R. v. R.D.Z., 2020 BCPC 175

Citation: R. v. R.D.Z. 2020 BCPC 175 Date: 20200903 File No: 20517-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.D.Z. BAN ON PUBLICATION –

SECTION 486.4 C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: G. Merke and P. Cheeseman Counsel for the Accused: J. Watt and D. McKay Place of Hearing: Colwood , B.C. Dates of Hearing: April 23, 24, 26, 2019; October 21, 22, 2019; November 26, 2019; July 6, 2020 Date of Sentence: September 3, 2020 INTRODUCTION

[ 1 ] On November 26, 2019, at the conclusion of a lengthy trial, I convicted the accused of the following offences: 1. sexual interference with a person under the age of 16 years, contrary to s. 151 of the Criminal Code ; 2. sexual assault, contrary to s. 271 of the Criminal Code ; and 3. exposure of his genital organs for a sexual purpose to a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code . [ 2 ] The written Reasons for Judgment which I prepared and filed with respect to the conviction are appended to these Reasons, and so I do not propose to set forth a lengthy review of the fact pattern underlying this sentencing decision. By way of very brief

summary, I need only say that all of the offences involved the then 53-year-old accused sexually abusing his step-granddaughter in the summer and fall of 2017. The complainant’s 8 th birthday occurred in the middle of that period, in [omitted for publication] 2017. [ 3 ] The sentencing process was delayed by the COVID-19 pandemic, but I eventually heard full submissions from counsel, supplemented by written argument, on July 6, 2020.

I have also had the benefit of the following documentary information: 1. a pre-sentence report with a Gladue component; 2. a psychological assessment of the accused; 3. a victim impact statement, setting forth the effects of the accused’s behaviour upon the complainant and her immediate family; and 4. case authorities provided by both counsel. [ 4 ] It is crucial to note that the prosecution in this case took place by way of a

summary conviction proceeding. As such, the governing sentencing provisions set forth in the Criminal Code are as follows: 1. On the charge of sexual interference, there is a maximum term of imprisonment of 2 years less a day and a minimum term of imprisonment of 90 days. 2. On the charge of sexual assault, there is a maximum term of imprisonment of 2 years less a day and a minimum term of imprisonment of 6 months. 3.

On the charge of exposing genital organs for a sexual purpose, there is a maximum term of imprisonment of 6 months and a minimum term of imprisonment of 30 days. [ 5 ] The minimum terms of imprisonment to which I have referred may well be subject to constitutional challenge. Defence counsel elected not to make argument on the constitutional issue, however, conceding that as a practical matter I would likely feel bound to impose sentences upon this accused that are at least at the minimum level provided by the statute.

I am grateful to counsel for that concession, which was entirely appropriate. [ 6 ] Crown Counsel has submitted that I should impose a global four year prison sentence upon the accused. He relies heavily on the recent Supreme Court of Canada decision in R. v. Friesen, 2020 SCC 9 , and submits that I should arrive at a result consistent with the range suggested in that case by imposing consecutive sentences for the various offences here. [ 7 ] Defence Counsel, on the other hand, submits that the appropriate global range of sentence falls between 6 and 12 months of imprisonment.

He submits that Friesen does not apply to the range of sentence to be imposed here because the offence dates in the present case pre-date Friesen by over 2 years. Further, he submits that all sentences here should be served concurrently, on the basis that the accused’s offending behaviour consists of a “linked series of acts within a single endeavour”, to adopt the phrase used in R. v. G.P.W. , 106 BCAC 239 , at para. 35 . [ 8 ] Counsel’s sentencing submissions thus diverge greatly from one another.

As a result, I have taken the time to read and re-read very carefully all of the materials provided and to follow that up by reading some of the other case authorities referred to in those materials. ANALYSIS [ 9 ] The fundamental principle of sentencing is set forth in this way in s. 718.1 of the Criminal Code : 718.1.

A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 10 ] I take that to be a concise way of summarizing the process that courts in this country have always followed, arriving at an appropriate sentence by examining a case from the following three perspectives: 1. the generic seriousness of the offence(s); 2. the particular circumstances surrounding the commission of the offence(s); and 3. the circumstances of the offender. [ 11 ] I will proceed with that form of analysis here, bearing in mind that my examination must be informed by certain specific provisions of the Criminal Code and by relevant judicial pronouncements that have been in other cases in the past.

a) The General Seriousness of the Offences [12] The recent case of R. v. Friesen 2020 SCC 9 provides an extended analysis of the various Criminal Code offences that deal withadults sexually misbehaving toward children. The message is crystal clear: Such misbehaviour, by whatever specific name it is given inthe various provisions in the Code, is serious indeed and must be universally recognized as such by sentencing judges in this country. [13] The general comments that appear in Friesen with respect to the seriousness of sexual misbehaviour toward children are notnovel.

Those comments are entirely consistent with judicial pronouncements that have been made for many years by judges in Canadiancourts. See, for example, the decision in R. v. D. (D.), (2002), (ON CA), 58 OR (3d) 788 (CA), in which Moldaver,JA (as he then was) said this at paras. 35 to 36: 35. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at onceour most valuable and our most vulnerable, asset, and as such they make easy prey.

People like the appellant know this only too well andthey exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. 36. In this respect, while there may have been a time many, many years ago when the offenders could have taken refuge in the fact thatlittle was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse nolonger holds sway.

The horrific consequences of child sexual abuse are only too well known. [14] Friesen is important to the judicial analysis not because it offers a particularly new perspective, but in large part because itexplains in so much more detail the insidious ways in which the sexual abuse of children affects and undermines our society.

Friesenexamines at length the diverse ways in which the victims themselves can be affected, sometimes permanently, and it also explores howfamilies are torn apart and how community harmony itself is undermined: See in particular paras. 50 to 73. [15] The Friesen decision is also of fundamental importance in that it sounds a clarion call to the courts across the country torespond to the serious problem of child abuse by imposing heavier sentences than those which have been imposed in the past. TheSupreme Court judgment is perhaps unusual in that respect, and it is certainly pointed.

The opening paragraph of the judgment sends theessential message: Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. Theydeserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands ofCanadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to thisprofound wrongfulness and harmfulness of sexual offences against children. [16] Lest there be any misunderstanding, I should say immediately that by “sexual violence” the Supreme Court refers to all forms ofsexual misbehaviour toward children, since sexual misconduct of any sort can and often does cause such profound harm even withoutactual physical force or threats of force.

Thus, the following passage appears at para. 5 of the decision: [W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability andcause profound harm to children, families and communities. [17] The Friesen decision is also of fundamental importance in that it strives to bring the analysis up to date, referring (at para. 46)to statistics which show the increased prevalence of sexual violations against children in Canada, causing Parliament to respond to theseriousness of the situation by repeatedly increasing sentences for sexual offences.

Paragraph 98 of the decision reads as follows: Parliament has repeatedly increased sentences for sexual offences against children. These increases began in 1987 with Bill C-15. Byabolishing the historic offences of indecent assault on a female and acts of gross indecency and creating the sexual interference offence,Parliament effectively doubled the maximum sentence from five to ten years for sexual offences against children that did not involvevaginal or anal penetration ….

Parliament has repeatedly signalled society’s increasing recognition of the gravity of sexual offencesagainst children in the years that followed. In 2005, Parliament tripled the maximum sentences for sexual interference, invitation tosexual touching, and sexual exploitation in cases in which the Crown proceeds summarily from six months to 18 months by enacting BillC-2…. Finally, in 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23.

This statute increased themaximum sentences of these three offences and sexual assault where the victim is under the age of 16 from 10 to 14 years whenprosecuted by indictment and from 18 months to 2 years less a day when prosecuted by way of

summary conviction (ss.2-4). This statutealso increased the maximum sentences for numerous other sexual offences against children as indicated in the Appendix to these reasons. [18] Friesen is a richly detailed decision, and I have no doubt that by summarizing it as I have I may appear to have overlookedmany of its finer points. My aim, however, is not to provide a general review of the case, but merely to illustrate how it emphasizes theseriousness of sexual misconduct toward children and goes on to provide direction for sentencing judges.

The Supreme Court of Canadaplainly views the sexual abuse of children in any form as involving a high degree of moral blameworthiness and gives direction forserious penalties to be imposed as a result. [19] On this aspect of the analysis it only remains for me to point out one other specific provision of the Criminal Code whichconfirms and emphasizes the serious nature of sexual misbehaviour toward children generally. [20]

Section 718.01 provides that where a court imposes a sentence for an offence that involves the abuse of a person under the ageof 18 years, it shall give primary consideration to the sentencing objectives of denunciation and deterrence of such conduct.

To put itanother way, Parliament has provided that in such cases, whether sexual or not, the sentencing judge must consider the personalcircumstances of the accused, including his or her background and prospects for rehabilitation, to be of secondary importance only. [21] In short, there can be no doubt whatever that the offences of which the accused has been convicted in this case are grave indeed.A sentencing judge dealing with a case involving offences of this sort at any time in the last generation or two would likely have reachedthat same conclusion.

The conclusion is bolstered now, however, by reference to the various legislative amendments that have beenmade in recent years and by the urgency brought to the matter by the recent pronouncement from the Supreme Court of Canada.

b) The Specific Circumstances of the Offences [ 22 ] As noted at the outset, the Reasons for Judgment which I prepared at the time of conviction, setting out the essential facts of this case as I have found them, are appended to these Reasons. As a result, I will now focus on those aspects of the facts which can be considered as either mitigating or aggravating for sentencing purposes. [ 23 ] There is very little to be said in mitigation. I suppose it should be pointed out that there was no actual physical force used, nor was such force ever threatened.

That is of limited importance, however, bearing in mind the admonition offered so forcefully in Friesen ( at para. 56 , for example), that the harm that a child suffers from sexual abuse is often subtle and psychological in nature, and maybe equally significant whether or not any physical force has been used. [ 24 ] Nor does the accused here have the benefit of any demonstrated remorse in mitigation of sentence. He continues to deny that he engaged in any wrongdoing.

I emphasize that the absence of remorse is not an aggravating feature on sentence; it is merely a factor to note when assessing the extent of any mitigating features. [ 25 ] There are a number of facts in this case which constitute true aggravating features. Most obvious is the flagrant breach of trust that was involved. The accused was an extended family member and the complainant was specifically entrusted into his care on a regular basis at the end of her school day.

The complainant, the family and the community generally trusted that he would exercise his caregiving role in a protective manner, rather than using it for his own destructive and selfish purposes. [ 26 ] The abuse of a position of trust is specifically referred to in s. 718.2 (iii) of the Criminal Code as an aggravating feature for sentencing purposes. There is good reason for that in a case involving sexual abuse. Social science research shows that the loss of trust that children often suffer as a result of such abuse can be devastating, long-standing and pervasive.

As the Court said in Friesen , at paras. 60 and 61 : 60. Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship…. 61. The ripple effects can cause children to experience damage to their other social relationships. Children may lost trust in the communities and people they know.

They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities. [ 27 ] One can only imagine the confused fracturing of loyalties engendered in the mind of a little girl when she is used as a sexual object while alone in the company of her trusted step-grandfather and then in effect told not to mention what has just occurred when her grandmother arrives on the scene.

In the end, no doubt after much agonizing, she disclosed to her father what had been happening because she thought that by approaching the matter in that way she would avoid getting the accused into trouble. [ 28 ] The thoughtful victim impact statement which has been filed by the complainant’s mother suggests that the concerns about confused loyalties and loss of trust are indeed real in the present case.

The victim impact statement reads in part as follows: Our daughter was a confident child, was very outgoing, was happy to play with friends and have sleep overs, she now struggles with nightmares, separation anxiety, and low self-esteem. Our daughter does not want to be alone with her thoughts at night and will often require one of us to lay with her until she falls asleep. [B] has spent the last year and a half in weekly therapy. I have been woken up many times in the middle of the night with crippling anxiety wondering how this will affect [B] as she grows up, will she trust men?

What will happen when she has her first relationship? [ 29 ] The impact of the accused’s behaviour upon the complainant may well have been heightened by the fact that his actions took place over a period of several months and involved various forms of wrongdoing. The nature of the evidence makes it difficult to discern on precisely how many occasions the abuse occurred, but it happened at least several times. That is a factor which I take into account, noting as well that the abuse occurred when the victim was seven and eight years old.

Her young age made her utterly vulnerable to the predations of the accused, and of course leads also to the result that she is likely destined to spend a very long time in her life trying to understand and come to terms with what happened. [ 30 ] The impact of the accused’s behaviour goes well beyond the effects on the complainant alone, as is often true in cases of this sort. The extended family dynamic has been shattered.

The complainant’s grandmother, not surprisingly, terminated her long-term relationship with the accused once the accusations of his abuse came to light, and she may have been literally heartbroken by the upset of it all. Certainly, her health has not been good since that time.

c) The Circumstances of the Offender [ 31 ] I have read the pre-sentence report and the psychological report prepared for sentencing in this case, and I have listened carefully to the helpful submissions which defence counsel has made on his client’s behalf. [ 32 ] The information discloses that the accused is now 56 years of age. He was born in Ontario, one of four brothers. His father was in military service and so the family moved about frequently. Nonetheless, it appears to have been a relatively happy and stable family environment.

His father was of Polish extraction and his mother was a member of the [omitted for publication] from Saskatchewan. [ 33 ] The fact that the accused’s heritage is partly Aboriginal is a factor which I must take into account on sentencing in accordance with s. 718(2) (

e) of the Criminal Code , bearing in mind the disproportionate number of Aboriginal persons in custody in this country. [ 34 ] In this case, the accused’s Aboriginal background is not immediately apparent. He is fair skinned and he told the author of the psychological report that he never identified as an Aboriginal person during the course of his formative years. His Aboriginal heritage did not arise during the trial before me.

[ 35 ] In the present case, I note the comments in the psychological report that the accused’s parents set out to deliberately instil a “Canadian” perspective in their children, hoping to distance them from both their Polish and their Aboriginal roots. The result was that the accused felt little connection with his heritage or his extended family. Whether that plays any

part in the accused’s present wrongdoing is speculative and immaterial since the law is quite clear that an accused person does not have to draw any sort of specific connection between his Aboriginal heritage and his wrongdoing in order for s.718(2) (

e) of the Criminal Code to be engaged. The effect of European colonization may be very subtle on occasion and an Aboriginal accused could often be put in an impossible position if required to show precisely how the trajectory of his or her life has been affected as a result. [ 36 ] The accused did reasonably well in school, at least until the middle years of high school. He then lost interest in school, in a manner which is not uncommon, and drifted away without completing his high school diploma.

He is of at least average intelligence, however, and returned to complete his high school education when he was in his early 30s. He went on to complete post-secondary courses at community college in Victoria. [ 37 ] The accused obtained his welding ticket in 1984, later specializing as a boilermaker. For over 30 years he worked consistently in that field, assembling, maintaining and repairing large pieces of industrial equipment. He contributed to the local economy by travelling to all parts of this province over many years to ply his trade.

He acquired no criminal convictions of any sort over all those years. [ 38 ] It is only recently, in the face of the present court proceedings, that the accused has taken extended time off work. The psychological report, written in March 2020, refers to the accused having returned to work shortly before the date of writing, but he is apparently contemplating retirement within the next year or two. [ 39 ] I think it is safe to say that when adding up the number of people whose lives have been shattered by the accused’s offending behaviour he must himself be included in the tally.

The positive and constructive pattern of his adult existence, in terms of personal relationships, reputation and employment, has been left in tatters. Fortunately, he does at least still maintain the support of his elderly parents, with whom he now resides on the Lower Mainland. [ 40 ] Unlike many who become involved in crimes of the sort before this Court, the accused does not have any significant mental health issues. In a sense, though, that makes his offending rather more blameworthy.

His behaviour can fairly be described as being calculated and devious, unhampered by the weakening or distorting effects of any discernible mental illness. [ 41 ] The accused has now been on a somewhat restrictive form of judicial interim release for over two years.

He has complied with all of the terms of release without incident, and that is a factor which operates in his favour, particularly when assessing his ability to steer clear of further breaches of the law. [ 42 ] This latter point leads me into a consideration of one last factor which is naturally of considerable importance in matters of this sort: What is the likelihood of the accused re-offending in a sexual way in the future?

Given the fact that he has navigated his way through the first half-century of life without a criminal conviction of any other sort, the likelihood of him offending in a non-sexual manner seems remote. [ 43 ] With respect to sexual re-offending specifically, the question is very difficult to answer. The psychological report refers to the likelihood of repetition as being “moderate”. Unfortunately, the chain of reasoning which led the author of the report to that conclusion is problematic in the extreme.

As counsel have both pointed out in submissions before me, the author has assumed the truth of a good many contested and unproven facts about events in the accused’s past, and has distorted other facts in a decidedly unfair manner. [ 44 ] I gave some thought to adjourning the sentencing proceeding in order to obtain a less clouded picture of the accused’s prognosis for the future. In the end, though, I concluded that such an adjournment at this stage would not be in the best interests of anyone involved in this case.

Furthermore, it seemed to me that there was every likelihood that the results of further investigation would be inconclusive in any event, given the accused’s reluctance to discuss anything about his involvement in this case and the murky nature of a number of events in his past, some of which may have happened years ago if they happened at all. [ 45 ] Ultimately, I have concluded that it would be best to proceed to sentencing on the basis that it is simply not possible to predict the likelihood of the accused re-offending in any sexual way in the future.

d) The Case Law [ 46 ] It remains for me to consider the guidance which previous cases may be able to provide when fixing upon an appropriate sentence for this accused. I begin these considerations by noting that the application of case law on sentencing is a notoriously difficult and limited exercise since no two offenders are ever exactly the same and the patterns of human activity are infinitely varied.

My extended review of sentencing decisions in this case served to confirm that qualification very firmly in my mind. [ 47 ] As I noted at the outset of these Reasons, the Crown takes the position that the Friesen decision applies directly to this case and compels the imposition of a period of imprisonment of about four years. The Crown provided no other cases that might assist in establishing a range of sentence. [ 48 ] The defence maintains that Friesen does not apply and submits that the range is between 6 months and 12 months of imprisonment.

Whether or not the Friesen case applies, therefore, is an issue that must be squarely addressed now. [ 49 ] During the course of submissions, I initially indicated to counsel that I was inclined to agree with the defence that it would be unfair to any accused person to impose a sentence that was more severe than the sentence that a judge, invoking the range of sentence then applicable, would have been imposed at the time that the offences were committed. On superficial analysis at least, s. 11 (

i) of the Charter of Rights seemed to bear directly on that issue. [ 50 ] On further reflection, however, I am inclined to think that the matter cannot be resolved quite so simply. It should be carefully noted, after all, that the Charter of Rights provision refers to the situation in which “punishment for an offence” has been varied between

the time of commission of the offence and the time of sentencing. Is that intended to extend to include changes in the judicial

interpretation of legislation in the intervening period, or does it relate only to variations by statutory amendment?

If the underlying principle of fairness stems from the highly theoretical notion that individuals are entitled to make decisions about whether to engage in criminal activity based upon the law as it stands at the time of decision-making, how realistic is it to go further and imagine that those same individuals will consider not only the existing statutory regime, but also the manner in which the law is being interpreted judicially at that same moment? [ 51 ] Quite apart from that theoretical cause for concern, there is a further, practical problem with the defence position.

Ranges of sentence are subject to constant ebb and flow, since they are the result of judicial pronouncement rather than statutory enactment. They are “historical portraits” of sentences imposed in the past and as such are intended merely for guidance, not as “straight-jackets”: Friesen , at para. 108 . They may vary from location to location and even from judge to judge.

Within reason at least, that flexibility is not necessarily a bad thing: Friesen , at para. 106 . [ 52 ] To refer to judicially-created ranges of sentence as being somehow constitutionally entrenched thus causes immense problems for analytical purposes, especially where there is a significant lapse in time between the date when the offence was committed and the date of sentencing. There may not be an easily discernible range of sentence. Or the range may vary from place to place.

Attempts at pinning a sentencing judge to a range of sentence that may have applied at some specific time in the past is apt to be a difficult, time- consuming, and often futile exercise. [ 53 ] My discomfort at the defence position on this point was heightened when I reviewed several superior court sentencing cases decided in this province after Friesen was pronounced. In R. v. L.S.N., 2020 BCCA 109 and again in R. v.

C.C.H. 2020 BCCA 162 , the Court of Appeal was called upon to review sentences that had been imposed by trial judges in sexual abuse cases where the offence had occurred (and sentence imposed) before Friesen was decided. In both of those cases, the Court of Appeal proceeded on the basis that the pronouncements in Friesen were now governing, notwithstanding the awkward chronology. The same approach was taken in the Supreme Court decision in R. v. P. (J.N.,) 2020 BCSC 570 and in the Provincial Court by my learned colleague Judge Morgan in R. v. Caldwell (unreported, June 10, 2020, Vernon Registry No. 53726 -1).

Admittedly, it does not appear that the Charter argument was placed before the Court for specific consideration in any of those cases, but nonetheless I would find it exceedingly difficult in light of such recent authority to take the position that Friesen is inapplicable to the case before me. [ 54 ] The conclusion that I have reached, that I should apply generally Friesen in the present context, is also consistent with the approach taken by the Supreme Court of Canada in the cases of R. v. Hyslop, 2007 SCC 10 , at paras. 78 to 79 and 84 to 86 and R. v. Jordan, 2016 SCC 27 , at para. 93 .

As the Court explained in both those cases, the presumption that the judicial

interpretation of legislation operates retrospectively is based on the notion that judges do not make law, but only “discover” its true meaning. The judicial “discovery” is then taken to represent the true state of the law as it should have been understood all along. [ 55 ] In order to test that conclusion, I sought assistance by searching a little further afield, referring to the analogous situation arising out of the Court of Appeal’s decision in R. v. Smith, 2017 BCCA 112 .

That was a case in which the Court of Appeal determined that the range of sentence for drug trafficking cases involving the drug fentanyl should specifically be increased beyond the range previously established for trafficking in other “hard” drugs. How has the newly increased sentencing range been applied since Smith in fentanyl trafficking cases where the commission of the offence took place before Smith was pronounced? [ 56 ] To answer that question, I looked first at the wording used by the Court in Smith itself. At paras. 53 and 54 of that decision, Harris, JA, speaking for the majority, said this: 53.

At the core of the review exercise is the fundamental principle of proportionality. A proportionate sentence is one which is proportionate to the gravity of the offence and the degree of responsibility of the offender….This involves, in my view, an assessment of the circumstances of the offence at the time that it was committed. Evaluating the circumstances of an offence may well involve assessing changes in social circumstances, public knowledge, and changes in societal and judicial knowledge and attitudes about certain offences….. 54.

Material facts about the public health crisis associated with fentanyl have been evolving rapidly in recent years. They have evolved significantly since Mr. Smith committed the offence in January 2015, I think that evolution is relevant to the question whether the sentence imposed on Mr. Smith is demonstrably unfit given the circumstances that existed at the time he committed the offence….. [ 57 ] The issue of so-called “retroactive sentencing” in fentanyl trafficking cases arose for the Court of Appeal to consider again soon afterwards, in R. v. Rutter , 2017 BCCA 193 .

In that case, after reviewing the Smith decision the Court said this at para. 5: 5. What is yet to be determined is the point in time from which the adjusted sentencing range should be applied. The majority in Smith were of the view that public awareness of the danger of fentanyl distribution was still emerging in January 2015 (at par.60) when Mr. Smith committed the offence in issue.

They concluded that for street-level fentanyl trafficking offences committed later than January 2015, particularly in late 2016, a sentence of less than 18 months in jail would be “demonstrably unfit” (para. 61), absent exceptional circumstances.

Harris JA reasoned that for offences committed before the new range is to be applied, this Court must recognize the “considerable latitude” afforded to sentencing judges to discern the appropriate sentencing range in view of the judge’s assessment of the seriousness of the fentanyl problem at the time the offence was committed. (at para. 60). [ 58 ] A similar approach was taken in both R. v. Adams, 2017 BCSC 2529 , at paras. 106 to 116 , and R. v. Shah , 2018 BCSC 2238 , at paras. 49 and 50 .

In the Adams case, Brown, J. was sentencing a person who had engaged in trafficking in fentanyl in the Nanaimo area about a year before Smith was decided. Her Ladyship determined that in arriving at an appropriate sentence, two months after Smith , it was important to go to some lengths in an attempt to discern the state of local knowledge about the drug at the time that the accused person committed the offence. [ 59 ] In principle, it seems logical to me to adopt an approach here that parallels that adopted in the fentanyl sentencing cases.

Specifically, that approach involves placing the offences before the Court into a social context and determining if there was any was any discernible consensus or trend which should forewarn the public of the prospect that increased penalties for violations would likely be

forthcoming, even before Friesen was decided. [60] Looking at matters from that perspective it is abundantly clear to me, especially after reading the Friesen case, that for manyyears community understanding of the severe consequences of sexual abuse upon children has been deepening and becomingprogressively less tolerant toward offenders. Significantly, Parliament has responded to that growing public awareness by incrementallyincreasing the applicable sentences over the last 30 years.

The conclusion presented in Friesen, that those who commit sexual offencesupon children should have been expecting courts to follow Parliament’s lead by increasing sentences correspondingly, is unassailable. [61] I would respectfully suggest that anyone who looks objectively at the relevant social history in conjunction with progressivelegislative developments would conclude that increased sentences should have been expected as least as far back as 2015, when the mostrecent statutory amendments were made. [62] That is not the end of the matter, however.

While I accept the Crown argument that Friesen does indeed mandate that anincreased sentence be imposed upon the accused person before me, beyond what he might have expected by looking at older case law, Ido not accept the Crown’s further argument that I should take Friesen as requiring me to impose a sentence involving significant federalimprisonment. [63] In the first place, I note the Court’s reluctance in Friesen to impose specific guidelines for sentencing courts across the country.At para.106, the Court said: We would decline the Crown’s invitation to create a national starting point or sentencing range for sexual offences against children.Generally speaking, this Court is reluctant to pronounce on the specific length of sentence.

The appropriate length and setting ofsentencing ranges or starting points are best left to provincial appellate courts…. These courts “are in the best position to know theparticular circumstances in their jurisdictions”. [64] To the extent that the Supreme Court does then proceed to suggest specific sentencing ranges, it is apparent that the Court’scomments are made in the context of proceedings by indictment. It is simply not sensible to conclude that the Court was proposing ageneral sentencing range proceeding upwards from two years of imprisonment in

summary conviction cases where the relevantlegislative provisions call for maximum periods of imprisonment of two years less a day. [65] Furthermore, I strongly reject the notion that the Supreme Court in Friesen had any intention of directing courts to arrive at theconclusion that a federal sentence of imprisonment could be reached in

summary conviction cases by simply manipulating the well-established jurisprudence concerning the imposition of concurrent or consecutive sentences to suit the purpose. The Court made itsposition very clear on that point at paras. 155 to 156. [66] What, then, is the sentence to now be imposed, bearing in mind the general comments in Friesen that older cases should notnow be considered as reliable guides? [67] In R. v.

Jewell (1995), (ON CA), 100 CCC (3d) 270 the Ontario Court of Appeal expressed the view that it isappropriate for a sentencing judge, dealing with multiple counts of wrongdoing arising out of the same general circumstances, to beginby examining the overall gravamen of the fact pattern and attempting to assess the total penalty to be imposed.

Having determined theappropriate total sentence, the judge should then consider each individual offence, determining its relative gravity and consideringwhether the individual sentences should be consecutive or concurrent. [68] The reasoning in Jewell commends itself to me, especially in sexual abuse cases where the victim is a child or children.

In suchcases, the Supreme Court of Canada has now said, in Friesen, that the sentencing focus should be upon the general impact of thewrongdoing upon the child and that the specific labelling of the individual offences is less important than it may be in other situations. [69] I appreciate, however, that the approach suggested in Jewell seems to be at odds with the approach advocated by the BritishColumbia Court of Appeal in R. v. Li, 2009 BCCA 85. At para. 28 of the Li case the Court said this: 28. Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences.

The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate global sentence. [70] To put it simply, the approach recommended in Jewell suggests that it is best for the sentencing judge to look to the overallpattern of offending to determine the appropriate total sentence first, and only then consider the length of the individual sentences andwhether they should be served consecutively or concurrently.

Conversely, the Li case suggests that the sentencing judge should considerfirst consider the individual offences, determine what the appropriate sentence is in each case and whether those sentences should beserved consecutively or concurrently. Only then should the judge engage in the process of determining whether the length of theindividual sentences needs to be adjusted to take into account the principles of totality and proportionality. [71] The Li decision is of course binding upon me and so I must follow it.

In the end, though, I must say that the distinction betweenthe two approaches is probably more apparent than real. The end result in either case is intended to be an overall sentence that, above all,is proportionate to the circumstances of the offences and the offender, while at the same time respecting the established law regardingconsecutive and concurrent sentences. [72] I have reviewed a great number of sentencing decisions in cases involving fact patterns of varying similarity to the case beforeme. Most of those cases are recent, though only a small number of them are more recent than Friesen.

None of the cases that I amspeaking of now were referred to in counsel’s submission before me. Lest counsel be concerned about being left in the dark about thecases which I have reviewed on my own initiative, therefore, I have listed them all in Appendix B to these Reasons.

[ 73 ] I will not refer to the individual fact patterns or outcomes of the cases which I have uncovered and reviewed on my own. That would be a most tedious and cumbersome exercise. Any benefits in terms of transparency of judicial reasoning would, in my view, be greatly outweighed by the deadening effect of such a lengthy examination of case law. I hope counsel can accept my assurance that I have reviewed these cases carefully, noting differences and similarities to the case at bar, and attempting to reach an understanding of the appropriate sentences, and range of overall sentence, that I should apply.

I wish to assure counsel specifically that I have considered the overarching effect which Friesen must have with respect to all of these cases. [ 74 ] Defence counsel did place three cases before me for consideration and I feel that I should refer to those cases specifically. The cases are R. v. G.J.R. , 2014 BCJ No. 3346 (PC) , R. v. Maxmenko , 2015 BCJ No. 2611 (SC) and R. v. A.E.B. , 2016 BCJ 824(PC) . [ 75 ] In G.J.R ., the accused was a 44-year-old man who had committed the offence of sexual interference (sexual touching) upon his stepdaughter. The victim was 10 to 11 years old at the time of the offences.

She testified at trial that there were “many times” when the accused had touched her breasts, either under her shirt or when she was topless, but only 2 occasions in which she recalled specific details. In the face of diverging submissions on sentence, my brother Judge Skilnick imposed a period of 10 months of imprisonment. [ 76 ] Maxmenko was a case in which the 60-year-old accused sexually interfered with his 12-year-old niece, touching her breasts and buttocks under her clothing on one occasion. Notably, the accused had a conviction from 1997 for exposing himself to children under the age of 16.

The sentence imposed by Voith, J. was 6 months in jail. [ 77 ] The third case, A.E.B., involved a 53-year-old man sexually assaulting his 13-year-old stepdaughter, touching her breasts on 2 occasions and her vagina on 3 or 4 other occasions. He admitted that he had also showered with her in the past, though he was not convicted of exposing himself to her for a sexual purpose. He pled guilty to a single count of sexual assault and it was noted that he had one previous conviction for the same offence.

On the basis of a joint submission, my brother Judge MacCarthy sentenced him to 6 months of imprisonment. [ 78 ] It will be seen that each of the above cases contains significant similarities to the case before me, Despite the differences that are also apparent, the cases are therefore of some assistance in the present context. [ 79 ] There is one very significant problem in applying these sentencing decisions to the matter before me, however. In each case, the sentencing decisions not only pre-date Friesen; they also pre-date the legislative changes that were made in the 2015 amendments.

In other words, they are each sentences that were imposed under a less strict sentencing regime than now applies. The weight to be attached to them must be reduced accordingly. [ 80 ] If I were to follow the approach suggested by the Jewell decision, my review of all of the cases that I have considered would lead me to the conclusion that the appropriate overall range to be applied in the present circumstances is between 15 months and 2 years less a day.

My conclusion as to the appropriate range is based upon the statutory regime which has been in effect since 2015 and the very clear and recent direction from the Supreme Court of Canada about the manner in which that statutory regime is to be interpreted.

The range which I have fixed upon also gives primacy to the principles of denunciation and deterrence, while at the same time not overlooking the factors which must be taken into account in the accused’s favour and which speak to the rehabilitative aspect of the sentencing process. [ 81 ] Employing the methodology suggested by the Li case, my review of the case law leads me to the conclusion that the approximate sentences to be imposed for the individual offences should be as follows: 1. With respect to the charge of sexual interference: 18 months. 2. With respect to the charge of sexual assault: 15 months. 3.

With respect to the charge of exposure of genital organs for a sexual purpose: 5 months. [ 82 ] Again, my conclusion as to the approximate sentences to be imposed for the individual offences is informed by the statutory regime that is now in place and gives primacy to the principles of denunciation and deterrence as sentencing objectives, in the manner directed by the Criminal Code and by the Supreme Court of Canada in Friesen . [ 83 ] I should say a few words about the gradation amongst the various individual sentences which I have found to be appropriate.

It was my impression that it was the sexual interference which had the most impact upon the victim in this case. That was the offence which seems to have spurred the victim into report to her father concerning the accused’s misbehaviour. It was an offence which occurred several times over a period of some months and it was highly intrusive. [ 84 ] The circumstances surrounding the offence of sexual assault suggest that it was more physically intrusive than the sexual interference. It only happened once, however, and it seems to have had a somewhat lesser impact upon the victim.

When she made her lengthy statement to the investigator she did not initially recall the sexual assault incident at all. She did so only after some skilful and probing questioning by the police officer caused her to recall that specific incident. [ 85 ] The charge of exposure of genital organs carries a maximum penalty of only six months, and accordingly I have no alternative but to treat it less seriously for sentencing purposes than the other offences.

I say that notwithstanding the comments of the Supreme Court of Canada about the manner in which the courts should emphasize the general impact of sexual offending upon children and not focus upon the relative seriousness of the various sexual offences as indicated by the penalties set forth in the Criminal Code . A sentencing judge can only go so far in that endeavour.

It is obviously not possible to impose sentences that stray beyond the penalties provided by statute in hopes of pursuing general principles of social justice. [ 86 ] I would also point out, with respect to this last charge, that the victim’s evidence was to the effect that the accused, apparently of his own accord, had ceased to engage in that form of wrongdoing before the end of the time period which is the subject of the prosecution. Bearing that in mind, it is perhaps not inappropriate that the sentence imposed on that charge is at least somewhat reduced

from the sentence imposed on the charge of sexual interference. [ 87 ] The question then arises as to whether the sentences should be served consecutively or concurrently, in accordance with the principles set forth in the G.P.W. case (referred to at the outset of these Reasons) and in R. v. Li , referred to above. [ 88 ] Whether or not the commission of a series of offences is properly described as “a linked series of acts within a single endeavour” is a matter for judicial discretion.

There are some guidelines set forth in the Criminal Code , s. 718.3 but those guidelines are not particularly helpful. [ 89 ] In my view, there are a number of reasons which suggest that this is quite clearly a case for concurrent sentences to be imposed. [ 90 ] First, it is not possible to discern the timing of the individual offences with any degree of precision. The offences of sexual interference and exposure of genital organs, in particular, appear to be significantly intertwined with one another. The victim’s evidence was that on some days the accused engaged in both activities, one after the other.

On some days he only committed the one offence, on other days he committed only the other. There was, in short, no apparent progression from the one offence to the other. The total time period for the offending behaviour is also unknown, except to we know the maximum time period to be about four months. [ 91 ] The offence of sexual assault is somewhat different in character to the other offences, involving deliberate touching of the victim’s vaginal area.

But it is not possible to say whether that offence occurred on a date that was before either of the other offences was committed, or whether it occurred somewhere in the midst of the occurrence of those other offences. [ 92 ] There are other factors to consider as well, though none of these other factors is conclusive.

I do note that all of the offending behaviour involved the same victim, that it was all generally of the same nature, that it all occurred within a period of a few months, and that it was uninterrupted by any occasion on which the accused was either warned or apprehended with respect to his wrongdoing. [ 93 ] It is also important to note that the imposition of consecutive sentences would produce a result that would be totally out of proportion to the overall range of sentence applicable to the group of offences which the accused committed.

It would produce a harsh result indeed, and one that could only be ameliorated by making huge reductions to the individual sentences that I think are appropriate. Such reductions might have the unintended effect of appearing to trivialize the individual sentences to an unacceptable extent. [ 94 ] The Crown argues that the imposition of concurrent sentences leads to the undesirable result that once an accused has committed the most serious of the offences before the court he is at liberty to commit the others with impunity.

I disagree strongly with that argument since it entirely overlooks the nuances of sentencing. When sentencing an accused with respect to several offences, a judge will quite properly, and inevitably, take into account the overall circumstances when determining an appropriate disposition for each individual offence.

To put that into concrete terms, my assessment of the appropriate sentence for sexual interference in the present case, for example, takes into account that the commission of that offence was not an isolated incident, but instead formed part of a most unhealthy environment involving sexual misbehaviour of various sorts over a period of time. The sentence for each individual offence, in other words, is not imposed in a vacuum, without regard for the circumstances generally prevailing in the case. CONCLUSION [ 95 ] To summarize, the individual custodial sentences to be imposed in this case are as follows: 1.

With respect to sexual interference: 18 months. 2. With respect to sexual assault: 15 months. 3. With respect to the exposure of sexual organs for a sexual purpose: 5 months. [ 96 ] The custodial sentences are to be served concurrently. The global period of custody, therefore, is 18 months. [ 97 ] Following the custodial term there will be an 18-month probation order which applies to all of the charges equally. Counsel are agreed that the terms of probation should essentially be those which are suggested in the pre-sentence report, and accordingly I will not spend any time explaining the individual terms.

The terms are as follows: CONDITION 2104: Within 48 hours after the completion of your custodial term, you shall report in person to the probation office nearest the place of your release unless you have obtained written permission from your probation officer, before your release, permitting you to report at some other time or place, or by some other means. After your first report to the probation officer, you shall report thereafter as and when directed by the probation officer.

CONDITION 2201: When first reporting to the probation officer, you shall advise him or her of your residential address and phone number. You must not change your residence or phone number without first receiving written permission from the probation officer. CONDITION 2202: You must have no contact or communication, directly or indirectly, with either C.P., J.T. or B.T. (The names represented by those initials will be set out in full in the probation order).

CONDITION 2205: You must not go to any place which you know to be the residence, school or workplace of either C.P., J.T. or B.T. (Again, the names represented by those initials will be set out in full in the probation order). CONDITION 2501: You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer.

The following condition is not referred to in the pre-sentence report and counsel did not mention it, but in my view it is essential: CONDITION 2304 (modified): You shall not be in the presence of any person who is or appears to be under the age of 16 years except

as follows:

a) with the written permission of your probation officer. If such permission is given, you must carry it with you while in the presence of the child, and it may be in electronic form; or

b) in the immediate presence of a guardian of the child. [ 98 ] There are also certain ancillary orders that I must make, and I will do so now. [ 99 ] Pursuant to s. 161 (a.1) of the Criminal Code , and with respect to all charges, you are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards person under the age of 16 years.

The other restrictions contemplated by s. 161 ( a.1 ) are either covered by the terms of the probation order, or are unnecessary. [ 100 ] Pursuant to s. 487.04 of the Criminal Code , and with respect to all charges, you are hereby ordered to provide to a peace officer such samples of your bodily substances as may be required for DNA analysis and registration.

All of the charges are “primary designated offences” for purposes of that legislative provision. [ 101 ] Finally, pursuant to s. 490.13 (2.1) of the Criminal Code , and with respect to all charges, you are hereby directed to comply with the requirements of SOIRA for life. [ 102 ] I have considered the application of s. 110 to this case, but I have concluded that an order under that

section is neither necessary nor appropriate, having regard to the circumstances of the offences as well as the background and personal circumstances of the accused. _____________________________ The Honourable Judge E.C. Blake Provincial Court of British Columbia R. v. R.D.Z. Appendix “A” Citation: R. v. R.D.Z. 2019 BCPC 370 Date: 20191126 File No: 20517-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.D.Z.

BAN ON PUBLICATION –

SECTION 486.4 C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Mr. G. Merke Counsel for the Accused: Mr. J. Watt Place of Hearing: Colwood , B.C. Dates of Hearing: April 23, 24, 26, October 21, 22, 2019 Date of Judgment: November 26, 2019 INTRODUCTION [1] The accused is charged with three Criminal Code offences, all of which are alleged to have occurred between July 1, 2017 and November 22, 2017. The offences may be summarized as follows: 1. sexual touching, contrary to

section 151; 2. sexual assault, contrary to

section 271; and 3. indecent exposure, contrary to section 173(2). [2] The alleged victim in each case is identified by the initials B.T. She is the step-granddaughter of the accused. She had her 8 th birthday during the time period referred to in the Information. She had reached 9 years of age the time she testified in this Court.

SUMMARY OF EVIDENCE [3] I will begin with a brief

summary of the evidence presented at trial. This

summary is not intended to be exhaustive. Its purpose is to place into context the analysis of the issues which follows later in these Reasons. During the course of that analysis, I will refer to certain parts of the evidence in more detail where it is necessary to explain my reasoning. [4] During the time period covered by the Information, B.T. lived with her parents.

The accused, who is now 55 years of age, lived with B.T.’s paternal grandmother, as the grandmother’s common-law partner. [5] The accused and B.T.’s grandmother were in the habit of providing after-school care for B.T. two days of the week during most weeks of the school year. They had done so for at least a couple of years. [6] On infrequent occasions, the accused would provide care for B.T. on his own.

This occurred, for example, when the grandmother was out-of-town or was indisposed through illness. [7] The Crown alleges that the accused engaged in sexual misbehaviour toward B.T. on a number of occasions when he was supposed to be providing childcare for her. Specifically, the allegations are that the accused engaged in the following misbehaviour: 1. Pulling down his pants and underwear on several occasions and deliberately exposing his penis to B.T.; 2. Pulling down B.T.’s pants on several occasions, sometimes pulling down her underwear at the same time.

These actions would occasionally be accompanied by tickling; and 3. On one occasion, touching B.T.’s vaginal area with his fingers, putting his hand inside her bathing suit in order to do so. [8] On November 22, 2017, B.T. disclosed to her father that she was uncomfortable with the way in which the accused had been acting toward her. Specifically, she told her father that she did not like the accused pulling down her pants. That disclosure led to B.T. providing a lengthy statement to the police the next day, outlining the specific allegations that I have mentioned above. B.T.’s statement

to the police was audio-recorded and video-recorded. [9] At the trial, the Crown invoked the procedure contemplated by

section 715.1 of the Criminal Code, seeking to introduce B.T.’srecorded statement into evidence. B.T. adopted the contents of the statement as her evidence and the statement was ultimately admittedinto evidence without objection. [10] In her evidence, B.T. provided a common background for the incidents of sexual touching and indecent exposure. She describedthe accused engaging in both forms of behaviour within the home which he shared with B.T.’s grandmother.

She said that the behaviouroccurred at times when the grandmother had stepped outside or into the bathroom for a cigarette, or when the grandmother was engagedelsewhere in the home. She testified further that the accused said nothing when he engaged in these acts, but would sometimes hold uphis index finger to indicate that B.T. should be quiet. He did not touch her private parts on any of these occasions.

When the grandmotherreturned to the room, the accused would quickly cease his inappropriate behaviour and would act as if nothing had happened. [11] The third allegation, involving the accused touching the accused in her vaginal area, appears to be a separate, isolated incident.B.T. testified that the incident happened on the same day as the accused took her swimming at a nearby lake, in the summer of 2017.They apparently went to the lake because B.T.’s grandmother was not well that day and wanted to rest alone at home. [12] B.T. testified that after she and the accused had returned home from the lake, she was lying on the floor in her bathing suitwatching television when the accused, pretending to urinate, poured cold water over her.

Apparently, he considered it a prank, but notsurprisingly she was surprised and upset. The accused attempted to comfort her. This led to him placing his hand inside her bathing suitand touching her vaginal area. The touching lasted for perhaps twenty or thirty seconds in her estimation, and ended with the accusedremoving his hand and returning to the video game he had been playing. [13] The accused gave evidence at trial.

He denied his guilt on each of the charges, though the nature of his defences differed asbetween the charges. [14] The accused did not deny that he had pulled down B.T.’s pants on several occasions. He denied, however, that he had ever doneso with any sexual intent. He said that it was a sort of practical joke and that he never pulled down B.T.’s underwear in the process. [15] The accused denied outright that he had ever pulled down his own pants in front of B.T.

It follows that he also denied exposinghis penis to her. [16] With respect to the incident that followed after his day at the lake with B.T., the accused agreed with B.T.’s recollection of theevents right up to the point of the vaginal touching. He denied that that touching occurred. THE ISSUES [17] The issue of credibility arises as a central issue with respect to all of the charges which the accused faces. The credibility of bothB.T. and the accused must be carefully assessed. [18] A second issue of innocent intent arises, but only with respect to the charge of sexual touching.

It is common ground that noissue of innocent intent can arise on the other two charges; the Crown will have made out its case on those charges if the acts themselvesare proven beyond reasonable doubt to have occurred in the manner described by B.T. ANALYSIS [19] I will begin my analysis by discussing the approach that must be adopted when assessing credibility in this case. [20] Issues of credibility between a complainant and the accused must be resolved in accordance with the fundamental principles ofthe criminal law involving the presumption of innocence and proof beyond reasonable doubt.

In the well-known case of R. v. W.(D.),(1991), (SCC), 63 CCC (3d) 397, the Supreme Court of Canada provided helpful guidance on the matter. W.(D.) directsthat the trier of fact must determine whether the accused is to be believed, and then consider whether his evidence raises a reasonabledoubt even if he is not believed. Even if the defence evidence raises no reasonable doubt, the trier of fact must go on to determinewhether the evidence as a whole proves the charge beyond reasonable doubt. [21] Judicial

interpretation has resulted in a number of refinements being made to W.(D.) over the last quarter-century: see, forexample, the British Columbia Court of Appeal decision in R. v. C.W.H., (BC CA), [1991] BCJ No. 2753, dealingwith a situation in which the trier of fact finds it impossible to determine which witness to believe. [22] One refinement to W.(D.) that is particularly relevant here concerns the sequence to be used by the trier of fact when assessingthe evidence. It is now clear that the trier of fact is not required to necessarily follow the precise sequence of analysis which W.(D.)appears to contemplate.

As Rosenberg, JA said in R. v. Minuskin, (ON CA), [2003] OJ 5253 (CA): It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to [the W.(D.)] formulas. This suggestedinstruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise formof words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at theaccused’s evidence and then at the rest of the evidence.

It should, however be clear from an examination of the reasons that at the end ofthe day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is notnecessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believesthe prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt.

As it was put by Cory, J. in W.(D.)at p.743, the trier of fact must acquit even if he or she does not believe the accused’s evidence because they have a reasonable doubt as tothe accused’s guilt “after considering the accused’s evidence in the context of the evidence as a whole”. [23] The comments of Charron, J. in R. v. Dinardo, 2008 SCC 24, at paragraph 23 are to the same effect.

[24] In this particular case, I do find it helpful to begin by considering the strengths and weakness of the Crown case, andparticularly the evidence of B.T. The important qualification to note, though, is that it would be wrong to reach any final conclusionsuntil all of the evidence has been considered. As Lambert, JA stated in R. v. P.W., [2003] BCJ 2447 (CA), at paragraph 19: It is not the function of the trial judge to decide whether she believes the complainant and, having reached a conclusion in that, to go onand only then consider what the evidence of the appellant was on his own behalf.

The consideration of both must be deferred until theycan be looked at together and an overall conclusion reached on the basis of the whole of the evidence. [25] I will begin, then, by expressing my general views about B.T.’s credibility. I will not attempt a general assessment of thecredibility of the accused immediately thereafter, but I will make that assessment in conjunction with my consideration of each of thespecific charges.

That seems more appropriate in a case where the accused raises different defences to each charge. [26] My assessment of B.T.’s credibility must begin with the recognition that there are special considerations that apply to theassessment of credibility of children generally. These considerations have been set forth in a number of court decisions over the years,but they are helpfully gathered together in the decision of R. v. D.W.L., [2018] BCJ No. 7179 (S.C.), at paragraphs 80 to 96.

Focussingon those aspects of the matter which are particularly relevant in the present case, I would summarize the law in this way: 1. The standard of proof required for conviction of an accused person is not lowered, nor is it changed in any way, by the fact thatsome of all of the relevant evidence comes from a child or children. 2.

Courts should not use the same tests for assessing the credibility of a child witness as for an adult. “Credibility and evidencemust be assessed by reference to criteria appropriate to [the witness’s] mental development, understanding, and ability to communicate”.To put it another way, the courts should not adopt “hard and fast” rules for assessing the credibility of child witnesses but shouldproceed on a “common sense” basis, having regard to the particular circumstances of the child: R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122, at 133-134. 3.

The evidence of child witnesses is particularly prone to flaws regarding time and location, and such flaws do not necessarilydetract from the child’s credibility. 4. Articulation may be especially difficult for children, and problems of articulation may be exacerbated by the stress of acourtroom or the unfamiliarity of an interview setting.

Such difficulties may be associated with unreliability in adults, but that should notnecessarily be the case with children. [27] Using this “common sense” method of analysis when assessing the credibility of B.T. in the present case, I must say that Ifound her generally to be a most compelling witness. She appears to be a bright, articulate and straightforward child who provided herrecollection of the events to the police officer in a very matter-of-fact way. She was told at the outset of that interview that it wasimportant to speak the truth and she indicated that she knew the difference between truth and lies.

Subsequently, she gave her evidence inCourt after promising to tell the truth and again demonstrating that she knew the difference between truth and lies. [28] B.T. was cross-examined at the trial about whether she has told lies in the past and in what context. She was asked the same sortof thing by Constable Krauss during the police interview. B.T. did not deny that she had told lies on occasion in the past, but theillustrations she gave suggested that she was really referring to the sorts of things that are often called “fibs” or “white lies”.

She spoke oftelling her parents that she had completed her homework when she had not, for example. There was nothing in the parents’ testimony onthat subject which suggested anything that need concern me about lying on the girl’s part.

Indeed, the fact that B.T. conceded that shehad not universally told the truth in the past, coupled with her father’s confirmation that such was the case, probably added to B.T.’scredibility rather than detracting from it. [29] When assessing the credibility of B.T.’s accusations of misbehaviour concerning the accused, I was also impressed by the factthat she clearly bears him no animosity. On the contrary, during the course of her interview with the police officer she made it clearseveral times that she did not want to hurt the accused’s feelings or get him into trouble.

For example, she explained that she made herdisclosure to her father, rather than tell the accused directly to desist in his inappropriate behaviour, because she thought that she mighthurt the accused’s feelings if she voiced her displeasure to him directly. [30] In somewhat the same vein, I was impressed by the careful way in which she appeared anxious to avoid exaggeration whentelling the police officer about the number of times that the accused either pulled down her pants or pulled down his own pants in herpresence.

She was careful to point out that this sort of behaviour did not happen all the time when she was in the presence of the accused,but only sometimes. She also made the effort to tell the officer that the accused actually pulled down his own pants in her presence ratherless frequently recently than he had done in the past. In

summary, she appeared eager to ensure that the police officer did not take anoverly harsh view of her step-grandfather. [31] My impression was that B.T.’s description of the relevant events was accompanied by exactly the level of detail that one wouldexpect from a child of her age. The events that she described were not filled with improbable amounts of detail, but neither were herdescriptions so limited as to be unduly vague or ill-defined.

On some important matters, such as the sequence of events on the day whenthe accused allegedly touched her vagina, the details which she provided were actually corroborated by the accused himself. In thecircumstances, that enhanced her credibility considerably. [32] B.T.’s evidence was not without its flaws. I must say that I was troubled by her repeated statements that the accused not onlypulled down her (B.T.’

s) pants but also pulled down her grandmother’s pants on occasion. That seemed a bizarre assertion and, notsurprisingly, it was put to the grandmother during the course of her evidence. The grandmother’s response was to say that she did notrecall any such thing occurring. [33] This part of the evidence was not as fully developed as it might have been. I note, for example, that the grandmother did notdeny outright that any such thing had happened, but merely said that she did not recall it. Nor was B.T. asked to elaborate on hertestimony in the sort of detail which might have teased out some greater context, clarified her meaning or ruled out the possibility that

she had misinterpreted something that she saw. In the end, I can only repeat that this part of B.T.’s evidence was troubling. I do not really know what to make of it. [34] There were also certain details of B.T.’s testimony that were confusing and difficult to follow. When the police officer asked her to focus on a single incident, for example, she began her answer appropriately enough, but soon drifted into combining several incidents together. [35] B.T.’s estimates of time and sequence were erratic and unreliable throughout.

She was interviewed by the police officer in the month of November, for example, but she seemed incapable of distinguishing the months of September, October and November from one another when she attempted to describe the events that the police officer wanted to discuss with her. [36] I am indeed mindful of these weaknesses in B.T.’s evidence but I am reluctant to conclude that they undermine her credibility about the central core of her testimony.

Many of the flaws which are evident in her testimony match very closely the traits which appear often in the evidence of children, but which the authorities (as noted above) caution so strongly ought not to be necessarily taken as demonstrating an absence of credibility. [37] Those are my general comments regarding B.T.’s credibility. For the reason which I mentioned earlier, I think it will be best if I consider the reliability of the accused in the course of my discussion about the specific charges, rather than attempt to make a general assessment.

I will turn now to a consideration of those specific charges. [38] The first charge arises from the allegation that the accused pulled down B.T.’s pants and underwear. B.T. was not clear in describing how many times that happened, but plainly she was referring to multiple occasions. She very carefully stated that sometimes it was just her pants that were pulled down, but that on other occasions her underwear underneath was pulled down as well. [39] The accused did not deny that he pulled down B.T.’s pants on four or five occasions, though he did deny that he ever pulled down her underpants.

He testified that he just thought that it was a joke and was never intended to be sexual in nature. [40] In assessing the credibility of the accused on this aspect of the matter, it is important to note the parts of B.T.’s testimony that he either accepted as true or at least did not contest. I will list the various items: • He accepted that he only ever pulled down B.T.’s pants at times when B.T.’s grandmother was not in the room with the two of them.

Specifically, he testified in cross-examination that he “supposed” that to be true, although he claimed that he had never actually thought about it. • He did not contest B.T.’s assertion that when B.T.’s grandmother returned to the room he pretended as if nothing had happened. • He did not comment on B.T.’s testimony that on occasion he would hold up his finger to indicate that B.T. should not say anything while her pants were being pulled down. • When asked to comment on B.T.’s testimony that she resisted his actions by trying to pull her pants back up, he did not deny it, but stated that he could not recall it. [41] I find the accused’s assertion that he never really noticed that he was alone in the room with B.T. at the relevant times to be implausible in the extreme.

It becomes downright absurd when considered together with the uncontested evidence that he made a gesture intended to silence B.T. while he engaged in the activity. It is also inconsistent with the unchallenged evidence that he would attempt to act as if nothing had happened when the grandmother returned to the room. [42] I interject briefly to note the defence objection that B.T. never told the police interviewer that the accused would sometimes put up his index finger as a gesture intended to silence her while he pulled her pants down.

My careful review of the interview shows that objection to be factually accurate, but also shows that B.T. was never asked a question that would elicit that specific answer. Constable Krauss did ask her if the accused said anything to her as he was pulling her pants down, but that was the extent of the inquiry.

An adult who was asked that question might well interpret it as inviting a further response about gestures made by the accused, but it is not at all clear that an eight-year-old child would make that connection. [43] There are two other points that touch upon the credibility of the accused in relation to this charge. [44] The first point to note is that although the accused testified that he understood that pulling down the pants of another person was a common prank, he testified that he had never attempted any such thing upon anyone else at any time. [45] The second point, which is a good deal more telling in my opinion, concerns the response which the accused gave when he was first confronted by B.T.’s father, J.T., about pulling down the girl’s pants.

His response at that time was unequivocal: “I wouldn’t do that.” In cross-examination, he agreed that he deliberately lied when he said that, but says that he did so because he perceived J.T. to be making an accusation of sexual misbehaviour against him. [46] I reviewed J.T.’s evidence very carefully in connection with the brief telephone discussion which he had with the accused in which he confronted the accused with B.T.’s complaint. It was my distinct impression that at that moment he was not sure what he was dealing with, and asked the question in a very open-ended, neutral fashion.

It was not suggested to him in cross-examination that he had in fact approached the matter in any other way. From my perspective, the important point is that the accused recognized immediately that there is a potential sexual component arising when an adult pulls down the pants of an eight-year-old girl, and that he reacted so quickly with a lie in an attempt to rebut the accusation. [47] I cannot leave this aspect of the matter without addressing a point raised by defence counsel in closing submissions.

Counsel submitted that I should bear in mind that his client’s response to J.T. on the telephone should be seen in light of the fact that J.T. was

actually accusing him of both pulling down B.T.’s pants and pulling down his own pants to expose his penis, an accusation which he stilldenies. [48] With respect, counsel’s submission on this point is simply unsound on the evidence. I listened carefully to the recording ofJ.T.’s testimony to make sure that my notes were completely accurate. I was able to confirm that J.T. asked the accused specificallyabout pulling down B.T.’s pants.

The matter of the accused pulling down his own pants did not arise. [49] My conclusion on Count 1 is this: Based on the fact that the accused corroborated significant parts of B.T.’s testimony, thatparts of his own evidence were implausible in the extreme, and that he lied when confronted with the initial complaint, I do not acceptfor one moment the explanation which the accused has offered in answer to the charge. I do not find that his evidence comes close toraising a reasonable doubt in my mind.

By then referring to the comments which I made earlier regarding B.T.’s credibility, I am nowprepared to draw the various strands together and find that on the whole of the evidence which I accept, including the evidence thatB.T.’s pants and underwear were pulled down together at times, the charge has been made out beyond reasonable doubt. I find theaccused guilty on Count 1. [50] I will deal with the charge of indecent exposure next, although it is actually Count 3 on the Information. [51] The accused’s defence to the indecent exposure charge essentially involves what is sometimes called a “flat denial”.

Of course,that categorization should not be taken as meaning that it is in any way an illegitimate defence. As the Alberta Court of Appeal said in R.v. McIntosh, 2010 ABCA 352 , [2010] A.J. 1331 (CA) at paragraph 12, there are no doubt plenty of situations in which onemight fairly ask what more an accused could possibly do beyond offering a denial under oath and offering himself up to cross-examination. That may be a particularly astute observation, it seems to me, in cases where sexual impropriety is alleged and the only twopersons with knowledge of the relevant events are th

[…]