R. v. Nelson Date:, 2012 BCPC 348

Citation: R. v. Nelson Date: 20121003 2012 BCPC 0348 File No: 220691-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAUNE MICHAEL NELSON BAN ON PUBLICATION 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: J. Coupal Counsel for the Defendant: T.E. La Liberte, QC

Place of Hearing: Vancouver , B.C. Dates of Hearing: August 20, 31, 2012 Date of Judgment: October 3, 2012 [ 1 ] The accused, Sean Michael Nelson, is of First Nations heritage. Indeed, at some future date, he will inherit a hereditary chief name through his mother's bloodline as a member of the Tsimshian Nation. Notwithstanding his proud heritage, his life has been significantly troubled. [ 2 ] The accused has entered guilty pleas in relation to two sexual offences. First, he has entered a guilty plea that on September 18, 2009, at Vancouver, he did commit the sexual assault causing bodily harm to a 14-year-old boy known as KR, contrary to s. 272(2) (

a) of the Criminal Code . [ 3 ] Second, the accused has entered a guilty plea to being in possession of child pornography contrary to s. 163.1(4) of the Criminal Code between August 10, 2009, through August 3, 2011, in Prince Rupert and Valemont, British Columbia. ISSUE [ 4 ] The sole issue to be determined is what is a just and appropriate sentence having regard to the circumstances of the offence, circumstances of the offender, any victims, and the impact of the offence on the community at large.

FACTUAL BACKGROUND [ 5 ] On August 11, 2009, members of the Clearwater RCMP received information of potentially suspicious drug activity taking place at a local hotel near Clearwater. As a result of that information police attended at the hotel and spoke to several people, including the accused. However, no further action was taken and the accused was neither arrested nor detained at that time. [ 6 ] While at the hotel, police queried a license plate associated to a Volkswagen. Information was received that this Volkswagen was in the possession of the accused, and it was registered to Langley Volkswagen.

Police contacted Langley Volkswagen. Langley Volkswagen indicated that they wanted the vehicle to be returned as it was on loan and was not to be driven outside of the lower mainland. As a result of that information an alert was sent to police members to be on the lookout for this Volkswagen. [ 7 ] On August 11, 2009, the Volkswagen was located by the police at a service station in Valemont. Four individuals were in this vehicle, including the accused.

As a result of further police investigation they detained the accused, and following a search, located in his front pocket was identification that appeared to be fraudulent. [ 8 ] A complete search of the Volkswagen was then conducted. Located within the Volkswagen were various electronic devices, and equipment, including a Sony laptop computer and a credit card imprinter. [ 9 ] Following the search, the accused was arrested for possession of forged credit cards, possession of instruments consistent with the reproduction of credit cards, and possession of property obtained by crime.

The laptop was seized and was, in due course, forwarded for forensic examination, to determine whether or not there was information on the laptop consistent with forgery and fraud. [ 10 ] The accused was released on surety bail, as his mother, Theresa Wesley, was prepared to step forward to act as surety. Conditions of bail were imposed at the bail hearing, including the condition that the accused keep the peace and be of good behaviour. [ 11 ] In late 2008 and into 2009, the accused had been residing in the lower mainland. He was friends with an individual by the name of Warren Allen. Both the accused and Mr.

Allen were heavily involved in illicit drugs, in particular, cocaine and crystal methamphetamine. Mr. Allen regularly provided drugs to the accused. In addition, it was alleged that both Mr. Allen and the accused were involved in child pornography, though it was also clear that it was Mr. Allen who was the distributor, while the accused was the recipient. [ 12 ] As a result of a targeted police investigation, Mr. Allen was arrested for distribution of child pornography in May of 2010. A search was conducted of Mr. Allen’s residence.

Numerous electronic devices, including computers, were seized and forensically examined. During the course of the forensic examination police investigators located a vast collection of child pornography. Also located within the computers were a series of on-line chat records. One of the threads of chats involved Mr. Allen communicating via the Internet with KR. [ 13 ] This led to a further police investigation relating to a possible sex assault offence, which ultimately resulted in sexual assault charges being laid against Mr. Allen.

The charges involving the accused were laid on a separate Information some time after charges were laid against Mr. Allen. The police determined that on September 18, 2009, there was a chat between Mr. Allen and KR. During this chat, KR told Mr. Allen he was 14 years of age. The chat was of a sexual nature in which arrangements were for KR to meet Mr. Allen and an unknown male for a sexual engagement. [That unknown male was later identified as the accused.] [ 14 ] It is clear from the language of the chat between Mr. Allen and KR that Mr. Allen was clearly encouraging, if not grooming, KR.

The chat language was sexually graphic. [ 15 ] At the time that Mr. Allen was chatting with KR, the accused was in communication with Mr. Allen by mobile telephone. The

plan was that the accused would meet KR near his school, then take KR to Mr. Allen's apartment for the sexual engagement. KR stated that while on route to Mr. Allen's apartment, the accused fondled KR's penis. [ 16 ] KR recalled that when he arrived with the accused at Mr. Allen's apartment, Mr. Allen was naked. Both adult and child pornography videos were shown to KR by Mr. Allen. Thereafter, KR went to a bedroom with the accused and Mr. Allen. The accused took some Viagra. Mr.

Allen gave a dose of amyl nitrite to KR to facilitate penile anal penetration. [ 17 ] KR inhaled the amyl nitrate and became lightheaded. This feeling of being lightheaded lasted for approximately one hour. It was during this timeframe that sexual activities took place between all three. KR performed oral sex on Mr. Allen while the accused performed anal sex on KR. Though KR requested that the accused use protection, the accused did not do so.

During the sexual contact, the accused ejaculated into the rectum of KR. [ 18 ] It is significant that the accused had been diagnosed as HIV-positive in 2009, prior to his sexual contact with KR. At no time during the sexual activity between KR and the accused did the accused reveal this diagnosis. Likewise, Mr. Allen was HIV positive and he did not disclose his status to KR. [ 19 ] After the sexual activity had concluded, Mr. Allen produced further pornography for viewing. KR indicated he did not want to view any further pornography and that he wanted to leave.

KR got dressed and was driven back by the accused to an area close to his residence. [ 20 ] At this Sentencing Hearing, peer to peer Internet chats between Mr. Allen and the accused were filed by Crown Counsel. All of the chats were troubling. One of the chats took place between the accused and Mr. Allen on December 18, 2009. The theme of the chat between the accused and Mr. Allen was twofold. First, there was drug chat, and second, sexual chat, which was about young boys. In particular, the accused told Mr.

Allen that he wanted to have sex with his eight year old nephew. [ 21 ] Police investigations revealed that Mr. Allen had forwarded child pornography to the accused. A forensic examination of the Sony laptop that was seized from the Volkswagen on August 11, 2009, was found to contain 90,759 images and videos. Of that number, 188 were described as unique child pornography, and 539 were described as child pornography duplications. [ 22 ] An Image Classification Report was prepared.

That report was filed at this Sentencing Hearing. [ 23 ] The Court viewed in camera various images and a video retrieved from the Sony laptop video. The images and the video depicted various young boys involved in graphic sexual activity, both with each other and with adult males. [ 24 ] The Image Classification Report revealed that some of the victims were pre-pubescent boys of an approximate age between five and seven. Two of the victims were baby boys who appeared to be one to two years of age.

MATERIALS FILED AT SENTENCE [ 25 ] The Court had the benefit of materials filed by both Crown Counsel and Defence Counsel. In particular, the Court had the benefit of a Pre-Sentence Report completed on May 8, 2012; a Psychological Assessment dated June 4, 2012; a Gladue Report for Sentencing Hearing; as well as letters and testimonials supporting the accused. [ 26 ] The Pre-Sentence Report, the Gladue Report and the Psychological Assessment all describe an extremely unfortunate and troubling background for the accused. [ 27 ] The accused was born on December 6, 1974, in Prince Rupert.

He was one of four children born to James Nelson and Theresa Wesley. The family’s Aboriginal heritage is of the Tsimshian Nation through the accused’s mother’s bloodline. Theresa Wesley is the Executive Director of Aboriginal Justice in Prince Rupert. [ 28 ] The reports reveal that for the first 10 years of his life the accused enjoyed a relatively stable family life. However, when the accused was 10 years of age, his parents separated and then divorced.

As a result of custody proceedings, the accused’s two sisters went to live with the mother, while the two boys went to live with their father. [ 29 ] The various reports all confirm that life for the accused and his older brother were tragically impacted when in the custody of their father. The father was a residential school survivor. Both boys were subjected to verbal and physical abuse.

It would appear the accused was the principal target of the abuse. [ 30 ] The information contained in the reports, and as reported by the accused, reveal that the accused had been sexually assaulted at an early age, initially by a female babysitter, and latterly by adult males including an uncle. This sexual abuse was not reported until the indexed offences brought the accused into custody. [ 31 ] In the Pre-Sentence Report, the Probation Officer addressed the “Accused’s Attitude and Understanding Regarding the Offence”. In that

section of the report the Probation Officer noted that the accused minimized his own involvement with the child pornography, and the accused deflected much of the blame for the assault on KR to Mr. Allen. The Probation Officer noted that the accused stated that KR, was “not an angel” in relation to the offence. The accused told the Probation Officer that he believed KR to be 16 or 17 years old. [ 32 ] The Probation Officer confirmed the accused has a criminal record for property offences and a Controlled Substance offence. In relation to charges arising from the Volkswagen search on August 11, 2009, “rolled up” guilty pleas resulted in concurrent two years less one day sentences.

[ 33 ] In the Pre-Sentence Report, the accused’s mother, Theresa Wesley, reported that it was her belief that had her son not been residing with his father through his formative years, his current criminal behavior and his drug use may not have occurred. It was her opinion that, with respect to a restorative approach to sentencing, that her son could benefit from sessions with First Nation elders in order to provide him with mentoring.

She was also of the opinion that her son would benefit from First Nation ceremonies unique to the Tsimshian Nation, as a result of his hereditary title. [ 34 ] The Probation Officer was of the opinion that the primary factor that influenced the current difficulties facing the accused was his drug addiction.

The Probation Officer also was of the opinion that the accused displayed a lack of regard for KR, and KR’s well- being given the unprotected sexual contact which occurred when the accused was well aware of his positive HIV status. [ 35 ] The Probation Officer was also of the opinion that should a federal sentence be imposed, that Corrections Canada has a positive strategic plan in relation to Aboriginal offenders. This plan ensures that a federal correctional system is responsive to the needs of Aboriginal offenders and that such programming would be beneficial to the accused. [ 36 ] Dr.

Patrick Bartel, Registered Psychologist, prepared a Psychological Assessment. His evaluation was based upon a two hour clinical interview with the accused, along with a review of psychological test data and protocols administered as part of the assessment. He also reviewed police and Crown Counsel Reports and victim statements. He further reviewed the Pre-Sentence Report. [ 37 ] In relation to the charge of sexual assault causing bodily harm, Dr. Bartel noted that the accused was aware that he was HIV- positive at the time of the offence.

He also noted that the accused appeared to downplay his role in relation to hooking up with KR. The accused advised Dr. Bartel that KR was neither unwilling nor reluctant. The Accused told Dr. Bartel that he only became aware of the age of the complainant after the sexual activity took place. [ 38 ] Dr. Bartel was also of the opinion that the accused downplayed his involvement with the possession of child pornography. The accused denied or minimized having any specific knowledge of the child pornography contained in the Sony laptop, though, as noted by Dr.

Bartel, the examination of the laptop clearly established that the accused had accessed child pornographic images both through his own user account and through a more general user account on to the laptop. [ 39 ] Dr. Bartel was of the opinion that the accused was forthcoming with respect to his criminal past, with the one exception that he minimized or denied the indexed offences. [ 40 ] The accused told Dr. Bartel that he began abusing alcohol at the age of 14, which then expanded to the abuse of other drugs. The accused told Dr.

Bartel that he began abusing cocaine and ecstasy at the age of 24 and that, at the age of 25, he began abusing crystal methamphetamine upon which he ultimately became dependent. [ 41 ] Dr. Bartel observed that the accused gave a relatively benign history of his sexual relationships. The accused admitted he was bisexual. The accused denied any history of deviant sexual arousal or preference, including sexual themes involving children.

The accused, likewise, stated that he only had a minimal exposure to pornography and that any such involvement usually involved consensual bisexual scenarios. [ 42 ] In his conclusions, Dr. Bartel was of the opinion that the most significant diagnostic mental health issue facing the accused was the presence of long-standing and significant crystal methamphetamine dependence. In addition, Dr.

Bartel was of the opinion that the accused exhibited numerous antisocial personality features which included: criminal behaviours; deceitfulness; irresponsibility; impulsivity and reckless disregard for safety of himself or others; and a lack of remorse. [ 43 ] Dr. Bartel also noted that there were a number of psychopathic features present in the accused. They included: impersonal sexual behaviour; lack of realistic long-term goals; manipulation for personal gain; and criminal versatility. Notwithstanding the presence of the above psychopathic features, Dr.

Bartel noted as follows: It is important to note that Mr. Nelson does not meet the cutoff score for rating high on psychopathy. He also presents as somewhat of an exception in that the onset of much of his antisocial personality traits appear to occur much later than is typically for personality disordered individuals. (p.7) [ 44 ] Dr. Bartel was also of the opinion, in relation to the two offences, that there was a “suggestion” of the presence of possible paraphilia [a sexual attraction of an unusual or pathological nature], and pedophilia.

However, he was not able to give an opinion with respect to the degree of the presence of paraphilia or pedophilia. [ 45 ] In relation to prognosis, Dr. Bartel gave the following opinion: On the issue of prognosis, Mr. Nelson is at high risk for serious criminality and at moderate risk for sexual violence .

His risk is indicated by a host of risk factors associated with general recidivism including a history of violence and extensive nonviolent offending, young age at first aggression, relationship instability, employment problems, personality disorder, prior supervision failure and particularly substance abuse problems. (p. 7) (Emphasis Added.) [ 46 ] The fact that the accused was HIV-positive at the time of the sexual assault of KR was significant to Dr. Bartel. On that point, Dr.

Bartel noted: What is particularly heinous about the present index offence was that not only did it involve some degree of coning and manipulation with an under aged and reluctant male, it also involved knowingly having unprotected sex with the victim while both offenders were HIV-positive. This suggests a high level of callousness and lack of empathy where both offenders placed the victim at serious risk of

developing chronic and life-threatening illness. … (p. 7). [ 47 ] Six recommendations were advanced by Dr. Bartel. Of particular importance in relation to this sentencing is recommendation 2, which reads as follows: With Mr. Nelson's high risk status, he will require extensive treatment programming in order to address the multiple risk factors present in his life. The most suitable programming is available in the federal correctional system. It will be imperative that he undergo extensive treatment prior to release into the community .

The majority of his treatment needs is non-specific and relates more to risk in general (substance abuse problems, empathy, life skills). (p. 8) [Emphasis Added] [ 48 ] The Gladue Report for Sentencing Hearing was both extensive and comprehensive. There are extensive references within the report relating to the history provided by Theresa Wesley.

That history would confirm chronic and long term abuse arising from the impact of residential school inter-generational trauma on the accused’s father. [ 49 ] Theresa Wesley told the Gladue Report’s author that she was deeply distressed by the physical, verbal and sexual abuse suffered by her son when he was living with his father.

Notwithstanding that history, and notwithstanding her son’s history of drug abuse, she reported that her son has been reaching out for help and seeking to strengthen closer relationships with his family. [ 50 ] The Gladue Report, like the Pre-Sentence Report, confirmed that the accused has now completed his grade 12 while in custody.

In addition, the Gladue Report confirms the accused has been taking some counselling within the corrections system. [ 51 ] The Gladue Report also revealed that the accused now recognizes the gravity of his substance misuse, the toll it has taken on his life, and the impact that drugs have had on his criminal behavior. The accused told the author of the Gladue Report that he was willing to participate in a treatment plan that will help him overcome his unresolved trauma and addiction issues, and that he is ready to embrace such a plan.

The Report noted the accused has the full support of his mother, his stepfather, his brother and his sisters in what would be a “healing journey” for the accused. [ 52 ] The author of the Gladue Report also dealt at length with the inter-generational effects of Aboriginal residential schools to First Nations, and the clear impact they had on the accused. In referencing the inter-generational effects, he had this to say: Shaune’s father's family members were subject to the government policy regarding the apprehension of aboriginal children from their homes and communities.

According to the Royal Commission on aboriginal peoples, these children were taken from their homes and placed in government sponsored, church operated schools. These young children were not allowed to see their families, wear clothing they were accustomed to speak their own language. They were forced to have their hair cut short and in a similar fashion and were made to wear uniforms. The forced attendance saw aboriginal children completely removed from their communities and customs, for it was feared students would revert to Native ways.

Consequently, these children grew into adulthood without the skills and ability to parent in a healthy and culturally appropriate fashion. Their traumatic experiences at residential schools had a direct influence not only on their own children, but their children's children as well. This phenomenon is known as inter-generational effects.

According to the aboriginal healing foundation, inter-generational effects refers to the physical, sexual, psychological, emotional spiritual abuses that were passed on to the children, grandchildren and great grandchildren of aboriginal people who attended Aboriginal residential schools. Many survivors of residential school abuse found themselves struggling alone with pain, rage and grief of unresolved trauma. The long term cumulative effects have been termed residential school syndrome.

Unresolved trauma from residential school abuse continues to impact the Nelson family and this is evident in Shaune’s conflict with the justice system. (p. 10 & 11) [ 53 ] The author of the Gladue Report noted that the accused appeared to be well aware that his life spiraled out of control, in large measure, as a result of drug abuse. As well, the accused’s own childhood sexual abuse lead to confusion about his own personal sexuality and sexual boundaries. The accused told the author of the Gladue Report that he would never have engaged in such inappropriate conduct with KR were he drug free.

The accused told the author of the Gladue Report that he was sorry for the harm he caused KR. [ 54 ] In “Summary and Recommendations”, the author of the Gladue Report was of the opinion that the accused had all of the hallmarks of being a victim of the inter-generational and residential school syndrome. It was the further opinion of the author of the Gladue Report that the accused has struggled over a long period of time: being alone with the pain; rage; and grief of his unresolved trauma. It was his opinion that the accused turned to drugs to dull those emotions.

In relation to restorative treatment recommendations, various programs were noted in the Gladue Report which would involve an Aboriginal component. Significantly, however, the author of the Gladue Report noted: Shaune has no cultural knowledge of his aboriginal heritage and his communities language, he is a man outside of his culture.

In addressing his underlying cultural displacement and unresolved trauma through culturally appropriate healing plan, he may reconnect with this spiritual self and build himself as a proud Aboriginal man. (p. 13) [ 55 ] I have also had the benefit of receiving and reviewing letters of support on behalf of the accused. Those letters would clearly establish that there is an opportunity for the accused to re-embrace and re-engage his Aboriginal heritage if he was motivated.

[ 56 ] I also have the benefit of correspondence from the Inter-Faith Chaplain at the North Fraser Regional Correctional Center in which it is confirmed that the accused voluntarily attended a psycho-educational program. The accused has participated fully in meditation, teaching, discussion, and homework relating to the program. The Chaplain notes: “It was a pleasure to have him in the program”.

POSITION THE PARTIES [ 57 ] Crown Counsel and Defence Counsel have agreed that the accused has been in custody for approximately 10 months, and that at the time of delivery of this Ruling a further month would apply to time served. Accordingly, both Counsel agree the accused is entitled to a credit of 22 months on a two to one basis. [ 58 ] Crown Counsel submitted that the circumstances of the offences were highly aggravated and that a just and appropriate sentence in relation to the sexual assault causing bodily harm would be four to six years imprisonment.

In relation to the possession of child pornography, it was submitted that a consecutive sentence of 18 months ought to be imposed. Crown Counsel submitted that deterrence and denunciation must be the paramount considerations in sentencing the accused. [ 59 ] Crown Counsel submitted that, while the accused did not have a personal violence criminal record, he nonetheless did have a criminal record that was relevant. That record included 10 fraud or property related offences, a possession of drugs offence, and a breach.

The record ranges from early 2006 until July 2011. [ 60 ] Crown Counsel also submitted that the circumstances surrounding the sexual assault of KR were particularly aggravating. Crown Counsel noted that the accused was well aware, or ought to have been aware, that KR was not capable of giving his consent, even if KR was curious or willing to participate in sexual activity. [ 61 ] It was also submitted by Crown Counsel that the accused was well aware, in advance of the sexual assault on KR, that he was HIV-positive. He did not disclose his HIV status to KR.

The sexual assault was further aggravated by the fact that the accused did not use protection during the sexual activity, even though KR requested that he use protection. [ 62 ] Crown Counsel further noted that at the time of the sexual assault of KR that the accused was subject to conditions of bail relating to the Valemont charges. Crown Counsel submitted the accused failed to keep the peace and being of good behaviour in relation to the offence of the sexual assault of KR. [ 63 ] Crown Counsel submitted that, in relation to the possession of child pornography, sentences have been increasing.

It was submitted victims of child pornography are vulnerable and their well being must be protected. [ 64 ] In relation to the child pornography possession charge, Crown Counsel conceded that it would be more serious were the accused not only possessing but distributing child pornography, as was the case for Mr. Allen.

Notwithstanding, Crown Counsel noted: the size of the child pornography collection; the nature of the images; the disturbing videos; and that this possession could not be just some passing fantasy of the accused. [ 65 ] Crown Counsel took the Court through various cases dealing with general principles and ranges of sentencing for sexual assault of children, and for the possession of child pornography. [ 66 ] As to what would be a just and appropriate sentence, Crown Counsel properly noted that each case was fact driven and that sentencing was an individualized process.

Crown Counsel noted that ranges were simply that. They provide to other sentencing courts considerations that applied in an individualized sentencing process. [ 67 ] I will address cases referred to by Crown Counsel in the Analysis and Disposition

Section of this Sentencing where they have been of assistance. [ 68 ] Crown Counsel also sought ancillary relief with respect to various orders that normally follow sentencing in sex assault and possession of child pornography cases. They will not be addressed in this Ruling as those ancillary orders have not been contested by Defence Counsel. [ 69 ] Defence Counsel forcefully argued that the accused has had a complete turnaround in relation to his recognition of his offending behaviours.

It was noted by Defence Counsel that his client has been involved in counselling while at North Fraser Regional Correctional Center. He also submitted that his client was remorseful for his actions. That remorse was evidenced by his guilty plea in the face of triable issues. [ 70 ] Defence Counsel submitted that his client had no

part in any encouraging or grooming of KR and that blame for those aspects of the offence rested with Mr. Allen. It was further submitted that all the accused did in relation to the sexual assault of KR was to participate in a “nefarious deed at the behest of Mr. Allen”. [ 71 ] It was submitted that the accused went along with Mr. Allen’s plan because the accused would be rewarded with drugs for his participation. [ 72 ] In relation to a comment by the Court that there was a power imbalance between the two adults and KR, it was conceded by Defence Counsel that there was indeed such a power imbalance.

However, Defence Counsel submitted that the power imbalance rested more with Mr. Allen, rather than his client. His client simply went along with the plan hatched by Mr. Allen. [ 73 ] It was further submitted by Defence Counsel that KR made himself available to engage in this sexual adventure. Though conceding that KR was incapable of giving consent to the sexual activity, Defence Counsel submitted that the Court should give some

consideration to the level of complicit involvement of KR in relation to the sexual activity. [74] The main thrust of the submissions of Defence Counsel turned on the Aboriginal status of his client. Defence Counsel submittedthat the inter-generational trauma and residential school syndrome clearly affected his client. In that matrix, his client wrapped himselfin minimization or denial. That is why his client either minimized or denied involvement in relation to the indexed offences.

It wassubmitted by Defence Counsel that his client has: Psychologically, physically, everything, he personified Gladue in terms of the principles that we are dealing with. This man has beenvictimized by that part of our culture that is such a shocking bit of our history. (Transcript, August 31, 2012, p. 8, lines 41-45.) [75] It was submitted that when one factors the Aboriginal status of the accused within a Gladue analysis that a just and appropriatesentence was a sentence of time served and the imposition of a Suspended Sentence with probation, of a duration deemed to be fit by theCourt.

Probation conditions relating to residency, house arrest, counselling, along with other rehabilitative terms would be appropriate.

THE LAW [76] Sexual assault causing bodily harm contrary to s. 272 of the Criminal Code carries with it a maximum potential sentence of 14years in prison. [77] Possession of child pornography contrary to s. 163.1 of the Criminal Code carries with it a minimum sentence of 45 days inprison, or a maximum sentence of five years in prison when proceeded by Indictment. [78] In relation to the offence of sexual assault causing bodily harm, it is established that bodily harm includes psychological harm.The Supreme Court of Canada in R. v.

McCraw, (SCC), [1991] SCJ 69 discussed bodily harm in the context of anassault contrary to s. 267 of the Criminal Code. At paragraph 22 of that decision, the Court discussed the concept of psychological harmas an element in the following language: Does the phrase encompass psychological harm? I think that it must. The term “bodily harm” referred to in s. 267 is defined as “any hurtor injury”. Those words are clearly broad enough to include psychological harm. Since s. 264.1 refers to any “serious” hurt or injury thenany serious or substantial psychological harm must come within its purview.

So long as the psychological harm substantially interfereswith the health or well-being of the complainant, it properly comes within the scope the phrase “serious bodily harm”. … [79]

Section 718 of the Criminal Code of Canada articulates the statutory purposes and principles of sentencing.

Section 718.1 ofthe Criminal Code establishes that any sentence must be proportionate. Any sentence must also be applied in conjunction with theadditional principles articulated in s. 718.2 of the Criminal Code. [80] At this Sentencing Hearing, Defence Counsel has emphasized the Aboriginal Status of his client.

Section 718.2(e), requires thata Sentencing Court pay particular attention to the circumstances of an aboriginal offender. That

section reads as follows: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders withparticular attention to the circumstances of aboriginal offenders. [81] In R. v. Gladue, (SCC), [1999] SCJ No. 19, the Supreme Court judicially considered s. 718.2(

e) of theCriminal Code, and in doing so, created an analytical framework for Judges before whom an Aboriginal offender appears for sentencing. [82] At paragraph 66 of Gladue, the Court informs of the approach to sentencing in the following language: How are sentencing judges to play their remedial role? The words of s. 718.2(

e) instruct the sentencing judge to pay particular attentionto the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non-aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a widerange of unique circumstances, including, most particularly: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. [83] In R. v. Ipeelee, [2012] 1 SCR at paragraph 59, the Supreme Court confirmed that these factors must be considered insentencing an Aboriginal offender. In part, the Court had this to say: ...

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because thosecircumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginaloffender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particularAboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the

circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66 ). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84 ). [ 84 ] I am directed by the Court in Gladue to take a holistic approach to achieve a just and appropriate sentence having regard to all of the circumstances.

Those circumstances include the particulars of the offence, the particulars of the offender, any victims, the community at large, including the Aboriginal status of this accused. [ 85 ] While Gladue emphasizes the need to address Restorative Justice in relation to Aboriginal offenders, the Court also went on to note that in sentencing an Aboriginal offender, the Court need not always give primary weight to principles of Restorative Justice. At paragraphs 78 and 79 of the Gladue decision, the Court notes: [78] In describing the effect of s. 718.2 (

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [ 86 ] I am mindful that the comments of the Supreme Court in relation to the severity of the offence operating as an equalizer in sentencing Aboriginal offenders has generated controversy. In Ipeelee , this controversy was addressed at paragraphs 84 and 85. The Court noted that s. 718.2 (

c) applies even where the criminal behaviour is serious. The only discretion turns on what would be a just and appropriate sentence where the criminal behaviour is serious. ANALYSIS AND DISPOSITION [ 87 ] Sentence authorities establish that a range of sentence for sexual assault causing bodily harm is between four and six years in prison. A useful review of cases in relation to that range can be found in R. v. R.L.W. , [2011] BCJ No. 2023, at paragraphs 112 through 117. [ 88 ] Sentence authorities in relation to possession of child pornography range from 6 to 18 months.

Again, a useful review of sentence ranges in relation to possession of child pornography can also be found in R. v. R.L.W. , at paragraphs 100 through 111. [ 89 ] In relation to the offence of sexual assault causing bodily harm I find that the circumstances are significantly aggravating. The accused minimized the sexual assault of KR and he tended to deflect blame on Mr. Allen, rather than accepting his own personal responsibility. The accused's assertion that he believed that KR was 16 or 17 years of age, does not mitigate his actions. No effort was made whatsoever by the accused to determine the age of KR.

Indeed, s. 718.2 (a) (ii.1) establishes the principle that where an offender abuses a person less than eighteen years of age that such is an aggravating circumstance. [ 90 ] I also find as an aggravating factor that it was wholly inappropriate for the accused to suggest that KR was “no angel”. As a matter of law, KR was a child and was incapable of giving consent by operation of s. 150.1(1) of the Criminal Code . That

section reads as follows: Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [ 91 ] I further find that it is a significant aggravating factor that the accused performed anal sex on KR without any protection; even when the accused was asked by KR to use protection. It appears the accused simply ignored that request and with full knowledge that he was HIV positive ejaculated in KR. The accused’s actions were, as noted by Dr. Bartel, callous.

Those actions as well violated the legal and moral imperative that the accused must disclose his HIV status before engaging in sexual activity with others. The Supreme Court of Canada in R. v. Cuerrier , [1998] 2 SCR 271 upheld the conviction of the Appellant for aggravated assault when he failed to disclose his known HIV status. While Cuerrier dealt with issues relating to dishonesty in securing consent to sexual activity, the Appellant’s known positive HIV status was material.

Cory, J. at paragraph 133 had this to say: In the case at bar, the failure to disclose the presence of HIV put the victims at a significant risk of serious bodily harm. The assault provisions of the Criminal Code are applicable and appropriately framed to deter and punish this dangerous and deplorable behaviour. To say that any fraud which induces consent will vitiate consent would bring within the sexual assault provisions of the Code behaviour which lacks the reprehensible character of criminal acts. ...

[ 92 ] I further find as an aggravating factor that KR has suffered significant psychological harm. In the Pre-Sentence Report, KR advised the Probation Officer that the whole incident has been a “nightmare". KR has been tested three times for HIV, and he continues to be monitored by his doctor. KR also advised the Probation Officer that he has suffered a mood disorder and is currently experiencing problems with his family as a result of the offence. [ 93 ] With respect to the offence of possession of child pornography, there are significant aggravating factors.

The images and videos are alarming, as is the size of the collection. I further find that it is an aggravating factor that the accused tended to minimize, and even deny, his involvement with the possession of the child pornography. In that context, I have taken into account the position of Defence Counsel that, due to his client’s difficult upbringing, his client tends to minimize or deny his criminal behaviour. [ 94 ] Individuals who possess or distribute child pornography are predators. The child victims of such predacious conduct require the full protection of the Courts. In R. v.

R.L.W. , the Court at paragraph 110, informs of the approach that Courts must take toward sentencing with respect to possession of child pornography as follows: In my opinion, the uniform theme that runs throughout all of the case authorities that have been presented to me is that child pornography is a plague on our community that must be addressed firmly by the justice system. I accept that over time the courts have come to a better understanding of the horrific dynamics involved in the production, dissemination, and possession of child pornography.

Deterring those who would purchase and possess such dreadful material will go a long way to reducing or perhaps even eliminating the production of this material and the consequential harm that it causes to its child victims. [ 95 ] I further find that it is an aggravating feature that the accused was on conditions of bail at the time of the sexual assault causing bodily harm to KR. He did not keep the peace nor be of good behaviour. In addition, while the accused does not have a prior criminal record for violence, his criminal record is relevant. The accused’s criminal record was clearly of concern to Dr.

Bartel. [ 96 ] Both the Pre-Sentence Report and the Psychological Assessment are concerning due to their recommendations that this accused requires long-term treatment and counselling. The author of the Gladue Report was also of the opinion that the journey for the accused would be “long”. [ 97 ] In mitigation, I have taken into account the fact that the accused pled guilty in the face of potential triable issues. I also find in mitigation that the accused has indicated a willingness to participate in therapy and counselling.

In addition, he has participated in counselling while in custody. [ 98 ] I have also taken into account the letters of support filed on behalf of the accused. In addition, I accept in mitigation that the accused seems to have re-embraced his family. [ 99 ] In relation to the Aboriginal status of the accused, I accept the opinions of the author of the Gladue Report that the accused has been severely impacted by inter-generational effects. The accused has been subjected to both physical and psychological violence resulting from the breakdown of his family.

I also accept the position of Defence Counsel that his client’s criminal record and his substance abuse are in large measure a result of the impact of this inter-generational trauma effects, as identified in the Gladue Report. However, I note the opinion of the author of the Gladue Report that despite the accused’s hereditary title, the accused has little involvement in his culture. [ 100 ] I have taken into account the unique circumstances of the accused as an Aboriginal offender. However, as noted in the R. v.

Gladue unique circumstances of an Aboriginal offender do not necessarily result in an automatic reduction of sentence. On that point, at paragraph 88 of the Gladue decision, the Court informs of the approach in part as follows: But s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal. To the extent that the appellant's submission on affirmative action means that s. 718.2(

e) requires an automatic reduction in sentence for an aboriginal offender, we reject that view. ... [ 101 ] I find that in relation to sexual assault causing bodily harm, that the Aboriginal status of the accused does not trump the need to emphasize general and specific deterrence and denunciation. I have determined that a message must be sent to all communities in Canada that those who commit such offences will face the potential of a significant prison sentence upon conviction.

It is imperative that those who engage in unprotected sex while committing a sexual assault when HIV-positive, especially where the victim is legally incapable of giving consent, will face potential significant legal consequences. [ 102 ] Likewise, in relation to the offence of possession of child pornography, I have determined that the Aboriginal status of the accused cannot trump the need to emphasize general and specific deterrence and denunciation.

Again, an imperative message must be sent to all communities in Canada that those who engage in the possession of child pornography will face the potential of a significant prison sentence upon conviction. [ 103 ] I find that in relation to both offences, a high degree of moral culpability attaches to the accused.

Notwithstanding that high degree of moral culpability, I must apply the principle that I cannot impose a sentence that ultimately would be disproportionate to the circumstances of the offence, circumstances of the offender, any victims, and the community. [ 104 ] I have determined that a just and appropriate sentence in relation to the offence of sexual assault causing bodily harm is four years in a Federal Penitentiary.

In relation to the offence of possession of child pornography, I find that a just and appropriate sentence is one year in prison. [ 105 ] In relation to the application of those prison sentences to this accused, I must determine whether or not the sentences run

concurrent or consecutive. In R. v. Li , 2009 BCCA 85 , Madam Justice Smith considered the issue of concurrent and consecutive sentences. In her analysis, when considering concurrent and consecutive sentences, sentencing Courts must ensure the principle of proportionality is respected. On this point, at paragraph 28, she had this to say: Thus there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent.

If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [ 106 ] I find that the significant aggravating factors noted in this Ruling in relation to both offences require that the one year sentence for possession of child pornography must run consecutive to the four year sentence imposed in relation to the sexual assault causing bodily harm to KR.

I do not find this global sentence to be unduly harsh or disproportionate. [ 107 ] The accused shall be entitled to a time credit of 22 months to be applied against the offence of sexual assault causing bodily harm to KR. ______________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia