R. v. Bougraine, 2020 BCPC 267

Citation: R. v. Bougraine 2020 BCPC 267 Date: 20200407 File No: 176024-2 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZAKARIA BOUGRAINE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CUTLER Counsel for the Crown: K. Dutton Counsel for the Defendant: V. Michaels, by phone Place of Hearing: Victoria , B.C. Dates of Hearing: January 14, 2020, March 11, 2020, and April 7, 2020 Date of Judgment: March 11, 2020 and April 7, 2020 [ 1 ] The offender is before the court to be sentenced after being convicted for a sexual assault he committed on a server at a bar he had attended with friends.

The assault was committed while the victim had her back to the offender. The act is best described as a single

sweeping motion of the offender's hand over the victim's pants, from her crotch area up her back side. [ 2 ] The victim immediately turned around and protested her objection to the offender's gesture. The offender apologized and the two parted to other locations in the bar, with the victim retreating into the kitchen. [ 3 ] The Crown seeks a jail sentence of six months followed by one year of probation.

Counsel for the offender submits that a conditional discharge with onerous and rehabilitative conditions would be a fit sentence in this particular case given the circumstances of the offence and the offender. [ 4 ] Counsel submitted the following six cases for the court's consideration: R. v. Lacasse , 2015 SCC 64 ; R. v. Elmazini , 2019 BCSC 41 ; R. v. H.(T.J.) , 2012 BCPC 115 ; R. v. B.L ., 2011 BCPC 254 ; R. v. Reyes-Borgwardt , 2010 BCSC 1594 : and R. v.

Boden , 2012 BCPC 331 . [ 5 ] The Crown submits that primary considerations in sentencing this offender are denunciation, deterrence, reparation, and rehabilitation. Counsel for the offender does not take issue with these being critical considerations. [ 6 ] The central task for the court is to assess the various principles of sentencing established by the Criminal Code and the jurisprudence to determine a fit sentence for this offender after considering various factors, including the circumstances of the offence and the personal circumstances of the offender.

The court must craft a sentence which meets the various sentencing principles, including general and specific deterrence, denunciation, and promoting rehabilitation and a sense of responsibility in the offender. [ 7 ] I am guided by s. 718 of the Criminal Code as well as the principle of proportionality as set out in s. 718.1 and the principles set out in s. 718.2 . [ 8 ] Counsel for the offender submits the jurisprudence in this province indicates that although rare, these principles can be met by imposing a conditional discharge on an offender who is being sentenced for a sexual assault. [ 9 ] The courts have emphasized that sentencing is an inherently subjective and highly individualized exercise, tailored in each case after considering various factors, including the gravity of the offence, the blameworthiness of the offender, the harm caused by the crime, and the particular circumstances of the offender. [ 10 ] The starting point for the court's sentencing considerations in this matter is the fundamental principle that no one should have their physical or sexual integrity violated.

Everyone is entitled to feel comfortable, safe and respected, particularly in their work place, and free of any threat, fear of harm, or abusive behaviour. Individuals in our society should not have to concern themselves with being inappropriately touched wherever they may be conducting their daily activities. It must be made clear to the offender and others the importance of respecting the personal and sexual integrity of every person and that such offensive conduct will not be tolerated.

To this end, the sentence must ensure that the offender and others understand that such conduct will have adverse consequences for the perpetrator. [ 11 ] The incident that brings the offender before the court is difficult to comprehend, and all the more confounding when one reads more than a dozen letters placed before the court attesting to the offender's good character, respect for women, and positive lifestyle. [ 12 ] The motive or intent to commit this offensive act is not clear. Was it, as Crown counsel suggests, a means of flirting or making a pass at the victim?

Or was it a feeble attempt to display an ill-perceived dominance of the victim, or some other warped thought process? Or was the act committed without any thought process by someone who was under the influence of alcohol as the offender was at the time? [ 13 ] Whatever led the offender to commit the act must be explored, identified and addressed by the offender so it does not happen again. [ 14 ] In assessing the nature and circumstances of the assault in this case, it must be recognized it is at the lower end of the continuum for sexual assaults. It was a momentary touching above the victim's clothes.

The offender did not persist in his conduct and immediately apologized to the victim when she rebuked him. This does not in any way minimize the impact of the incident on the victim. The victim impact statement filed with the court poignantly captures the injury and adverse impact such incidents have on victims. She is engaged in counselling to help her address the trauma.

It is hoped that the victim's testimony and the victim impact statement will help the offender gain some insight into the significant impact his conduct has had. [ 15 ] I note that many, if not all, of the cases presented to the court in which conditional discharges were imposed addressed sexual assaults which were of a more egregious nature than that committed by the offender before this court, and all of the cases recognized that such discharges are rarely imposed in sexual assault cases. [ 16 ] A recent appellate decision, R. v.

Elmazini , confirms a judicious use of the discharge provisions, and that while a conditional discharge for an offender convicted of sexual assault should be imposed rarely, there will be cases where a conditional discharge may be an appropriate sentence, depending on the circumstances of the offence and the offender. [ 17 ] In that case, the offence was more egregious than the matter before this court as the offender persisted with the assault despite the victim's protests, and the offender was the victim's employer thus engaging abuses of power and trust. [ 18 ] In brief, the sexual assault was committed by the victim's employer while the two were in a restaurant owned by the offender.

The restaurant doors had been locked at 10 p.m. and shortly thereafter the offender commenced kissing the victim on her neck and touching her face. He then proceeded to kiss her on the cheek, at which time she told him to stop. She was in shock and moved away, yet the offender came back and touched and squeezed her breasts. [ 19 ] After convicting the accused and hearing submissions on sentencing, the trial judge addressed the principles set out in s. 718 of

the Criminal Code, the principle of proportionality codified in s. 718.1, as well as the primary considerations of denunciation anddeterrence. After assessing the circumstances of the offence and the offender, a conditional discharge was granted and upheld on appeal. [20] The circumstances of the offender before me are compelling. He is 37 years of age, married, and has a young child. He has nocriminal record and has had no prior involvement with the criminal justice system. By all accounts he has an unblemished record.

He haslived in Victoria since 2005 and has both worked and attended post-secondary schooling. [21] As indicated, the court was provided over a dozen letters in support of the offender. These letters are authored by reputablemembers of the community, from all walks of life, who have known the offender for an extensive period of time and have had closerelationships with him in various contexts: familial, social and professional.

The letters attest to the offender's good character, devotion tohis family, his participation in the community, and to him being a respected and generous individual. [22] The common theme in the letters is that the writers are astonished to hear of the offender's conduct in this matter.

They all attestto the fact that this conduct is completely out of character for the individual they know and that they continue to have faith and trust inthe offender. [23] The letters also portray the offender as a contributing member of the community, both with respect to the time he volunteers andthe positive role model he provides. As well, the letters emphasize that the offender is a caring and devoted husband and father. [24] The offender has a positive reputation in the local soccer community where he plays and coaches.

Up to the time of this offencehe had developed a strong reputation as a youth soccer coach for which he was employed and for which he has received numerouscommendations. [25] The information provided to the court is that he is a gifted instructor with a passion for what he does and an eagerness to assistothers. He has stepped away from this activity since the date of the offence, some two years ago now. [26] I am satisfied that this prosecution and subsequent conviction have and are likely to continue to adversely impact his ability topursue his chosen profession.

He will in the future be required to complete a criminal record review declaration to continue to pursue hiscoaching endeavours and this conviction may very well limit his opportunities. [27]

Section 730 of the Criminal Code and the jurisprudence in this province make it clear that in order to impose a conditionaldischarge, the court must be satisfied that such a discharge is in the best interests of the offender and that the discharge is not contrary tothe public interest. [28] I am satisfied that a conditional discharge is in the best interests of the offender.

The offender is a person of good character withno prior convictions and an unblemished record, who is thought of highly by those who know him in the community. [29] A criminal conviction will no doubt cause hardship to the offender and his young family as they forge ahead with their lives andtheir healthy engagement in the community.

It is likely to impact his career opportunities as well as act as an impediment for him tocontinue to engage in the community and positively contribute, as he has up until now. [30] I believe the rehabilitation of the offender in this case is likely to have a better chance of succeeding by imposing a conditionaldischarge with significant meaningful and constructive conditions, which will not only remind the offender that there will be adverseconsequences to committing such

an act, but perhaps more importantly assist this offender to take steps to ensure that he does not engagein similar activity in the future. [31] The jurisprudence has recognized rehabilitation of offenders as one of the main objectives in sentencing and plays an importantrole in determining a just and appropriate sentence for an offender, R. v.

Lacasse. [32] I am satisfied the offender is sincere in his commitment to pursue the rehabilitative measures contained in the probation order Iwill be ordering, including attending programming and counselling. [33] The offender's history, the representations of his counsel, and the letters presented to the court satisfy me that the offender willnot only comply with the conditions placed on him by this court but will do so in good faith and with full sincerity in an effort to ensurethat he will not conduct himself in such a disrespectful and offensive manner in the future.

In this regard, I am mindful of the offender'sunblemished record at the age of 37, his pro-social and positive position in the community, and the very favourable letters indicatingboth support for, and trust in, the offender. [34] I do not believe it is necessary to enter a conviction against the offender in this case in order to deter him from future offences orto rehabilitate him. The entry of a conviction against him may have significant adverse repercussions and is likely to be counter-productive.

The court is able to impose a discharge with conditions that will achieve the objective of rehabilitation as well as deter himfrom engaging in similar activity in the future, while at the same time avoiding the significant adverse repercussions that an individual inhis position will suffer from a criminal record. [35] As indicated, I am satisfied a conditional discharge would be in the best interests of the offender. [36] It is now incumbent on the court to assess whether a conditional discharge in this case is contrary to the public interest. OurCourt of Appeal in R. v. Fallofield, (BC CA), [1973] B.C.J.

No. 559 (C.A.), indicated an essential concern,particularly with respect to whether granting a discharge is not contrary to the public interest, is the deterrence to others the sentence mayhave. The Court was clear that while deterrence must be given due weight, it does not preclude the judicious use of the dischargeprovisions. In this regard, it must be recognized that probationary conditions tailored to fit the particular circumstances of the offendermay also have the necessary deterrent effect, both on the offender and others in the community, R. v.

Lacasse. [37] It is also important that the court be mindful of the proportionality principle and avoid imposing a sentence that is harsher than is

otherwise necessary to ensure the principles of sentencing are achieved. [ 38 ] In applying the various sentencing principles to the circumstances in this case, I am satisfied that the principles of denunciation and deterrence can be achieved in this case without a custodial sentence or having a conviction registered against the offender. [ 39 ] I am satisfied the probation conditions I will be ordering are sufficiently punitive to satisfy the public interest and the principles of deterrence and denunciation.

The probationary conditions to be placed on the offender are onerous, both in duration and substance, and I believe impose a sufficient penalty on the offender. He and others contemplating committing such assaults will be discouraged from engaging in such activity, knowing that significant consequences will result. [ 40 ] As well, the conditions are sufficiently denunciatory.

The sentence imposed will continue to signal the community's and the court's view that conduct of this nature is unacceptable and will be penalized. [ 41 ] At the same time, the sentence avoids imposing a conviction on this offender, who has, other than this momentary isolated incident, led a productive life, contributing positively to the community, with pro-social values. This may all be jeopardized by having a conviction registered on his record which I do not believe would be in the community's interests, R. v.

Reyes - Borgwardt . [ 42 ] The sentence will also place the offender in a more favourable position to gain insight into the offence and the harm this conduct causes, thus promoting his rehabilitation. [ 43 ] In

summary, after assessing all of the circumstances of this matter, including the offence and the offender, and the various principles of sentencing, I am satisfied that a conditional discharge in this case, with the imposed probationary conditions, is in the best interests of the offender and is not contrary to the public interest. [ 44 ] Accordingly, I am granting a conditional discharge and placing the offender on probation for a period of two years, with the following conditions. [ 45 ] You will report forthwith to the probation office here in Victoria and thereafter as directed. [ 46 ] You are to complete 150 hours of community work service under the direction of the probation officer within the first 12 months of your probation. [ 47 ] You are to have no contact with [the complainant]. [ 48 ] You are not to attend at any place of employment, school or residence of [the complainant]. [ 49 ] You are not to attend at the Sticky Wicket Pub located at 919 Douglas Street, Victoria, British Columbia. [ 50 ] You are to attend, participate in and successfully complete any intake assessment, counselling or program as directed by your probation officer, including programs related to appropriate sexual boundaries and sexual offence prevention. [ 51 ] In lieu of attending publicly funded programs as directed by the probation officer, you may, at your own expense, pursue any private counselling or programs addressing appropriate sexual boundaries and sexual offence prevention programs as approved of by your probation officer. [ 52 ] You are not to attend in any liquor store, beer and wine store, bar, pub, lounge, nightclub, or beer garden or any other place where the primary commodity sold is liquor. [ 53 ] You are not to possess or consume liquor, drugs or any other intoxicating substance except in accordance with a medical prescription. [ 54 ] As well, there will be the following ancillary orders.

Pursuant to s. 487.051(1) I am making an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA national databank. You must attend at the Victoria Police station here in Victoria before March 30th, 2020 and submit to the taking of the samples. This order is valid until executed. (REASONS FOR SENTENCE CONCLUDED)