R. v. R.S. Date:, 2014 BCPC 227

Citation: R. v. R.S. Date: 20140819 2014 BCPC 0227 File No: 198022-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Ban on Publication - S. 486.4

(2) CCC Restriction on Access - S. 490.012 CCC Counsel for the Crown: D. Simpkin Counsel for the Defendant: J. Grenier

Place of Hearing: Surrey , B.C. Dates of Hearing: July 22, 23, 24, August 19, November 13, December 13, 2013; May 13, 2014 Date of Judgment: August 19, 2014 [ 1 ] THE COURT : R.S. has been found guilty that in the summer of 2011, here in Surrey, he did, for a sexual purpose, touch directly or indirectly with a part of his body the body of the complainant, a person under the age of 16 years, contrary to s. 151 of the Criminal Code . These events were not disclosed until November of 2012. [ 2 ] The complainant was 14 years of age at the time. He was a close friend of the nephew of the accused.

These events took place on four separate dates. On the first incident the victim and R.S. were sleeping in the same bed. On that occasion R.S. sucked and stroked his penis. On the second incident, while they were lying in the same bed, the victim testified that the accused stroked his penis and then performed fellatio on him.

On the third occasion the accused was sucking the victim's penis, the victim woke up and the accused was kissing him, in his words, "everywhere." In the fourth incident the accused was kissing the complainant all over his body, including his private parts. [ 3 ] The Crown in this case has asked the court to consider a period of incarceration of one year on Count 2. At the time of these offences, the mandatory minimum penalty was 45 days incarceration, and as the Crown has pointed out, neither a suspended sentence, a conditional sentence, nor a fine are open to the court as sentencing options. I misspoke earlier.

The Crown has asked the court to consider a sentence in the range of nine to 12 months and three years' probation. The Crown has referred to s. 718.01 of the Criminal Code which states that for offences of abuse against children, that being people under the age of 18, the primary consideration of the court is denunciation and deterrence of such conduct. The court has had the benefit of a Pre-sentence Report, a psychological assessment and a Gladue report, as well as extensive submissions from counsel. [ 4 ] The Gladue report sets out some of the difficulties that R.S. had as a child.

Page 2 of the report sets out that his parents were relatively young when they married and they drank alcohol on an almost daily basis and that was sometimes pronounced on the weekends. The mother, in retrospect, has admitted that she consumed alcohol throughout her pregnancy with R.S. and said that there were no abnormal complications with the pregnancy or his subsequent birth. However, later when R.S. was two to three years of age, he had lots of trouble forming words or talking clearly and did not handle frustration very well, and had a lot of really violent tantrums, banging his head and throwing stuff.

She said that when R.S. began attending school, his learning and behavioural problems became much more pronounced and they simply were not able to help or control him there at all. [ 5 ] Further to these concerns, his father has said that when the accused was around six years old their family doctor diagnosed him with Fetal Alcohol Spectrum Disorder. That was shortly thereafter corroborated by the diagnostic clinic at Children's Hospital in Vancouver.

The parents commented that although the diagnosis confirmed many of their worst fears, it did not result in any corresponding program services offered by the Ministry or the school district to assist their son or them in addressing the challenges presented by his brain injury.

However, they did their best to protect him or to raise him, and they have described him as someone who was perhaps overprotective of his sisters and he always did his best to assist his parents as they dealt with various ongoing health issues which affected their mobility and self-care. [ 6 ] In the Gladue report prepared for the court, it is noted that the accused was born and raised in Vancouver and indicated that he did not have any knowledge of his First Nations heritage, although he told the psychologist that interviewed him that he shares a close, involved relationship with his parents and his extended family.

As previously stated, R.S. was not a band member and he never lived within the aboriginal community. Also pointed out: that he has suffered from a developmental disability, specifically an IQ under 70, and I will get back to that later. [ 7 ] The Crown has referred the court to a case of Madam Justice Griffin. In that case the Supreme Court Justice was dealing with a case somewhat similar to ours, although the facts in these cases are invariably unpleasant and invariably distinctive.

In that case in dealing with the First Nations background of the accused I quote from page 7 of that decision where the court stated at paragraph 53: I have also reflected on the fact that his aboriginal heritage does not reduce his moral blameworthiness for sexually assaulting a young girl. I wish to observe that just as this court is aware of and ought to take into account the abuse inflicted on aboriginal families by the imposition of the residential school system, this court does not condescend to assume all aboriginal people are criminally dysfunctional because of this legacy.

This court recognizes that many aboriginal communities have either not lost or have reclaimed a cultural identity of which they can be proud. While it is important to take into account the sad reality of the over-representation of aboriginal people in our jails, doing so is not intended in any way to diminish the many valuable contributions and accomplishments of aboriginal persons in this province. It is to be noted that the victim of Mr. Quash's was also of aboriginal heritage.

It needs to be borne in mind that aboriginal communities denounce sexual assault of children as much as non-aboriginal communities; and the need for deterrence and a separation of the offender from the community to protect the community can be just as great in an aboriginal community as in a non-aboriginal community. I should have stated for the record that is a B.C. Supreme Court case dated January 30th of this year. [ 8 ] The Crown has pointed to what they say are aggravating factors in the case at bar. First of all there is the victim's age, and

secondly, it occurred on four separate occasions and it occurred while he was visiting a friend's residence. [ 9 ] The victim impact statement that has been prepared by the victim and his parents point out the difficulties that the victim has struggled with since this matter was reported to the police and the subsequent prosecution. The victim regrettably and very unfortunately has been teased by his schoolmates, and understandably he does not like to be left alone at home.

He is also now emotionally fragile and scarred and his school work has suffered. [ 10 ] Although I did mention in Crown's submissions that the accused's continual denials are understandable given that that is the position he took at trial, the Crown has pointed out that that somewhat undermines his ability to be rehabilitated. [ 11 ] The defence has argued that the accused, who is now 39, has lived in the family home for all of his life. He helps his father who has had hip replacement surgery in 2012, and his mother who is suffering from a medical disability.

He has no criminal record and he is supported not only by his parents but by his extended family of nieces and nephews and siblings. There has also been a letter written by his employer, and he has work to return to after he has completed his incarceration. Ms. Grenier has pointed out on behalf of her client that he is and has been illiterate as he suffers from dyslexia. When he was speaking to the psychologist and the probation officer he was somewhat reserved in his answers, which is understandable given that he does have the right to appeal my decision. [ 12 ] His family is his social group.

He also was bullied at school because of his problems with reading. As pointed out by his counsel, he did not receive the appropriate support from his school for the challenges he faced in his education. The psychological or psychiatric report has pointed out the learning problems that R.S. has had with reading, writing and mathematics, and he is presently at perhaps a Grade 4 or 5 level of literacy. He eventually left the school system as he felt he was learning more at work than he was at school. He began drinking at 17 in part because of his shyness.

He does not see himself in need of alcohol or drug counselling. [ 13 ] The defence has quoted somewhat extensively from the Supreme Court of Canada decision in R. v. Gladue , and specifically beginning at paragraph 93 of that decision where the general

summary has been discussed. First of all, that the Criminal Code ... ...codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. And number 2:

Section 718.2 (

e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

(3) Section 718.2 (

e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force. [The section] must be read and considered in the context of the rest of the factors referred to in that

section and in light of all of

Part XXIII. All principles and factors set out in [the sentencing sections of the Code] must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that

Part XXIII, [though as these sections have stated] has placed a new emphasis upon decreasing the use of incarceration. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2 (

e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. [And] directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

[ 14 ] It goes on to say that: [This section] is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. [ 15 ] At subparagraph 11 the court says: [The section] applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area.

In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. [ 16 ] It will be noted that much of the discussion is about whether or not incarceration is appropriate under many sections of the Code.

I cannot overlook, of course, the fact that there is a mandatory minimum custodial sentence for the court to consider in the case before me. [ 17 ] The defence has also referred the court to the Supreme Court of Canada case in Ipeelee v. Her Majesty the Queen . Specifically, under the heading of Making Sense of Aboriginal Sentencing the court discussed once again the provisions of s. 718.2 (

e) of the Criminal Code and this court's decision in Gladue were not apparently universally well-received. Three interrelated criticisms have been advanced: (1) sentencing is not an appropriate means of addressing overrepresentation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of s. 718.2 (

e) of the Criminal Code . [ 18 ] The court goes on to say at paragraph 67 that: ...judges can ensure that systemic factors do not lead inadvertently to discrimination in sentencing. [ 19 ] Then goes on at paragraph 73 to discuss: First, 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. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct" ...Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development.

While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. [ 20 ] The defence has also pointed out the mitigating factors that exist. First of all, the accused has no criminal record and he has been found to be of low to moderate risk to reoffend. He has the strong support of his family. He has suffered from Fetal Alcohol Syndrome.

He is required to support his aging parents in the community as well as looking after other members of his family, and he does have employment opportunities to pursue in the community upon his release. Counsel has asked the court to consider a sentence of 45 days to six months. [ 21 ] I am certainly aware of the principles of s. 718(2) of the Criminal Code and the subsequent analysis by the Supreme Court of Canada in the cases that I have referred to, particularly R. v.

Gladue , but it is difficult to overlook the other sentencing principles that I must address my mind to and that is that when the victim of abuse is a child, the primary consideration of the court should be denunciation and deterrence and not one of rehabilitation. Much of the discussion in the case law is whether or not one should be incarcerated. Well, incarceration is automatic for this type of offence, or was at that time and it still is although the mandatory minimum has been significantly increased. [ 22 ] In conclusion, I have considered the facts of this case.

I have considered both the mitigating and aggravating circumstances. I have considered the three reports which have been prepared for the court. I have considered the sentencing provisions as set out in s. 718 of the Criminal Code . I have considered the relevant case law and the submissions of counsel. I have concluded that a fit and proper

sentence is one of 12 months incarceration to be followed by three years of probation. [ 23 ] The conditions of that probation will be that he will keep the peace and be of good behaviour. He will report to a probation officer within 72 hours of his release from custody and thereafter as and when directed by his probation officer.

He shall reside at an address approved of by his probation officer and not change that address without the prior written approval of his probation officer. [ 24 ] He shall attend for, participate in and successfully complete such counselling as directed by his probation officer, which may include but not limited to the sex offender program and the sex offender maintenance program. [ 25 ] He is to attend for such other counselling as directed by his probation officer and complete such counselling to the satisfaction of his probation officer. [ 26 ] He is to have no contact directly or indirectly with A.K.

He is not to attend within a 500-metre radius of any residence, place of employment or school of A.K. [ 27 ] He is to have no contact or communication directly with, nor be alone in the presence of any person under the age of 16, except in the presence of an adult approved of in advance in writing by his probation officer, and in such case such written permission shall be carried on his person. [ 28 ] He is not to possess or consume any alcohol or non-prescribed drugs. [ 29 ] He is not to possess any weapons as defined by s. 2 of the Criminal Code . [ 30 ] Furthermore, under s. 161(1) (

a) of the Criminal Code he is prohibited from attending any public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre subject to the same exception, unless he has the written permission of his probation officer to be with an adult approved of in advance by a probation officer, and such permission shall be carried on his person.

That will be for a period of five years. [ 31 ] I am also making an order under s. 490.012(1) that he is to comply with the Sex Offender Information Registration Act for a period of 20 years. [ 32 ] I will also order that he provide a sample of his DNA for inclusion into the national DNA databank. [ 33 ] He is also prohibited from possessing any firearm, crossbow, restricted weapon, ammunition or explosive substance for a period of ten years after his release from incarceration.

He is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. (REASONS FOR SENTENCE CONCLUDED)