R. v. C.R.A., 2020 BCPC 171

Citation: R. v. C.R.A. 2020 BCPC 171 Date: 20200903 File No: 21439-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.R.A. BAN ON PUBLICATION –

SECTION 486.4

(2.2) C.C.C REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: M. Feldthusen and Mr. P. Cheeseman Counsel for the Accused: D. McKay Place of Hearing: Colwood , B.C. Dates of Hearing: March 12, 2020 and August 17, 2020 Date of Sentence: September 3, 2020 INTRODUCTION

[1] The accused, C.R.A., has pled guilty to the following offences: 1) sexual interference with a person under the age of 16 years, contrary to s.151 of the Criminal Code; and 2) making child pornography, contrary to s. 163.1(2) of the Criminal Code. [2] He also entered a guilty plea to charge of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code, but afterdiscussions with counsel I entered a conditional stay on that charge.

It was my view that on the facts of this case the principle in R. v.Kienapple, (SCC), [1975] 1 SCR 729 precluded the entry of convictions on the charges of both making childpornography and possessing child pornography. [3] I should also add that at the sentencing proceeding the Crown on its own initiative directed a stay of proceedings on a charge ofsexual assault, contrary to s. 271 of the Criminal Code, on the basis that it substantially overlapped with the offence of sexualinterference. [4] In order to assist in the determination of an appropriate sentence on the two charges which remain I have had the benefit of apre-sentence report and a psychological assessment concerning the accused.

Counsel made submissions which referred to both thosereports and also referred to a number of sentencing authorities arising in circumstances similar to the matter before the Court.

I amgrateful to counsel for their assistance in what has proved to be a difficult decision for me. [5] I have also received and read a statement from the victim in this case, R.M., which outlines the manner in which she has beenaffected by the accused’s wrongdoing. [6] Finally, by consent of counsel, I received and reviewed a short segment of the statement which R.M. provided to the police onMay 12, 2019 in which she first disclosed that the accused had been sexually abusing her over the preceding three years. [7] In his submissions, Crown counsel asked that I impose a sentence of imprisonment upon the accused in the range of seven toeight years.

Defence counsel submitted that a sentence of two to three years was more appropriate, emphasizing that I could impose afurther period of probation if I were to conclude that the term of imprisonment need not exceed two years. [8] In view of the obvious seriousness of any sentence to be imposed in this case and also bearing in mind the wide divergencebetween counsel’s respective submissions, I reserved my decision. These are my Reasons for Sentence, having now had the opportunityto give the matter my full consideration.

ANALYSIS [9] The overarching principle of criminal sentencing is found in s. 718.01 of the Criminal Code, which states: 718.01 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [10] The application of that general principle entails a careful analysis of the following factors: 1) the general seriousness of the offence or offences before the court; 2) the particular circumstances under which the offence or offences occurred; and 3) the circumstances of the offender. [11] The analysis takes place against the background of certain specific provisions of the Criminal Code and must also be informedby relevant judicial pronouncements that have been made in other cases in the past.

a) The General Seriousness of the Offences [12] Offences involving sexual misconduct toward children have always been considered to involve a high level of moralblameworthiness, deserving significant public denunciation in the context of criminal sentencing. Thus, in R. v. D.(D.) (2002), (ON CA), 58 O.R. (3d) 788, Moldaver, J.A. said this at paras. 35 and 36: 35. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at onceour most valuable and our most vulnerable asset, and as such they make easy prey.

People like the appellant know this only too well andthey exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. 36. In this respect, while there may have been a time many, many years ago when the offenders could have taken refuge in the fact thatlittle was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse nolonger holds sway. The horrific consequences of child abuse are only too well known. [13] Most recently, in the case of R. v.

Friesen, 2020 SCC 9 the Supreme Court of Canada had an extended opportunity to considerchild sex abuse from a criminal sentencing perspective.

The judicial views expressed so forcefully in Friesen are not novel by any means.The decision is of the utmost importance, however, because of the detailed approach the court takes to exploring the insidious ways inwhich the sexual abuse of children undermines the dignity and autonomy of the individual victim while at the same time tearing at thefabric of families and communities: see especially paras. 73 to 150. [14] In Friesen, the Court also touches upon the manner in which Parliament has responded to the ever-deepening awareness inCanadian society that the sexual abuse of children is a problem which has not been adequately addressed in the criminal courts of thiscountry.

At para. 98 of its decision the Court said this:

Parliament has repeatedly increased sentences for sexual offences against children. These increases began in 1987 with Bill C-15. By abolishing the historic offences of indecent assault on a female and acts of gross indecency and creating the sexual interference offence, Parliament effectively doubled the maximum sentence from five to ten years for sexual offences that did not involve vaginal or anal penetration…. Parliament has repeatedly signalled society’s increasing recognition of the gravity of sexual offences against children in the years that followed.

In 2005, Parliament tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation in cases in which the Crown proceeds summarily from six months to 18 months by enacting Bill C-2…. Finally, in 2015 Parliament enacted the Tougher Penalties for Child Predators Act , S.C. 2015, c. 23. This statute increased the maximum sentences of these three offences and sexual assault where the victim is under the age of 16 from 10 to 14 years when prosecuted by indictment and from 18 months to 2 years less a day when prosecuted by way of

summary conviction (ss. 2-4). This statute also increased the maximum sentences for numerous other sexual offences against children .. .. .. .. [ 15 ] The Supreme Court of Canada clearly views behaviour involving sexual misconduct toward children as being of the utmost seriousness. Indeed, one of the main features of the Friesen decision is its exhortation to Canadian Courts generally to impose stiffer sentences for such misconduct, consistent with Parliament’s ongoing expressions of intention.

Thus, the opening paragraph of the Friesen decision reads in part as follows: This case is about how to impose sentences that fully reflect and give effect to [the] profound wrongfulness and harmfulness of sexual offences against children. [ 16 ] I should also add a word about the seriousness of offences involving child pornography in particular. Properly understood, such offences constitute a form of child abuse: R. v. Andrukonis , 2012 ABCA 148 , at para. 29 .

It is not surprising to note, therefore, that the various Criminal Code offences involving child pornography are now also considered to be of elevated seriousness. The specific penalties for the offence of making child pornography, as with all offences involving child abuse, have become more stringent since 2005. At present, the offence carries a maximum penalty of 14 years of imprisonment and a mandatory minimum penalty of 1 year of imprisonment, when prosecuted by indictment. [ 17 ] In R. v. Inksetter , 2018 ONCA 474 the Ontario Court of Appeal explained why child pornography offences are treated so seriously.

At para. 22 the Court said this: Child pornography is a pervasive social problem that affects the global community and its children. [ 18 ] And in R. v. Hopps , 2010 BCSC 1875 , at paras. 26 to 28 the British Columbia Supreme Court commented on the manner in which the growth of digital technology in recent years has resulted in an explosion of child pornography, to such an extent that there are real fears that indulging in making or viewing child pornography may be considered in some quarters to be quite normal, or at least unremarkable, behaviour.

Parliament has signalled that the courts in this country must contribute to curbing that alarming trend. [ 19 ] When considering the general seriousness of both of the offences that are before me I must finally point out one other specific provision of the Criminal Code . [ 20 ]

Section 718.01 provides that where a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it shall give primary consideration to the sentencing objectives of denunciation and deterrence. To put it another way, Parliament has specifically decreed that in such cases, whether sexual or not, the sentencing judge must consider the personal circumstances of the accused, including his or her background and prospects for the future, to be of secondary importance only. [ 21 ] In

summary, then, there can be no doubt that the offences of which the accused has been convicted in this case are intended to be treated seriously indeed by sentencing judges. The legislative amendments made over the past 30 years or so were intended to send that message, and the Supreme Court of Canada has now confirmed it in the clearest of terms.

b) The Specific Circumstances of the Offences in this Case [ 22 ] The essential outline of the facts in this case were filed with the Court as Admissions of Fact, pursuant to s. 655 of the Criminal Code . That document reads as follows: 1) At all material times, R.M. was the foster daughter of C.R.A. (“the Accused”). 2) Over a period of three years, when R.M. was 13 to 15 years of age, the Accused sexually assaulted R.M. on numerous occasions by:

a) groping her breasts;

b) groping and rubbing her vagina; and

c) licking her vagina. 3) R.M. does not know how many times the above-mentioned assaults occurred, but they happened “a lot”.

Near the end of the three-year period, the assaults were occurring every time R.M. saw the Accused, which was approximately every second weekend. 4) In addition to the above, the Accused had sexual intercourse with R.M. on two to four occasions between April 12, 2019 and May 12, 2019. 5) In addition to the above, on or about April 6, 2019 the Accused lifted up R.M.’s shirt and took a photograph of her bare breasts. 6) The Accused stored the photograph on his cellular device. [ 23 ] Crown Counsel supplied some further, uncontested details in the course of his submissions.

[ 24 ] R.M., with her younger brother, came into the accused’s home as a foster child when she was 4 years old. She spent the next 11 years there. [ 25 ] The accused and his wife fostered about 20 children over the years. They had three children of their own. Unfortunately, their marriage began to fail about 2014. They separated in January 2018, and the accused moved out of the house shortly afterward.

After that, and until his arrest in this case in May 2019, he would return to the home on weekends to attend to his own children and the foster children. [ 26 ] In her statement to the police, R.M. recalled that she was helping the accused to install a dishwasher in the home when he began touching her and grabbing her vaginal area. She recalls being confused about what was happening and telling the accused to stop.

She was 13 years old at the time and that was likely the first incident of sexual abuse. [ 27 ] Over the course of the next three years, the accused would touch her with increasing frequency in a sexual manner, as set out in the Admission of Facts. R.M. said that she often voiced her displeasure at the accused’s behaviour and tried to dissuade him by pushing him away. The accused did not desist, however, and would rationalize or make excuses for his actions. He would say such things as “everyone is doing it”, “its all over the internet”, or “you will feel good in a moment”.

He told her on at least one occasion that if she mentioned the sexual touching to anyone he would go to jail and his life would be ruined, leaving her with intense feelings of guilt and confusion. [ 28 ] R.M. did not initially disclose to the police that the accused had engaged her in full sexual intercourse. In a later statement, however, she said in the last month before his arrest the accused came into her room at night at least twice, and perhaps as often as four times, and forced himself upon her. She would try to push him off, but to no avail.

He apparently did not wear a condom on any of the occasions, but she does not recall that he ever ejaculated. After the completion of sexual intercourse he would simply walk out of the room. [ 29 ] There are no mitigating factors apparent in the circumstances relating to the charge of sexual interference. The aggravating factors, on the other hand, are both plentiful and obvious. [ 30 ] The most glaring aggravating factor here, and one that is specifically mentioned in s. 718.2(a)(iii) of the Criminal Code as being important for sentencing purposes, is the grotesque breach of trust involved.

R.M. came into the accused’s home as a foster child. I do not know of the circumstances that led to her placement in a foster home, but is obvious she was an especially vulnerable person whose young life had already been marred by trauma and instability. Over the years, she came to view the accused as her father, a person she looked up to and from whom she rightly expected to receive love, guidance and protection.

She may well have received such support from the accused, but as soon as she reached her teen years it was totally undermined by years of lustful self-indulgence on his part. [ 31 ] When she was interviewed by the police, R.M. was asked how she felt about the accused and his sexual misbehaviour toward her. She said this: I was just scared, ‘cause like, I like him as a dad. But I don’t want him doing that stuff. ‘Cause like, he’s not my real dad, he’s my foster dad ….

And like, he’s like, my only dad I’ve ever had. ‘Cause like I hadn’t seen my real dad since I was four. [ 32 ] The breach of trust aspect of this case is egregious indeed. [ 33 ] It is noteworthy as well that the breach of trust represented by the abuse in this case did not involve an isolated incident, but occurred over a long period of time and with great frequency. In the end, it escalated to the most intrusive level possible, sexual intercourse.

These are obviously aggravating factors of the matter for sentencing purposes. [ 34 ] In the Friesen case, the court speaks at length of the intense affront to personal dignity and autonomy of the individual that is occasioned by the sexual abuse of children, who do not fully comprehend what is being done to them and cannot defend themselves adequately. The effects of such abuse can be devastating and last a lifetime. [ 35 ] In the present case, R.M. has advised the Court, through a victim impact statement, of her ongoing sadness, mood swings, low self-esteem, fear of men, and anxiety in social situations.

She feels guilt occasioned by her perception that her disclosure of the accused’s misbehaviour broke up the foster family. It is heart-breaking to hear an innocent victim recount such feelings, but it is all too common for childhood victims of sexual abuse. And, sadly, it really is impossible to say whether the damage to R.M. can ever be repaired. [ 36 ] I will refer only briefly to the circumstances relating to the offence of creating child pornography. The offence involved the accused taking a single photograph of the victim’s bare breasts and storing it on his cellular device.

Quite apart from the indignity and invasion of privacy involved in the creation of an image of that sort, there is of course a great risk that the image could be shared with others, perhaps many others, at any time in the future. Such sharing is easily accomplished and the damage to the person whose image is disseminated can be devastating. I hasten to say, however, that there is no evidence that the accused in this case intended to share the image of R.M. that he had created.

c) The Circumstances of the Offender [ 37 ] C.R.A. is a 50-year-old member of the [omitted for publication] First Nation. He was born in Vancouver but the family roots are at [omitted for publication], about [omitted for publication] in central British Columbia. [ 38 ] C.R.A. did not know his biological father. When C.R.A. was about four years old, his mother moved with C.R.A. to the town of [omitted for publication], deliberately choosing to distance herself and her family from the reserve lands at [omitted for publication].

At around the same time she entered into a long-term relationship with a man who became C.R.A.’s adoptive father. C.R.A. had three half- brothers and at least one half-sister. The written material provided to me is not very clear on those details. The family is no longer close, except that C.R.A. remains in regular contact with his mother, who is aged and lives in Prince George in poor health.

[ 39 ] C.R.A. describes his childhood in both positive and negative terms. Living in [omitted for publication] he had lots of friends. There was no sexual abuse in the family home and no substance abuse issues. He describes being subject to significant corporal punishment as a means of discipline, but accepts that that was probably unremarkable for the time and the community where he grew up. More importantly, perhaps, he states that he was aware of a great deal of abuse amongst extended family members and others in the local community.

He described such abuse to the author of the psychological report as being “rampant”, although I do not know exactly how he was defining the term “abuse”. [ 40 ] C.R.A.’s Aboriginal heritage is a factor which I am specifically required to take into account on sentencing, in accordance with s. 718.2 (

e) of the Criminal Code . European colonization has had a devastating effect upon First Nations peoples, depriving them to a large extent of their cultural identity, language and self-image. As a result, Aboriginal people have had difficulty finding their way in the community which has come to surround them, leading all too often to violations of the law and to incarceration.

In view of the responsibility which the colonizers must bear for the breakdown of First Nations culture and identity, it is appropriate that special consideration be given to First Nations people who are being sentenced for breaking the present-day laws of the land. [ 41 ] The principle that special consideration be given to Aboriginal offenders on sentencing is applicable even if it is not shown that there is a direct link between their Aboriginal heritage and their offending behaviour.

Such links can be very subtle and it would be imposing too great a burden on Aboriginal offenders to offer specific proof of a link in each instance. [ 42 ] In the present case, though, there are clearly connections to be drawn to suggest that C.R.A.’s Aboriginal status is relevant to his present situation. The author of the pre-sentence report writes of the effects of European colonization upon the [omitted for publication] people in this way: The imposition of the residential school system negatively impacted the [omitted for publication] peoples and their culture.

They suffered a significant loss of their native language, customs and social relations that manifests in a legacy of domestic violence, child abuse, sexual abuse, poverty, substance misuse and Fetal Alcohol Disorder. [ 43 ] The specific impact upon C.R.A. himself is also evident. His mother is a survivor of the residential school system. She appears to have been a strong woman, however, and she made the decision to deliberately move her family from the reserve lands at [omitted for publication] – which C.R.A. describes in unflattering terms – to [omitted for publication].

The unintended result may well have been a chronic sense of dislocation and confusion for C.R.A. In that respect, I was struck by the supportive and insightful words of C.R.A.’s ex- wife J.A., who is not Aboriginal, when she spoke with the author of the pre-sentence report. J.A. is quoting as saying that she realizes now that “C.R.A. has always struggled with feeling unworthy as well as issues with shame and grief which is likely due to his ‘ancestral trauma’”. [ 44 ] C.R.A. left his parents’ home when he was 15, but completed his high school education. He continued to experience trauma, however.

When C.R.A. was about 21 years old his mother attempted to commit suicide by overdosing on pills. She has been in poor health for many years, having suffered several strokes, and now lives in a care home. [ 45 ] C.R.A. also mentioned to the author of the pre-sentence report that he continues to feel guilt over the accidental death of his youngest half-brother from a gunshot wound in the 1990s.

Apparently, the brother had asked to come and live with C.R.A. shortly before that incident, but C.R.A. had refused due to his own personal commitments at the time. [ 46 ] As a young adult, C.R.A. found his way to Victoria and did take some community college programs, both here and in Prince George. He did not complete many of those programs. [ 47 ] Despite the difficulties of his upbringing, C.R.A. deserves credit for having been a working member of the community throughout his adult life. He has no criminal record. At various times, he worked as a cook, a tree planter and a commercial driver.

He worked in that latter profession for about 8 years. He also worked full-time as a foster parent between 2003 and 2010, while raising his own 3 children, who now range in age between 17 and 21. He is described by J.A., the children’s mother, as being a great father, “loving and kind”, who created a healthy atmosphere in which to raise the children.

Apart from the present matter before the court, there is no suggestion whatever of any wrongdoing toward any child who has ever been in his care. [ 48 ] For the past 10 months, C.R.A. has been working in the construction industry, doing residential upgrades and renovations. His employer, who has also known him as a friend for many years, expressed shock that C.R.A. has committed the offences that are before the Court, describing C.R.A. as a man who has always had “a solid moral compass”.

Indeed, it should be noted that the author of the pre- sentence report mentions that she spoke to a number of “collaterals”, including C.R.A.’s ex-mother-in-law, in order to obtain background information regarding C.R.A., and all of them expressed surprise about his wrongdoing. Many expressed the hope that he might obtain counselling to place him back on track. [ 49 ] Unfortunately, C.R.A.’s life started to unravel when he was in his early forties. He began to have romantic feelings for a female family friend, told his wife about it and entered into a program of marital counselling with his wife.

Although there was some temporary improvement in his marriage as a result of the counselling, the relationship could not really be mended after that. The information before me is not very clear, but I gather that both partners may have drifted into extra-marital relationships for a time, and in C.R.A.’s case at least those relationships were unsuccessful. As I have already mentioned, C.R.A. and his wife eventually separated in 2018. [ 50 ] At the same time as his marriage was becoming stressful, C.R.A. felt that he was having difficulty communicating with his own children and was failing as a parent.

Apparently, the two older children suffer from depression while the youngest has experienced significant difficulties with anger. [ 51 ] The domestic difficulties which C.R.A. experienced led him into significant anxiety and depression. Reading the pre-sentence report and the psychological report, I get the clear impression of a man who felt, rightly or wrongly, that he was becoming isolated and that his life was slipping out of control.

He had used alcohol and marijuana, at least on a recreational basis, throughout his adult life, but with the disintegration of his family life his alcohol consumption in particular escalated alarmingly. He himself concedes that his growing reliance on alcohol became problematic. It did not relieve his matrimonial difficulties but made them worse and contributed

significantly to the ultimate dissolution of the partnership. [ 52 ] For a time, C.R.A. became so dispirited that he was laid off from his work as a commercial driver. Apparently, his employer felt that he was simply not able to cope.

Again, unfortunately, the information which I have on this aspect of the matter is sketchy, but I have no doubt that the effect of the change in his employment status created additional pressure of a financial nature and allowed him more time to ruminate on the woeful direction that his life was taking. [ 53 ] It is against this background that the offending behaviour involving R.M. took place. In her psychological report, Dr. Darcangelo encapsulates the situation this way: [C.R.A.] has no previous criminal history as an adult. At the time of his offending, he had been experiencing significant stress in his life.

His marriage was failing (and eventually ended in 2018), his love for a co-worker was unrequited, his children were experiencing mental health difficulties and he was experiencing significant stress at work.

He was also consuming a significant amount of alcohol in order to numb his negative emotions. [C.R.A.] began to spend more time with his foster daughter, whom he perceived as lonely and desiring of a father figure, however, over time he began to view R.M. as more of a romantic partner than a foster daughter, particularly after he began to notice her maturing body. [C.R.A.] perceived R.M. as loving, non-judgmental (unlike his wife, who he perceived as highly critical) and eager to learn from him (unlike his biological children).

He enjoyed the excitement he felt with R.M. (including the “clandestine” nature of their sexual activity) and convinced himself that he loved her and was going to have a future with her. Although [C.R.A.] was aware that his behaviour towards the victim was illegal, he told himself that he was a nice guy and that he was not doing anything she did not want.

He further justified his behaviour by telling himself that other cultures have different social norms and that a successful musician actually married his 13-year old cousin. [ 54 ] Upon being apprehended, C.R.A. initially acted in a discreditable fashion, blaming R.M. for sharing their “secret” and ruining his life.

I am not clear on the details in that regard. [ 55 ] Very soon, however, C.R.A. realized that it was his own thinking that was distorted and that he had made a terrible mistake, crossing over the line so drastically in his relationship with R.M. and seriously jeopardizing her own future by his selfishness. On May 12, 2019 he attempted suicide. After consuming a considerable amount of alcohol, he cut his arm with a box cutter and razor, went into the bathtub and watched the blood drain from his arm, hoping to die.

He was rescued, however, taken to hospital for surgery to his arm and ultimately spent the next nine days in hospital. [ 56 ] In the past 15 months since his hospital stay, C.R.A. has been assessed and counselled by various mental health professionals, as summarized in Dr. Darcangelo’s psychological report. Dr. Darcangelo agrees with the assessment that C.R.A. has been suffering from a Major Depressive Disorder, supplemented by an Alcohol Use Disorder and a Cannabis Use Disorder.

The doctor concludes that he does meet the criteria for Pedophilic Disorder. [ 57 ] C.R.A.’s attitude toward his wrongdoing is important. Both his suicide attempt and his guilty pleas in Court appear to me to truly reflect the attitude of a man who acknowledges his wrongdoing without reservation. He has described himself to the authors of both the pre-sentence report and the psychological report as being “sad” and “ashamed” about what he has done.

In reading those reports carefully, I was impressed by the manner in which C.R.A. declines to relate those feelings to his own wellbeing, but chooses instead to focus on the effects of his behaviour upon the victim and upon his family. His insight in that respect appears to me to be remarkably clear. [ 58 ] Although C.R.A. does not fully understand what led him to his present state of disgrace, he is quite plainly willing to engage in whatever forms of counselling or therapy that might be appropriate to ensure that he regains his perspective and does not engage in any further wrongdoing. He is described by Dr.

Darcangelo as constituting a “low to moderate” risk to re-offend. He has the support of a number of family members and friends to help him along the way, even though his family has plainly been shattered, in many respects irreparably. [ 59 ] When considering C.R.A.’s prospects for the future I should also add that he has been subject to restrictive terms of judicial interim release for well over a year. His bail supervisor reports that he has complied with all terms without difficulty, and that is encouraging.

Indeed, the pre-sentence report which the bail supervisor prepared can fairly be described generally as being quite positive in nature.

d) The Case Law [ 60 ] It remains for me to consider the guidance which previous case authorities offer as I attempt to fix upon an appropriate sentence in this matter. [ 61 ] First, I must consider the extent to which the recent Supreme Court of Canada decision in Friesen (referred to above) applies to this case. [ 62 ] Defence counsel concedes that the principles set forth in Friesen , which are not new, must guide me in a general way.

Counsel submits, however, that to the extent that Friesen may be taken to have set out specific sentencing ranges it should not be applied here, since the facts in the present case occurred before Friesen was decided. Counsel cites the Charter of Rights s. 11(

i) in support of that position. [ 63 ] Crown counsel, on the other hand, submits that I should apply Friesen without qualification. He submits that Charter s. 11(

i) has no application here. He says that the term “punishment” in that

section refers to statutorily-created penalties and not to judicially- created ranges of sentence. The statutorily-created penalties relating to the offences of sexual interference and making child pornography have not changed since 2015; in Friesen , the Supreme Court of Canada simply cast an illuminating light on the manner in which those provisions are to be interpreted. [ 64 ] Defence counsel recently raised this same issue before me in a case called R. v. R.D.Z. I rejected the defence argument in that

case and, with respect, I must do so again. My reasons for rejecting the argument are set out at paras. 47 to 64 of the R.D.Z . decision, which by coincidence I delivered earlier today in this Court. I do not believe that anyone would benefit if I were to repeat my conclusions in these Reasons. [ 65 ] Counsel have provided me with a number of case authorities, quite apart from Friesen , to assist me in fixing upon an appropriate sentence here. While I am of course grateful to counsel for their assistance, I must point out that the use of case law for sentencing purposes is always challenging.

Sentencing is a highly individualized process and no two accused are ever identical. In addition, patterns of offending vary infinitely. As I said at the outset of these Reasons, I have found the task of balancing the relevant sentencing principles and applying them to this case to be a particularly difficult. [ 66 ] As I have endeavoured to explain at some length, I recognize clearly that the offences that C.R.A. committed are gravely serious, both in their general nature and in the specific manner in which the Accused acted in this specific case.

The public interest demands that such appallingly wrongful behaviour be denounced in the strongest terms and that both the offender and others be warned of the consequences of straying so far from the path of acceptable conduct. There is no doubt whatever that I must impose a sentence which gives prime consideration to those objectives. [ 67 ] On the other hand, I cannot entirely overlook the issue of rehabilitation, in a case where it is so obviously a live issue.

Again, in order to avoid senseless repetition, I will only say now that I hope I have adequately described above the various factors that lead me to believe that there must be at least some meaningful mitigation of sentence to take into account C.R.A.’s background, personal circumstances and prospects for the future. [ 68 ] In the course of preparing my reasons in the present case, I have read a large number of case authorities. Some of those were provided by counsel, some not. I do not think it will benefit anyone for me to review them specifically.

Instead, I have listed all of the cases which I have read in an appendix to these Reasons.

I should point out that the cases listed in the appendix often refer to other cases, and I have referred to some of those other cases as well, without necessarily reading them all in full. [ 69 ] Having due regard for the case authorities, giving primacy to the principles of denunciation and deterrence, while at the same time arriving at a result that is intended to leave a light on for C.R.A. heading into the future, I have determined that appropriate global sentence here is one of four and a half years of imprisonment. [ 70 ] The sentence which I impose is comprised of the following individual elements: On the charge of sexual interference, the sentence is three and a half years.

On the charge of creating child pornography the sentence is one year. The two sentences must be served consecutively, in accordance with s. 718.3(7) (

a) of the Criminal Code [ 71 ] I wish to make the following brief comment with respect to the sentence on the charge of making child pornography. As I have already noted, there is a mandatory minimum sentence of one year of imprisonment on that charge. The mandatory nature of the sentence has not been challenged here.

The circumstances do not suggest to me that there needs to be any increase on the mandatory minimum term and the Crown does not strongly submit that any such increase would be justified. [ 72 ] I wish to point out as well that as a matter of general principle I would have directed that the sentence for making child pornography be served concurrently to the sentence on the charge of sexual interference. In my view, the two charges form part of a “linked series of acts within a single endeavour”, to use the words of the Court of Appeal in R. v.

G.P.W ., 106 BCAC 239 . [ 73 ] Unlike the situation in the cases of R. v. B.C.M. , 2008 BCCA 365 and R. v. L.V.R. , [2016] B.C.J. No. 342 (C.A.) the taking of the single photograph here does not seem to me to “represent an escalation of and change in the nature of the abuse” being perpetrated upon R.M. On the contrary, it seems likely that in taking the photograph C.R.A. was merely acting in continuation of the inappropriate romanticization of his relationship with R.M., consistent with the general manner in which he had conducted himself up to that time.

There is no evidence that he did anything at all with the photograph other than store it on his cellular device. [ 74 ] Crown counsel appropriately pulled me back from the abyss, however, when I indicated my intention to impose concurrent sentences. I am grateful to him for pointing out the mandatory wording of s. 718.3(7) (

a) of the Criminal Code . [ 75 ] In order to comply with the Criminal Code section, I am therefore imposing a consecutive sentence upon C.R.A. with respect to the charge of making child pornography. In order to maintain the appropriate global sentence, however, I am reducing the sentence on the charge of sexual interference to three and a half years. I had originally intended that the sentence on that charge be four and a half years, but in my view it must be reduced in order to take into account the principle of totality. [ 76 ] I must also consider certain ancillary orders, and I will do so now. [ 77 ] Pursuant to s. 161 (1) (

a) of the Criminal Code , I prohibit C.R.A. from attending at any public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre. [ 78 ] Pursuant to s. 161 (a.1) of the Criminal Code , I prohibit C.R.A. from being within a kilometre of any dwelling where R.M. ordinarily resides, is employed or attends school. [ 79 ] Pursuant to s.161 (

c) of the Criminal Code , I prohibit C.R.A. from contacting or communicating, directly or indirectly, with any person under the age of 16 years, unless he does so in the presence of that person’s guardian. [ 80 ] All of the prohibitions which I have just made under s. 161 of the Criminal Code will be in place for a period of five years after C.R.A. completes his term of imprisonment. The term of imprisonment includes any term of parole, mandatory supervision or statutory release. [ 81 ] I do not believe that the other provisions of s. 161 have application to this case, and so I make no further orders under that

section. [82] Both of the offences of which C.R.A. has been convicted are classified as “primary designated offences” for purposes of DNAanalysis and registration. I am therefore required to make an order that he provide such sample or samples of his bodily substances asmay be required for those purposes, and I do so now. I expect that that process will take place while C.R.A. is in custody. [83] The offence of sexual interference is included in s. 109 of the Criminal Code as one of those offences attracting a weaponsprohibition.

Accordingly, I am required to make an order prohibiting C.R.A. from possessing any of the following items: any firearm(other than a prohibited firearm or restricted firearm), cross-bow, restricted weapon, ammunition, prohibited ammunition or explosivesubstance for a period of ten years after his release from custody. He is also prohibited from possessing any of the following items: anyprohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition, for life. [84]

Section 490.013 of the Criminal Code is also applicable to C.R.A., since he has now been convicted of more than one of theoffences listed as “designated offences” in ss. 490.011 (1). That is true even though the convictions occurred simultaneously: R. v. Bear(2012), 2012 SKCA 52 , 285 C.C.C. (3d) 328 (Sask. C.A.). Accordingly, C.R.A. is hereby directed to comply with theprovisions of the Sex Offender Information Registration Act for life.

I will complete the necessary Form 52 for that purpose. [85] Pursuant to s. 737 of the Criminal Code, I exempt C.R.A. from the victim surcharge provisions that would otherwise apply inthis case. [86] That concludes my Reasons, except to thank counsel for their assistance throughout. _____________________________ The Honourable Judge E.C. Blake Provincial Court of British Columbia R. v. C.R.A. APPENDIX “A” (cases in chronological order) • R. v. T.A.D. (1995), 68 BCAC 236 (C.A.) • R. v. Chaput (1996), 84 BCAC 281 (C.A.) • R. v. P.P.H., 2003 BCCA 591 • R. v. Hall, 2005 BCCA 566 • R. v. O.M., 2009 BCCA 287 • R. v.

R.R.M., 2009 BCCA 578 • R. v. S.B.T., 2010 BCCA 145 • R. v. R.A.J., 2010 BCCA 304 • R. v. R.E.L., 2010 BCCA 493 • R. v. Worthington, 2012 BCCA 454 • R. v. Wesley, 2014 BCCA 321 • R. v. Vautour, [2016] BCJ No. 2649 (C.A.) • R. v. Williams, 2019 BCCA 295 • R. v. Friesen, 2020 SCC 9 • R. v. N. (L.C.), 2020 BCCA 109 • R. v. H.C.C., 2020 BCCA 162