R. v. B.L. Date:, 2011 BCPC 254

Citation: R. v. B.L. Date: 20110630 2011 BCPC 0254 File No: 210664 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.L. BAN ON PUBLICATION 486.4(1) CCC; 486.4(3) CCC EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE PALMER Counsel for the Crown: J. Horneland Counsel for the Defendant: J. Israels Place of Hearing: Vancouver, B.C. Date of Hearing: June 30, 2011 Date of Judgment: June 30, 2011 [ 1 ] THE COURT: On June 28th, 2011, B.L. pled guilty to Count 1 of Information 210664, the sexual assault of T.F. on July 5th, 2008.

The complainant was an employee of B.L.'s at the time. On the offence date, the complainant asked B.L. to issue her next paycheque a few days early so that she would not have to make a trip into work in order to pick it up on her day off. He agreed and invited the complainant to his office. When they entered his office, B.L. put his arm around the complainant's waist and tried to kiss her while sliding his hand under her shirt and into her bra, fondling her breasts. When B.L. tried to take down the zipper on the complainant's pants, his hand touched her groin.

The complainant told him, "No, stop it, your wife is going to catch you," and he then stopped. [ 2 ] While B.L. was preparing the complainant's paycheque, he told her he was looking for a mistress and asked her to meet him later. The complainant said, "Sure," took her cheque and left the store never to return. [ 3 ] Although the complainant was quite distraught after the incident, remaining unemployed for the following three months, she did not report the sexual assault to the police. She did file a complaint with the Human Rights Commission, but ultimately did not follow through in that process.

It was not until January of 2010 that the complainant met with the Vancouver Police Department. [ 4 ] This trial was set for three days, today being the third of those days. Crown counsel was advised in the week preceding that there was going to be a guilty plea in this case and none of the Crown witnesses were required to attend for trial. The complainant was spared preparation for trial and having to undergo direct and cross-examination. [ 5 ] Recently, Crown had received a statement from another former employee of B.L.'s who was a close friend of the complainant’s in 2008.

The witness' statement attesting to the impact of this incident on the complainant, was the key factor in the change of B.L.'s

plea to one of guilty. It was apparent in his brief statement to the court that B.L. is very remorseful for the distress he caused the complainant. [ 6 ] The Crown's position on sentence was articulated as a fine of $3,000 and a period of probation for 24 months during which B.L. would report to a probation officer, perform 60 hours of community work service and have no contact, directly or indirectly, with either T.F. or T.L.

The Crown also sought the mandatory orders pursuant to s. 109 and s. 487.051 of the Code , as well as an order that B.L. participate in the sexual offender registry for a period of ten years. [ 7 ] Defence counsel submitted that the discharge provisions in the Criminal Code should apply and that B.L., given his age, lack of any prior record, and support and standing in the community ought to be given a conditional discharge.

Counsel provided the court twelve letters of reference in support from current and former employees, business associates who have also become personal friends, as well as a long-standing family friend whose parents were friends of B.L., but who now considers him a personal and close friend of his own. All attest to B.L.'s good character, his integrity, his devotion to family, his community mindedness and generosity doing volunteer work and making donations to several causes. B.L. has, since he immigrated to Canada at the age of 22, worked very hard to create a family and to succeed in his business.

He did so without the benefit of a high school education in China. He still has family living in China and also travels to the United States for business and pleasure. [ 8 ] I have reviewed all of the cases provided by defence counsel with respect to the applicability of the discharge provision to a charge of sexual assault. In particular, I have considered the case of R. v. L.P. included in Tab 6 of the defence book of authorities, which the Crown submits is the case most closely resembling the circumstances of the case at bar. R. v.

L.P. is a decision of The Honourable Judge Baird Ellan of this court dated February 25th, 2009; that was the date of sentence. Judge Baird Ellan had previously found Mr. P. guilty of sexual assault. [ 9 ] The nature of the sexual assault in paragraph 3 of the decision was "groping and kissing" in the front seat of the accused's van which he had parked in a college parking lot. It also involved him forcing the complainant to fondle his genitals as he was driving away from the parking lot. Mr. P was 48; the complainant was 23 years of age. Mr.

P had on two occasions been the complainant's employer or supervisor for different college or public events, and he was also close friends with the parents of someone she was seeing. [ 10 ] Judge Baird Ellan found the disparity in the ages of the accused and the complainant as well as the circumstances in which the sexual assault occurred to be aggravating factors. At paragraph 19, she also found that the sexual assault, and I quote, ... was not a deliberate overriding of consent or forceful assault on...[the accused's] part. But... was an erroneous and unlawful assumption of consent.

I find that particularly applicable in the circumstances as they have been alleged by Crown counsel and further articulated by defence counsel in this case. [ 11 ] In particular, I refer to the defence reference to an atmosphere of sexuality in the workplace in terms of the employees openly discussing sex, horseplay and the slapping of buttocks, not that the complainant in this case participated in that with the employer, but was subject to it.

And as Crown counsel articulated in afterthought what was referred to as horseplay were behaviours the complainant might well have regarded as harbingers to be heeded. [ 12 ] In deciding the applicability of the discharge provision in R. v. L.P., Judge Baird Ellan found that the accused's interests would not be significantly detrimentally affected by incurring a criminal record. Mr. P, unlike B.L., was concerned only about travel for pleasure rather than for business.

It is another basis on which that case is distinguished from the case at bar. [ 13 ] It is acknowledged in many of the cases that it is possible to craft a sentence which meets the principles of general deterrence and denunciation, promotes a sense of responsibility in the offender, and makes some reparation when that sentence is in the form of a conditional discharge. In the seminal case, R. v. Fallofield , the two-prong test is first to consider whether or not it is in the accused's best interest and, second, whether to grant the accused a conditional discharge is contrary to the public interest.

It is only if the sentencing judge is satisfied that to do so is not contrary to the public interest that it is appropriate. There are, of course, multiple facets to the public interest. The discharge provisions were enacted to insure that not everyone is stigmatized by a criminal record when they have made a mistake, and I accept the submissions of defence counsel on behalf of B.L. that there were issues, with respect to consent, for trial. I characterize B.L.'s behaviour towards the complainant in the manner that Judge Baird Ellan characterized Mr.

P.'s behaviour, the "erroneous and unlawful assumption of consent." [ 14 ] I have determined that it is certainly in B.L.'s best interest to grant him a conditional discharge.

And in the terms of the probation order I am about to impose, I am satisfied that the order meets the principles of deterrence and denunciation, will assist B.L. in becoming more mindful of his behaviour and how things ought to occur in his workplace, and will provide reparation to the complainant. [ 15 ] To that end, I place B.L. on probation for a period of 18 months with the following conditions: First that he is to keep the peace and be of good behaviour. [ 16 ] Second, he is to report to the probation office at 275 East Cordova Street here in the City of Vancouver, Province of British Columbia, before 4:00 p.m. on Tuesday July 5th, 2011.

Thereafter, as and when directed by the probation officer. [ 17 ] He is to attend counselling, either Respectful Relationships or another counselling program available through the probation office to assist in learning about respectful relationships. [ 18 ] He is to have no contact, directly or indirectly, with either T.F. or T.L. [ 19 ] He is, within the first six months of the probation period and through the clerk of the court to make restitution to T.F. in the amount of $4,813.34 and that may be done by way of equal monthly payments.

[ 20 ] I am going to waive the victim fine surcharge. [ 21 ] The Crown also made application with respect to ancillary orders. First, an order pursuant to s. 109 of the Criminal Code . I have reviewed that

section and it is applicable because the Crown has proceeded by indictment in this case and the maximum custodial sentence is one of ten years. The wording of s. 109 applies to indictable offences with sentences of ten years or more. So I make that order which is a ten year prohibition on the ownership of any firearms other than prohibited or restricted firearms, and all of the enumerated items, crossbows, prohibited weapons, devices, ammunition, et cetera.

B.L. is prohibited for life from the ownership of restricted or prohibited firearms. [ 22 ] With respect to the application pursuant to s. 487.051, sexual assault is a primary designated offence. However, there is a provision that allows the sentencing judge -- if satisfied that the impact of such an order would have a grossly disproportionate impact on B.L.'s privacy and security of the person to the public interest, which has multiple facets as articulated by our Court of Appeal in R. v.

Awassis , and other cases, being the protection of society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders, as well as in the contribution to making the DNA bank more viable by increasing the volume of the samples.

I am satisfied that in considering all of B.L.'s circumstances, the circumstances of this offence, the fact that three years have elapsed since the offence, that B.L. has strong support in the community, and the appropriate sentence is a conditional discharge, to make the order pursuant to s. 487.051 would be grossly disproportionate in terms of the intrusion on his privacy and security of the person, and I am going to exercise my discretion against making that order. [ 23 ] With respect to the Crown's application pursuant to s. 490.012 and having B.L. register under the Sexual Offender Registration Act , I am satisfied with respect to this matter as well that this is an onerous provision, that it is not applicable properly in the circumstances of this particular case.

There is no doubt in my mind, having observed B.L. in court, having heard his expression of deep remorse for the consequences to the complainant of his actions, and in looking at all of the letters of support for him, he will never be before a criminal court again.

To require him to become part of the Sexual Offender Registry is highly intrusive and onerous, and I am going to decline that application as well. [ 24 ] In making the restitution to the complainant part of the probation order, I think I have ensured that there is reparation to the complainant, that it is not going to be any sort of task for her to have to pursue a stand-alone order, which is really not much by way of reparation to someone who has struggled with being a single parent as she did in those months that she was unemployed and, therefore, I am not going to impose any community work service in the course of this probation order. [ 25 ] Once Mr.

B.L. has completed the counselling portion of the order, it would be, in the court's view, unnecessary for him to report further to the probation officer. [ 26 ] Thank counsel for their patience and their assistance with the book of authorities and the argument and further consideration to the issue of reparation raised by the court. Thank you. [REASONS CONCLUDED]