R. v. R.J.P., 2018 BCPC 402

Citation: R. v. R.J.P. 2018 BCPC 402 Date: 20181025 File No: 222998-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. R.J.P . REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.S. GILL BAN ON PUBLICATION 486.4(2) CCC 486.4(2.2) CCC s. 517 (1) CCC Counsel for the Crown: D. Simpkin Counsel for the Defendant: J.R. Ray, QC Place of Hearing: Surrey , B.C.

Dates of Hearing: June 5, 6, 7, 22 and October 18, 2018 Date of Sentence: October 25, 2018 [ 1 ] THE COURT: Mr. P. is convicted of touching for a sexual purpose with a part of his body, the body of R.A., a person under the age of 16 years, contrary to s. 151 of the Criminal Code . That

section carries with it, when proceedings such as these are carried by way of

summary conviction, a minimum 90-day jail sentence. This is the sentence that the defence seeks that the court impose on Mr. P., pursuant to the intermittent sentencing provisions of the Criminal Code . The Crown submits that a six-month jail sentence is required to minimally meet the principles of sentence, in particular, those of denunciation and deterrence. [ 2 ] THE COURT: I am going to start with the circumstances of Mr. P.'s -- well, his personal circumstances. [ 3 ] He is 71 years old.

He is one of 11 siblings, raised in what I think could be fairly described, to some degree, as conditions of poverty and hardship. Counsel on his behalf mentioned that at times during his upbringing the house was not big enough to accommodate everyone and he spent time sleeping in the garage. Eventually, he moved to the British Columbia, Lower Mainland, to reside with an uncle, thereafter joining the [omitted for publication] where he served for some years and then worked with [omitted for publication] for about 18 years and, thereafter, at the [omitted for publication].

He has served in the past as an [omitted for publication] and he is an active community volunteer, and in particular, with his church. [ 4 ] He has been married for 45 years, has children, including one grandchild. He is here today before the court with the support of his spouse and having provided reference letters from her and from a former pastor of his church. The church continues to welcome his attendance in spite of these particular antecedents with respect to this case. [ 5 ] In terms of his health, three things to take some note of. Firstly, I am told he suffers from significant hearing loss.

He will be requiring hearing aids for both ears. He has been diagnosed with an aortic aneurism which carries with it a risk of rupturing, albeit, not a high risk but one nonetheless that exists. Finally, there has been some reference to possible cognitive decline as raised in the Pre- Sentence and Psychiatric Reports.

This condition has not been investigated, per se, much less diagnosed, but this Court has heard anecdotally, I think, enough to conclude that such a condition, while not demonstrated, may well be more than merely speculative. [ 6 ] I recognize these conditions are not, in and of themselves, obstacles to what would otherwise be a sentence of incarceration but they are, nonetheless, factors that I should take into consideration. [ 7 ] Those are the circumstances of the offender. [ 8 ] The circumstances of the offence I have already outlined in my earlier reasons which I will not repeat, but for today's purpose I will simply summarize to note that the offence involved a digital penetration of the vagina of the young victim while she was with Mr.

P., stopped over at their house on the way to the store. The offending conduct was of a momentary duration. It did not involve any violence or threats of violence, nor is there any evidence of the child being groomed in any fashion. All of those would clearly be aggravating factors that are not present. [ 9 ] I would also add here, I disagree that there was necessarily a degree of premeditation here.

It seems equally consistent that this was an offence of opportunity that presented itself on the date in question. [ 10 ] I also note at this point, that any prior opportunities that may have existed that were mentioned by the child, tangentially, were not charged and really were not addressed in any fashion that should factor into this sentencing, certainly as an aggravating factor.

They may, however, be considered in the context of the case as a whole. [ 11 ] The sentence is also one that must be considered aggravated by the impact on the victims and that has been evidenced by the Victim Impact Statements provided by the child's mother and by the child herself. By the mother, they speak of a profound sadness and disappointment about Mr. P.'s conduct and what they had thought was a man having a close family connection with them. As well, a concern to preclude any future possible contact with Mr.

P., but otherwise, a statement looking to the future and hoping to simply move on. [ 12 ] The Victim Impact Statement by the child, herself, simply consists of a drawing of a somewhat confused face, coloured drawing, with the caption "weird". [ 13 ] The principles of sentence are set out in s. 718, and following, in the Criminal Code and they require the imposition of just sanctions having one or more of the objectives of denunciation, of specific and general deterrence, of separation of offenders from society where necessary, of rehabilitation of offenders, of the provision of reparations for harm done and, finally, to promote a sense of responsibility in offenders acknowledging the harm done to victims or to the community. [ 14 ] Pursuant to s. 718.01, denunciation and deterrence are of particular importance in cases involving the abuse of a person under the age of 18 years.

That, of course, is an important feature in this case. [ 15 ]

Section 718.1, which can be regarded as a central feature in Canadian sentencing law, provides that a sentence has to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] S. 718.2 sets out a number of factors the court must take into consideration when imposing sentencing, including aggravating or mitigating factors, questions of motive, evidence of special relationships, abuse of persons under the age of 18, or abuse of positions of trust or authority in relation to a victim. The court is also mandated to consider questions of impact on victims. [ 17 ]

Section 718.2(

b) addresses the need for parity in sentence; and (

c) refers to what is often referred to as the totality principle when considering consecutive sentences, not applicable in this case.

[ 18 ] Subsections (

d) and (

e) require the court to not deprive offenders of the liberty if less restrictive sanctions may be appropriate in the circumstances and to consider all available sanctions other than imprisonment that are reasonable and consistent with the harm done, with particular attention to the circumstances of Aboriginal offenders, and here it is appropriate to note that Mr.

P. does have First Nations heritage, Metis heritage which, although not factoring prominently in this case, is nonetheless a circumstance that I must take into consideration, in particular, with regards to what I heard about how he felt discouraged in his younger years to explore that out of a sense of shame or being ridiculed by classmates and his interest going forward in perhaps exploring that side of his life. [ 19 ] Counsel have provided a number of cases touching on the principles I have just outlined with respect to cases having facts similar to the present case.

Those cases go from sentencing imposed of the 90-day minimum to sentences of a longer duration.

I have read all those cases but simply note that, as is commonly known or understood, no two cases are the same and sentencing before the courts in cases like this is necessarily an individualized process wherein the circumstances of the offence and circumstances of the offender and other relevant factors must be taken into consideration. [ 20 ] I recognize the principles of denunciation and deterrence are important here but I must also weigh or calibrate their implementation with respect to the circumstances of this offence, this offender and what I regard as the very important question of his risk of reoffending.

These have to be balanced. [ 21 ] It is with respect to the risk of recidivism, in particular, that the Pre-Sentence Report and Psychiatric Report are most helpful. Mr. P. was subjected to a battery of psychological tests and interviews which were distilled into 22 indicators or risk of recidivism. Twenty-one of those indicators came out negative for any risk of reoffending. Only one factor came out as potentially positive as a risk to reoffend and that is Mr. P.'s denial in committing the offence.

That denial is, of course, consistent with his plea of not guilty and the trial that, thereby, was necessitated for which he cannot in any way be penalized. That is his right. In any event, that denial is not a factor that I view as looming large in the Psychiatric Report, nor in my own assessment of risk based on that report. [ 22 ] I am also cognizant that Mr. P. has been fully compliant, as far as I am aware, with his conditions of bail that have existed now for some time.

That is also a factor relevant to the risk of recidivism and the assessment that that risk is low. [ 23 ] I must also instruct myself that although he denies the commission of this offence he is fully cooperative with engaging in any counselling as directed and to follow any other conditions that may be imposed on him as a result of this sentencing. Mr.

P. being now [omitted for publication], with the support of his family and no prior criminal record, is in a situation where I am satisfied the principle of sentence can be met with the imposition of the minimum term on an intermittent basis, accompanied by a long period of probation with appropriate terms and conditions and ancillary orders. Mr. P., would you please stand. [ 24 ] I sentence you to a term of 90-days incarceration to be served intermittently. I will direct the

schedule in a moment. [ 25 ] As well, I direct that you be placed on probation for a period of 36 months, the terms and conditions being as follows. [ 26 ] That you keep the peace and be of good behaviour. [ 27 ] That you report forthwith -- well, let us just say -- I am just trying to fashion the first reporting in conjunction with his first -- reporting to probation in conjunction with his first reporting to serve the terms of his intermittent sentence, which I expect would also be today. [ 28 ] MR. RAY: My understanding is the sheriffs will take him into custody’ he will be processed today across the street.

I don't know how long that takes, so -- [ 29 ] THE COURT: Well, I am going to regard that as his first reporting. [ 30 ] MR. RAY: Okay. [ 31 ] THE COURT: All right.

So I am going to say that you report forthwith to a probation officer, in person, and thereafter as and when directed. [ 32 ] That you reside in a place approved of by your probation officer and you not change that residence without the prior written approval of your probation officer. [ 33 ] That having consented in court that you attend, participate and complete individual and/or group therapy or counselling and programs for sex offenders as directed by and to the satisfaction of your probation officer. [ 34 ] That you attend and participate in any psychiatric, psychological or other assessments, counselling or educational programming as may be directed by and to the satisfaction of your probation officer. [ 35 ] That you not engage in activities or employment or volunteer work that would bring you in contact with children under the age of 16 without the prior written approval of your probation officer. [ 36 ] The probation officer has recommended a term that Mr.

P. have no contact with children under the age of 16 unless supervised by the guardian of the child. Were counsel of the view that if I were to impose that condition that would be the appropriate place to place the exception with respect to his own children or grandchildren? [ 37 ] MR. RAY: I am. [ 38 ] MR. SIMPKIN: Yes, Your Honour. [ 39 ] THE COURT: All right. That you have no contact with children under the age of 16, except your own grandchildren, unless you are accompanied and supervised by the guardian of such child.

[ 40 ] I am going to modify condition seven in a fashion that I think addresses the question of the very low risk that Mr. P. poses and even lower, if it can be characterized as such, in a public setting with respect to attendances at parks. I am happy to receive any further submissions from counsel on this but the condition I am ordering is that, Mr.

P., you be prohibited from being at or within 100 metres of playgrounds, school parks, public parks, public swimming areas, community centres, daycare centres, or other sites where children may congregate, except you are allowed to attend such places with the prior approval of your probation officer on the condition that you will, at all such times, be in the company of one or more adults.

As well, with the further exception that you are allowed to attend church services, including Sunday services at the [omitted for publication] if you have the prior approval by your probation officer. [ 41 ] As well, I make an order pursuant to s. 161(1)(a.1) prohibiting you from being within two kilometres of any dwelling house where R.A. ordinarily resides. I think I am going to extend that to include other places. To include any dwelling house, schooling or employment. I appreciate the child is still very young but this order is one that I contemplate making as a lifetime order. [ 42 ] MR.

RAY: He says he lives eight city blocks away from the young victim, so I don't know if that's within two kilometres. Would Your Honour -- [ 43 ] THE COURT: One kilometre. [ 44 ] MR. RAY: One kilometre. Thank you. [ 45 ] MR. SIMPKIN: The Crown's submission had been 500 metres. I know the Code allows up to two kilometres but -- [ 46 ] THE COURT: Five hundred metres will suffice? [ 47 ] MR. RAY: I think so. Yes, Your Honour [ 48 ] THE COURT: All right. I think that is reasonable.

And that is a lifetime order. [ 49 ] As well I direct, sir, that while in custody you provide such samples as are suitable for an analysis of your DNA, this being a primary designated offence. [ 50 ] I direct registration pursuant to SOIRA for a period of 10 years. [ 51 ] That leaves the victim fine surcharge and the scheduling for the service of the intermittent sentence. Any submissions with respect to the victim fine surcharge or time to pay, Mr. Ray? [ 52 ] MR. RAY: None, just give him some time to pay. [ 53 ] THE COURT: Thirty days? [ 54 ] MR.

RAY: Thank you. [ 55 ] THE COURT: Subject to any further submissions, I am contemplating directing that Mr. P. be taken into custody at this time and that he serve his intermittent sentence thereafter from 8:00 p.m. Friday to 8:00 p.m. Sunday, on consecutive weekends starting Friday, October the 26th. (DISCUSSION) [ 56 ] THE COURT: The final term on the probation order will be that you must not contact R.A. and any member of her family directly or indirectly for any purpose.

As well, that you must not attend within 500 metres of any place of residence, schooling or employment of R.A. and any of her family members as may be known to you. (REASONS FOR SENTENCE CONCLUDED)