R. v. Wolff, 2020 BCPC 174

Citation: R. v. Wolff 2020 BCPC 174 Date: 20200604 File No: 172557-1, 172557-2-A, 272557- 4-AC, 178122-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODY TAYLOR WOLFF File No. 178012-1 REGINA v. CODY TAYLOR WOLFF TERRY EDWARD ANTHONY CARDIN BAN ON PUBLICATION –

SECTION 486.4

(2) C.C.C. ORAL REASONS FOR SENTENCE (RE ACCUSED WOLFF) OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Bakken, R. Picha, by teleconference Counsel for the Accused: J. Belding, Articled Student (as Agent for T. Morino), by teleconference Place of Hearing: Victoria , B.C. Dates of Hearing: May 26 and June 4, 2020 Date of Sentence: June 4, 2020 [ 1 ] THE COURT: Mr. Wolff is here today in court for sentencing on one count of child luring contrary to s. 172.1(1) (

b) of the Criminal Code , and one count of indecent act, exposure, to a person under age 16, contrary to s. 173(2) of the Code . In addition, Mr. Wolff is being sentenced on various counts of breaches of an undertaking by possessing or consuming alcohol contrary to court order, obstruction of a peace officer, and most significantly, the breach of court order to have no contact with females under age 16 years.

[ 2 ] At issue in this sentencing is the length of sentence. The Crown seeks a global sentence of three years on all counts largely to reflect the harm caused to the young victims in this case, and to young persons generally, by the offences under ss. 172.1(1)(

b) and 173(2) of the Code as well as Mr. Wolff's degree of responsibility including his conduct while out on bail. On the luring charge, the Crown seeks a sentence of two years less a day. It seeks a sentence of six months on the charge of indecent exposure and six months each on the breach charges concurrent with one another, but consecutive to the sentences on the luring and the exposure charges. [ 3 ] Mr. Wolff has been in custody since August 14th of 2019. While in custody, he has engaged in some counselling programs. When released, he has employment and some community supports. Mr.

Wolff submits that in all the circumstances a time served sentence with a lengthy period of probation would be a fit disposition in this case. [ 4 ] By way of background, there are two young principal victims in this case, C.P. and K.H. Other persons deeply affected include C.P.'s parents who struggle still with the impact of Mr. Wolff's offending conduct on their child and its effect on her and on the family unit. Mr. Wolff was at the material time employed at a riding stable in [omitted for publication]. Like so many riding stables, young people are often present caring for and riding the animals.

It is for many a sport or even a therapy. C.P.'s parents write they thought it was a safe place to send their 14-year-old daughter no doubt to enjoy the outdoors, to learn to care for animals, and to learn about responsibility. It is intended to be a healthy and safe environment. The same, obviously, could be said for the parents of K.H. and K.H. herself. [ 5 ] Mr. Wolff admits the luring offence in relation to C.P. He was charged with, among other things, the sexual interference of C.P., but in this sentence he pleads guilty to luring. Nevertheless, the circumstances outlined by the Crown evidence that Mr.

Wolff had sexual contact with C.P. when C.P. was 14 and Mr. Wolff 21 years of age. As the Crown outlines, Mr. Wolff met C.P. in January 2017 at the stables where [omitted for publication] she was present. They became friendly, but by June 2017, Mr. Wolff began having sexual contact with C.P., contact that included two instances of vaginal intercourse, and several instances of manual stimulation by both C.P. and Mr. Wolff. [ 6 ] Both engaged in online communications via social media and text message. The Crown produced a brief

summary of some of the approximately 6,000 messages between the two over the period from January to July when, for various reasons, the relationship ended. Those include that Mr. Wolff suspected others knew what was going on and that, by then, K.H. had reported him to police. [ 7 ] In defence, Mr. Belding submitted all 6,000 text messages which have been entered as an exhibit in this trial and were referred to extensively in defence submissions. The details of the contact between C.P. and Mr. Wolff are outlined in the agreed statement of facts filed as an exhibit in this sentencing.

Specifically, it is admitted that Mr. Wolff communicated with C.P. via telecommunication for the purpose of facilitating the commission of an offence under ss. 151 or 152, s-ss. 160(3) or s. 173(2) or ss. 271, 272, 273, or 280. [ 8 ] The details, as I say, of some of the texts are set out in Appendix B of the Crown's submissions as well as the texts themselves which are now entered into evidence. They are sexually explicit. Mr. Wolff makes explicit reference to C.P.'s body parts. He compliments her on her body, her looks, and her ability to perform sexually for him.

He encourages sexual contact in no uncertain terms, including by sending photos of his genitalia and seeking photos of a similar nature from C.P. [ 9 ] At the same time, there is, the Crown submits, an aspect of grooming in Mr. Wolff's comments that he loves C.P., and wants her to marry him. He does express worry that her parents will discover their relationship. He even looks for details as to her parents' ability to monitor or track her phone. As the Crown outlines, the communications are of a prolonged nature. They are directed at a 14- year-old girl who is led to believe she is the object of Mr.

Wolff's deep affection and that the two could engage in a long-term relationship. Crown submits that the communications are planned and they are persistent and that Mr. Wolff's conduct is a deliberate preying on a young person at a vulnerable age using not unsophisticated grooming behaviour, much of which occurred at the same time that Mr. Wolff was engaged in sexual contact with C.P. [ 10 ] In or around June 2017, at the same time that he was having sexual contact with C.P., Mr. Wolff met K.H. at the stables. K.H. was 13 years of age at the time. Mr.

Wolff communicated with K.H. via Snapchat and, during these communications, Mr. Wolff sent K.H. three photographs of his genitalia. Mr. Wolff asked K.H. for nude photographs of herself five times and, ultimately, K.H. sent Mr. Wolff a photograph of her breasts while wearing a bra. K.H. reported the matter to police and it was during the course of that investigation that police learned of Mr. Wolff's sexual encounters with C.P. [ 11 ] Mr. Wolff was arrested on the charges of luring and indecent exposure, among others, and released on bail.

His release conditions included that he have no contact with any female under age 16, and that he not possess or consume alcohol. As I will note shortly, alcohol consumption bears a significant role in Mr. Wolff's behaviour, and certainly in his risk of reoffending. [ 12 ] Mr. Wolff admits in this sentencing that, after his release, he breached his bail conditions by having contact with females under age 16, and by consuming alcohol. Mr. Wolff admits to having consumed alcohol on August 5, 2019, when he was pulled over by police, suspected of impaired driving. Mr.

Wolff admits to resisting arrest on August 14, 2019, and in the process causing police to physically restrain him, an exercise that Crown submits took some four minutes. [ 13 ] Finally, and more significantly, Mr. Wolff admits to the charge that between September 25, 2018 and August 5, 2019, he failed to comply with a condition of an undertaking by having contact with females under age 16. Those contacts included the young daughter of Mr. Wolff's then intimate partner, and two girls aged 13 and 14 who rode horses at the stable where Mr. Wolff worked. [ 14 ] Mr. Wolff was born October 29, 1995.

He is today 24 years of age. When Mr. Wolff first pled guilty to these offences on the day of trial, the court ordered both a presentence report and a psychological report to assist with sentencing. Those reports are in evidence in this sentence hearing. It was agreed at that time that Mr. Wolff would plead guilty in accordance with an agreed statement of facts, as I say, also entered into evidence in this hearing. Once the reports were prepared, it became clear that Mr.

Wolff would not admit the facts underpinning the luring and indecent exposure charges. [ 15 ] Following some procedural wrangling, the sentence hearing was reconvened, but not before two additional update reports were ordered. In the result, there are four reports in this sentence hearing that address Mr. Wolff's antecedents, his addiction issues, and his

likelihood of reoffending. [ 16 ] Mr. Wolff describes a difficult childhood characterized by family dysfunction and domestic violence perpetrated by his father on his mother and himself. Mr. Wolff reported suffering a number of mental health disorders as a child that went untreated because of his family's religious beliefs. Mr. Wolff is reported to have advised the writer of his psychological report, Dr. Scott, that he was bullied in elementary school after being homeschooled, and that he was viewed as weird or different.

He also reported that he was diagnosed with Tourette syndrome, ADHD, and high-functioning autism when he was 17. [ 17 ] Watching Mr. Wolff as he appeared on video over this lengthy sentence hearing, he did demonstrate some unusual affects which his counsel suggests at a minimum are consistent with Tourette syndrome. [ 18 ] Mr. Wolff has reported suicidal ideation over the years. His first suicide attempt was at age 18 and a second at age 19. Mr. Wolff has been admitted to hospital suffering from seizures.

With his history of Tourette syndrome, ADHD, and depression, he has been prescribed Ritalin, Cipralex, and Mirtazapine. Following his first assessment of Mr. Wolff, Dr. Scott queried whether Mr. Wolff also did not suffer from a generalized anxiety disorder as well as alcohol abuse disorder. [ 19 ] Despite his upbringing, Mr. Wolff remains close to his mother. He is employable and appears to have a social group. I believe his relationship with the mother of the 14-year-old girl who was the subject of one of Mr. Wolff's breach charges has now ended. [ 20 ] In his first assessment, Dr. Scott opined that Mr.

Wolff is a moderate risk for future sexual violence, but that that risk would be higher if he was under the influence of alcohol. That risk is measured by considering a number of items within five separate categories or domains including sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability. Within each of these domains, Mr. Wolff exhibited a number of factors. [ 21 ] As an example, in the category of sexual violence history, the factors present included chronicity, diversity, escalation, physical coercion, and psychological coercion.

Many of these factors underline a concern the courts have with sexual offences such as luring and, obviously sexual interference which, although not charged here, figures largely in the sentencing. [ 22 ] Factors under the category psychological adjustment include a denial of sexual violence, minimizing or denying sexual violence, attitudes that support or condone sexual violence, and problems with self-awareness. These are also factors that go into an offender's insight into their own offending conduct, factors that can suggest remorse and a low probability of reoffending. It did not appear to Dr. Scott that Mr.

Wolff has sufficient insight into the harm his offending caused, and that sexual interference with a 14-year- old girl is a form of sexual violence. [ 23 ] Still Mr. Wolff does and did before Dr. Scott acknowledge a longstanding issue with abusing alcohol. The thrust of his submissions in this sentence hearing is that his conduct is largely driven by alcohol consumption. Mr. Belding went so far as to suggest that it may impact on Mr. Wolff's mens rea or his capacity to form an intention to commit the sexual offences.

The breaches, specifically those related to alcohol consumption, are more understandable in the circumstances, but as I will discuss shortly, alcohol consumption to the degree evident in the circumstances of this case does not serve to reduce Mr. Wolff's moral culpability for these offences. [ 24 ] As I say, I will return to that later in these reasons, but for the moment it bears noting that alcohol consumption is a risk factor and Mr. Wolff's effort to address that factor goes some way to reduce his risk of reoffending, though by no means entirely or even mostly.

Still, that factor or that fact can serve as a mitigating factor on sentence. [ 25 ] An update of Mr. Wolff's presentence report was prepared for this sentence hearing and completed on March 19, 2020. The updates include that Mr. Wolff no longer intends to continue to [omitted for publication] at the stables when he is released from custody. Mr. Wolff also advised the report writer that, while in custody, he has remained sober, been meeting with an alcohol and drug counsellor, and attending AA as well as participating in the substance abuse program. Mr. Wolff's addiction counsellor, Mr.

Kelly, provided the court with a letter outlining Mr. Wolff's treatment progress which is good. Mr. Kelly writes, also, that Mr. Wolff has shown remorse for his actions, that he accepts responsibility, and knows that his actions caused harm and distress to his victims. As I will touch on in more detail shortly, Mr. Wolff made a similar statement to this court at the conclusion of submissions on sentence. [ 26 ] Mr.

Wolff advised the presentence report writer that his previous denial of the offences stemmed from his feelings of anger and frustration with the court system, but that he now agrees with the agreed statement of facts. The report writer notes that, "Despite his agreement, when discussing the offences, the subject justified his behaviour and lacked insight into how his choices impacted those around him." [ 27 ] With respect to the charge involving C.P., Mr. Wolff admitted to communicating with her for a sexual purpose, but denied being sexually attracted to her.

As the Crown submits, that statement cannot be reconciled with Mr. Wolff's many, many text messages to C.P. indicating quite clearly his sexual attraction to her. [ 28 ] The report writer notes that Mr. Wolff expressed remorse for his behaviour, but lacked insight into what sort of impact the behaviour had on C.P. As the report writer documents, there are other expressions of justification for the other offences Mr. Wolff is being sentenced on here today including the charge of resisting arrest and having contact at the stables with girls under age 16 and girls as young as 13.

None of these protestations amount to any kind of justification as that word is intended. Rather, they are attempts to deflect guilt and responsibility. They are indicative of a lack of insight which, given the nature of the charges at issue, is of concern. [ 29 ] As with the presentence report writer, Dr. Scott updated his report. In his updated report, Dr. Scott upgraded his risk assessment to find Mr. Wolff's level of risk for sexual violent reoffending should be considered to be in the moderate to high risk range. That reassessment is based on the fact that Mr.

Wolff was in custody charged with a breach of his bail conditions. Dr. Scott gives the opinion that problems with supervision decrease the likelihood that important risk factors are being appropriately managed or controlled in the community. In this case, Mr. Wolff's overall pattern of risk factors would signal a strong need for management and control in the interests of public safety. In

summary, Mr. Wolff is a young adult who presents with some not insignificant mental health issues arising in part out of untreated mental health disorders that manifested themselves when Mr. Wolff was much younger.

[ 30 ] Mr. Wolff suffers from alcohol abuse disorder and is currently engaging in treatment. There is little doubt on the facts that alcohol consumption would have played some role in many of the offences, but there is no evidence to suggest that it is causative. Rather, it almost certainly loosened any inhibitions Mr. Wolff may otherwise have had to control his impulses, and may well have given him some psychological relief as he thought of his offending conduct from time to time. [ 31 ] It is clear from the text messages, Mr. Wolff, that you were alive to the fact that your contact with C.P. was unlawful.

You expressed fear, as you ought to have, that if you were caught the consequences would be significant. Again, Mr. Wolff, you were right to harbour that notion. I would add, Mr. Wolff, that you did express remorse at the conclusion of the submissions in this hearing, as I have noted. More importantly, you indicated an intention to stay sober and to continue with sobriety counselling. [ 32 ] You say you are sorry for the harm caused to the victims and their families. It may well be the first time C.P. and her family have heard this.

It is unfortunate that C.P.'s parents, in particular, were unable to be present at this hearing other than by phone because of the COVID pandemic. They have not had the advantage of watching you as you sat throughout these proceedings or as you spoke to the court before sentence was passed on you. From my vantage point, I note that you were attentive throughout what was a lengthy sentencing hearing. You obviously heard the pain expressed by C.P.'s parents and you would have, at least in the Crown's submissions, heard much about the harm caused to C.P. whether that was obvious to you earlier or not. [ 33 ] Mr.

Wolff, I accept your expression of remorse as sincere. I accept that you genuinely want to address your alcohol addiction disorder, and I accept that you have at least some limited insight into the harm caused to C.P., her family, and K.H. and K.H.'s family as a result of your offending behaviour. [ 34 ] The harm caused to the victims in this case, particularly C.P. and K.H., but more particularly C.P., cannot, in my view, be overstated, although Mr. Wolff, clearly, it was argued on your behalf that neither child victim suffered much in the way of harm. The substance of Mr.

Belding's submissions on your behalf were twofold; the first being that the court should sentence based on the actual impact on the victim, and in this case there is little evidence either in C.P.'s victim impact statement or otherwise to suggest C.P. suffered much in the way of harm even despite that the sexual contact involving two instances of vaginal penetration of C.P. by you. K.H., of course, has provided no victim impact statement.

These submissions, if accepted, would presumably go to the gravity of these sexual offences. [ 35 ] The second aspect of the submission on your behalf goes to your blameworthiness for the sexual offences. Here, it is submitted that C.P., in particular, is not one of those persons particularly vulnerable to sexual exploitation as that was alleged to have been described at para. 68 of R. v. Aimee , 2010 BCSC 1463 . Rather, Mr. Belding submits the text messages and C.P.'s own statement to police evidence a young person who knew her limits, and from time to time limited your sexual contact. [ 36 ] Mr.

Belding refers to what he submits are numerous examples in the over 6,000 text messages between the two of you entered into evidence in this trial that show C.P. acting in a more mature way than you. Examples include C.P. demonstrating an awareness of the potential impact on the stable business if the two of you were discovered. Other instances include, as I have noted, C.P. ending sexual contact, consoling you when you are discussing suicidal ideation, and noting your pattern of drinking and then seeking sexual favours or photos.

Ultimately, the submission is that the two of you were in a "genuine" relationship which did not evidence any sort of power imbalance. C.P.'s maturity, Mr. Belding submits, must be contrasted against your immaturity particularly as evidenced by your constant excessive drinking. [ 37 ] With respect to the relationship, Mr. Belding relies on para. 105 of the R. v. Ford , 2017 ABQB 542 , in which the court found on the facts a relationship of genuine affection and one that was non-exploitative on the part of the accused.

This, it should be noted, is a case in which the court held at paragraph 1 that the case was one in which the accused, a 20-year-old, at the material time had intercourse with a, quote/unquote, and this is my emphasis, "consenting" 13-year-old. Moreover, at paragraph 116, the court writes: … the evidence establishes that there was a relationship of genuine affection between the complainant and Mr. Ford. That doesn’t mean, of course, that the complainant has not suffered damage as a result of Mr. Ford’s activity, but it does mean that Mr.

Ford is not as culpable as he might be for that damage. [ 38 ] There is, in my view, no question that the effect of this reasoning on that sentence is to transfer some of the responsibility for the damage caused by Mr. Ford's sexual offending over to the victim. Based on Ford , Mr. Belding submits that as there was also a genuine relationship in this case, that you too, Mr. Wolff, are less responsible for any damage suffered by C.P. [ 39 ] In this sentencing hearing, the Crown relies on the recent decision of the Supreme Court of Canada in R. v. Friesen , 2020 SCC 9 .

The facts in Friesen are much more egregious than here in that the child victim there was a child of four and, at least one of the offenders, an adult male. The child in that instance was sexually violated by the male and the child's own mother. The harm in that case is obviously catastrophic. [ 40 ] However, it is a case in which the Supreme Court of Canada has taken pains to reiterate the harms all children suffer from sexual violence. This, Mr. Wolff, includes the offences with which you are charged, that is to say, luring and indecent exposure.

The court in Friesen emphasizes how important it is that sentencing judges understand the wrongfulness of sexual offences against children and the profound harm these offences cause.

There is no question that one purpose of the judgment in Friesen is to address previous sentencing for sexual offences against children which are low based largely on faulty reasoning such as that an adult sexual offender could ever be in a relationship, genuine or otherwise, with a child victim or that this could in some way justify transferring some of the responsibility for damages for sexual offences from the offender to the child victim. [ 41 ] Moreover, it is abundantly clear from Friesen , particularly in the reasoning at paras.148 to 154, that the child victim's participation in a sexual offence to whatever degree has no bearing on the degree of harm suffered by the child nor does it mitigate against the culpability of the offender.

There is, in addition, no instance where a child victim could be said to have consented to any sort of sexual conduct with an adult. [ 42 ] Finally, Friesen emphasizes it is now well established that sexual offences cause harm either actual or potential to child victims.

In this regard, I do agree with the Crown that the reasoning in R. v. Ford and R. v. Hood , 2016 NSPC 78 , must now be considered to be nearly entirely incorrect. As the court writes in Friesen , the prime interests of the legislative scheme of sexual offences against children is to protect the child's personal autonomy, bodily integrity, sexual integrity, dignity, and their equal place in our society.

It follows that it is a given that sexual offences harm all of these interests. [ 43 ] The court speaks of various types of harm including relational harm or damage to a child's relationship with their family and the community. That applies in this case. As you know, Mr. Wolff, C.P.'s parents have provided a victim impact statement. It describes an array of psychological suffering ranging from feelings of parental inadequacy, guilt, mutual blaming, to a loss of trust in the stables where they had sent their daughter for a healthy outdoor activity.

C.P.'s mother reports experiencing extreme anxiety, panic attacks, and nightmares. Only now have they seen their daughter start to recover, although it was noted at the end of the sentencing submissions that C.P. is suffering from anxiousness as a result of this sentencing hearing. Overall, the circumstances leading up to this sentencing have been, I do not doubt, an extremely upsetting, traumatic, and painful experience of this family. [ 44 ] C.P. filled out a victim impact statement, albeit one that is very brief. In it, she expresses a fear of seeing you at her work. Mr.

Belding submits the court can infer from the absence of any reference to psychological harm in that statement coupled with C.P.'s comments in her statement to police wherein she is clearly not reticent about her sexual and other contact with you that C.P. is left unscarred by this sexual offence. This, in turn, should operate to reduce the gravity of harm and to act as a sort of a mitigating factor in this sentencing. [ 45 ] First, as the court writes at para. 150 of Friesen , the absence of an aggravating factor does not in itself constitute a mitigating factor.

Moreover, the theory underlying this proposed inference is at odds with the reasoning in Friesen . The court's reasons in Friesen speak to the harms, both potential and actual, that flow or follow from this kind of sexual violence in every case.

At para. 79 of Friesen , the court writes that: In addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. [ 46 ] At para.80, the court refers to a list of such recognized harms which include self-destructive behaviour such as suicide, drug use, and self-mutilation; acting out, aggressive behaviour and frustration; guilty feelings and shame; low self-esteem; an inability to concentrate; a sudden drop in school performance; and others.

The victim impact statement filed by C.P.'s parents does indicate that C.P. has experienced at least some of these effects. [ 47 ] As the court in Friesen writes at paras. 83 and 84 , there are also potential harms. It is not necessary that the victim prove he or she is suffering or has suffered such harms. As an example, K.H. filed no victim impact statement.

Still, the point is that the potential is there and, when sentencing for the assault on a victim who is a child at the time of sentencing, courts must consider these potential harms as they inform the gravity of the offence of sexual violence against children. These offences are extremely serious because of the now acknowledged harms and potential for harm to the lives of children and their families and their communities. [ 48 ] I noted earlier in these reasons that the issue in this sentencing is length of sentence.

The Crown seeks a significant sentence of three years total, essentially the maximum on all offences, with the breaches being served concurrent with one another, but consecutive with the sexual violence offences. On your behalf, Mr. Belding seeks a time-served sentence of some 10 months coupled with a lengthy period of probation which would focus on your rehabilitation and provide some protection for the victims. [ 49 ] In determining an appropriate sentence in every case, the court is governed by the sentencing objectives and principles set out in s. 718 and 718.2 of the Criminal Code .

These provide, firstly, that: The fundamental purpose of sentencing is 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 … (

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. [ 50 ] Other relevant sentencing provisions include 718.2 which provides that: 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 … (

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

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 … should be considered … [ 51 ] Generally speaking, what objectives a court chooses does depend on the circumstances of the offence and the circumstances of

the offender. However, certain offences attract in the established case law certain sentencing principles. At para.101 of Friesen , the court refers to s. 718.01 of the Code in which Parliament has directed sentencing courts to give priority to the sentencing objectives of deterrence and denunciation for offences that involve the abuse of children. [ 52 ] As the court notes further at para. 102 of Friesen , s. 718.01 of the Code prescribes a relative ordering of sentencing objectives that is not present in s. 718 (

a) through (f).

That fact reflects, the court writes: Parliament’s intention for sentences to “better reflect the seriousness of the offence” … [ 53 ] Still, as the court in Friesen notes at para. 104 , while deterrence and denunciation must be given priority as sentencing objectives in this kind of sentencing, the sentencing judge does retain discretion and, as such, in my view, must exercise or at least consider that exercise of discretion to give weight to other factors in arriving at a fit sentence. [ 54 ] The sentencing objectives of deterrence and denunciation mandate, in my view, a custodial sentence in your case, Mr.

Wolff, even though you appear before this court on sentencing as a first-time offender. The question becomes the length of sentence and in determining that I must bear in mind that sentencing is an individual exercise. The overarching principle of sentence is set out in 718.1 of the Code . It provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 55 ] The decision of the Supreme Court of Canada in Friesen , which I have referred to earlier, emphasizes the gravity of sexual offences against children.

In regard to sentencing, the court writes at para. 76 that a sentence for these offences must: … reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities … [ 56 ] A sentence must also be proportional to the degree of responsibility for the offender. I have already cited the passages in Friesen that dictate that any participation to whatever degree of the child victim cannot serve to reduce the degree of responsibility for the adult offender.

As the court writes at para. 154 of Friesen : … a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. It is adults and not children who are responsible for preventing sexual activity between children and adults. [ 57 ] In this instance, it is submitted forcefully on your behalf, Mr. Wolff, that your excessive consumption of alcohol during the period of offending with both C.P. and K.H. must be taken into account.

At times, it was suggested that this court could take judicial notice of the effect of alcohol on the nervous system and, presumably, on executive functioning. Even if I were to do so, and I accept that there would be some effect on both, that much is obvious in the impaired driving cases, the evidence falls short of proof that this consumption affected your decision, Mr. Wolff, to communicate as you did with C.P. and K.H. and, in the case of C.P., to engage in sexual conduct to the point that you did. [ 58 ] I accept that Mr. Wolff suffers from alcohol addiction disorder.

I accept that he has unresolved mental health issues such as Tourette syndrome, ADHD, and that he is currently being tested for autism. The evidence does suggest a kind of immaturity on the part of Mr. Wolff. Certainly, his childhood and young adult life do suggest Mr. Wolff lacks and lacked adult guidance and attention when it might have proven useful. Still, it is inescapable that Mr. Wolff knew what he was doing was wrong and that he feared the consequences of being caught. He may well not have and may still not have internalized the actual harm he caused.

That is, of course, the purpose of sentencing, to bring that message home to the offender. [ 59 ] As s. 718.2(

a) provides the length of sentence is informed in great part by aggravating and mitigating factors and that is where the bulk of the dispute lies in this sentencing. Still, there are other principles that must also be considered including the principle of totality. [ 60 ] With respect to aggravating factors, there are many in this case. The Crown relies on a number of cases which set out aggravating factors. These include R. v. Bell , 2018 BCPC 187 , at para. 33 ; R. v. Craig at paras. 36 and 37; and R. v.

Shaw , 2018 BCPC 77 , also at para. 84 . [ 61 ] Of the many listed by the Crown in its submissions, I accept the following to be aggravating factors on sentence with respect to C.P. to begin. C.P.'s age is an aggravating factor. At the material time, she was 14 years old. This is, in any event, a statutorily aggravating factor under s. 718 of the Code. The length and duration of the communications which are substantial is also an aggravating factor. There is, I accept, a significant element of planning and deliberation in Mr.

Wolff's text messaging. [ 62 ] I find this notwithstanding that he is clearly drinking excessively either before, during, or after engaging in this texting. Clearly, the alcohol acted as a disinhibitor, but there is no real sense that Mr. Wolff was blind drunk and in a state of automatism when he texted C.P. those thousands of times. He may well have drunkenly proposed marriage and children with C.P., but when sober at no time did Mr. Wolff retract his comments though there was lots of opportunity to do so. [ 63 ] The graphic nature of the communications are also aggravating.

They serve to normalize what was clearly lawfully and morally wrong conduct. This may also have desensitized C.P. to the impropriety of these communications. It is aggravating, also, that Mr. Wolff sought and provided C.P. with indecent photographs. The risks particularly of C.P. providing such material are great. It is a significant and serious aggravating factor on this sentencing particularly in relation to Count 5, the offence involving C.P. that Mr. Wolff genitally penetrated C.P. at least twice, once without a condom. Other sexual interference or sexual touching included mutual masturbation.

This clearly aggravated the harm suffered by C.P. In the case of K.H., the fact that Mr. Wolff obtained a compromising photo of K.H. aggravates the charge of indecent exposure.

[ 64 ] Mitigating factors include this guilty plea. Whatever may be said of the prolonged proceedings and Mr. Wolff's reluctance, even after agreeing to the agreed statement of facts, to accept responsibility for the harms caused to C.P. and K.H., the plea is meaningful. It has spared these children a trial, and it has spared their families a trial. [ 65 ] Mr. Wolff does suffer from alcohol addiction disorder. He was, I accept, drinking excessively throughout the material time period. This fact does not mitigate his moral culpability, but his addiction led to consumption and consumption led to lack of inhibition.

That he is now addressing that addiction is a mitigating factor on this sentence. [ 66 ] Mr. Wolff has family support and appears able to work once released into the community. [ 67 ] Finally, I accept that Mr. Wolff is remorseful for his actions based on Mr. Kelly's letter as well as Mr. Wolff's own statement in this court at the conclusion of submissions on sentencing. I am not convinced Mr. Wolff entirely understands or accepts the impact on the victims in this case and this has to be addressed as part of the sentencing.

However, I do accept that he has some insight into the harms caused by this offending behaviour, particularly as evidenced by his commitment to sobriety. I find his expression of remorse to be a mitigating factor on sentence. I accept that Mr. Wolff is anxious to engage in rehabilitative counselling. Mr. Wolff is young and comes before the court in this sentencing with no criminal record.

There should be no serious impediment to his success at rehabilitation. [ 68 ] In addition to the sentencing principles I have discussed, the sentencing provisions of the Code provide also that: … a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … [ 69 ] In this regard, both defence and the Crown have produced a number of legal authorities in which offenders have been sentenced for luring and indecent exposure. With regard to the luring offence, the Crown relies on R. v.

Reynard , 2015 BCCA 455 , at para. 16 , as support for a range of sentence of 12 to 24 months in custody. Reynard essentially adopted the range set out in R. v. Aimee , 2010 BCSC 1463 , at para. 57 . [ 70 ] In the factually similar case, R. v. Craig , 2013 BCSC 2098 , the court found a range of 15 to 24 months was appropriate for the offence of luring. It bears noting that the sentence in Craig , an offender like Mr. Wolff who came before the court with no criminal record, was 15 months in custody. [ 71 ] Other cases relied on by the Crown for sentencing in relation to Count 5 include R. v.

B.S. , 2018 BCSC 2044 , where the accused was sentenced to six months for luring and sexual interference; R. v. Shaw where an Indigenous offender was sentenced to 14 months despite significant mitigating factors; and R. v. Miller , 2016 SKCA 32 , where Mr. Miller was sentenced to three years for the offences of sexual assault and luring. As the Crown notes, it is not possible to tell from this decision or from the Craig decision, in my view, how much of the sentence was allocated to the luring offence and how much to the other sexual offences being sentenced. [ 72 ] Finally, the Crown relies on R. v.

Vergara-Olaya , 2016 MBQB 130 , in which the accused was sentenced to one year for the offences of sexual interference and luring. [ 73 ] Mr. Belding relies on a number of cases, two I have already referred to, most of which, however, do not involve sentencing on luring or indecent exposure. Of those that did, in R. v. Hood , the accused was sentenced to a conditional sentence for the offence of luring and other conditional sentences for other sexual offences.

Clearly, that case has little application for the reasons given, but in addition, that a conditional sentence is now no longer available for the offences on either Counts 5 or 6 of Information 172557. [ 74 ] In R. v. Ward , 2019 NSPC 72 , the accused was sentenced to three months for the offence of child luring. In imposing the sentence, the court writes at para. 56 that it is relying on the sentence in R. v. Hood . To this, I would add, there is no discussion in the case of the harm to the victim. At the same time, unlike this case, Mr. Ward made no actual contact with the victim.

The court found the offender's conduct to be neither the least nor the most egregious. [ 75 ] In R. v. Randall , 2018, O.N.C.J., the offender, Mr. Randall, received a 90-day sentence for luring when the maximum was six months. This is an oft-cited case in which the accused is texting with what he thought was a 15-year-old girl who was actually a police officer. The accused tried to meet with his victim, but of course was arrested by police at their meeting site. [ 76 ] Finally, in R. v. Kron , 2018 ONCJ 622 , the accused, Mr.

Kron, was sentenced to slightly over six months on four counts of luring, one count of voyeurism, and one of possession of child pornography. [ 77 ] As the Crown notes, virtually all of the cases submitted in this sentencing hearing were decided before Friesen which provides at paragraph 100 that: To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. [ 78 ] The last increase in maximum sentences for these offences was, of course, in 2015 which dilutes the strength of the Crown's submission that this court should increase Mr.

Wolff's sentence from those imposed in the last several years for similar offences. Still, what I find most compelling about Friesen and the rationale for a possible increase in sentence over some of the very low sentencing decisions before me is the discussion of harm in Friesen .

In many of the cases cited, the court either refers to harm yet the sentence does not appear to reflect that fact or there is little or no reference of harm to the victim. [ 79 ] Friesen establishes that sentencing courts have to pay more than lip service to the harms caused by child sexual offences including luring and indecent exposure. Friesen better informs the gravity of these offences than was perhaps the case before.

This, I find, applies to the sentencing for both the luring charge in respect of C.P. and the indecent exposure charge involving K.H. [ 80 ] I have said much less about K.H. in this hearing as the bulk of the argument focused on C.P. K.H. did not, as I have noted earlier, provide a victim impact statement, but given the reasoning in Friesen , it must be accepted that there is a potential for harm to

flow from this offending conduct. Soliciting and sending a child, particularly a child of 13, photos of your genitalia, Mr. Wolff, is a serious offence. It, too, must be met by the sentencing objectives of deterrence and denunciation. While K.H. reported she thought you were often extremely intoxicated, it does not, as with C.P., excuse the conduct nor does not it reduce your culpability. [ 81 ] In considering a fit sentence in this case, I accept that the offences in Counts 5 and 6 of Information 172557 are serious and grave. I accept for the reasons given, Mr.

Wolff, that you are highly morally culpable for these offences. Still, the mitigating factors that I have found would not, in my respectful view, justify a sentence at the top end of the range or the maximum under the Code. The mitigating factors in this case justify a reduction of the sentence from the absolute high end. [ 82 ] Moreover, Mr. Wolff is pleading guilty to five offences. The Crown seeks a consecutive sentence on each with the exception that the breach sentences, on which the Crown also seeks the maximum available sentence, would themselves be served concurrently. The result would see Mr.

Wolff serve a three-year global sentence which, in my view, would offend against the principle of totality. Acknowledging the existing range of sentences for luring as best I can in the cases provided and bearing in mind the principle of totality, I intend to impose a global sentence of 21 months. [ 83 ] Mr. Wolff, I intend to sentence you now on each of these Informations. I will not ask you to stand at this point because I am not sure that we will see your face once you stand and I noted again that, for the record, you are appearing by video, but Mr.

Wolff, on Count 5 of Information 172557, that is the offence of luring contrary to s. 172(1) (

b) of the Criminal Code , I hereby sentence you to 18 months in custody.

On Count 6 of that Information, that is, the count of indecent exposure, I hereby sentence you to three months in custody to be served consecutively with the sentence on Count 5 for a total of 21 months. [ 84 ] On Count 2 of Information 178122, the offence of breaching an undertaking not to consume alcohol, I sentence you to 30 days in custody to be served concurrently with the sentences I have imposed on Information 172557. [ 85 ] On Count 2 of Information 178012, the charge of wilful obstruction, I sentence you to 45 days in custody to be served concurrently with the sentence I have imposed. [ 86 ] On Count 1 of Information 172557-AC-4, the charge of breach of undertaking by being in contact with a female under age 16, I sentence you to 90 days in custody to be served concurrently with the sentences I have imposed. [ 87 ] You have been in custody now since August 14, 2019.

I will express my global sentence of 21 months as 630 days. You have now served 298 real days and, with credit for time served at time-and-a-half, you are entitled to credit at the rate of 447 days. That leaves you with 183 days left to serve on the sentence. [ 88 ] Madam Clerk, I will ask you to apply the 447 days' credit against the sentence in this case. [ 89 ] After your release, Mr. Wolff, you will be placed on probation for a period of three years. I will set out the terms of your probation order shortly.

Before that, I intend to address other ancillary orders. [ 90 ] First, the offences of luring and indecent exposure are primary designated DNA offences. I will, therefore, make a DNA order pursuant to s. 487.051(1) of the Code .

A sample of one of your bodily substances will be taken by a correctional officer authorized to do so under the Code in the institution in which you are serving your sentence and, from there, a sample of your DNA will be extracted and placed on the national DNA databank. [ 91 ] In light of the offences in Counts 5 and 6, I will impose a 10-year mandatory SOIRA order pursuant to ss. 490.012 and 490.013(

a) of the Code . A draft order has been provided, as I understand it, and I will sign that order momentarily. [ 92 ] Finally, the Crown seeks a five-year firearms prohibition which is discretionary in this case under s. 110 of the Criminal Code . I agree with Mr. Belding that in the circumstances of this case, there is no reason for that order in this case and I decline to make that order. [ 93 ] Finally, under s. 161 of the Criminal Code , I am going to impose a 10-year prohibition. The conditions of that prohibition, Mr.

Wolff, are that you are prohibited, firstly, from being 100 metres of any residence, school, or workplace of C.P. or K.H. Secondly, you are prohibited from seeking, obtaining or continuing any employment whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16 years. Thirdly, having contact or communication -- or communicating by any means with a person who is under the age of 16 years unless that person is your biological child.

Finally, number 4, you may access the Internet, but not any content that violates the law. [ 94 ] With respect to the probation order, I have indicated that the probation order will be for a period of three years. [ 95 ] Madam Clerk, it will attach to Information 172557. [ 96 ] It is a three-year probation order, Mr. Wolff, and I have to set out the conditions of that order. Obviously, you are going to be spending some time in custody and it will be some time before you are governed by that order, but a copy of this order will be provided to you.

I do not expect today that you are going to memorize what it is that I say, but you are going to be bound by the conditions of this order, as I say, for three years when the order takes effect upon your release from custody. [ 97 ] I will set out the conditions. I am going to refer to some numbers so that Madam Clerk can draft the order and the order, as I say, will be provided to you and read out to you. [ 98 ] The mandatory conditions of the three-year probation order are as follows. Mr. Wolff, you must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must also notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

[ 99 ] There is a no-contact order of 2002, Madam Clerk. [ 100 ] Mr.

Wolff, that provides that you must have no contact or communication directly or indirectly with C.P. or K.H. [ 101 ] There is a 2003, Madam Clerk. [ 102 ] That provides that you must not distribute, publish, post, or make publicly available in any way, information, including comments and images, which refer to or depict C.P. or K.H. [ 103 ] There is an order, as well, 2004, you must have no contact or communication directly or indirectly with Terry Cardin. [ 104 ] 2005-1 provides that you must not go to or be within 100 metres of any place where C.P. or K.H. live, work, attend school, worship, or happen to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 105 ] 2006, you must not be any place where C.P. or K.H. happen to be. If you see them, you must leave the place immediately without any words or gestures. [ 106 ] There is a reporting requirement 2104.

It provides that you must report in person to a probation officer at 200-3965 Quadra Street, Victoria, British Columbia, within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer.

Reporting may be by telephone with the permission of the probation officer. [ 107 ] 2201, Madam Clerk. [ 108 ] When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or your telephone number without the prior written permission from your probation officer. [ 109 ] There is a 2304, as well, you must not have any contact or communication directly or indirectly, or be in the presence of any person under the age of 16.

The exceptions are if they are your biological children. [ 110 ] 2305, you must not engage in volunteer work or employment that would bring you into contact with persons under the age of 16. [ 111 ] 2306, you must not enter into or continue any dating relationship or marriage or common-law relationship with any person who has children under the age of 16 or who has the care of or access to children under that age until you have identified to your probation officer the person with whom you are in or propose to enter a relationship and your probation officer has informed that person of your convictions and this order and your history as described in your criminal record, presentence report, if any, and these reasons for judgment. [ 112 ] There is also a 2401, Madam Clerk. [ 113 ] Mr.

Wolff, you must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. [ 114 ] 2403, you must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. [ 115 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for: (

c) alcohol or drug addiction and (

f) sexual offence prevention. [ 116 ] 2501, having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your probation officer.

This may include programming or treatment for alcohol or drug addiction and sexual offending. [ 117 ] 2601-3, you must not access any computer network including the Internet to access any content that violates the law. [ 118 ] There is an order that you also not communicate or attempt to communicate with any person you know to be or who reasonably appears to be or represent themselves to be under the age 16 unless they are members of your family and you must, upon the request of a peace officer, give them access to any device in your possession that is capable of accessing the Internet or any computer network so that they can verify compliance with this condition. [ 119 ] Finally, I should add that, as I indicated in the sentencing submissions, as a result of entering these guilty pleas and now being convicted of five offences, there is a $500 victim impact surcharge, but Mr.

Wolff, I understand that once you are released from custody, being on a disability benefit and needing to reintegrate, you are not going to be able to realistically pay that $500 fine within 60 days of your release from custody. Given the sentence that I have imposed, including the lengthy probationary period with significant conditions, I find it appropriate in this case to waive the victim impact surcharge. [ 120 ] Anything else on this one? [ 121 ] THE ACCUSED: Can I ask something? [ 122 ] MS. BAKKEN: Yes, Your Honour, it is Sofia Bakken speaking -- [ 123 ] THE COURT: Okay.

[ 124 ] MS. BAKKEN: -- with respect to the outstanding counts and Informations that are before the court today as they relate to Mr. Wolff, the Crown will direct a stay of proceedings. [ 125 ] THE COURT: Okay, thank you. [ 126 ] MS. BAKKEN: I note for Madam Clerk's benefit, there may be a charge involving Mr. Cardin which should remain outstanding. Be careful of that. [ 127 ] THE CLERK: Thank you. [ 128 ] THE COURT: All right. Sorry, Mr.

Wolff, you had a question? [ 129 ] THE ACCUSED: Yes, it was my dad -- my stepsister, my dad's wife's daughter, going -- I do not know how that -- to me visiting their place. [ 130 ] THE COURT: Sorry? [ 131 ] THE ACCUSED: She lives there full-time and she is under the age -- she is the same age as my son so -- [ 132 ] THE COURT: Oh. [ 133 ] THE ACCUSED: -- seven years old. [ 134 ] MR. BELDING: That is something I can address with you, Mr. Wolff. That is a question you can ask at a later time. I can give you a call after this -- [ 135 ] THE COURT: Well, I wondered as I was going -- [ 136 ] MR.

BELDING: -- unless Your Honour wants -- [ 137 ] THE COURT: Sorry, is that with respect to the probation order, correct, Mr. Wolff? [ 138 ] THE ACCUSED: Yes -- [ 139 ] THE COURT: Yes. [ 140 ] THE ACCUSED: -- the probation order. [ 141 ] THE COURT: Right. [ 142 ] THE ACCUSED: There was -- there was that and my girlfriend I have been dating for three years who has been by my side through all this, she is aware of it, but she have to report to my probation officer? [ 143 ] THE COURT: Right. Well, I think, Madam Clerk, if we could change the 2304 condition.

I think I added "biological children" and so maybe we just say "children." I think I will just leave -- Mr. Belding, I will leave you to address that with Mr. Wolff. I am not sure -- [ 144 ] MR. BELDING: Okay. Okay. [ 145 ] THE COURT: I cannot deal with that at the moment, so. [ 146 ] THE ACCUSED: Okay, Your Honour. Okay. [ 147 ] MR. BELDING: No, no, that is understandable. I am familiar with the situation -- the probation order, as well, and I would like to thank the court and my friend. [ 148 ] THE COURT: All right. [ 149 ] MR. BELDING: That is it from defence. [ 150 ] THE COURT: Okay, all right.

Then that concludes the sentencing. (REASONS FOR SENTENCE CONCLUDED)