R. v. S.P.S., 2019 BCPC 158

Citation: R. v. S.P.S. 2019 BCPC 158 Date: 20190718 File No: 174904-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.P.S. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Ban on Publication under s.486.4 CCC Counsel for the Crown: R. Fowler Counsel for the Defendant: S.N. Suntok Place of Hearing: Victoria , B.C. Date of Hearing: July 8, 2019 Date of Judgment: July 18, 2019 The Issue

[ 1 ] Mr. S. has entered a guilty plea to a single count of sexual interference with a person under the age of 16 years, contrary to

section 151 of the Criminal Code . The Crown proceeded summarily in this case, with the consequence that the minimum sentence is 90 days’ jail: Criminal Code ,

section 151 (b). No constitutional challenge to the statutory minimum sentence was advanced in this case. [ 2 ] Mr. Fowler, for the Crown, seeks a sentence of 15 months’ jail. Mr. Suntok, for Mr. S., submits that a sentence of 6 – 9 months’ jail would be appropriate. Counsel agree that a period of probation would be appropriate after Mr. S’s release from custody. The Offence [ 3 ] The victim, J.T. is the niece of Ms. T., who is Mr. S’s spouse. Prior to the events in issue, J.T. referred to Mr. S. as her uncle. [ 4 ] A drinking party took place at J.T.’s home on October 7, 2018. Mr. S. was one of the guests.

J.T. went to bed about midnight. She slept in the lower bunk in her bedroom. Her younger brother and a cousin were sleeping in the upper bunk. When she went to bed, J.T. was fully clothed, wearing underpants and shorts. [ 5 ] Mr. S. continued drinking. By 1:30 a.m., he was grossly intoxicated and on the edge of unconsciousness. [ 6 ] At about 7:00 a.m., J.T. awoke to find Mr. S. lying on top of her. Her underpants and shorts were on the floor beside her bed. Mr. S’s pants and underwear were around his knees. He was rubbing his erect penis on J.T.’s genital area. She tried to push him away from her.

He moved down the bed, placing his face in contact with her genital area and began to lick her vagina. Ms. T. entered the room and removed Mr. S. from the scene. [ 7 ] It is not clear whether Mr. S. penetrated J.T. with his penis. J.T. is unable to answer that question because she doesn’t “… know what that would feel like …”. She experienced some vaginal discomfort after the event. Victim Impact [ 8 ] J.T. was 14 at the time of the offence. She still suffers from the sequelae of the assault. After the assault, her sleep was disordered and she stopped eating for two weeks.

She is afraid of the dark and is distrustful of people, particularly men. In her victim impact statement, she says that the assault took away her sense of safety and trust in the world. [ 9 ] The assault has also affected relationships within J.T.’s extended family. Ms. T. has broken off contact with J.T. and her family, with the result that the cousins are no longer in contact with their aunts and uncles, or with each other. [ 10 ] It is to be noted that Mr. S. acknowledged his guilt immediately, first to Ms. T. and then to the police. He entered his guilty plea in December, 2018.

As a consequence, there was never any risk that J.T. might be called to give evidence in the case. The Offender [ 11 ] Mr. S. has no criminal record. [ 12 ] Mr. S. is 39 years of age. His parents are members of two different First Nations on Vancouver Island. They separated when Mr. S. was a baby, and Mr. S. had very little contact with his father. However, his physical and emotional needs were met by his mother’s extended family. He was not abused as a child and was generally well-cared for.

His mother’s extended family made opportunities for him to participate in the cultural and social activities of their First Nation, and he took advantage of those opportunities. His mother and stepfather are members of the Longhouse of his mother’s First Nation. Mr. S. was initiated into the Longhouse in 2007 and continues to be an active participant in the social and cultural life of the First Nation. [ 13 ] Mr. S. reports being bullied at school because of his ethnicity. [ 14 ] Mr. S. has been steadily employed as a night-shift janitor for the past six years. His employer speaks well of him.

He has some experience as a welder, and hopes to gain certification in that field in the future. [ 15 ] Mr. S. began to use alcohol and cannabis at age 14. He reports that he had been sober for six years prior to the events in question, but suffered a relapse on the night of the offence. He has been in the community on bail since October 8, 2018. His bail conditions include a term prohibiting him from consuming alcohol, and no breach of that term is alleged. Immediately after the offence, acting on his own initiative, Mr.

S. engaged with a drug and alcohol counselor, whom he sees regularly. [ 16 ] I was provided with a psychiatric assessment of Mr. S., prepared by Dr. Scott of the Forensic Psychiatric Services Commission. He assessed Mr. S. as a low to moderate risk for future violent sexual offences, but noted that: His risk should be considered elevated if he is under the influence of substances, specifically alcohol. Gladue Considerations [ 17 ] I was provided with a very detailed and thorough Gladue report. The report includes the following observation: The mental, emotional, physical and sexual abuses that [Mr.

S’s] First Nation suffered in IRS and Day Schools were similar. The loss of language and culture is evident today because very few speak their language and/or practice their culture. [ 18 ] The only specific impact upon Mr. S. which is noted in the Gladue report is Mr. S’s statement that he was bullied at school because of his ethnicity. With that exception, the Gladue report describes a childhood in which he was well nurtured and cared for by a loving extended family which took active and successful steps to engage him with his Indigenous culture and community. Sentencing Principles

[ 19 ] The following provisions of the Criminal Code are particularly relevant to this offence.

Section 718.01: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2(

a) provides that the following are aggravating circumstances: evidence that the offender, in committing the offence, abused a person under the age of eighteen years, evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, Mr. S. committed a sexual assault of a 14 year-old girl, in relation to whom he stood in a position of trust and authority. The assault caused serious harm to the victim.

Section 718.2(b): A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The range of sentences in similar cases is one to three years’ jail: R v. J.R.G. 2018 BCPC 337 ; [2018] BCJ No. 6950 .

Section 718.2(e): All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. A sanction other than imprisonment is not possible in this case because of the statutory minimum sentence. The question is not whether to imprison Mr. S., but rather the length of the sentence. [ 20 ] The impact of the Gladue factor on the sentencing analysis was stated by Justice Epstein of the Ontario Court of Appeal in R v.

F.L. 2018 ONCA 83 ; [2018] OJ No. 482; 360 CCC (3d) 189 @ paragraphs 38 – 41 (citations omitted): In order to be relevant to sentencing, an offender's Aboriginal background need not be causally connected to the offence(

s) for which a sentence is being imposed. In what circumstances, then, will an offender's Aboriginal background influence their ultimate sentence? The answer is "not so easily ascertained or articulated": R. v. Whitehead … . Clearly, the mere assertion of one's Aboriginal heritage is insufficient -- s. 718.2(

e) does not create a "race-based discount on sentencing": Ipeelee , at para. 75. Although Aboriginal offenders are not required to "draw a straight line" between their Aboriginal roots and the offences for which they are being sentenced, more is required "than the bare assertion of an offender's Aboriginal status": R. v. Monckton …. It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society.

While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel": Ipeelee , at para. 60 (emphasis in original); R. v. Radcliffe …. The correct approach may be articulated as follows.

For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court. The Supreme Court made clear in Ipeelee , at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence".

LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness." In his concurring judgment in that case, Justice Brown said @ paragraph 64 (citations omitted): Perhaps sentencing judges should avoid using a word such as "connection" when expressing the results of their Gladue analysis.

My colleague chooses different language, concluding the evidence did not show the systemic or background factors "impacted" the appellant, or were "linked" to his difficulties, or "contributed" to his experiencing dislocation: at para. 49. Other courts have used other language, expressing the relationship in terms such as: whether the systemic and background factors "manifested" themselves in the offender's particular circumstances: R. v.

Whitehead …; whether the systemic and background factors were "present" in the offender's "life experiences and general background": Whitehead , at para. 70; whether such factors were "inextricably embedded" in the offender's life experiences and clearly bore on his culpability for the offences: R. v. Okimaw ; or, whether there was an "impact of the offender's Aboriginal heritage on his moral culpability": R. v. Swampy …. [ 21 ] I do not think that a lesser sentence is justified by the Gladue factor in this case. I say that for three reasons:

a) There is nothing in the material provided to me to support an inference that Mr. S’s individual experience as an Indigenous person was related to this offence in any of the ways described by Justice Brown. In particular, nothing in that experience, as reported to me, renders his conduct less morally blameworthy than similar conduct by people who are not Indigenous.

b) It was not suggested to me that the cultural practices of Mr. S’s First Nation include sanctions other than imprisonment for offences of this kind.

c) It is true, and shameful, that Indigenous people continue to be over-represented in Canada’s prison population. It is equally true and equally shameful that Indigenous woman and girls suffer sexual assaults at much higher rates than their non-Indigenous counterparts. According to Statistics Canada (Conroy & Cotter - July 11, 2017): Aboriginal people—individuals who identified as First Nations, Métis or Inuit—were more likely than non-Aboriginal people to report that they were sexually assaulted.

The rate of sexual assault among Aboriginal people was approximately three times higher than among non-Aboriginal people (58 versus 20 per 1,000 population) …. Of all sexual assault incidents where the victim was Aboriginal, 94% were committed against women. Overall, Aboriginal women reported a rate of 113 incidents of sexual assault per 1,000 population, and among young Aboriginal women, more than one in five (22%) was sexually assaulted. Findings from the 2014 GSS on Victimization are consistent with other research.

Aboriginal people, and Aboriginal women in particular, are more likely to experience violent victimization than their non-Aboriginal counterparts ( Dylan et al. 2008 ; Weinrath 2008 ). In light of those statistics, it is clear that the stated statutory objectives of denunciation and deterrence in relation to sexual assault are at least as compelling among Indigenous communities as they are in Canadian society as a whole. [ 22 ] I am mindful of Mr.

S’s very early guilty plea. [ 23 ] Considering all of those factors, I conclude that the sentence of 15 months’ jail sought by the Crown is appropriate, and I impose that sentence. [ 24 ] There will also be a term of two years’ probation on the following conditions. Mr. S. must:

a) keep the peace and be of good behaviour and attend court when required to do so by the court;

b) report in person to a probation officer within 72 hours of his release from custody, and report thereafter as and when directed by his probation officer;

c) reside at a place approved by his probation officer, and not change that address without the prior written permission of his probation officer;

d) not possess or consume any alcohol, cannabis or cannabis derivatives;

e) not possess or consume any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with a valid medical prescription;

f) attend, participate in and successfully complete any counselling program to which he is referred by his probation officer, including but not limited to forensic assessment and counselling, sex offender counselling, drug and alcohol counselling and a full-time attendance program if he is referred to them;

g) have no contact or communication, directly or indirectly, with J.T.;

h) not approach within 2 kilometres of any place which he knows to be a place of education, residence or employment of J.T. Mr. Fowler asked me to impose also terms of the kind contemplated by

section 161 of the Criminal Code , restricting Mr. S’s future interactions with young people. I find that to be the most difficult aspect of this sentencing decision. Dr. Scott describes Mr. S. as a low to moderate risk to re-offend when sober. The consequences of a future similar offence will be very serious for the victim, as they were for J.T. Having imposed a jail sentence with the objectives of denunciation and deterrence, it is necessary to pay attention to Mr. S’s rehabilitation, in the hope that appropriate probation conditions will reduce the risk that he will commit similar offences in future.

It is necessary to enlist Mr. S’s cooperation in that process, because, without his cooperation, it is doomed to fail. Probation terms of the kind contemplated by

section 161 of the Criminal Code would materially impede Mr. S’s participation in two activities which are of cardinal importance to him: (

i) his role as step-parent of Ms. T’s children; and (ii) the activities of the Longhouse of his First Nation. Continued successful participation in those activities will be a significant factor in his rehabilitation. To bar him from those activities would exacerbate the risk that he will engage in substance abuse, and hence the risk that he will re-offend. On the other hand, his participation in those activities may place children at risk. This is an issue which will evolve over time, and which requires ongoing assessment and monitoring. With that in mind, I think that the following additional probation terms are necessary and appropriate. Mr. S.:

a) must not seek or accept any position, whether paid or unpaid, that involves being in a position of trust or authority in relation to a person or persons under the age of 16 years without the prior written permission of his probation officer;

b) must not be in the presence of any person under the age of 16 years, except: (

i) in a public place where other adults are present; (ii) if an adult guardian of each person under the age of 16 years is also present; (iii) while attending Long House activities organized by his First Nation; or (iv) with the written permission of his probation officer, and in accordance with any conditions which his probation officer may impose. [ 25 ] Mr. S. must comply with the provisions of the Sex Offender Registration Act SC 2004, c 10 for a period of 10 years, and must provide a DNA sample at the correctional facility where he is incarcerated.

[ 26 ] Counsel asked me to recommend that Mr. S. serve his sentence at the Ford Mountain Correctional Centre, which offers an intensive counselling program for sex offenders, and I make that recommendation. July 18, 2019 ____________________________ The Honourable Judge Gouge Provincial Court of British Columbia