongoing issues. St. Michael’s Residential School was built in Alert Bay, BC in 1929. It was an institution where most First Nations children in

the region went after being taken from their families starting around the age of six. The [omitted for publication] and [omitted for publication] children are recorded as having been in attendance there in 1929 and subsequent census. St. Michael’s was one of the last residential schools to close in the early 1970’s. It was demolished in 2014. [ 21 ] C.K.A.’s mother and father attended residential schools. Neither of them spoke about their experience there but both were described as alcoholics and violent. C.K.A. was exposed to emotional and physical neglect as well as physical, emotional and sexual abuse.

The government became involved with the family and the children were removed from the home and placed in foster homes. C.K.A. estimates that he was in about twenty foster homes as a young child and was separated from some of his older siblings. [ 22 ] He started drinking alcohol and using marijuana when he was thirteen years old. He struggled in school and described that learning was hard and he couldn’t learn. He recalled being in special education classes and having difficulty with reading and memory. He completed grade 9 and part of grade 10. [ 23 ] C.K.A. underwent an assessment with Dr.

Lopes through the Psychiatric Forensic Services Commission. C.K.A. lives in [omitted for publication] and, as so frequently the case given the distances, he “met” with Dr. Lopes via a Skype connection. There were some technical difficulties with the connection although Dr. Lopes felt it was sufficient for his assessment purposes. [ 24 ] Dr. Lopes was asked to assess C.K.A.’s risk for re-offending, whether there were any mental health issues along with recommendations for treatment. [ 25 ] Dr. Lopes diagnosed substance use disorder and alcohol use disorder, the latter under “recent control”.

In assessing C.K.A.’s risk of re-offending he utilized a tool called the CCR-20 which summarized a variety of risk factors for violent recidivism. [ 26 ] He found no major mental illness present. As it related to traumatic experiences, he indicated “unknown”. It was his opinion that C.K.A. presented a low risk for violence but if there were any such episodes, they would be in conjunction with substance use. [ 27 ] He did not provide any analysis or insight into the role C.K.A.’s past childhood neglect and trauma including sexual abuse may have played in these offences.

There was no discussion about the specific risk that C.K.A. may pose to young girls in his community for sexual reoffending. [ 28 ] The other tool he used was the Community Risk/Needs Management Scale designed for use by probation or parole officers to classify offenders when released into the community to focus supervision resources with a view to changing an offender’s behaviour and attitudes.

He was careful to point out that this tool was only an aid to “clinical decision making in assessing C.K.A.’s needs and possible community risk.” [ 29 ] As such, I accept that both assessment tools provide a limited mechanism to assess the risk that C.K.A. is a risk of offending against young girls in the community. It is worthy of note that Dr. Lopes felt that the Community Risk/Needs Management tool overestimated C.K.A.’s risk which Dr. Lopes considered to be low on the basis that C.K.A. has had a number of years with no further related issues. [ 30 ] Mr.

Wallace noted that “it appears as though the majority of his involvement with the criminal justice system relates to his substance abuse, anger management, and impulsive decision making.” C.K.A. told Mr. Wallace that he struggles to control his anger which is made worse when he is drinking. C.K.A. told Ms. Gee that he was subjected to racism in school and was beaten up and bullied by other boys. [ 31 ] A number of family and community members were interviewed by Ms. Gee and they are consistent in describing C.K.A. a kind-hearted, good person who works hard when he is sober.

When he is drinking he can be unreliable and angry. One person said “he is not a nice guy when he is drinking.” [ 32 ] C.K.A. attended the Round Lake Treatment Centre when he was nineteen years old.

That appears to be the only counselling or assistance he has had to help him deal with the trauma he has suffered as a child and young adult. [ 33 ] All the people interviewed, who included his pastor, family and friends, believe that C.K.A. would be helped by undergoing substance abuse treatment as well as grief and trauma counselling and an opportunity to give back to his community. [ 34 ] C.K.A. has been in a common law relationship for about four years and his wife is supportive of him.

He denies being attracted to under age females. [ 35 ] C.K.A. expressed deep remorse for what he did to [omitted for publication]. He showed some level of insight into his behaviour and related it to loneliness, substance use and the fact he had access to his victims. Mr. Wallace indicates that C.K.A. is just beginning to explore his history of sexual abuse and, at the time of his report, was unsure if he is open to attending counselling.

Effect on Complainant: [ 36 ] While neither of the girls or their families provided a victim impact statement, I fully accept that the harm caused by sexual abuse of children is significant and all too often, invisible. It destroys a child’s ability to trust, and undermines the ability to have a rewarding healthy and intimate relationship and destroys self-esteem.

The Legal Framework: [ 37 ] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community.

[38] A sentence must be proportional to the seriousness of the offence and the degree of responsibility, or moral blameworthiness, ofthe offender. It must not be excessive or unduly harsh. [39] All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm to avictim or the community should be considered with particular attention to the circumstances of Aboriginal offenders: s. 718.2 (e). [40] I am also mindful of the direction given to sentencing judges by the Supreme Court of Canada in R v.

Gladue, (supra.) at para80 and 81: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis. What combination of systemic or background factors contributed to this particular offender coming before the courts for this particularoffence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, orovert racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense thatwould be significant to the offender and community, or are crime prevention and other goals better achieved through healing? Whatsentencing options present themselves in these circumstances? 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. [41] The Supreme Court of Canada revisited these principles in R v Ipeelee 2012 SCC 13 , [2012], 1 S.C.R. 433 noting thatsentencing judges not always applied the approach required of them and reiterated that: Courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that historycontinues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse andsuicide, and higher levels of incarceration for Aboriginal peoples.

While these factors, on their own, do not necessarily justify a differentsentence for an Aboriginal offender, they provide the requisite context for considering the case-specific information. Failing to takethese circumstances into account would violate the fundamental principle of sentencing that requires the sentence to be proportionate tothe gravity of the offence and the degree of responsibility of the offender.

To the extent that the application of the Gladue principlesleads to different sanctions for Aboriginal offenders, thereby implicating the parity principle contained in s. 718.2, those differences willbe justified based on the unique Aboriginal circumstances. Factors in Mitigation: [42] I must consider factors that mitigate a sentence.

There are a number of those present. [43] C.K.A. pleaded guilty at an early opportunity thus sparing the victims and their families from having to testify, potentially twicedepending on election, during a preliminary inquiry or trial. [44] He is remorseful for his actions and expressed a strong desire to make amends to his victims, the families and his community. [45] He has no prior record for a similar offence. [46] There are a number of Gladue factors present as I have already summarized.

Aggravating Factors: [47] The aggravating factors are the presence of two victims both of whom were under the age of eighteen years. [48] The abuse of J.C. was over a prolonged period of time although it is not capable of precise calculation.

There were at least fourincidents which were not just brief or transitory and involved skin to skin contact. [49] As [omitted for publication], C.K.A. was in a position of trust to these young girls. [50] Crown asserts that further aggravating factors are that he has a record for assault causing bodily harm and assault against anintimate partner in 2003 and 2015 respectively. Crown also says the convictions for breaching probation orders on two occasions (2006and 2015 respectively) is also aggravating.

I do not find that these convictions are aggravating and thereby require an increase in thesentence I would otherwise impose. They are not of the same nature of the current offences involving [omitted for publication] and someare very dated. They are a reflection of C.K.A.’s struggles with alcohol and anger. Legal Authorities: [51] Crown counsel provided a number of cases from across Canada involving sexual offences against young children.

Several ofthe cases were factually distinguishable and provided for the purpose of summarizing the general principles underlying sentencing anoffender in these circumstances. [52] I accept that following fundamental principles apply in instances involving sexual offending against children: • Harms perpetrated upon children are taken very seriously (R .v. Miclash, 200 BCCA 266 at para 7); • Sexual assault and sexual abuse of children violates that child’s physical, mental and emotional integrity and has longlasting and profound consequences (R. v. R.E.L. 2010 BCCA 493 at para 10);

• Our children are our most valued and most vulnerable assets and they must be protected from harm caused by sexual predators ( R. v. Woodward , 2011 ONCA 610 at para 72 ); • While an offender’s prospects of rehabilitation must always be considered, the objectives of denunciation, deterrence and the need to separate sexual predators from society must take precedence ( Woodward , at para. 76 ). [ 53 ] Defence counsel also provided cases for my reference. The cases provided for sentencing comparisons were decided at a time when a mandatory minimum of forty five days for

summary offences was in place. In 2012 the mandatory minimum for sexual interference ( s. 151 Criminal Code ) was increased to ninety days for a

summary offence and one year for an indictable offence. [ 54 ] The British Columbia Court of Appeal in R. v. Scofield , 2019 BCCA 3 held that the mandatory minimum sentence of one year offended s. 12 of the Canadian Charter of Rights – the right not to be subjected to cruel and unusual punishment – and was therefore unconstitutional. [ 55 ] Mr. Scofield had pleaded guilty to sexual interference of two fifteen year old girls. Mr. Scofield was twenty one years of age and younger than C.K.A. He was not in a position of trust to these girls.

However, the acts committed against these girls were at the far more serious end of the spectrum and involved unprotected intercourse, fellatio and oral sex as well as touching. The acts occurred four or five times with one victim and at least two occasions with the other and over a period of about six months. Both victims continued to experience significant emotional impact at the time of sentencing. [ 56 ] Mr. Scofield had no prior criminal record. [ 57 ] The sentencing judge concluded that the usual sentencing range for sexual interference is imprisonment between nine to eighteen months.

In imposing a six month conditional sentence order he took into account the fact that there was no extraneous violence, threats, coercion, inducements or predatory behaviour. Mr. Scofield’s diminished psychological capacity placed him at the maturity of someone much younger than twenty-two. He accepted that the determination of a just and appropriate sentence is a highly individualized exercise that may justify a sentence outside the usual range. The sentencing judge concluded that Mr.

Scofield’s cognitive disabilities and impaired executive decision-making diminished his moral blameworthiness. [ 58 ] The sentencing judge had the benefit of a thorough and more detailed expert report from experts including Mr. Scofield’s family physician and a psychologist. That evidence allowed the judge to find that Mr. Scofield may have Fetal Alcohol Spectrum Disorder, an IQ of 59 and significant impairment in a variety of adaptive functions including executive function, memory, communication, impulse control and attention. Mr.

Scofield’s family physician opined that the cognitive deficits influenced his behaviour and were a causal factor in the commission of the offences. [ 59 ] The sentencing judge concluded that Mr. Scofield would not do well in prison. [ 60 ] The Court of Appeal upheld the conditional sentence order but increased it to one year.

Although concluding that the sentencing judge was not wrong, the court did point out that the absence of extraneous violence, etc. should not have been treated as mitigating factors, rather, they were more appropriately an absence of aggravating factors and relevant to the determination of a fit sentence. [ 61 ] While acknowledging that conditional sentences will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved, the court recognized that there are situations in which a Conditional Sentence Order can satisfy those principles.

Discussion: [ 62 ] Crown counsel is asking me to impose a significant jail sentence. [ 63 ] The admonishment and clear direction by the Supreme Court of Canada in Gladue and Ipeelee looms large in this case. [ 64 ] C.K.A. is himself a victim. He is a victim of policies and actions that ultimately resulted in a childhood impacted by neglect, abuse, poverty, violence and substance use problems. As a young child he was removed from his parents who not only were unable to care for him, but hurt him as a result of their own childhood trauma. He was left to live in foster homes where he was further traumatized.

This is the legacy of residential schools and past assimilation policies. [ 65 ] Furthermore, I accept that C.K.A. has cognitive difficulties that may be related to Fetal Alcohol Spectrum Disorder. Evidence in the various reports based on interviews with family members confirmed that C.K.A.’s mother, herself a residential school survivor, was an alcoholic. She was unable to care for her children due to that disease which resulted in their removal and placement in foster care. I am mindful that Crown take the position that there is no expert evidence before me on this issue and that Dr.

Lopes’ opinion was that C.K.A. did not present with any psychiatric disorders or mental health condition. [ 66 ] However, Dr. Lopes’ assessment was limited (as it was required to be) and it was not conducted in person thus reducing the effectiveness of an extremely important tool in the evaluation of a person’s mental health status – the ability to see and hear a person’s facial expressions, body language and tone of voice. [ 67 ] I do not need an expert opinion to reach my conclusion. There was ample evidence in the reports and also from people in the community who know C.K.A.

His former special education teacher throughout kindergarten to grade three provided a letter to assist the court. She continued to keep in contact with him over the years and have had many conversations. She confirmed what C.K.A. told the various report writers – he had difficulty in school (in fact needed a special education teacher), had (and still has) difficulty with memory and needs to be given specific direction about a particular task. She also confirmed that C.K.A. has expressed that he has difficulty controlling his anger and that he self-medicates with alcohol.

[ 68 ] I conclude that C.K.A.’s history of sexual abuse, trauma and substance use is a material and significant causal factor leading to the abuse of [omitted for publication]. [ 69 ] This is exactly the type of case that require a sentencing judge to carefully assess the degree of moral blameworthiness of an Indigenous offender in light of the historical treatment of Indigenous people and the systemic and insidious consequences flowing from that.

The effects of those policies and treatment extend into the very fabric of their personal and community lives. [ 70 ] I must also balance these considerations with the need to protect Indigenous women and in particular, young girls who, compared to non-Indigenous women and girls, are at much higher risk of violence and sexual abuse. [ 71 ] Any sentence I impose must balance all the principles of sentencing including rehabilitation and particular attention to the circumstances of Aboriginal people. [ 72 ] Is C.K.A.’s community better off by putting him in jail?

Is jail necessary to deter C.K.A. from doing this again or preventing others in his community from abusing young girls? [ 73 ] I observed C.K.A. over the course of lengthy submissions in the sentencing hearing. I accept that he is afraid and is genuinely remorseful. He struck me as a quiet and simple man who expresses himself accordingly and that is borne out by his statements to the report writers.

I conclude that he has been sufficiently deterred and is ready and willing to take the next steps towards his own recovery and healing. [ 74 ] One of the reasons for the overrepresentation of Indigenous people in jail is in part due to very limited options in a justice system that previously treated Aboriginal people in the same manner as their Caucasian counterparts.

Amelioration of Indigenous overrepresentation in jails requires that sentencing judges think innovatively and, with the principles and objectives of the sentencing regime in clear view, consider: “… whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.” ( Ipeelee , paragraph 65 ). [ 75 ] If I otherwise would have imposed a sentence of imprisonment less than two years, I may order that C.K.A. serve the sentence in the community and subject to conditions that protect the community and are consistent with fundamental objectives of sentencing.

This is a Conditional Sentence Order. [ 76 ] The range of sentence for sexual interference offences varies from nine to eighteen months for the less invasive activity of sexual touching and up to three years where sexual intercourse of other forms of more invasive sexual activity have occurred and more generally, will fall within a range of one and three years’ imprisonment: R. v. Williams , 2019 BCCA 295 at paragraph 70 and 71 . The range of sentence for sexual interference will be difference than the range of sentence for sexual assault: Williams , paragraph 37 . [ 77 ] In R. v.

Bolderson , 2018 BCPC 268 , I sentenced Mr. Bolderson to twenty seven months for sexual interference involving repeated acts of oral sex performed over a period of two years upon a young girl between the ages of six to eight. I found that Mr. Bolderson was in a position of trust towards the victim, had shown some grooming behaviour, had no insight into his offending and in fact evinced a particularly troubling attitude that deflected responsibility for his offences. That sentence was consecutive to a twelve month sentence for a similar act of sexual interference involving a nine year old girl on one occasion.

That was reduced from thirty nine months to thirty months based on the principle of totality and giving significant weight to Mr. Bolderson’s guilty plea a significant mitigating factor. [ 78 ] In Scofield , the Court of Appeal did not find it necessary to set out a range for sexual interference offences in similar circumstances but noted that sentences are increase as courts more fully appreciate the damage that sexual exploitation causes to “vulnerable young victims” paragraphs 61 to 62. [ 79 ] However, Scofield did not involve children as young as the victims in the circumstances before me.

Nor did it involve a person in a position of trust who was also much older than the victims. [ 80 ] Doing the best that I can with the legal authorities provided, and in all the circumstances before me, I conclude that a sentence in the range of nine months to one year for the offences against J.C. and three to four months in respect of H.C. would be appropriate for a total of twelve to fifteen months if served consecutively. [ 81 ] Before ordering a conditional sentence, I must be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 82 ] In support of the position that jail is necessary and a conditional sentence order is not appropriate, Crown says that C.K.A. is a risk to the community he has little insight into what caused his behaviour. [ 83 ] One of the reasons they say he is a risk to the community is that he appeared unsure about taking counselling.

That is a reference to Mr. Wallace’s comment about C.K.A. beginning to explore his past abuse but being unsure about counselling at that point in time (April, 2019). However, C.K.A. clearly indicated a willingness and desire to take treatment in his interview with Ms. Gee in August, 2019. Furthermore, Dr. Lopes’ report based on an interview in May, 2019 was clear that in his opinion C.K.A. was amenable to treatment and would welcome the help. [ 84 ] There is no evidence that C.K.A. poses a risk to young girls generally. There have been no other offences since the incidents to which he has pleaded guilty.

Furthermore, based upon Dr. Lopes’ opinion I conclude that C.K.A. is a low risk to reoffend. [Omitted for publication] is a small community and I expect that it is generally known that C.K.A. has pleaded guilty to these charges. In addition to

the conditions that can be imposed, there will also be community oversight that will reduce any residual risk. Sentence: [ 85 ] The purpose of the sentence I impose is not only to protect young girls in C.K.A.’s community, it is, in the words of Justices Cory and Iacobucci, to restore a sense of balance to C.K.A., his family, [omitted for publication] and his community. [ 86 ] A jail sentence would be counterproductive to this important goal. Furthermore, I do not believe that C.K.A. would do very well in jail given his cognitive challenges and history.

C.K.A.’s family and community should have an opportunity to work together to achieve healing in the manner of their own choosing and consistent with their own spiritual and cultural beliefs and practices. [ 87 ] I expect C.K.A. to fully participate in substance use treatment and grief and trauma counselling. I also expect C.K.A. to engage in some form of traditional healing and for C.K.A. to make amends to [omitted for publication], the family and his community. [ 88 ] C.K.A. is to serve a sentence by way of Conditional Sentence Order for a period of two years less one day.

The sentence I impose is global on Counts one and two. [ 89 ] The Conditional Sentence Order will have the following conditions: • The statutory conditions; • Report to a conditional sentence supervisor ; • You are to tell your conditional sentence supervisor where you are currently living and if you change that, you are to tell your supervisor within three days of the change; • You are to have no direct or indirect contact with J.C. or H.C. except during a restorative justice program in which J.C. or H.C. have consented or except with further court order; • For the first nine months of this order, you must obey a curfew by being inside your residence between ten pm and six am each night subject to exceptions for employment, medical emergency, if you are involved in a restorative justice program or healing camp that takes place outside your residence in which case you must notify your supervisor in advance and if requested provide proof of your attendance; or with written permission from your supervisor in which case you must carry it with you. • Subject to the consent of J.C. and H.C. and their families, you are to participate in a restorative justice program in your community; • You are to participate in traditional ways of healing and making amends to your community including separation from your community such as time in isolation and/or a healing camp provided by the [omitted for publication] Nation Family Services Department or that are recommended by the [omitted for publication] Justice Program; • You are to participate in and complete counselling, assessments or programs that may be recommended by your conditional sentence supervisor which may include a referral to the National Native Alcohol and Drug Abuse Program; a referral to the low intensity Forensic Psychiatric Services sex offender program and a referral to [omitted for publication] Society; • You must work with your conditional sentence supervisor to take the necessary steps to attend the [omitted for publication] Substance Abuse and Treatment Centre; • Subject to an order of the court, you must not be alone in the presence of a female child who is, or who reasonably appears to be, under the age of sixteen years unless: • The child is your own biological child; • You have the written permission of your supervisor in which case you must carry the permission; • You are in the course of legitimate employment, but only in the immediate presence of an adult who has reviewed this order, or when contact is necessary and incidental to the employment; • Through or in the immediate presence of a lawyer who has reviewed this order. [ 90 ] This will be followed by Probation for one year.

The conditions are as follows: • The statutory conditions; • Report to a probation officer within fourteen business days after the completion of your conditional sentence order; • You are to tell your conditional sentence supervisor where you are currently living and if you change that, you are to tell your supervisor within three days of the change; • You are to have no direct or indirect contact with J.C. or H.C. except during a restorative justice program in which J.C. or H.C. have consented or except with further court order; • Subject to the consent of J.C. and H.C. and their families, you are to participate in a restorative justice program in your community;

• You are to participate in traditional ways of healing and making amends to your community including separation from your community such as time in isolation and/or a healing camp provided by the [omitted for publication] Nation Family Services Department or that are recommended by the [omitted for publication] Justice Program; • You are to participate in and complete counselling, assessments or programs that may be recommended by your conditional sentence supervisor which may include a referral to the National Native Alcohol and Drug Abuse Program; a referral to the low intensity Forensic Psychiatric Services sex offender program and a referral to [omitted for publication] Society; • You must work with your probation officer to take the necessary steps to attend the [omitted for publication] Substance Abuse and Treatment Centre; • Subject to an order of the court, you must not be alone in the presence of a female child who is, or who reasonably appears to be, under the age of sixteen years unless: • The child is your own biological child; • You have the written permission of your probation officer in which case you must carry the permission; • You are in the course of legitimate employment, but only in the immediate presence of an adult who has reviewed this order, or when contact is necessary and incidental to the employment; • Through or in the immediate presence of a lawyer who has reviewed this order.

Ancillary Orders : [ 91 ] There will be an order on primary grounds that C.K.A. provide a sample of his DNA. He is to report to the [omitted for publication] police detachment by 4 pm Monday November 18, 2019 for the purpose of providing a sample of his DNA. [ 92 ] There will be the mandatory order that C.K.A. comply with the Sex Offender Information Registration Act (SOIRA) pursuant to s. 490.012 for life. [ 93 ] I have considered whether it is necessary to make an order of prohibition pursuant to s. 161 of the Criminal Code .

These orders are discretionary and are not given automatically because they can have a significant impact upon a person’s liberty. There must be some evidentiary basis to allow the court to conclude that an offender poses a risk to children and the specific terms of the order are a reasonable attempt to minimize the risk. Furthermore, they must be carefully crafted to respond to the offender’s specific circumstances: R. v.

K.R.J. , 2016 SCC 31 . [ 94 ] Crown counsel is asking for an order to prohibit C.K.A., for five years, from attending a public park or swimming area where children under the age of sixteen may reasonably be expected to be present; from being within two kilometers of the residence of J.C. and H.C.; from seeking or maintaining any employment or becoming a volunteer that involves him being in a position of trust or authority to a person under sixteen years; and lastly, from having any contact or communicating with a person under the age of sixteen year unless under appropriate supervision. [ 95 ] The offences committed by C.K.A. involved [omitted for publication] who were alone with C.K.A. in a room of a residence.

There is no evidence in Dr. Lopes’ report that C.K.A. is a risk to young females generally and I am satisfied that the conditions in the conditional sentence order and probation will serve to protect those in the community who may be vulnerable in the unlikely event that C.K.A. reoffends. However, I agree that there should be some prohibition to prevent him from being in a position of trust or authority over young girls for a limited period of time. [ 96 ] There will be an order under s. 161 (

b) of the Criminal Code that, subject to further court order, C.K.A. is not to seek, obtain or continue employment or become a volunteer in a capacity that involves being in a position of trust or authority towards a female under the age of sixteen years.

This order is in effect for three years. [ 97 ] The parties are at liberty to appear before me for further directions regarding any aspect of this matter. [ 98 ] My sentence contains a substantial restorative justice component and I would like to have this matter come back before me for the purpose of reviewing the conditions I have imposed specifically relating to the restorative justice options and with a view to having a discussion about what may be an appropriate approach for C.K.A. and his community. I direct that the JCM set this matter back down before me in approximately three months for that purpose.

BY THE COURT: _____________________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia CORRIGENDUM - Released December 4, 2019 In the Reasons for Sentence dated November 14, 2019, the following change has been made:

[1] The cover page be amended to correct counsel for the defendant’s name from: R. Movassaghi to B. Movassaghi. ______________________________ The Honourable Judge Flewelling Provincial Court of British Columbia