R. v. Boden Date:, 2012 BCPC 331

Citation: R. v. Boden Date: 20120831 2012 BCPC 0331 File No: 209475-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA JOSEPH BODEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: M. Donnelly Counsel for the Defendant: G. Orris Place of Hearing: Vancouver , B.C. Date of Hearing: July 26, 2012 Date of Judgment: August 31, 2012

A corrigendum was released by the Court on September 17, 2012. The corrections have been made to the text, and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On December 9, 2011, Mr. Boden was found guilty of sexually assaulting J.S. on August 25, 2009; sexually assaulting S.H. on September 7, 2009; wilfully obstructing a police officer in the execution of his duties on September 7, 2009; and assaulting a police officer in the execution of his duties on September 7, 2009. The circumstances of the offences are fully described in my Reasons for Judgment: R. v. Boden , [2011] B.C.J. No. 2470 .

The sentence hearing was originally set for February 29, 2012, but was adjourned twice at Mr. Boden’s request to facilitate attendance of counsel and Dr. Ley’s assessment. CIRCUMSTANCES OF OFFENCES The sexual assault on J.S. [ 2 ] The assault on J.S. occurred while she was going up an escalator at the Burrard Street skytrain station in downtown Vancouver. Mr. Boden had just come down the other escalator when she saw him. J.S. heard him make a comment to the effect “Hey” or “Hey Babe”, as she was stepping on the up escalator. While J.S. was going up the escalator she was looking down at her phone and texting.

She was absorbed in what she was doing. Seconds later she felt someone grab her buttock aggressively from behind and simultaneously wrap an arm around the front of her chest. She described the grab as a full hand grab. The grab on her buttock was quick and firm. I found that the man who grabbed her was Mr. Boden. [ 3 ] J.S. turned and asked him: “What the fuck are you doing?” He had a cold blank expression on his face. He responded: “What? What?” J.S. ran up the escalator steps and into an entryway at the Bentall Centre from there she saw Mr. Boden at the top of the escalator. He was looking from side to side.

The sexual assault on S.H. [ 4 ] S.H., the other complainant, had gone to shop at a Safeway store on East Broadway in Vancouver on September 7, 2009. She used the skytrain and got off at the nearby skytrain station on the south side of Broadway. A surveillance video captured Mr. Boden when he arrived at the skytrain station at Broadway and Commercial before the incident with S.H. The video showed Mr. Boden brush by several people as he walked behind S.H., down the escalator, and out of the skytrain station. [ 5 ] S.H. walked east from the skytrain station to the entrance of the Safeway.

The surveillance video showed Mr. Boden going into the Safeway foyer inside the entrance. He stayed there for a brief period and then stood outside the entrance for a brief period. Mr. Boden moved out of camera range in the direction of the Safeway parking lot. Constable Confeiteiro saw Mr. Boden in the Safeway parking lot. He was looking left, right and behind him. From where Mr. Boden was positioned and based on the angle of where Mr. Boden was looking, he could have seen the Safeway entrance which faced the parking lot. Mr. Boden was in the parking lot for approximately 20 to 25 minutes.

He left at a quick sprint and headed towards the front entrance of the Safeway. [ 6 ] S.H. was in the Safeway for approximately 20 minutes doing her shopping. After completing her shopping she headed back to the skytrain station. She was on Broadway, halfway between the Safeway and the skytrain station entrance, when she felt someone grab the right side of her buttocks from behind. S.H. was caught off guard and screamed. Her scream was loud enough that Constable Silzer, who was across the street, heard it.

S.H. described the grab as follows: “– – when he grabbed me he grabbed me on the right side of my buttocks, and it wasn’t like a pat or a slap. When he grabbed me he used his whole hand it was quite – – quite a passionate, more like it was an intimate, it was a personal grab.” The next thing she knew was that Mr. Boden was in front of her saying: “I’m very sorry; I thought you were my girlfriend”. [ 7 ] S.H. felt extremely embarrassed and nervous. She wanted Mr. Boden to go away and she just wanted to go home. She continued to walk towards the skytrain station. Mr. Boden walked beside her and talked to her.

She noticed that he appeared to be on his cell phone talking to someone, however, he didn’t seem to be participating in the telephone conversation. Her feelings changed from being embarrassed to being anxious. It didn’t seem to her that he was having a genuine conversation with the person at the other end. Further, the way he looked at her did not make her believe he felt poorly about what he had done.

She described the way he looked at her as the kind of body language that someone uses if they are trying to pick up a person. [ 8 ] When S.H. entered the skytrain station and got on the escalator she turned and saw that Mr. Boden was coming up behind her. She was feeling very nervous, really uncomfortable and unsafe. S.H.’s progress up the escalator was observed by Constable Silzer. He saw Mr. Boden standing behind S.H. on the escalator. He saw Mr. Boden bend over toward the left and stare at S.H.’s buttocks. Another police officer, Constable Fraser, also saw S.H. on the escalator after the incident. Mr.

Boden was standing behind her approximately two steps down; he was looking directly at her buttocks area. [ 9 ] When S.H. got to the skytrain platform she saw two police officers in uniform. She stood a few feet away from them because she felt more comfortable being near them. She thought about talking to the police officers but did not. She was worried that if Mr. Boden saw her do that it might upset him. She came up with a plan which was to take her time boarding when the train pulled up and, at the last minute, pretend to have forgotten something and leave the skytrain car. That is what she did.

She left the skytrain car and headed to the down escalator. When she looked back she saw Mr. Boden standing at the corner of the skytrain door. He gave her a very intimidating look. He did not look very happy. She said that immediately after Mr. Boden grabbed her buttocks his demeanour was friendly, outgoing and flirtatious. However, the best way to describe his facial expression while he was standing at the doorway of the

skytrain car was frustration. [ 10 ] The surveillance video showed S.H. after the incident as she was ascending the escalator to the skytrain platform. Mr. Boden was behind her. The video also showed Mr. Boden and S.H. on the platform. S.H. is shown leaving the platform as Mr. Boden looks directly towards the descending escalator. Mr. Boden is later shown looking over the railing of the platform down to the main floor of the skytrain station. When S.H. arrived at the bottom of the escalator she was approached by Constable Silzer who was in plainclothes.

He identified himself as a police officer but S.H. initially did not believe him. She asked him to prove it. He did so by producing identification. Constable Silzer took S.H. to the Safeway and eventually she was taken to the police station. [ 11 ] Mr. Boden acknowledged at trial that he did in fact touch S.H. However, he asserted he did so under the mistaken but sincere belief that S.H. was his girlfriend. He relied on the evidence of S.H. who testified that, after Mr. Boden grabbed her, he told her he was sorry. He told her he thought she was his girlfriend.

I did not accept the defence of mistake advanced by Mr. Boden. His conduct, as described by S.H., and the police witnesses and seen on the surveillance video, belied his explanation that he mistook S.H. for his girlfriend. I accordingly found the Crown had proved beyond a reasonable doubt that Mr. Boden had sexually assaulted S.H. The assault/obstruct of police officer [ 12 ] Mr. Boden was under police surveillance on September 7, 2009, including at the time of the sexual assault on S.H. Following that incident Constable Ward concluded that Mr. Boden could be arrested for sexual assault.

Accordingly, Constable Ward issued two authorizations for the arrest of Mr. Boden, one to the NCU team and the other to Constable Gibson and PSD Teak. Constable Gibson saw Mr. Boden from his vantage point, behind a parked car, on the east side of Commercial Drive close to a bank parking lot. At that point Mr. Boden was on the sidewalk close to where Constable Gibson was crouched. Constable Gibson addressed Mr. Boden by saying: “City police”; “You’re under arrest. Get on the ground or I’ll send my dog.” Mr. Boden made direct eye contact and asked him “What?

What for?” Constable Gibson gave the same command he had given earlier. Mr. Boden began moving towards the parking lot and the skytrain station. Constable Gibson deployed PSD Teak. The police dog bit Mr. Boden on his upper right thigh. A struggle ensued between Mr. Boden and the police dog. Consequently, Constable Gibson moved in and struck Mr. Boden a number of times. Mr. Boden was knocked to the ground. [ 13 ] Another officer, Sgt. Bertolo went to Constable Gibson’s assistance. He approached Mr. Boden and said “Police” three times. Sgt. Bertolo told Mr. Boden he was under arrest.

When he attempted to handcuff Mr. Boden a struggle ensued. Mr. Boden broke free from both Sgt. Bertolo and Constable Gibson and ran southwest on Commercial Drive across traffic. The police dog, Sgt. Bertolo and Constable Gibson gave chase and eventually caught up with Mr. Boden at the parking lot of a Mac’s store at the corner of Commercial and 10th Ave. Mr. Boden attempted to get away from the police by climbing a 10 to 12 foot high wall. Several police officers, as well PSD Teak, converged on the parking lot and attempted to take Mr. Boden into custody.

By that point a crowd of civilians had also gathered at the parking lot by the Mac’s store. [ 14 ] PSD Teak grabbed Mr. Boden’s leg as he was trying to scale the wall and pulled him down. Sgt. Bertolo and Constable Gibson were approximately 15 to 20 feet away from Mr. Boden. They stood shoulder to shoulder at the entry/exit of the parking lot. Constable Gibson drew his firearm and both Constable Gibson and Sgt. Bertolo screamed at Mr. Boden: “Police, get down on the ground,” or words to that effect. Mr. Boden was unfazed. He moved toward Sgt. Bertolo and Constable Gibson at a full run. Sgt.

Bertolo raised and held out both his arms. In the meantime, Constable Gibson holstered his firearm. Sgt. Bertolo and Constable Gibson blocked Mr. Boden so he could not run between them. He ran straight at them. There was a violent struggle between Sgt. Bertolo and Constable Gibson and Mr. Boden. At one point Constable Gibson yelled out to the crowd for help. Sgt. Bertolo radioed for assistance. Other police officers arrived shortly thereafter and assisted in eventually subduing Mr. Boden. CIRCUMSTANCES OF THE OFFENDER [ 15 ] The information summarized in this

section is derived from a Pre-Sentence Report (“the PSR”) and a court ordered psychological assessment prepared by Dr. Stangeland and another psychological assessment prepared by Dr. Ley at Mr. Boden’s request. Much of the information about Mr. Boden contained in these reports is self-reported. [ 16 ] In the PSR it is noted that Mr. Boden was born and raised in North Vancouver. His parents separated when he was approximately five years old. Initially, he had regular contact with his father but lost contact with him when he was approximately seven years old. Mr.

Boden and his older brother remained with their mother. Mr. Boden told the probation officer that his mother did not work and was always at home. He described her to the probation officer as a loving parent who did the best she could. Mr. Boden also told the probation officer he was well provided for. There was no violence or substance abuse in the home. He also described a good relationship with his brother but noted that he had not had recent contact with his brother. Mr. Boden also told the probation officer he had not spoken to or seen his mother in over a year and a half.

He did not wish to bother her with his problems. [ 17 ] Mr. Boden told the probation officer that about two years ago he reconnected with his father who lives in the Caribbean. He now has telephone contact with him often. Mr. Boden told the probation officer that not having a male role model during his formative years may have contributed to his behavioural problems at the time. [ 18 ] Mr. Boden moved out of his mother’s home when he was 18 years old.

He told the probation officer he would have moved out sooner but was ordered by the court to reside with her during his early teens when he had gotten into trouble. [ 19 ] Between the ages of 18 and 22 Mr. Boden established a career in professional football. He told the probation officer he had stability in his life and was self-sufficient. However, for the past few years Mr. Boden has not had a stable residence. At the time the PSR was prepared he was residing at New Visions recovery house. He was not working and spent much of his time working out and keeping up his physical fitness. Mr.

Boden is not married but he has one son aged two.

[ 20 ] The information Mr. Boden gave Dr. Stangeland about his background is somewhat different from what he told the probation officer. He told Dr. Stangeland that his parents used drugs. He believed his father had problems with marijuana, cocaine and crack. His father apparently was charged with assaults and deported from Canada. When asked about his experiences with his mother, he described her to Dr. Stangeland as a bright, beautiful, kind and outgoing person. They were poor but he felt his mother loved him. She was never abusive.

She tried to put limits on him, but during his teenage years she had difficulty controlling him. He admitted he went to all the wrong places. Mr. Boden told Dr. Stangeland his mother would talk with him about his problems and she was helpful. However, he made comments suggesting that his mother could not meet the need for a strong male figure in his life. [ 21 ] Dr. Stangeland asked Mr. Boden why he had not had contact with his mother in the last few years. Mr. Boden said his mother was disappointed in him for not pursuing his football career more conscientiously.

He was involved with the wrong friends and was focused on partying, chasing women, and having fun rather than on football. Further, when he was younger he got into a lot of trouble and this caused stress for his mother. Later she felt he was chasing after women instead of accepting family responsibilities. As a result she cut off contact with him. He also noted he had been financing his mother. When his football career came to an end, he could no longer do so and she was upset with him.

For a number of reasons that need not be delved into further, he explained he was content not to have contact with her now. [ 22 ] The information Mr. Boden provided to Dr. Ley regarding his family history was also somewhat different from what he told the probation officer and Dr. Stangeland. Mr. Boden told Dr. Ley that both his parents used alcohol and drugs together. However, he was not abused nor was there any spousal abuse or family violence in the home during his childhood. Mr. Boden told Dr.

Ley he did not know the reason for his lack of contact with his father who remained in the Lower Mainland about 10 years before he was deported. Mr. Boden expressed resentment towards his mother for representing his father in a negative light. He told Dr. Ley he had accepted his mother’s negative and hostile characterization of his father but now he has his doubts. Mr. Boden recalled his father in positive terms. He has come to doubt his mother’s motives for separating from his father. He has apparently concluded his mother is a spiteful person.

He now construes her current rejection of him as being similar to that which she showed toward his father. Mr. Boden told Dr. Ley he has been estranged and alienated from his mother since his professional football career ended in 2008. He said he had financially assisted his mother and believes she is angry at him for ending that assistance. [ 23 ] Mr. Boden attended Ridgeway Elementary in North Vancouver from kindergarten to Grade 7. He then attended Sutherland Secondary for Grades 8 to 10 and transferred to Carson Graham Secondary. He told Dr.

Stangeland he did that because he wanted to play football and Sutherland did not have a team. Mr. Boden told Dr. Stangeland he was never very good at school. However, he made it clear that he held his teachers primarily responsible. He blamed his teachers for his poor school achievement because they did not find a more effective way to teach him. He said he did not learn from classroom instruction and was more of a visual learner. He was diagnosed as being dyslexic. From Grade 8 to 10 he was provided the services of an assistant and he did much better in school. [ 24 ] Mr. Boden told Dr.

Ley he had attention and concentration problems in elementary school but did not believe his distractibility was a symptom of ADHD. He believed he had poor attention as a result being extremely frustrated with his learning problems which subsequently led to low academic motivation and disinterest in school. Mr. Boden did not recall receiving any formal psycho- educational assessments or specialized tutorial assistance. He was placed in learning assistance classes but believes his learning disability was sufficiently severe that such classes were of minimal assistance to him. He told Dr.

Ley that when he was paired with a teacher’s aide in Grades 10 and 11 those were his best academic years. However, when he was expelled from Sutherland Secondary for fighting and placed in an alternate education program he received no such assistance. [ 25 ] Mr. Boden told Dr. Ley he was a marginal student but one who was always passed from one grade to another. He interpreted his promotion from grade to grade as reflecting his teachers’ desire to be rid of him. He told Dr.

Ley he was expelled from Sutherland Secondary School and Carson Graham Secondary School in the aftermath of his young offender convictions for violent offences. He was expelled the final time from Carson Graham in Grade 11 when he stole marijuana from a school drug dealer. After that expulsion he was placed in an alternate education program at the William Lucas Centre in North Vancouver but he did not complete Grade 12. [ 26 ] Mr. Boden has limited work experience. He worked in his teens at a bakery and later in construction for a few months. When he was 18 years old he was signed as a prospect for the BC Lions.

In his report Dr. Ley notes that when Mr. Boden was in a youth corrections centre one of the correctional staff recognized his prowess for football and encouraged and facilitated Mr. Boden’s participation on a junior football team. Playing in that league drew the attention of Wally Buono who took Mr. Boden under his wing. Mr. Boden played professional football from 2006 to 2008. His professional football career came to an end when Vancouver media published reports about an off field incident for which he was charged with mischief and assault. He told Dr.

Stangeland that, although these charges were later dismissed, the negative publicity resulted in the team letting him go. Mr. Boden also told Dr. Stangeland he was picked up by the Hamilton Tiger Cats but the police “sabotaged” his career by telling management he was a troublemaker. He later had a discussion with the Winnipeg Blue Bombers, but shortly after that he was arrested for firearms charges that were later dismissed. Mr. Boden gave up trying to play football. He told Dr. Stangeland none of the teams wanted any part of someone they saw as being trouble. Since Mr.

Boden concluded his football career in 2008 he has been largely unemployed. He has received social assistance or has supported himself from some short-term jobs. [ 27 ] Mr. Boden told the probation officer he last consumed alcohol over three years ago. He told Dr. Stangeland that he had problems with marijuana and alcohol which started when he was about 14 years old and became serious by the time he was 16 years old. However, he said he moderated his drinking and now it is not a problem. He also told Dr.

Stangeland he has abstained completely from using marijuana and alcohol for the past one and a half to two years. [ 28 ] Mr. Boden told Dr. Ley he was a heavy social drinker but his alcohol consumption has diminished substantially over the last couple of years. He has been residing in a recovery house for more than one year. Mr. Boden told Dr. Ley he lives there not for the purpose of maintaining sobriety but because the staff is accepting and non-judgmental towards him. Nevertheless, Mr. Boden has completed some alcohol abuse counseling programs while in custody. [ 29 ] Mr. Boden also told Dr.

Ley he was a compulsive user of marijuana. The peak of his marijuana consumption was during his late teens. Marijuana has been a regular habit for him since. Mr. Boden also told Dr. Ley that about a year ago he was granted a

medical certificate for marijuana use due to the pain of chronic arthritis in his hands and fingers as a result of football injuries. Dr. Ley noted the “medical marijuana certificate” permits Mr. Boden to consume about 2 grams of marijuana daily which is roughly four marijuana cigarettes. VICTIM IMPACT STATEMENTS [ 30 ] The Crown advised the court that neither J.S. nor S.H. have filed victim impact statements. S.H. told the Crown she decided not to write one because it would only open a door that would cause her to revisit a painful experience. She wanted to move on.

J.S. told the Crown that since the incident she has experienced increased anxiety when walking by herself and, in particular, increased anxiety for her daughter when she is out on her own. She told the Crown only a real creep would go around grabbing women from behind. The Crown said the sense she had from both complainants as a result for discussions with them was that the length of these proceedings have been difficult for them. REPORTS PROVIDED FOR SENTENCING The Pre-sentence Report [ 31 ] The PSR was prepared for the original sentencing date of February 29, 2012.

In that report the probation officer reviewed Mr. Boden’s family relationships, living arrangements and associates, Mr. Boden’s education, vocation and finances; Mr. Boden’s behaviour and emotional status as well as his substance misuse. The PSR also reviewed Mr. Boden’s sexual history and his prior youth court history. The probation officer noted this is the first criminal conviction Mr. Boden has as an adult. [ 32 ] The PSR indicates Mr. Boden was cooperative and forthright during the interview held for the preparation of the PSR.

He reported consistently as directed for bail supervision since being charged with the offences in this matter. There have been no reported infractions of his conditions although he accrued new charges while under bail supervision. Mr. Boden told the probation officer he was willing to comply with any terms or conditions the court may deem appropriate or necessary. [ 33 ] As to Mr. Boden’s attitude and understanding regarding the offences, the probation officer noted Mr. Boden does not agree with the outcome of the trial and his finding of guilt.

As such, his attitudes and understanding towards the offences cannot be assessed. The probation officer noted Mr. Boden intended to appeal his conviction. Given Mr. Boden’s position denying culpability it was likely his access to and benefit from any treatment targeted to address his sexual offence behaviours could be hindered. Dr. Stangeland’s assessment [ 34 ] A psychological assessment ordered by the court was completed by Dr. Stangeland, a registered psychologist with the Forensic Psychiatric Services Commission, by February 22, 2012. This 20 page report was based on a 2½ hour video interview with Mr.

Boden in late December 2011 and on psychological testing. In addition to the interview and the psychological testing, the psychologist reviewed various documents. Dr. Stangeland noted that much of his assessment was based on Mr. Boden’s “self-report” and had not been corroborated by other sources. [ 35 ] The report notes Mr. Boden seemed relatively composed and at ease during the interview. He gave the impression of being well prepared for addressing questions relating to his offences, although the answers often seemed rehearsed and not very adequate.

He tended to minimize any information that might reflect negatively on him. He gave the impression of being of low average intellectual ability. However, his thinking was generally logical and coherent. There were no signs of thought disorder, such as might be expected with a serious mental illness. He did not give any indication of strong affect at any point during the interview. His discussion of events generally seemed self-centered with little attention or regard to the perspectives or feelings of others. He did not make any comments or statements that might serve as a basis for violent behaviour. [ 36 ] Mr.

Boden was asked about the charges. He provided no information to Dr. Stangeland beyond stating that the offence of September 7, 2009, (S.H.) was a matter of mistaken identity. He said he mistook the victim for his girlfriend. He said he grabbed her by the waistband. He said such a thing would never happen again as he will be more sure of the identity of the person in the future. With regard to the other sexual assault charge of August 25, 2009, (J.S.), he asserted he was not the person who committed the assault. With regard to the obstruction and assault police officer charges, Mr.

Boden said he was brutally assaulted and victimized by the officers. He also said he was considering an appeal of his conviction. He refused to discuss the details of these matters any further. [ 37 ] Dr. Stangeland summarized Mr. Boden’s family history, educational background, work history, sexual history and marital relationships, health and criminal history. [ 38 ] Dr. Stangeland explained the psychological tests administered as follows: a.) The Shipley Institute of Living Scale 2 - This is a brief intellectual assessment useful in estimating a general level of functioning.

It cannot be considered a full assessment of intellectual capabilities particularly if an individual presents with conditions such as a learning disability or neurological dysfunction. The results of this test were insufficient to make a firm diagnosis of intellectual functioning. However, the outcome of the assessment suggests Mr.

Boden might fall in the mildly mentally handicapped range of abilities. b.) The Personality Assessment Inventory - This is a self-report inventory designed to provide insight into general level of psychological adjustment, clinically significant issues, and personality factors that may contribute to general well-being. Mr. Boden generally tried to present himself in a favourable light. He avoided endorsing many of the common problems and shortcomings to which most individuals will admit. Dr. Stangeland noted it was possible Mr. Boden was reluctant to admit personal limitations and that he

might have minimized problems. However, this did not invalidate the test results. Only one of the clinical scales of the test was significantly elevated. Mr. Boden admitted his use of drugs has been sufficient to have negative consequences for his life. These might include strained relationships and vocational problems. He also admitted that alcohol use has caused vocational problems in his life. Mr. Boden’s responses suggested he is quick to feel that he is being treated unfairly and easily believes there is a concerted effort among others to undermine his interests.

His self-concept appeared to involve a reasonably stable and positive self-evaluation. He described approaching life with a clear sense of purpose and distinct convictions. His interpersonal style fell in the average range in terms of assertiveness, friendliness, and concern for others. He described his temper as within the normal range and fairly well controlled. Mr. Boden’s motivation for treatment appeared to be relatively low.

His responses suggested he is satisfied with himself as he is, he is not experiencing marked distress, and he sees little need for change in his behaviour. c.) The Millon Clinical Multiaxial Inventory – This assessment tool provides information about personality patterns and clinical syndromes. The validity scales indicate Mr. Boden was willing to report psychological problems and complaints although he tended to respond to items in a way that might be considered socially desirable. Dr. Stangeland believed the overall test results should provide a valid appraisal of his current functioning.

There were no significant elevations on the clinical personality pattern scales of the test, although three scales were elevated close to clinically significant levels. Individuals with similar profiles have generally been found to be confident, competitive and dramatic. They tend to operate on to the underlying assumption that they are special and they might feel superior to most other people. They have a tendency to exaggerate their abilities and positive attributes. They are inclined to construct arguments to emphasize their own worth.

They tend to be critical of those who refuse to accept the way they see themselves. Dr. Stangeland noted that some of Mr. Boden’s feelings of superiority come from looking at the world in competitive terms. He also noted Mr. Boden is likely to pay considerable attention to his image. One of the fundamental difficulties associated with Mr. Boden’s personality configuration is a tendency to be insensitive to the needs and feelings of those around him. This tendency is conducive to antisocial behaviour because of a general insensitivity to others. Dr.

Stangeland also noted that, on the clinical syndrome scales, there was a prominent elevation on the alcohol dependence scale. d.) The Psychopathy Checklist - This is a rating scale for the presence of a number of characteristics that have been found to be typical for those individuals who are most chronically involved in criminal activities. Individuals who score high on psychopathy have been found to be at higher risk for a variety of criminal activities than those who do not. Mr. Boden’s score on this instrument was in the moderate range.

His total score placed him at the 64th percentile when compared to male prison inmates, that is, he scored lower than 36% of the prison sample and higher than 64%. Two factors were measured by the test. The first is a collection of personality traits that have been found to be related to a criminal lifestyle. The accused scored moderate on this factor falling at the 61st percentile in comparison with the sample of prison inmates. The second factor relates to an unstable and antisocial lifestyle. Mr.

Boden’s score on this factor was moderate in comparison with prison inmates, falling at the 61st percentile. e.) The RSVP – This is an instrument which summarizes a variety of risk factors for sexual recidivism. Dr. Stangeland reviewed 22 indicators. In particular, he considered 16 specific indicators, which demonstrated a high risk for sexual abuse and sexual violence. I reviewed those indicators, but will not set them out in these reasons. Dr. Stangeland also reviewed seven specific factors that might be considered to reduce Mr. Boden’s risk of offending.

He concluded that: “When the total picture is taken into consideration, Joshua appears to present a high risk of sexual violence when sexual violence is defined as intrusive sexual behaviour that shows an insensitivity to the feelings of the victim”. Dr. Stangeland also made recommendations to be considered from a rehabilitation and risk management perspective. Dr. Ley’s assessment [ 39 ] Dr. Ley is a registered psychologist who prepared an assessment of Mr. Boden’s personality and psychological functioning at the request of defence counsel. He met with Mr.

Boden in July 2012 on two separate occasions for a total of almost eight hours. He also conducted a telephone interview with Mr. Boden’s girlfriend T. Dr. Ley did not conduct any psychological testing with Mr. Boden. He opined that Mr. Boden has a severe learning disability that significantly impairs his verbal comprehension. Dr. Ley was concerned about the validity of any psychological tests that Mr. Boden had read and completed. However, Dr. Ley noted that, in the context of Dr. Stangeland’s assessment, Mr.

Boden had completed psychological tests to which he would refer. [ 40 ] In addition to the interviews with Mr. Boden, Dr. Ley rated him on two contemporary instruments used for risk assessment purposes. Those were the Psychopathy Checklist – Revised form, 2 nd edition (PCL-

R) and the Sexual Violence Risk – 20 (SVR-20). He noted that Dr. Stangeland used an earlier version of the PCL-R risk assessment instrument. Dr. Ley also reviewed other materials including the reasons for judgment, the PSR, the psychological assessment prepared by Dr. Stangeland as well as police reports and the Crown counsel narrative. He noted the dossier he received appeared to represent much of the Crown counsel disclosure in this case. [ 41 ] Dr.

Ley's report is 26 pages long and covers background information about the offences, criminal and correctional history, behavioural observations and impressions, relevant personal history and closes with impressions, findings, opinions and recommendations. A

summary of Dr. Ley’s conclusions follows: a.) Mr. Boden is immature and egocentric. b.) Mr. Boden’s persistent habit to meet and sexually “seduce” women is a highly compulsive behaviour. It is similar to other highly compulsive or addictive behaviours such as alcohol or drug abuse, pathological gambling, kleptomania etc. c.) Mr. Boden’s attractiveness to women and the related sexual conquests he has achieved form a very significant part of his personal identity and self-esteem. d.) According to Mr.

Boden, he developed a strategy to meet women in which he approached an unfamiliar woman, put his arm around her waist or across her buttocks, and attempted to pull the woman closer to him to begin chatting to her. As reported to Dr. Ley, Mr. Boden’s “rap” with women is a friendly, engaging and typically complementary patter that he uses to try to psychologically engage the woman, to get her contact information and/or to invite her out. Dr. Ley reported that Mr. Boden has engaged in this behaviour thousands of times and it is relatively uncommon for a woman to take offence to his overtures. Dr. Ley concluded “....

I firmly believe

that Mr. Boden’s current sexual offences represent misguided attempts to meet women in order to establish sexual relations with them”. e.) Mr. Boden told Dr. Ley he did not realize approaching unfamiliar women in this way and placing his arm and hand across andupon a woman’s waist or her buttocks was a sexual crime. Dr. Ley appears to conclude that Mr. Boden “lacked appreciation for theways in which such actions are intrusive, shocking, insensitive and sexually inappropriate, let alone illegal”. I say “appears” because it isnot clear from the context of that

section of the report whether Dr. Ley is reporting what Mr. Boden told him or what he concluded fromhis discussion with Mr. Boden. Dr. Ley noted Mr. Boden has now been convicted of sexual crimes as a result of this strategy formeeting and seducing women. He said Mr. Boden is now adamant that he “gets it” and not only realizes that his approach is illegal butthat it is offensive and insensitive. f.) In regard to Mr. Boden’s risk of recidivism for sexual offences, Dr. Ley said that, in his opinion, Mr. Boden’s risk for repeating“this specific kind of sexual crime in the future is a low/moderate risk”.

He does not agree with Dr. Stangeland’s risk assessment thatMr. Boden represents a high risk of sexual violence of a very specific type. By this Dr. Ley assumed Dr. Stangeland was referring tointrusive, crude and insensitive acts of sexual touching which constitute Mr. Boden’s current sexual offences. Dr. Ley based his riskestimate upon the fact that Mr. Boden has “seemingly been able to control this specific inappropriate and illegal sexual behaviour for thelast year or so.” He also based his risk assessment, in part, on his belief that Mr. Boden now “gets it” that this kind of behaviour isunacceptable. g.) Dr.

Ley’s ratings of Mr. Boden, based on the PCL-R risk assessment instrument, yielded very similar scores to those produced byDr. Stangeland’s assessment. He noted the scores on the PCL-R assessment are in the moderate to high/moderate range but lead to theconclusion that Mr. Boden is not psychopathic. That designation requires a much higher percentile score. Mr. Boden has an antisocialpersonality disorder but is not psychopathic. Dr. Ley further noted: “As a result of Mr. Boden’s scores on the PCL-R one would estimatethat he represents a moderate or moderately high risk for general criminal recidivism.

However his risk of recidivism for generalcriminality and violent crimes (as estimated from his PCL-R score) is no greater than that of the average Canadian inmate.” h.) Dr. Ley noted Mr. Boden has shown a tendency towards a “fight or flight” response when confronted by threat and the prospectsof interpersonal aggression. He demonstrated that in the context of his arrest on September 7, 2009. Dr. Ley wrote: “I think that there isa high risk that Mr.

Boden will behave similarly in the future if confronted by police, although he claims that he has learned his lessonand will submit to and cooperate with police officers in the context of any future arrest.” i.) Dr. Ley said the risk estimates Dr. Stangeland and he conveyed pertained specifically to Mr. Boden’s risk of engaging in sexualcrimes of the type he committed against S.H. and J.S. In his opinion, Mr. Boden represents a low/moderate to moderate risk of violentsexual crimes more generally. Dr. Ley noted Mr. Boden does not have a history of violent sexually assaultive offences.

He also notedthat when one examines Mr. Boden’s current sexual offences, although they were shocking and emotionally distressing to the victims, itseems most unlikely that Mr. Boden’s behaviour caused physical harm to them. He disagrees with Dr. Stangeland’s contention that Mr.Boden’s sexual crimes were escalating in frequency and severity. Likewise, he disagrees with Dr. Stangeland’s contention that Mr.Boden is sexually deviant. Dr. Ley said, although Mr. Boden is sexually compulsive, he does not believe Mr. Boden has paraphilia. j.) In regard to management of Mr. Boden and risk in the community, Dr.

Ley expressed the opinion that, from a psychologicalperspective, Mr. Boden represents a manageable risk in the community. His conclusion in this regard appears to depend on the fact thatMr. Boden, for the last year or so, has adhered to the conditions and restrictions set out in his bail conditions. As well, if Mr. Boden isengaged in treatment programs, the risk will diminish even further. Moreover, the police surveillance of Mr. Boden (which Dr. Leyappears to have assumed is ongoing) or other kinds of monitoring of Mr. Boden should also serve to deter him from sexual crimerecidivism.

POSITION OF THE PARTIES Position of the Crown [42] The Crown submits a global sentence of 12 months is an appropriate sentence in all the circumstances. A sentence of eightmonths jail should be imposed for each of the two sexual assaults, those two sentences to run concurrently. The Crown further submits asentence of four months jail should be imposed on each of the assault police officer and wilfully obstructing a police officer offences. Each of those four month jail sentences should run concurrently.

However, the jail sentences for the sexual assaults and for the assaultpolice officer and wilfully obstructing a police officer should run consecutively. The Crown also submits a three year probation order isappropriate in the circumstances. The Crown further requests a DNA order pursuant to s. 487.051 and a SOIRA order under s. 490.011. [43] The Crown notes it proceeded summarily on all of the offences. Accordingly, for the sexual assaults, the maximum sentence is18 months, whereas for the assault police officer and wilful obstruction of a police officer, the maximum sentence is six months.

TheCrown submits denunciation and deterrence, reparation for harm done to the victims and rehabilitation are sentencing objectives thatapply in this case. The Crown relies on R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, for the proposition that a sentencewith a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroachingon our society’s basic code of values as enshrined within our substantive criminal law. [44] With respect to the sexual assaults, the Crown submits they were brazen acts committed by Mr. Boden in public places duringdaylight hours.

She asserts both complainants were targeted, albeit in different ways. In particular, she notes that S.H. was followedbefore and after the assault. The Crown submits this is an escalation of Mr. Boden’s behaviour from the assault on J.S. which occurredearlier in August 2009. [45] The Crown characterizes the sexual assaults as predatory offences. She submits that at trial evidence was led of the manner inwhich Mr. Boden approached many women he did not know and on some occasions was clearly leering at them.

The Crown submits hisbehaviour, in conjunction with the specific assaults of the two complainants, suggests Mr. Boden’s actions were predatory.

[ 46 ] The Crown notes it was difficult to find cases on point because many of the reported sexual touching cases involve children and accuseds who were in a position of trust. The two cases relied on by the Crown are R. v. Nijjar , [1996] B.C.J. No. 390 (BCCA) and R. v. B.L.B. 2002 BCPC 649 . In the Nijjar case the Court of Appeal considered an 18 month sentence for sexual assault which consisted of pinching the complainant’s breast as well as pinching her buttock on two occasions.

The Court of Appeal took into account the fact that the accused had spent three months in pre-trial custody and reduced the 18 month jail sentence to a 12 month sentence of imprisonment followed by a three year probation order. In the B.L.B. case the accused in daylight on a city street grabbed the breasts of two women passing by. He was sentenced to 12 months in prison and received six months credit for time served.

Probation was not imposed because the accused was to be deported immediately upon the cessation of his sentence. [ 47 ] With respect to the assault and obstruct police officer offences, the Crown notes the assault was a violent one, albeit one that did not cause significant damage. The Crown notes the majority of officers at the scene described the arrest of Mr. Boden as one of the most violent arrests they had ever been involved in. Four police officers, a civilian and a police dog were unable to take Mr. Boden into immediate custody. Further, Mr. Boden’s reaction was not a momentary one.

He resisted initially and, after he was brought under some degree of control, he made a decision to flee. The Crown says this was a conscious decision to get away from the police. He ran across Commercial Drive and tried to jump over a wall. The most disturbing feature of his behaviour was that Mr. Boden decided to make a direct run at the police officers while one of them had his gun out. The Crown relies on R. v. Gavrilovic , [2010] O.J. No. 2784 and R. v. MacKay , [1970] O.J. No. 920 for the factors which should be taken into account when considering offences involving attacks on police officers.

The Crown also relies on R. v. Martin , [2010] B.C.J. No. 1535 and R. v. Busch , [2002] B.C.J. No. 2235 regarding the quantum of sentences for offences involving assaults on police officers. [ 48 ] The Crown reviewed and commented on the PSR, Dr. Stangeland’s psychological assessment and Dr. Ley’s psychological assessment. The Crown spent considerable time reviewing the details contained in the three reports and urged me to do the same. In particular, the Crown notes the reports contain different versions of events. Mr. Boden was not consistent in what he told the psychologists and the probation officer. Mr.

Boden was ready to blame others for his shortcomings and the situations he found himself in. The Crown urges me to take particular care when assessing the weight to be given to Dr. Ley’s report. The Crown submits Dr. Ley took an uncritical approach to Mr. Boden. Much of what Dr. Ley has concluded was based on the self-reporting of Mr. Boden. In addition, the Crown argues that Dr. Ley either had incorrect or incomplete factual information about the findings at trial, he failed to comment on significant matters and his assessment took into account matters that were not relevant to sentencing.

Position of Defence [ 49 ] Mr. Boden submits this is not a typical case of sexual assault. He submits he simply did not know or did not understand (but does now) that what he was doing was considered a sexual assault. These proceedings have brought home to him the significance of his behaviour. He submits a jail sentence is not necessary. He urges the court to take this opportunity to fashion a sentence that protects society, denounces his wrongdoing but also assists in his rehabilitation. In the circumstances, Mr.

Boden submits the appropriate sentence is a suspended sentence plus three years probation. [ 50 ] Mr. Boden submits, as Dr. Ley noted in his psychological report, that he did not understand his conduct towards women was an assault, let alone a sexual assault. He did not view the act of touching someone uninvited, was considered a sexual assault. Furthermore, before the events leading to his conviction, he did not understand he could be intimidating. [ 51 ] Over the course of his adult life his approach to women has become part of his personal identity. It is unfortunate but that is what has come about. Mr.

Boden submits he has learning disabilities which were identified early in his life but not appropriately addressed. Mr. Boden submits he missed an opportunity for appropriate education when he was an adolescent. He attributes this in part to his learning disabilities and to his behaviour as an adolescent. He submits the result has been that he is almost functionally illiterate. He compensated for his low self-image through his physical prowess in football and his ability to engage with women. He notes that he learns from experience and he learns from being shown.

He submits his social skills may not be as finely tuned as those of other people, but he has the capacity to learn. [ 52 ] Mr. Boden relies on Dr. Ley’s report. He asks me to accept Dr. Ley’s report over that of Dr. Stangeland. In particular, Mr. Boden disagrees with Dr. Stangeland’s suggestion that he might fall in the mildly mentally handicapped range of abilities. He notes he was very gifted when it came to playing football. This required him to learn and execute the plays, know the passing routes, and learn coded messages that are used in the course of the game.

All of this requires a degree of intelligence. [ 53 ] Mr. Boden acknowledges he was troublesome in his youth. He was frustrated by his disabilities and acted out. He points to Dr. Ley’s comments that this was his reaction to his disabilities. He acknowledges that services may have been available at the time and that he did not take advantage of them. [ 54 ] Mr. Boden acknowledges that sexual assault offences may attract a term of imprisonment. However, he points to the fact that sexual assault covers a very broad range of conduct.

He submits that the offences for which he was convicted are more akin to sexual touching than to other types of conduct also covered by the term “sexual assault”. He urges the court to consider his rehabilitative potential. In this regard he points out, as noted by Dr. Ley, that he has been on strict conditions for a long period of time and has adhered to his release conditions. [ 55 ] With respect to the assault police officer and obstruction charges, Mr. Boden agrees with the principles enunciated by the Crown. He acknowledges that police officers work in the front lines and should be protected. Mr.

Boden acknowledges that on September 7, 2009, he was trying to flee when he encountered the police. He reacted to the police presence and the presence of the police dog and was running away. However, he points out that his behaviour is a far cry from the behaviour addressed in the cases referred to by the Crown. Moreover, he submits there is another distinguishing feature. This court found there was a breach of s. 10 (

a) of the Charter as a result of the police officers’ failure to tell him why he was under arrest when they initially attempted to take him into custody on September 7. He argues this is a factor this court should take into account in imposing a sentence. In this regard, he relies on

R. v. Evans 63 C.C.C. (3d) 289. Mr. Boden submits the fact he was not told why he was under arrest when he was initially approachedby the police is a mitigating factor which should be taken into account in arriving at the sentence for assault/obstruct police officeroffences. PRINCIPLES OF SENTENCING General principles [56]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is “to contribute to respect for the lawand the maintenance of a just, peaceful and safe society”. This is to be achieved by imposing sentences that denounce unlawful conduct,deter the offender and others from committing offences, separate the offender from society where necessary, assist in rehabilitatingoffenders, and promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim and to the community.

The Criminal Code also requires the court to: • increase or decrease the sentence for any relevant aggravating or mitigating circumstances relating to the offence or the offender; • impose a sentence similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender; • where consecutive sentences are imposed a combined sentence should not be unduly long or harsh.

Sentencing for sexual assault [57] The offence of sexual assault covers a broad range of conduct. Consequently, particular attention must be paid to the specificcircumstances of the case before the court. In this case I have reviewed a number of cases. There are very few cases that are directly onpoint. However, as already noted, the sentence imposed on Mr. Boden must be based on the particular circumstances of his case. [58] In determining a fit sentence in this case it is important to keep in mind the following observation made by the Supreme Courtof Canada in R. v. C. A.

M., at paragraph 81: ... our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct byincreasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. Asentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attachingnegative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basicset of communal values shared by all Canadians as expressed by the Criminal Code. [59] In R. v. Stone, 134 C.C.C. (5d) 353, the Supreme Court of Canada, citing R. v. C.A.M., said it is incumbent on the judiciary tobring the law into harmony with prevailing social values. This applies to sentencing.

It further noted that the court’s jurisprudenceindicates the law must evolve to reflect changing social values regarding the status between men and women. [60] In R. v. Durnford, [2006] N. J. No. 282, Gorman Prov. Ct. J., in passing sentence in a sexual assault case, noted at paragraph 18that our basic code of values cherishes the personal and sexual integrity of every person. In addition, our society has evolved to the pointthat the application of non-consensual sexual touching is completely unacceptable.

He noted as well, however, that sentencing is anindividualized process that must take into account both the circumstances of the offence and of the offender. [61] In Nijjar our Court of Appeal considered an appeal of a sentence of 18 months imprisonment for a sexual assault. In that casethe accused had pinched a young woman’s breast as well as her buttock. The court reduced the sentence to 12 months imprisonmentfollowed by three years probation.

In reaching its conclusion, the court noted this was a worrisome case because the accused, for noapparent reason whatever, went up to a young woman and pinched her breast and buttock. [62] In R. v. B. L. B. Challenger Prov. Ct. J. imposed a 12 month prison sentence on the accused. He grabbed the breasts of twowomen passing by him on a city street during the day. The judge noted it did not take much imagination to understand the kind oftrauma the victims would have suffered as a result of the unexpected attack in a public place where one would expect not to have toworry about that kind of conduct.

She also noted: “Women in our society have to constantly worry about personal safety; when going toparking lots, or when we encounter unfamiliar men in isolated circumstances. We must be constantly vigilant. I agree with Crowncounsel that the one place you do not think you have to worry is on a public street in broad daylight.” Sentencing for obstruct/assault police officer [63] In R. v. MacArthur, (ON CA), [2004] O.J. No. 721, Doherty J. A. of the Ontario Court of Appeal madesome observations about attacks on police officers. Those observations were made in the context of a sentencing for attempted murder.

I am well aware that the offences for which Mr. Boden has been convicted are much less serious offences. Nevertheless, given theviolent nature of the confrontation between Mr. Boden and the police, the general comments made by Doherty J. A., citing R. v. Forrest

(1986) 15 O.A.C. 104 , are instructive. At paragraph 49 he noted: As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm’s way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary.

Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. [ 64 ] In R. v. Martin , Saunders J. heard a sentence appeal by the accused who had entered a guilty plea on a charge of assaulting a sheriff.

He was sentenced to 90 days imprisonment and 12 months probation. The accused appealed arguing he had been involved in the altercation but denied punching the sheriff. He argued his guilty plea was based on a misunderstanding that he was pleading guilty to verbal assault not a physical assault. The court dismissed the appeal and, with respect to sentencing, found no basis for reducing the 90 day jail sentence. The court said a custodial sentence was entirely appropriate for an assault on a peace officer. [ 65 ] In R. v. Busch, Rounthwaite Prov. Ct.

J. sentenced the accused for assaulting two police officers among other charges. She sentenced the accused to four months in jail on each of two assaults to be served concurrently. ANALYSIS The psychological assessments [ 66 ] I begin my analysis by considering the psychological assessments prepared by Dr. Stangeland and Dr. Ley and the weight they should be given in sentencing Mr. Boden. The two psychologists were not qualified as experts in the sentencing hearing. However, their reports and the opinions expressed therein were relied on by the Crown and Mr. Boden to assist the court in assessing Mr.

Boden’s personal circumstances. [ 67 ] I have considered both reports and find that each of them has limitations. For example, Dr. Stangeland’s report was based on a video interview which may have affected Mr. Boden's participation in the interview. In fact, Dr. Ley reports Mr. Boden told him he had been more truthful with him than he had been with Dr. Stangeland. Mr. Boden told Dr. Ley he was not comfortable during the interview with Dr. Stangeland because it was conducted via video link. Another example is that Dr.

Stangeland referred in his report to certain information adduced at trial and set out in my reasons. That information referred to Mr. Boden’s alleged criminal history and to the conclusions the police had reached about Mr. Boden. The information was police briefing information that was admitted to set the context for the police officers’ subjective understanding and beliefs about Mr. Boden. It was clearly stated in the reasons for judgment that the briefing information was not led to establish propensity or the substantive elements of the offences charged. [ 68 ] I now turn to the limitations in Dr. Ley’s report.

Those limitations include the following: a.) Dr. Ley said he strove to base his findings and conclusions upon objective information about Mr. Boden as well as factual information about his criminal history and record. I found, however, that his overall approach was quite uncritical. Examples of this include the following: i. He appeared to accept Mr. Boden's statements about the events and not what was set out in the reasons for judgment. For example, in his background information Dr. Ley recorded that Mr. Boden told him he was cooperating with the police officer who initially attempted to arrest him.

That is not borne out by the facts as found in the reasons for judgment. Another example is the description given under background information; namely, that after grabbing and interacting with S.H. Mr. Boden walked quickly from the scene. The evidence set out in the reasons for judgment clearly establishes that after the incident Mr. Boden followed S.H. to the skytrain station, stood behind her on the escalator going up to the platform, all the while looking at her buttocks, and continued to attempt to follow her after she left the skytrain car in an effort to get away from him.

A further example is the description of Mr. Boden’s arrest. It leaves out the fact that one of the officers had his gun drawn at the point when Mr. Boden charged at him and another officer. Perhaps it was done unwittingly, but Dr. Ley‘s recitation of the background facts minimizes the circumstances of the September 7, 2009, incident and Mr. Boden's behaviour. ii. He assumed Mr. Boden was being truthful, perhaps in part because of his positive rapport with Mr. Boden, and thus did not look critically at what Mr. Boden reported to him. iii. He accepted Mr. Boden’s statement that about a year ago Mr.

Boden was granted a medical certificate for marijuana use due to pain of chronic arthritis. The Crown raised questions about this “medical marijuana certificate” because, as of two days before the sentencing hearing, an investigation had determined one had not been issued pursuant to the applicable legislation. iv. A more important issue from my perspective is that Dr. Ley reviewed the PSR and Dr. Stangeland’s psychological assessment but he did not raise any questions about the information Mr. Boden provided in those reports which was at odds with the information Mr. Boden provided to Dr. Ley.

One example of this is that Mr. Boden did not mention marijuana use at all to the probation officer and told Dr. Stangeland he had stopped using marijuana in 2009 when his son was born, however, he told Dr. Ley he was still using marijuana. b.) Dr. Ley’s assessment, in part, appears to minimize and sanitize Mr. Boden's behaviour in relation to the sexual assaults. He posits that Mr. Boden's current sexual offences “represent misguided attempts to meet women in order to establish sexual relations with them.”

He sets out this belief after explaining what he was told by Mr. Boden about the way he approached women. Dr. Ley describes the approach by saying Mr. Boden “developed a strategy to meet women”. At another point in the report he refers to Mr. Boden’s habit “to meet and sexually seduce women”. Dr. Ley accepts at face value Mr. Boden's assertion that he did not realize approaching unfamiliar women in the way he did and placing his arm and hand across and upon a woman’s waist or buttocks was a sexual crime. He also appears to accept Mr. Boden's assertions that he received little overt discouragement or rejection from many women when he used this approach. [ 69 ] In

summary, while I am not completely discounting Dr. Ley’s psychological assessment, in light of the limitations I have described above (and others which I have not detailed in these reasons), its usefulness is circumscribed. I am also cognizant of the limitations noted in Dr. Stangeland’s report and will take them into account. However, I found Dr. Stangeland’s report was more detached than Dr. Ley’s and suitably critical of his subject. [ 70 ] I next turn specifically to the risk assessment set out in the two psychological reports. Dr. Stangeland concluded that Mr.

Boden presents: "a high risk of sexual violence when sexual violence is defined as intrusive sexual behaviour that shows an insensitivity to the feelings of the victim”. The instruments he used to arrive at that risk assessment were the Psychopathy Checklist and the RSVP. Dr. Stangeland considered a number of indicators of high risk. Of the 16 indicators he set out, one was Mr. Boden's prior convictions for aggravated assault and assault causing bodily harm (his youth criminal record) and that the police have suspected him of a number of violence related matters.

Out of an abundance of caution, in reaching my conclusion on the level of risk posed by Mr. Boden, I will take into account that those matters mentioned by the police have not been proved in court. [ 71 ] Dr. Ley opined that Mr. Boden's risk of repeating this specific type of sexual crime in future is a low to moderate risk. In doing so he acknowledged that the high frequency and long-standing nature of this habit for Mr. Boden would serve to anchor such an estimate. However, he based his low to moderate risk estimate on the fact that Mr.

Boden “seemingly” has been able to control the specific inappropriate and illegal sexual behaviour in the last year or so. Further Dr. Ley considered that Mr. Boden’s past engagement in this sexual crime was largely due to his ignorance that it was unlawful in conjunction with his insensitivity to its impact upon women. Dr. Ley wrote: “I do believe that Mr. Boden now ‘gets it’ in regard to the unacceptability of this kind of behaviour”. [ 72 ] I am unable to accept Dr. Ley’s risk assessment (i.e. low to moderate) regarding the specific kinds of sexual offences for which Mr. Boden was convicted. In his report Dr.

Ley acknowledges the long-standing nature and frequency of Mr. Boden’s “habit” of intrusive, crude and insensitive acts of sexual touching. Further he acknowledges that this would serve to anchor an estimate of risk. He also acknowledges that Mr. Boden is sexually compulsive, however, he nevertheless concludes that the risk of recidivism is only low to moderate. In reaching this conclusion Dr. Ley minimizes the offences by pointing out that it seems unlikely physical harm was caused to the victims and that the offences were not accompanied by threats of death or use of a weapon.

Further, his conclusion is based on the fact that he accepts at face value what Mr. Boden told him during his interviews. In particular he accepts that Mr. Boden was ignorant of the fact that this type of conduct is a crime. He also accepts Mr. Boden’s claim that he now “gets it”, as well as Mr. Boden’s assertion that his pattern of conduct was restricted to his habit of approaching women and touching them with the intent of meeting them and establishing sexual relations with them. I have already noted that Dr. Ley’s approach towards Mr. Boden's assertions appears uncritical.

Moreover, it also appears designed to put Mr. Boden in the best possible light. Consequently, for the reasons noted above, I am not satisfied that there is a sufficient objective basis for Dr. Ley’s low to moderate risk assessment in regard to the sexual offences. Mitigating and aggravating circumstances [ 73 ] I find that the mitigating circumstances in this case are quite limited.

The case law suggests that such factors as the acceptance of responsibility, a guilty plea at an early stage, the demonstration of insight into wrongdoing, self initiated rehabilitation, early and genuine expressions of remorse leading to opportunities for rehabilitation, and the absence of a criminal record are some of the factors that can be considered in mitigation: see R. v. Dervishaj , [2009] B.C.J. No. 60 . Those mitigating factors are not present in this case. [ 74 ] I now consider the aggravating factors. Mr.

Boden has a youth record which, though dated, is notable because of the nature of the offences which were: possession of a prohibited or restricted weapon, aggravated assault and assault causing bodily harm.

However, I acknowledge that the offences in this case are his first adult criminal convictions. [ 75 ] With respect to the sexual assault offences the aggravating factors are as follows: a.) The assaults were against young women going about their daily activities during daylight hours. b.) The assaults occurred in circumstances and in places where the victims had a reasonable expectation of being safe. c.) The assaults were brief but very crude and intrusive. d.) The assaults were apparently opportunistic, however, the victims were specifically targeted. J.S. was targeted to a lesser degree than S.H. Mr.

Boden was going in the opposite direction when he saw J.S. on the escalator. He turned and followed her. This indicates a deliberate decision on his part to follow her and to commit the assault. The situation with respect to S.H. is much more egregious. Mr. Boden followed S.H. from the skytrain station to the Safeway store. He waited approximately 20 minutes or so in the lobby and in the parking lot. After the assault he continued following S.H. who was sufficiently concerned that she devised a plan to get away from him. Officers present at the scene described Mr.

Boden going up the escalator to the skytrain platform all the while looking at S.H.’s buttocks. In my view, his behaviour is suggestive of stalking. [ 76 ] With respect to the assault/obstruct police officer offences I find that the nature of Mr. Boden’s flight from the police, the length of time and the violence involved in the incident, as well as the fact that Mr. Boden began to run at the officers while one of them had his gun drawn are all aggravating factors.

The sentence [ 77 ] The most important sentencing principles for all four offences are denunciation and deterrence as well as protection of the public. However, I must also give due consideration to the prospect of Mr. Boden’s rehabilitation. With respect to the sexual assaults, Mr. Boden, in argument and in Dr. Ley’s report, suggests he now “gets it”. However, based on an objective review of the materials before me, it is clear that Mr. Boden has taken little, if any, responsibility for his conduct. Moreover, he appears to lack insight about the inappropriate and serious nature of his actions. Mr.

Boden refused to discuss the circumstances of the offences with the probation officer and Dr. Stangeland. While that may have been understandable, given his stated intention to appeal his conviction, it does not explain the discrepancies in the information he provided. Accordingly, while he very recently acknowledged some degree of responsibility during his interview with Dr. Ley, it is difficult to gauge the sincerity of that acknowledgment. [ 78 ] As was noted in Durnford our basic code of values cherishes the personal and sexual integrity of every person.

Our society has evolved to the point that the application of non-consensual sexual touching is completely unacceptable. Grabbing women’s buttocks and/or chest from behind while they are walking on a city street is totally unacceptable behaviour. Accordingly, in the circumstances of this case, it is important to impose a sentence with a strong denunciatory element. In R. v.

C.A.M. the court noted that a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. Further, denunciation and deterrence are important principles in fashioning a fit sentence in this case because of the flagrant nature of the sexual assaults and Mr. Boden’s moral blameworthiness. [ 79 ] Taking into account the submissions of counsel and the case law, on the offence of sexual assault against J.S. I impose a sentence of six months jail.

On the offence of sexual assault against S.H. I impose a sentence of eight months jail. The circumstances of the offence against S.H. were much more egregious than the offence against J.S. and therefore merit an additional two months jail sentence. The sentences for the sexual assaults against J.S. and S.H. will be served concurrent to one another. [ 80 ] With respect to the obstruct police officer offence, I find that a fit sentence is three months jail. I have taken into account the s. 10 (

b) Charter breach in coming to a decision on this sentence. For the assault police officer offence, I find a fit sentence is four months jail. The sentences for the obstruct police officer and assault police officer offences will be served concurrent to each other but consecutive to the sexual assault offences. Conditional sentence order [ 81 ] Mr. Boden did not ask that consideration be given to a conditional sentence. However, out of an abundance of caution, because I have imposed jail sentences on Mr. Boden, I will consider whether a conditional sentence is appropriate in the circumstances.

There appears to be some debate as to whether a conditional sentence order under s. 742.1 is available for sexual assault offences where the Crown has proceeded summarily. This issue recently arose before my colleague Bagnall Prov. Ct. J. in R. v. Nguyen , [2012] B.C.J. No. 721 . In that case the court concluded the correct

interpretation of s. 742.1, is that a conditional sentence order is not available for sexual assault offences even if the Crown has proceeded summarily. There are other cases in other jurisdictions, with contrary views, for example, R. v. Thompson 2010 ONCJ 399 . [ 82 ] I need not decide which of the differing views regarding the availability of a conditional sentence order for a sexual assault offence proceeded with summarily ought to be followed.

Even if a conditional sentence were available, I have concluded, in the circumstances of this case, the prerequisites for the application of a conditional sentence have not been met. First, although the sentences I have imposed on Mr. Boden fall within the provincial range, I find on the evidence before me that there is a risk that serving the sentence in the community would endanger the safety of the community. The risk cannot satisfactorily be addressed by the imposition of strict conditions. In this regard, I note Dr. Ley’s assessment concludes from a psychological perspective, that Mr.

Boden represents a manageable risk in the community vis-à-vis the sexual assault offences. However, a close reading of his assessment shows that his conclusion is carefully qualified by the use of such comments as “seemingly”, “although time will tell whether Mr. Boden can continue to inhibit such behaviour…” and other similar qualifiers. Second, in relation to the assault/obstruct police officer offences, Dr. Ley made it clear there is a high risk that Mr. Boden will behave similarly in the future if confronted by the police, although Mr.

Boden claims otherwise. [ 83 ] If I am incorrect in my assessment of endangerment to the safety of the community, I find that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing, in particular denunciation and deterrence, in the circumstances of this case. Credit for time served [ 84 ] The offences for which Mr. Boden was convicted took place in 2009 before the Truth in Sentencing Act was brought into force in February 2010. Accordingly, Mr. Boden is entitled to have credit for time served calculated on the basis of the prevailing law and practice at the time.

This means the time he has already served in custody as “a result of the offence” must be calculated on a two-for- one basis. The Crown takes no issue with this proposition. The total number of straight days Mr. Boden spent in custody is 153 days. Calculated on the basis of two-for-one credit that equals 306 days. The issue is whether Mr. Boden should get credit for all the time he spent in custody or only a portion thereof because some of the time spent in custody was triggered by other criminal charges. [ 85 ] The Crown submits Mr.

Boden should receive double credit for half of the total time he spent in custody before being sentenced on these offences. The Crown acknowledges some of the time served is directly attributable to the offences before the court. However, the rest of the time in custody was attributable to new charges which resulted in Mr. Boden’s arrest and detention pending bail. The Crown concedes that when bail hearings were held on the new charges it sought revocation of Mr. Boden's bail on the charges relating to the offences now before the court, albeit unsuccessfully. Accordingly, the Crown argues Mr.

Boden should only get partial credit for time served that was not directly related to these offences. That is why it submits he should only get credit for half of the total time he spent in custody to date.

[ 86 ] Mr. Boden submits he should get credit, on a two-for-one basis, for all time served. He points out that every time he was arrested on unrelated new offences he was initially detained because of the charges for the offences in this case. He also submits that at all the bail hearings, except for the July 12 to 19, 2010, the Crown sought a s. 524 finding which was denied. However, Mr. Boden says that factor is nevertheless significant in calculating credit for time served. In

summary, Mr. Boden submits he should receive credit for time served for all 153 days, on a two-for-one basis, against the sentence imposed in this case. [ 87 ] Section 719 (3) of the Criminal Code provides: “In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.” On February 22, 2010, the Truth in Sentencing Act , S. C. 2009, C, 29 came into force. That Act amended s. 719 (3) by providing that credit for time served is a maximum of one day for each day spent in custody.

As noted, the changes to s. 719 do not apply in Mr. Boden’s case because they only affect persons charged on or after February 23, 2010. [ 88 ] In R. v. Mills , 1999 BCCA 159 Donald J.A. said the following about how s, 719 (3) should be applied: In my opinion, the question of which periods of incarceration should be considered for credit must be determined according to the words of the relevant provision, s. 719 (3) . That

section provides that credit may be given for time spent in prison and “as a result of the offence”. Thus, if the custody resulted from the offence then credit should be given unless there is a sound reason for not doing so. When that rule is applied to the circumstances of this case, it is obvious that the time served on the separate threatening offence had to be deducted. But I do not think that the test should involve a meticulous inquiry into the reasons why an accused was in custody pending disposition or why the case may have been prolonged.

What really matters is whether the custody was on account of the offence charged. (para. 33) [ 89 ] In R. v. Greaves , 2007 BCCA 430 , the Court of Appeal considered a sentence appeal which included an issue about pre- disposition custody. In that case the trial judge declined to give full credit to the accused for all the time he had spent in pre-disposition custody. The accused had been arrested and released on the initial charge of possession of cocaine for the purpose of trafficking. He was subsequently arrested on a new charge.

He was denied bail on the new charge and the bail on the initial charge of possession for the purpose of trafficking was revoked. The trial judge noted that the accused’s detention had been based not only on the initial charge but also on the new charges.

Accordingly, the trial judge concluded it was appropriate to ascribe only half the time in custody, resulting from the accused’s arrest on the second charge, to the original offence because it was likely the court had taken his original charge into account at the bail hearing for the second charge. [ 90 ] In upholding the trial judge’s decision regarding the time to be credited for pre-disposition custody, the court noted the sentencing judge had to consider whether the time the accused had spent in custody after the second charge was “as a result of the offence” for which he was being sentenced.

It was evident from the trial judge’s reasons that the time the accused spent in custody was not attributable solely to the offence for which he was being sentenced. The court found no reason to interfere with the trial judge’s conclusion to attribute only half of the time spent in custody after the second offence as credit towards the first offence. [ 91 ] In this case the only periods of Mr. Boden’s detention which were directly attributable to the offences now before the court are 11 days from September 7 to 18, 2009, and 18 days from October 15 to November 2, 2009. That is a total of 29 days.

The remainder of time Mr. Boden spent in custody in 2010 and 2012 was not solely attributable to the offences for which Mr. Boden is being sentenced today. This case is less compelling than the Greaves case where bail on the original charge was actually revoked followi

[…]