R. v. A.R.V., 2017 BCPC 458

Citation: R. v. A.R.V. 2017 BCPC 458 Date: 20171024 File No: 219398-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.R.V. PUBLICATION BAN Pursuant to s. 486.4 (2) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: R. Beram Counsel for the Accused: C. Sicotte Place of Hearing: Surrey , B.C. Dates of Hearing: May 30 and August 9, 2017 Date of Sentence: October 24, 2017 [ 1 ] THE COURT: A.V. comes before the Court for sentencing on a charge of Sexual Interference, the complainant being a then [omitted for publication]-year-old girl.

[ 2 ] The Information alleges the dates between the 1st day of January 2014 through to the 24th day of July 2016, which is a period of time that Mr. V. was connected with the complainant and her family. He tells me that, in fact, the crimes occurred in the last little while of the period referenced in the Information and that for the first over two years of his relationship with the complainant and the family, that it was a healthy relationship and I will accept that. [ 3 ] Crown and defence have agreed on all of the facts. [ 4 ] The incidents occurred on three occasions.

Twice in the accused's living room on his couch and once in the dining room, he touched the vaginal area of the child over her clothing for his own sexual gratification. There was no penetration. In addition, and I will get into the circumstances later on in my reasons, the accused happened to see the complainant and her sisters naked on a few occasions. He owned a house with a swimming pool where the girls would come and just visit and he would see them changing. In addition, the complainant walked in on him twice when he was changing.

Finally, once when all of the girls were playing in the pool and were playing a game of pulling one another's bathing suits down, he pulled his own bathing suit down and flashed the girls. [ 5 ] Mr. V. has a massage device that he uses for his arthritis and two vibrators in his home that had belonged to his ex-wife.

He used his massager to massage the children but not for a sexual purpose and the children were aware of all three devices and played with them. [ 6 ] Crown Counsel seeks a sentence of incarceration of two years less one day to be followed by two years' probation. [ 7 ] There is a minimum period of incarceration of one year. Defence counsel seeks a sentence of the minimum of one year to be followed by two years' probation. Both counsel agree to the various ancillary orders. [ 8 ] Mr. V. is 66 years of age.

He was born in the Netherlands and immigrated to Canada when was six years of age and he has lived here since that time. He is, as I indicated, divorced. [ 9 ] For 34 years of his adult working life, he worked at the [omitted for publication], commenced his career as an animal care technician and was promoted to the point where he was in charge of two sections of research animals, all kinds of animals, in two different laboratories.

He had to be familiar with the International Guidelines for the Care of Animals Used for Research and dealt with doctors at the [omitted for publication], students at the [omitted for publication], as well as visiting Fellows studying and working with research animals. [ 10 ] Since his retirement, he employs himself, among other things, but mostly as a dog trainer, working not only with puppies but with aggressive adult dogs to retrain their behaviour. [ 11 ] At the relevant time of this offence, he had been a caretaker in an apartment building and befriended the girl's mother.

She was going through a divorce, had no family of her own and welcomed the friendship of Mr. V. In her description, he became a foster grandfather to her young daughters, who were, at the relevant time, [omitted for publication], [omitted for publication], [omitted for publication] and [omitted for publication]. They called him Uncle. He would pick them up at their home and drive them to his home where they could go swimming and, I imagine, play with his dogs. They were very much his family and he was very much part of their family. Certainly, he became very much in a position of trust to these young girls.

Not only did their mother trust him in their care but they trusted him sufficiently that they were playing the kinds of games they played, as innocent children, at his house to swim and play with the dogs and visit with their uncle/grandfather. [ 12 ] The offence is a breach of trust. A [omitted for publication]-year-old girl was touched for an adult's sexual purpose on three occasions.

While I do not have a psychological assessment of her, and I certainly hope that she will be able to live a life that is not impacted by this crime, I have reference in the pre-sentence report to the probation officer's contact with her mother at page 4 of the report, which reads: L. D., the mother of the victim, A., was contacted for the purposes of this report. L. advised that she met A.V. while he was assisting as a maintenance worker at the apartments that she was residing at. She noted that her marriage had deteriorated and her family was isolated.

A.V. offered to help and offered activities for the children to partake in. She stated he gained her trust and was allowed to take her children to his pool for swimming. L. described him to have a grandfather-like relationship with the children and felt his interests in the children were genuine. She was shocked to learn that he was molesting A. She also learned that her [omitted for publication]-year-old daughter at the time had knowledge of the sexual interference, however was manipulated by A.V. not to speak of the incidents.

L. indicated that after the abuse was discovered, both her older daughters went to live with their father and have since returned. She related that the two youngest daughters, including A, both have a fear of men. She commented that the offence has greatly impacted her life and that she has been unable to hold a job.

She commented that the children are not currently involved in a counselling arrangement. [ 13 ] That is the entirety of the information that I have before me with respect to the impact on the complainant and her family and, as I say, she was [omitted for publication] years of age and one can only hope that she is able to live the rest of her life not significantly impacted by this incident.

Certainly at this point, she is impacted in terms of trust issues. [ 14 ] I have been provided with a variety of cases by both counsel and none are exactly on point and, in fact, never are any cases exactly on point. [ 15 ] Crown Counsel points out that, while the one-year minimum should not be considered an inflationary floor, that the constitutionality of the provision has been upheld because sexual offences against children are heinous and Courts, over the years, have been increasing the sentence for these types of offences because of the nature of the offence. [ 16 ] It did not take Parliament directing courts that a one-year minimum was appropriate for the sentences to begin increasing.

[ 17 ] Defence counsel points out, though, that it is not an inflationary floor, meaning that I ought not automatically consider increasing the sentence from one year. [ 18 ] Mr. V. comes before the Court 66 years of age and has no criminal record. [ 19 ] A psychological assessment was conducted, which concluded that he is a moderate risk to re-offend in similar circumstances, and that is something I have to consider in arriving at the appropriate sentence. [ 20 ] Mr. V. entered a guilty plea, which is an acknowledgment of legal remorse but, more importantly, he has demonstrated genuine remorse.

I read from page 5 of the psychological assessment: I queried his thoughts about the impact on the victims and Mr. V. indicated I feel really bad for her. I pray that she can process this and move forward herself. I feel bad for her. I betrayed her. I betrayed the trust. Mr. V. became very tearful and overcome with emotion at this point and then continued. I feel so awful. It eats me away like cancer. I will never do anything like that again. I asked Mr.

V. what he needed to do to prevent something like this from occurring again and he noted that he is willing to participate in counselling or programs or anything else that the court asks, including conditions. He went on to say I'm a shithead. What I did was totally fucking wrong and it affected the child. How could I have done that to an innocent child? At several other points in the interview, Mr.

V. also spontaneously talked about his feelings regarding the offences, becoming tearful at times and using phrases such as despicable, deplorable, disgusting, to refer to his offences. [ 21 ] I can conclude that he is very amenable to counselling when I read that and I can conclude that his own hatred of himself is very specifically deterrent. [ 22 ] There are, of course, other principles of sentencing that I have to address my mind to. Significantly, Mr. V. enrolled in counselling after his arrest.

He enrolled through his retirement package through the [omitted for publication], which, sadly, paid for only three sessions but he took all three sessions and has told me today that he wishes to move forward in his life and wishes to take more counselling. [ 23 ] Of all of the cases that were put forward by both counsel, quite frankly, only one is factually similar and that is R. v. J.K. , [2015] BCJ No. 1989 , where a pastor pled guilty to sexual exploitation of a 12-year-old girl who had been in his care between 1989 and 1991. The offences began when she was 12 years old and he was 29.

Interestingly, they stopped when he married. I say that, interestingly, because I am actually surprised that a church would hire an unmarried pastor. [ 24 ] The offences preceded the mandatory minimum and he had sought a conditional sentence order and the Crown had sought a sentence of 18 months. The Court felt that a conditional sentence order was inappropriate.

The Court pointed out that the passage of time did not, in any way, mitigate what the appropriate sentence ought to be. [ 25 ] What is not before me and what is significant is whether there had been a psychological assessment of that offender and whether there had been a conclusion as to whether or not it was likely or otherwise that he might re-offend. In the case before me, there has been a psychological assessment and the psychologist, although wanting to conclude that Mr. V. was a greater likelihood to be a recidivist, concluded that he was a moderate likelihood to re-offend.

That is a significant factor. [ 26 ] The mitigating facts in the case before me are the guilty plea, Mr.

V.'s genuine remorse, the fact that he is 66 years of age and has no criminal record, the fact that he has always been a working member of our community, and, in fact, remains a working member of our community and has had to make arrangements for his pets and business while he will be incarcerated. [ 27 ] The aggravating facts are the complainant's age and his position of trust. [ 28 ] When I consider all of the facts, and particularly, I will describe it as a mandatory aggravating fact, in terms of rehabilitation, I actually believe that this man is very much rehabilitatable, not only by his genuine words of remorse but by his voluntary attendance at counselling.

That demonstrates as well a degree of specific deterrence. [ 29 ] With respect to denunciation, there must be a sentence that reflects not only society's abhorrence of crimes against children but the fact that this is a crime where Mr. V. was in a position of trust to the complainant. [ 30 ] When I consider all of those circumstances and the appropriate authorities that deal with the mandatory minimum as well as R. v. J.K. , which, quite frankly, is the only case before me that is in the least bit similar, I feel that the distinction in this case is the psychologist's concern that Mr.

V. is a moderate risk to re-offend. [ 31 ] Can you stand up, please, sir? [ 32 ] There will be a sentence of 15 months to be followed by two years' probation. [ 33 ] Keep the peace and be of good behaviour. [ 34 ] Report to Probation Services for supervision within 72 hours of your release from custody and thereafter as and when directed. [ 35 ] You are to attend at the Forensic Psychiatric Services for the Structured Sexual Offender Treatment Program.

In addition, you are to attend for, participate in and complete to the satisfaction of the probation officer any and all additional counselling programming and treatment, as directed by the probation officer. [ 36 ] You may have no contact, directly or indirectly, with all of L. D., B., C., D. and A. You may not attend at any residence, place of employment, place of education or place of worship of any of these individuals that are known to you or become known to you.

[ 37 ] You may not attend any school, community centre or park where children under the age of 16 are likely to be found, with the exception of [omitted for publication] Park between the hours of 10 o'clock a.m. and two o'clock p.m., so long as you are either working with dogs you are training or are walking your own dogs. You may not attend without your animals.

While you are in the park, you may not speak with anyone who appears to be under the age of 16 even if they approach one of your dogs. [ 38 ] You may not be in the presence of anyone under the age of 16 unless you are also in the presence of an adult approved of in writing by your probation officer. [ 39 ] You may not possess any weapons, as defined by the Criminal Code of Canada , inclusive of firearms, imitation firearms, ammunition and explosives, except for knives to be used only for the preparation and consumption of meals or in the course of employment. [ 40 ] There is a SOIRA order, which will put your name on the Sexual Offender Registry for 20 years, which I will sign. [ 41 ] Do you presently own or possess any firearms, ammunition or explosives? [ 42 ] THE ACCUSED: None. [ 43 ] THE COURT: For a period of 10 years, you are prohibited from owning or possessing any firearms, ammunition or explosives. [ 44 ] You will provide a sample of your DNA to the authorities today. [ 45 ] There would have been a $200 surcharge but in default of payment, two days' concurrent. [ 46 ] The 161 order, how long did you want it to go for? [ 47 ] MR.

BERAM: Ten years. [ 48 ] THE COURT: All right. For a 10-year period, you may not attend at any community centre, playground, park or any place where it is anticipated that a child under the age of 16 years will be, except for [omitted for publication] Park, which you may attend between the hours of 10 o'clock a.m. and two o'clock p.m., so long as you are with a canine whom you are training or one of your own dogs. In any event, should anyone under the age of 16 or appearing to be under the age of 16, approach you to speak with you or the dogs, you may not speak with that individual.

I say that, sir, because I know kids like to play with dogs. [ 49 ] THE ACCUSED: Well, my dogs are – [ 50 ] THE COURT: No, no, are big, I know, but you never know. [ 51 ] THE ACCUSED: Yeah, I know. [ 52 ] THE CLERK: Sorry to interrupt, Your Honour. Was that a probation condition, that last one? [ 53 ] THE COURT: Yeah, put it in the probation order and then I made a separate 161 order for 10 years so I sort of duplicated it. (REASONS FOR SENTENCE CONCLUDED)