R. v. L.E.G., 2020 BCPC 303

Citation: R. v. L.E.G. 2020 BCPC 303 Date: 20201005 File No: 178315-K-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.E.G. BAN ON PUBLICATION - s. 486.4 CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.V. SACCA Counsel for the Crown: Paul Pearson Counsel for the Accused: Counsel for the Accused: Place of Hearing: Victoria , B.C. Date of Hearing: September 11, 2020 Date of Judgment: October 5, 2020

Introduction [ 1 ] The offender, L.E.G., pleaded guilty to one count of sexual assault committed against B.C.H. on July 16, 2019, contrary to s. 271 of the Criminal Code . [ 2 ] The facts relevant to this sentencing hearing are as follows. Circumstances of the Offence [ 3 ] Mr. L.E.G. and B.C.H. met on a dating app. They agreed to meet for sex. Mr. L.E.G. offered to bring cocaine. There was some discussion about their sexual preferences and B.C.H. indicated that he enjoyed rougher sex. [ 4 ] Mr. L.E.G. attended B.C.H.’s residence, they engaged in sexual activity including kissing, oral sex and Mr.

L.E.G. penetrating B.C.H. The sexual contact was consensual. Mr. L.E.G. brought cocaine and in fact used it. [ 5 ] Initially B.C.H. consented to some roughness in their sexual contact however it escalated with Mr. L.E.G. pinning B.C.H. on the bed and slapping him hard on the face several times resulting in B.C.H. telling him to stop. Mr. L.E.G. began choking B.C.H. to the point that he thought he would pass out. Mr. L.E.G. punched B.C.H. in the face. B.C.H. told Mr. L.E.G. to stop, once again, and that he had had enough. [ 6 ] Mr.

L.E.G. continued holding B.C.H. down on the bed, forcing him to watch pornography and spitting on him telling he wasn’t doing it right. B.C.H. got insistent and loud, telling Mr. L.E.G. to stop. Mr. L.E.G. finally stopped, got dressed, and left B.C.H.’s home. [ 7 ] B.C.H. attended the hospital and subsequently made a statement to the police.

Position of the Crown [ 8 ] The Crown seeks a conditional sentence of nine to twelve months with ancillary orders under the Criminal Code : a. prohibiting the possession of a firearm pursuant to s. 109; b. authorizing the taking of a DNA sample pursuant to s. 487.051, given that sexual assault is a “primary designated offence” as defined in s. 487.04; and c. requiring Mr. L.E.G. to comply with the Sex Offender Information Registration Act (“SOIRA”) for a period of 10 years pursuant to sections 490.012 and 490.013. Position of the Defence [ 9 ] On behalf of Mr. L.E.G., Ms.

Costa argued that a conditional sentence could not be justified but rather that a conditional discharge would be the appropriate result. Ms. Costa noted the following: a. Mr. L.E.G. has no criminal record; b. he pleaded guilty and thereby avoided a trial in this matter; c. the victim in this matter has not participated in the process and this may well have effected the strength of the Crown’s case; d. Mr.

L.E.G. has taken responsibility for his actions and has undertaken counselling over the course of the year awaiting sentence of his own volition; e. he has been gainfully employed and has won a recent accolade through his employment as a visionary leader in support of LGBTQ2IA+ programs supporting and enriching the community; and f. there has been no suggestion by the Crown that there is a risk that Mr. L.E.G. will reoffend. [ 10 ] Ms.

Costa tendered a number of letters from family including his mother and father, as well as a family friend, all of whom were aware of these proceedings and all of whom attested to his character. They all reporting the challenges that Mr. L.E.G. faced growing up as a flamboyant gay child suffering what was described as “merciless bullying” victimized by other children and eventually intimate partners. [ 11 ] In the course of her submissions, Ms. Costa later submitted that an absolute discharge would be the correct result given the exemplary character of Mr.

L.E.G. and the potential impact of anything less than an absolute discharge on his employment. [ 12 ] Specially, counsel indicated that a conditional sentence would, more likely than not, result in his employer finding him no longer suitable to continue in the position he currently holds given that he works with student members of the LGBTQ2IA+ community. [ 13 ] The Crown submitted that under the Criminal Records Review Act , Mr. L.E.G. would have to mandatorily report the imposition of a sexual assault charge.

It seems to me that given that he works with young adult students of a marginalized group that he would likely have had to disclose the imposition of such charge.

Pre-Sentence Report and Psychological Assessment [ 14 ] I have reviewed the Pre-Sentence Report dated April 24, 2020 and the Pre-Sentence and Psychological Report of August 24, 2020. Mr. L.E.G., in describing his background, explained that while his parents were loving and supportive of his development as a young child, he had challenges in his youth, as he did not fit in with other kids.

He was a child who defied stereotypical gender roles and was bullied and physically abused by other children starting at age five and continuing right through to the end of high school. [ 15 ] He came out at the age of 16 and became involved in a party culture involving drugs, drinking, sex and bars. He was involved in an abusive relationship at the age of 21. This ended after 18 months culminating in a violent intimate partner abuse episode to the degree that Mr. L.E.G. was hospitalized. [ 16 ] Mr.

L.E.G. suffered his own trauma as the victim of a sexual assault at the age of 23 wherein he was drugged and raped. [ 17 ] Mr. L.E.G. began another relationship in 2016 and, through this relationship, began to deal with his addiction issues trying to abstain from substances and attending residential treatment in 2016. He relapsed in 2018 and described himself as spiraling as his relationship ended. [ 18 ] Mr. L.E.G. describes most of his sexual history as “rough”.

He stated that sex and drugs were interdependent for him and that rough sex is “imprinted” in his brain like an addictive substance would be. [ 19 ] Mr. L.E.G. has struggled with addiction issues on and off since his 20’s. He has attended and completed both out-patient and residential treatment. He has had periods of sobriety and relapse. When he relocated to Victoria in June of 2019, he had relapsed using cocaine and pairing drugs with sex. It was during this relapse that this offence was committed. [ 20 ] Mr. L.E.G. reported that he met the victim on a dating app and made plans to meet for casual sex.

They drank alcohol, used cocaine and agreed to have consensual rough sex. He reports his PTSD was triggered. He does not recall the actual offence or the extent of the injuries that he inflected on the victim and believes he disassociated from the incident. [ 21 ] This in no way excuses his actions as intoxication is not a defence but I have considered it to be a mitigating factor in considering his moral culpability. [ 22 ] The victim was contacted by the Crown for input unfortunately those attempts were unsuccessful. There is no Victim Impact Statement. [ 23 ] Mr.

L.E.G. states that he had hit “rock-bottom” and that he has been clean and sober since December 2019. He reports attending Narcotics Anonymous on a weekly basis and has connected with online resources during the pandemic. He is now in a new relationship that he describes as the most mature he has ever had. He has been seeing a registered psychologist since October 2019 and his psychologist, Dr. Berry, diagnosed him with post traumatic stress disorder which he reported is currently in remission. [ 24 ] He is incredibly remorseful and expressed shame and guilt for his actions.

He is committed to his rehabilitation and personal growth albeit unfortunate that his progress came as a result of such a significant mistake. [ 25 ] The Pre-Sentence Report concludes by stating that Mr. L.E.G. is at a very low risk of sexually reoffending and that his PTSD, alcohol dependence and cocaine dependence are currently all in remission. [ 26 ] I find it quite shameful that Mr. L.E.G., who himself suffered physical and sexual abuse in intimate partner relationships in his past, would behave in such a way himself.

Moreover, as a gay man subject to bullying and abuse because of his sexuality, I find it aggravating that he would violently abuse an intimate partner who trustingly allowed him into his home as a sexual partner falsely believing he would be safe with another man who presumably shared the same experience of marginalization. Principles of Sentencing [ 27 ] I must bear in mind the fundamental principles of sentencing as set out in s. 718 of the Criminal Code .

Of relevance in this particular case are the principles of denunciation and deterrence given the seriousness of all sexual assaults - which in this case - is made even more serious given the unnecessary and egregious violence perpetrated by Mr. L.E.G. upon B.C.H. [ 28 ] The separation of this individual from society is not as relevant given the relatively low risk of his reoffending as set out in the Pre-Sentence Report. Rehabilitation is also of relevance given Mr.

L.E.G.’s own personal history and the traumas that he has suffered in his life and in prior intimate relationships. [ 29 ] I must also ensure that the sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. As stated in the matter of R. v. Lacasse , 2015 SCC 64 : …Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Individualization and parity of sentences must be reconciled for a sentence to be proportionate… Cases Relied Upon by the Defence [ 30 ] Ms. Costa pointed the court to a number of cases wherein either conditional discharges or suspended sentences were ordered. All of the cases were distinguishable on their fact patterns and they lacked the violence present in this matter; however all involved offenders who lacked criminal histories, had entered guilty pleas, and normally had good characters. [ 31 ] The only case relied upon by defence counsel wherein an absolute discharge was granted was R. v.

Burton , 2012 ONSC 5920 , a decision of the Superior Court of Justice reviewing the decision of the Ontario Court of Justice. In that particular matter, a 49 year old

man with no criminal history sexually assaulted a woman on a public bus by traveling his hand under her skirt along her leg until shescreamed, stood up and ran to the front of the bus. Again, while humiliating, degrading and absolutely invasive, the level of violencepresent in the case at bar, makes Burton easily distinguishable. [32] In considering whether a discharge would be an appropriate result, I have considered the principles set out in R. v. Fallofield(1973) (BC CA), 13 C.C.C. (2d) 450 BCCA, specifically, a.

The first precondition to the granting of a discharge namely “the best interests of the accused” generally presupposed that theaccused was a person of good character, usually without prior conviction, and that it was not necessary to enter a conviction against himor her in order to specifically deter that offender from future offences or to rehabilitate the offender, and that entry of a conviction mayhave “significant adverse repercussions”. b.

The second precondition, that is, the grant of discharge would not be contrary to the public interest bringing into play aconsideration of the public interest in the deterrence of others. As set out in R. v. Meneses (1974), (ON CA), 25C.C.C. (2d) 115 (OCCA) the “need for deterrence can be fulfilled by the fact that the accused was arrested, compelled to appear in courtand face the notoriety that comes with an appearance and the fulfillment of judicially imposed requirements”. [33] Both of these preconditions are present in this case: a. Mr. L.E.G. is a person of good character without prior conviction.

He is considered to be at low risk to reoffend and has muchto lose with a criminal conviction namely his current employment that has given him much fulfillment and has also enriched theLGBTQ2IA+ community. b. Deterrence comes in many forms, the conviction in these circumstances serves to denounce and deter both this individual andgenerally. The disgrace to Mr.

L.E.G. having to disclose the charge and circumstances to his parents and his new partner, engage in thecriminal justice system, face the possibility of losing his employment and live with judicially imposed bail and now probationrequirements serve, in my view, as adequate deterrence. Conclusion [34] I have considered Mr.

L.E.G.’s low risk of sexually reoffending, his lack of a criminal record, his early guilty plea, his remorseand growth over the past year, his own personal circumstances as previously detailed and his exceptional prior character and havedetermined that this is a case where a conditional discharge with a lengthy probationary period will be sufficient to ensure that theprinciples of deterrence - both specific and general - along with the principles of denunciation and rehabilitation are met. [35] As a result, I am granting Mr. L.E.G. a conditional discharge and placing you on probation for a term of 18 months.

Theconditions are: a. 2001: You must keep the peace and be of good behaviour; you must appear before the court when required to do so by thecourt; you must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court orthe officer of any change of employment or occupation. b. 2002: You must have no contact or communication, directly or indirectly, with B.C.H. c. 2005-2: You must not go to [omitted for publication]. d. 2006: You must not be any place where B.C.H. happens to be.

If you see them, you must leave the place immediately withoutany words or gestures. e. 2102: You must report in person to a probation officer at 836 Courtney Street, Victoria, BC, 250-387-6321 by 3 p.m. today,Monday, October 5, 2020. If the office is closed, you must continue calling daily during regular business hours until you have spoken toa probation officer and received further direction to report. After that, you must report as directed to your officer. f. 2202: When first reporting to your probation officer, you must provide them with the address where you live and your phonenumber.

You must not change your address or phone number without notifying your officer in writing advance of any change. g. 2401: You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription. h. 2501: You must attend, participate in and complete any intake, assessment, counselling, or education program as directed byyour probation officer. [36] As to the ancillary orders: a.

Pursuant to s. 109 of the Criminal Code, you are prohibited from possessing: any firearm, other than a prohibited firearm orrestricted firearm, any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years from today; and, anyprohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. b. Count 1 on Information 178315-1-K is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, Iauthorize the taking of samples of bodily substances from you.

You must attend at the Victoria Police Station at 850 Caledonia Avenueand submit to the taking of the samples. This order is valid until executed. c. With respect to SOIRA there will be no order for registration. As I read the provisions of the Act, noting s. 4(1), the registrationrequirement does not apply to a person who has been discharged pursuant to s. 730 of the Criminal Code.

_____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia