R. v. Burgar Date:, 2014 BCPC 130

Citation: R. v. Burgar Date: 20140429 2014 BCPC 0130 File No: 224204-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH PAUL BURGAR EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI BAN ON PUBLICATION 486.4(1) CCC Counsel for the Crown: K. Gagnon Counsel for the Defendant: A. Glouberman

Place of Hearing: Vancouver , B.C. Dates of Hearing: December 2, 13, 2013; January 23, 2014 Date of Judgment: April 29, 2014 A Corrigendum was released by the Court on June 19, 2014. The corrections have been made to the text and the Corrigendum is appended to this document Introduction [ 1 ] THE COURT: I will now give my decision on sentencing and I will begin with an introduction. Mr. Burgar was charged in December 2012 with having sexually assaulted the complainant, C.P. now going by the name of C.F., on April 16th, 1999, contrary to s. 271 of the Criminal Code . On August 2nd, 2013, I found Mr.

Burgar guilty of sexually assaulting the complainant on April 16, 1999. The reasons for that decision are unreported and are indexed as R. v. Burgar (August 2, 2012) Vancouver 224204-1, (BCPC). Circumstances of Offence [ 2 ] The circumstances of the sexual assault are set out in detail in my reasons for judgment.

However, to provide context in this sentencing hearing, I will briefly set out the circumstances of the offence as found at trial. [ 3 ] On April 16th, 1999, the complainant was at Central Park in Burnaby, British Columbia, and used washroom facilities close to the parking lot where she had parked her car. The complainant was seated on the toilet in one of the stalls in the washroom with the door locked. She saw a man on his knees on the floor through the open area of the washroom stall. She could see the man from the waist down.

He was using his right hand and touching his penis which was erect. [ 4 ] The man then banged the washroom stall door open and forced his body up against the complainant while she was seated on the toilet. The man masturbated. She could feel him doing so. She did not see him ejaculate, but felt a hot wet feeling on her chest area. I found as a fact that her assailant ejaculated on the tank top she was wearing at the time of the incident. She did not see the man's face. [ 5 ] When the man stopped masturbating, she pushed herself forward and fell on her hands and knees. The man ran out of the washroom door.

The complainant caught a fleeting glance of the man as he ran out. She got a side view of him and what he was wearing. [ 6 ] At the time of the incident, the complainant was still recovering from a spinal injury she had suffered in the spring of 1998. She was using a cane when she walked, but she was trying to walk without a cane. On April 16, 1999, she was at Central Park to meet a friend who was going to drive her to White Rock for a physiotherapy treatment. [ 7 ] Mr. Burgar admitted he frequented Central Park up to 2002 in order to expose himself.

Indeed, he admitted he had been in the same washroom exposing himself and masturbating to ejaculation. However, in his evidence, he described very different circumstances. Mr. Burgar admitted he went to the washroom at Central Park. He peered over a stall and looked into the stall occupied by a woman. [ 8 ] He tried to expose himself from underneath the stall door in the stall occupied by the woman. Mr. Burgar said he tried to slide under the opening below the stall door. He could not slide far enough and could not expose himself.

He, therefore, stood up and masturbated against the outside door of the stall occupied by the woman. He ejaculated on the stall door. Mr. Burgar said he had no interaction with the woman inside the stall. [ 9 ] I did not believe Mr. Burgar's version of events and, ultimately, found the Crown had proven beyond a reasonable doubt that Mr. Burgar had committed the sexual assault. Mr. Burgar has actively participated in the sentencing hearing. He has been respectful, but has made it clear to the court that he maintains his position that he did not commit the sexual assault and is innocent of the charge.

Materials Submitted on Sentencing [ 10 ] The original sentencing date for Mr. Burgar was December 2nd, 2013. At the beginning of the sentencing hearing, the Crown indicated it wished to introduce certain documents for the court's consideration. At that point, the accused indicated he had concerns about some of the materials the Crown wanted to place before the court. [ 11 ] In particular, Mr. Burgar advised that no reports whatsoever should be entered unless the authors were present. He said he had made that request months before the sentence hearing date.

When I inquired why this issue had not been raised before December 2nd, 2013, which had been specifically set aside for the sentencing hearing, the Crown told me it had only learned of Mr. Burgar's position the previous week. After discussions with counsel and Mr. Burgar and with their agreement, the matter proceeded but in a voir dire. [ 12 ] The Crown was asked to make submissions on the documents she wished to tender in the sentencing hearing. Those documents would be marked as exhibits in the voir dire and submissions could be made by the parties regarding the admissibility of the various materials.

Additionally, the Crown would also make her submissions on sentence in the voir dire . That would be followed by the submissions of Mr. Burgar and his counsel. [ 13 ] The following documents were tendered by the Crown as exhibits in the voir dire: (

a) A June 7, 2012, psychiatric assessment completed by Dr. Wang - This report was completed at Mr. Burgar's request in respect to a conviction on Court File 176754-1, offence date April 21, 2009. This matter was heard in Surrey Provincial Court. The sentencing date was June 8, 2012. The purpose of the psychiatric assessment was to assess Mr. Burgar's level of risk and to determine whether any treatment options were available to assist him in managing his risk, should he continue to be considered high risk.

Mr. Burgar objected to any reliance on the psychiatric assessment of Dr. Wang unless Dr. Wang was produced for cross- examination. Mr. Burgar asserted Dr. Wang was not qualified to give an opinion. Mr. Burgar asserted he provided Dr. Wang with material on impulse control disorder; namely, a book by Dr. Jon Grant, the title of which is Stop Me Because I Can't Stop Myself . Mr. Burgar asserted Dr. Wang refused to familiarize himself about the nature of impulse control disorder. Additionally, Mr. Burgar argued that when Dr. Wang started treating him with correct medication, his problem was brought under control.

However, Dr. Wang did not agree with Mr. Burgar that the medication he prescribed was for impulse control disorder. Mr. Burgar acknowledged he asked for the psychiatric report to be prepared and he did not object to it when it was produced in the Surrey proceedings. (

b) A Pre-Sentence Report dated June 6, 2012 - This was prepared by Shannon Schaefer, a probation officer with Surrey East Adult Community Corrections. This Pre-Sentence Report was prepared for sentencing on File Number 176754-1. (

c) An update to the Pre-Sentence Report - The update was prepared on July 12, 2012, by Probation Officer Shannon Schaefer. The Crown wished to rely on the original report and the update even though they were prepared for a different proceeding. The Crown noted they were recent Pre-Sentence Reports that provided helpful background and other information regarding Mr. Burgar. Mr. Burgar objected to reliance on the Pre-Sentence Report and the Pre-Sentence Report update because, according to him, the reports were filled with inaccuracies. Mr. Burgar asserted he told his lawyer in the Surrey matter, Ms.

Percival, about the inaccuracies, but she did not raise them at the sentencing hearing in the Surrey matter. He maintained that Ms. Schaefer was selective in what she chose to include in the report. In particular, she did not provide information about the progress he had made which had been noted by his previous probation officer, Ms. Alena Henderson [phonetic]. (

d) A letter that Mr. Burgar wrote on or about August 1st, 2012, to Ms. Schaefer - This was a handwritten eight-page letter in which Mr. Burgar raised various concerns he had about Ms. Schaefer and what she wrote in the Pre-Sentence Report and the update. The Crown wanted to use the letter because it reflected Mr. Burgar's attitude. The Crown argued the letter contained admissions against interest. In that letter, Mr. Burgar wrote he had committed thousands of offences. According to the Crown, the contents of the letter showed a risk of recidivism and low prospects for rehabilitation. Mr.

Burgar argued the letter he sent to the probation officer had no bearing on the matter before the court. He said he believed what he said in that letter, namely; that Ms. Schaefer was derogatory and deceitful. (

e) A copy of Mr. Burgar's CPIC criminal record - Mr. Burgar objected to the production of his criminal record because he asserted it was not accurate. He said there were items on that record that were duplicates and other convictions that he did not recall. (

f) A chart prepared by the prosecutor - Ms. Gagnon referred to it as a matrix which set out a timeline of the convictions against Mr. Burgar by offence date. The Crown said this was part of its sentencing submission and an aid for the court. Mr. Burgar objected to this matrix on some of the same bases that he objected to the criminal record. He also said he did not agree with how some of the convictions were described. (

g) A psychological report prepared in 1990 - This report was not dated, but it was stamped by the Abbotsford Parole Office as received on July 3rd, 1990. The report was prepared by Richard J. Freeman, clinical and consulting psychologist. The assessment was prepared for purposes of parole. The Crown acknowledged the report was dated, but argued that everything in the report is relevant to these proceedings. She argued it is in juxtaposition to the report of Dr. Wang and shows a common thread regarding Mr. Burgar's attitude, approach, and explanation for the offences. Mr. Burgar's position on Dr.

Freeman's 1990 assessment was that it is dated and has no bearing on the matter before this court. (

h) A victim impact statement prepared on a Ministry of Justice Victim Impact Statement form - It is a four-page handwritten document that was prepared by the complainant. The Crown argued that the victim impact statement was properly before the court and can be considered without the necessity of calling the complainant. Mr. Burgar argued the victim impact statement was full of lies. He said the incident as described by the complainant did not happen. He acknowledged that what he did do; namely, what he admitted to in his testimony at the trial was traumatic enough for the complainant.

He objected to the statement being admitted without an order that he be allowed to cross-examine the complainant. [ 14 ] On December 13, 2013, I gave a ruling on Mr. Burgar's objections. With respect to Dr. Wang's report dated June 7, 2012, I ruled it could be entered as an exhibit in these proceedings. However, Dr. Wang should be produced for cross-examination for the limited purpose of allowing Mr. Burgar or his counsel to cross-examine Dr.

Wang regarding impulse control disorder and whether the medication he prescribed was to treat that disorder or not. [ 15 ] I stressed I would not permit a freewheeling and wide-ranging cross-examination of Dr. Wang. Instead, cross-examination had to be targeted and on the specific points noted above which were the points addressed by Mr. Burgar in his objection to Dr. Wang's report before this court. [ 16 ] I ruled the Pre-Sentence Report and the Pre-Sentence Report update could be filed in these proceedings, although they were prepared for a different matter. However, given Mr.

Burgar's allegation that the reports were filled with inaccuracies, I would allow Mr. Burgar to cross-examine Ms. Schaefer if the Crown wished to rely on the reports. Again, I stressed the cross-examination of Ms. Schaefer must be targeted in this regard. If Mr. Burgar wished to cross-examine Ms. Schaefer, he had to file with the court, 14 days in advance of the continuation of the sentencing hearing, a list of the inaccuracies he maintained were contained in Ms. Schaefer's report.

[ 17 ] As to the handwritten letter of Mr. Burgar to Ms. Schaefer, I ruled it would not be entered as an exhibit in these sentencing proceedings. [ 18 ] With respect to the CPIC criminal record, I ruled the Crown was at liberty to present a criminal record. However, as Mr. Burgar had not admitted the record as presented to the court, the Crown would need to prove that record if it wished to rely on it. [ 19 ] As to the Crown's timeline matrix, I noted it was simply an aid the Crown wished to use in its final argument.

I would not interfere with how the Crown wished to present its final argument, but if it wished the court to rely on information contained in that matrix, that information either had to be proven through other materials or evidence before the court or by calling evidence in respect to the specific information contained in the timeline matrix. [ 20 ] As to the psychological assessment prepared by Richard Freeman, I was not satisfied the information contained in this assessment would assist the court.

The information in the report was very dated and the report was prepared for a parole hearing and not a sentencing hearing. Given the passage of time, I was not satisfied that the information contained therein, even if it could be substantiated by producing Dr. Freeman, would be of sufficient assistance to the court that it should be considered in this sentencing hearing. Accordingly, I ruled the report should not be admitted at the sentencing hearing. [ 21 ] With respect to the Victim Impact Statement, I ruled that the issues Mr.

Burgar raised were without merit given the findings I made after hearing evidence at trial. The production of a victim impact statement during sentencing proceedings is appropriate and, in this case, the victim impact statement is to be admitted without any need to produce the complainant for cross-examination. Continuation of Hearing [ 22 ] The sentencing hearing was adjourned to January the 23rd, 2014. On that date, Dr. Wang and Ms. Schaefer were to be produced for cross-examination by Mr. Burgar. On January 23rd, 2014, the sentencing hearing continued. Dr. Wang and Ms.

Schaefer were produced for cross-examination and were cross-examined by Mr. Burgar. [ 23 ] The Crown also filed additional materials with respect to the CPIC criminal record and a new, or a different, record was entered. In fact, if my recollection is correct, the CPIC record had only been made an exhibit in the voir dire and, therefore, the new CPIC record was the document entered in these proceedings. [ 24 ] The parties agreed that all the admissible evidence heard in the voir dire would be entered as evidence in the sentencing hearing. We then adjourned to today's date for decision.

In between January the 23rd and today, Mr. Burgar made an application asking that I vary his bail pending my decision. I declined his request in that regard. Position of the Parties [ 25 ] The Crown submitted that a fit sentence for the sexual assault of the complainant was seven years in prison. The Crown also asked the court to invoke the delayed parole provisions set out in s. 743.6 of the Criminal Code . The Crown's position was that sexual assault is a

Schedule I offence and Mr. Burgar's background of offending constituted exceptional circumstances that warranted the use of s. 743.6 . [ 26 ] The Crown submitted that in imposing sentence on Mr. Burgar, the court should place greatest emphasis on the principles of general deterrence, specific deterrence, denunciation, retribution, and protection of the public. The Crown submitted rehabilitation was not a primary principle to be considered in this case. [ 27 ] The Crown acknowledged that Mr. Burgar has been in custody on this matter since December 9, 2012.

It also acknowledged the court had made a finding of a s. 9 Charter breach. The Crown said it had taken this into consideration in suggesting there be a reduction in sentence. That reduction should be effected by granting Mr. Burgar a credit of time served on a one-to-1.05 basis under s. 719(3.1) of the Criminal Code . Such a calculation should apply to all straight pre-trial time in custody served by Mr. Burgar up to and including the date sentence is pronounced. [ 28 ] The Crown submitted I should consider all relevant evidence regarding the offender. In particular, it submitted I should consider Mr.

Burgar's character which it said was a live issue. The Crown reviewed Mr. Burgar's prior criminal history. [ 29 ] The Crown also made submissions on Mr. Burgar's "treatability" and risk to reoffend. The Crown argued there is evidence to suggest Mr. Burgar is very likely to reoffend sexually. He has minimal insight into the effect of his behaviour. He is resistant to counselling and relies on his own opinion in terms of the use of medication to curb his sexually deviant tendencies. The Crown's view was that Mr.

Burgar poses a major ongoing risk to the safety of the public and, in particular, to women. [ 30 ] The Crown further submitted there are no mitigating factors. The aggravating factors are Mr. Burgar's lengthy record of offences of a sexual nature, the fact he was on bail for another matter at the time the offence against the complainant was committed, the fact the he took advantage of the complainant's physical disability to perpetuate his crime, and the fact that harm was caused to the victim as a result of the sexual assault. [ 31 ] I now turn to Mr. Burgar's position. Mr.

Burgar submitted that time served is appropriate in all the circumstances. He noted the time served should not be straight time, but that he was entitled to two enhancements. First, he is entitled to have the time he served taken into account on a two-for-one basis. The Crown agreed double time applies because of the date of this offence; namely, 1999. At that time, pretrial custody was calculated on the basis of two-for-one. [ 32 ] Second, Mr. Burgar submitted he is entitled to a further enhancement because of the s. 9 Charter breach. The Crown, in its submission, argued that Mr.

Burgar should be credited with an additional .05 credit for time served. However, Mr. Burgar argued that the Charter breach found by this court was a significant Charter breach and he should receive enhanced credit of .5. This enhanced credit should be based on the total credit he receives for the time served based on double time.

[ 33 ] Mr. Burgar also asked that no probation be imposed relative to this matter. However, in the event the court concludes probationary terms might be beneficial, he submitted he should not have to report pursuant to any probation order issued in this case. He reminded the court that he is still on probation with respect to convictions entered in June and July 2012. [ 34 ] Defence counsel for Mr.

Burgar submitted that if the court does sentence him to further custodial time over and above the time he has served, taking into account enhanced credit, the court should not accede to the Crown's request with respect to delaying parole eligibility. [ 35 ] Defence counsel submitted that Mr. Burgar's positive conduct within the community for over a two-year period before he entered custody on the matter before the court as well as his conduct within the custodial setting should be taken into account. Mr.

Burgar's counsel submitted that parole consideration should be left to the Parole Board of Canada who will scrutinize any application for parole if he makes one and will consider risk to the community and whether he poses an undue risk if released. [ 36 ] She further submitted Mr. Burgar has demonstrated for some time now that he can reside in the community without posing a risk. Accordingly, the exceptional application made by the Crown is unnecessary in his case. Defence counsel argued that the R. v. Sandercock case relied on by the Crown has not been accepted by our Court of Appeal and pointed to R. v.

Malik in that regard. Circumstances of Offender [ 37 ] Mr. Burgar is now 65 years old. He was born in Ontario and was one of six children. When he was very young, his mother left his father and moved with the children to British Columbia. Mr. Burgar has been told that his mother was a victim of domestic violence. Mr. Burgar himself, although he does not remember it, was told he was severely beaten by his father shortly before his mother moved to British Columbia with him and his siblings. [ 38 ] Mr. Burgar's mother raised the family on her own and did not remarry until Mr. Burgar was in his teens. Mr.

Burgar left home to attend university when he was 19 or 20. Mr. Burgar now has four siblings who are still alive. He had maintained a close relationship with his older brother, but lost touch with him two-and-a-half years ago when he misplaced his brother's contact information. [ 39 ] Mr. Burgar married when he was about 25 or 26 years old. That marriage lasted 15 to 20 years. He had a daughter who is now in her mid-30s. He last communicated with her by email about two years ago before he was taken into custody. [ 40 ] Mr. Burgar's first marriage ended because of an exposure incident. Mr.

Burgar was charged with exposing himself. His wife felt this would be too traumatic, especially for their daughter who was entering school. His wife did not want their daughter to have to deal with the stigma of it being known her father was charged with exposing; so the marriage ended. Mr. Burgar reports it was an amicable ending. [ 41 ] Mr. Burgar married a second time about 10 years ago. That marriage lasted a month. [ 42 ] About four years ago, Mr. Burgar met a woman named Sandra Dennis. He lived with her in a platonic relationship for a period of six months which ended when he was incarcerated in 2012.

They are good friends and have maintained contact. They assist each other with their disabilities. Ms. Dennis has plans to ultimately open a recovery house for addicts. [ 43 ] Mr. Burgar says he received a degree from UBC in his mid-20s. He studied economics and political science. In the mid-1990s, he returned to university as an adult. He studied at Simon Fraser and received a general arts degree focused on criminology, sociology, and history. [ 44 ] Mr. Burgar has the following work experience. He worked in a sawmill for 20 years. After that, he opened a moving company which he operated for 15 years.

He also worked as a truck driver. In fact, at the time of the incident that led to this conviction, he was working as a truck driver. He also worked as a master carpenter for a company called Best Personnel for seven years. [ 45 ] In 2012, Mr. Burgar was involved in a motor vehicle accident. The car he was driving was hit by a truck. Since that incident, he has suffered vision problems and memory problems. There is litigation pending with respect to that motor vehicle accident. [ 46 ] Mr. Burgar is self-diagnosed with a condition called impulse control disorder. Mr.

Burgar reports that for many years he was not successful in getting treatment for his condition. In the past, he was prescribed medications for a sexual disorder, but it appears the medication did not have the desired effect. [ 47 ] Mr. Burgar did a significant amount of research on his own. He learned about a condition called impulse control disorder. He learned this disorder is treated with SSRI medications, sometimes referred to as antidepressants. Cipralex is one of the medications used to treat this disorder.

As well, a medication called Wellbutrin is apparently helpful in treatment of this disorder. [ 48 ] Mr. Burgar said that learning about this condition was important for him because the symptoms attributed to it resonated with him. He began taking medications approximately two years ago before his incarceration in the summer of 2012. He said that since receiving those medications, which he considers to be proper treatment for his impulse control disorder, he has not had impulses and had not reoffended. [ 49 ] Mr.

Burgar's defence counsel acknowledged his diagnosis is a self-diagnosis which is not consistent with reports doctors who have seen him, in particular Dr. Wang, have issued. The medications Mr. Burgar is taking were prescribed by Dr. Wang. However, Dr. Wang did not prescribe those medications for impulse control disorder, but rather for a sexual disorder. Dr. Wang did not acknowledge Mr. Burgar's self-diagnosis of impulse control disorder. However, Mr. Burgar advised that the medications he has been prescribed by Dr. Wang are effective.

He had not offended for a two-year period during which time he was living in the community. [ 50 ] Mr. Burgar said his family physician, Dr. Warshawski, has prescribed the same medications. Mr. Burgar said he thinks it has been about four years that he has been symptom free.

[ 51 ] Mr. Burgar is a religious Christian. He said he was ashamed of his actions in exposing himself during the period documented by his criminal record. This caused him to struggle with his religious devotion. He is not proud of his criminal record. However, now that he is receiving proper treatment, he has become even more devout. He now no longer experiences tension between his religious principles and his conduct. [ 52 ] Mr. Burgar said he has had a very difficult experience in custody. He dislocated both shoulders while in custody.

One occasion was when he was in the sheriff's van and, on the second occasion, he was getting off the top bunk and dislocated his shoulder. Additionally, he was assaulted on two occasions while in custody. The first assault was in January 2013 at the Fraser Regional Correctional Centre. Although there were no significant injuries, Mr. Burgar was placed in 23-hour lockup due to concerns about his safety. The second assault occurred in August 2013 at Surrey Pretrial Centre. Ever since that second incident, Mr. Burgar has suffered from nightmares and anxiety. Dr. Wang's Report [ 53 ] I now turn to Dr.

Wang's June 7, 2012, report and his testimony. In his report, Dr. Wang noted Mr. Burgar's contact with mental health professionals was in relation to his offending. By the fall of 2012, the management of his psychiatric medications had been transitioned to his family physician, Dr. Warshawski. [ 54 ] Dr. Wang reported that at the time he saw Mr.

Burgar, he was prescribed Cyproterone acetate, an antiandrogen medication which had the effect of lowering testosterone levels; Citalopram, an antidepressant medication, the side effects can be used for therapeutic purposes and lowering sex drive; and bupropion also known as Wellbutrin, an antidepressant medication. [ 55 ] Dr. Wang noted he worked with Mr. Burgar as his treating psychiatrist at the Surrey Fraser Regional Forensic Clinic from 2006 to 2010. His diagnosis of Mr. Burgar was exhibitionism and depressive disorder not otherwise specified. [ 56 ] Dr. Wang described Mr.

Burgar's course in treatment as "turbulent." He wrote that Mr. Burgar was oppositional and challenging towards him and towards the case manager. Mr. Burgar's file was closed for a period of time because of his irritability and unwillingness to discuss psychiatric treatment for sexual offending. Mr. Burgar did not believe he had a problem in that area. [ 57 ] Mr. Burgar's file was reopened in January 2008. At that time, Mr. Burgar agreed with Dr.

Wang's recommendations to start Cyproterone, a medication that blocks the action of testosterone at its receptor, with the aim of lowering testosterone levels and accordingly sex drive. Mr. Burgar continued to maintain there was no sexual component to his behaviour. However, Dr. Wang noted Mr. Burgar was able to identify the benefits from Cyproterone, specifically a decrease in his urges to expose. [ 58 ] Dr. Wang reported that in October 2008, Mr. Burgar stopped taking his Cyproterone on Dr. Wang's recommendation because he was experiencing some medical issues of unclear origin.

Although those medical issues resolved, Mr. Burgar elected to remain off Cyproterone. However, in May 2009, Mr. Burgar stated he had restarted taking Cyproterone. [ 59 ] Dr. Wang reviewed information provided to him in June 2012 which pertained to the offence before the Surrey court. Mr. Burgar told Dr. Wang he believes he does not have a sexual disorder. Mr. Burgar maintained he has an impulse control problem. He also believes that if the treatment providers were treating this as a sexual problem, they would be treating the behaviours and not the actual problem. [ 60 ] Dr. Wang said he challenged Mr.

Burgar about the lack of any practical difference in his mind if this disorder were classified as an impulse control disorder not otherwise specified rather than as exhibitionism. Dr. Wang pointed out to Mr. Burgar that he has not reoffended in the past two years. That is an indication that his current treatment is working. Mr. Burgar became mildly defensive at that remark and stated that the treatments for both impulse control disorder and exhibitionism were the same. [ 61 ] Dr. Wang reported that when he examined Mr. Burgar in 2012, his attitude was pleasantly irascible and mildly condescending at times.

There was no evidence of physical agitation. Mr. Burgar's mood was okay. He was generally pleasant. He did not endorse any delusions or hallucinatory experiences consistent with a psychotic disorder. His thought process was circumstantial. His judgment was rated as chronically impulsive and his insight was rated as partial. [ 62 ] Dr. Wang also conducted a risk assessment using the Risk for Sexual Violence Guidelines for evaluation purposes. Dr. Wang reported that Mr.

Burgar has a number of risk factors associated with reoffending including chronic history of sexual offending, diversity of sexual violence, minimization and denial of his offending behaviours, some want of empathy, problems with self-awareness, problems with stress and coping, and problems with planning in terms of his poor self-management and impulsivity. [ 63 ] Dr. Wang concluded Mr. Burgar is at high risk of sexual reoffending. However, in Dr. Wang's opinion, his risk can be managed in the community. Further, Mr.

Burgar's risk level could be lowered with the use of psychiatric medication to help manage sexual impulsivity and depressed mood. [ 64 ] He noted that the offence being dealt with in Surrey had occurred in 2009 and, since Mr. Burgar's probation order ended in 2010, there had been no reports of new exposing behaviours leading to arrests. He said this suggested Mr. Burgar's risk was being well managed in the community. He also noted that Mr. Burgar's risk of contact sexual offences was low. [ 65 ] On January 23rd, 2014, Dr. Wang was cross-examined by Mr. Burgar.

Although I considered all of his testimony, I am only summarizing portions of it in these reasons. Dr. Wang said he did not recall telling Mr. Burgar he was not familiar with what impulse control disorder is or how to treat it. Dr. Wang said Mr. Burgar told him he had impulse control disorder. Dr. Wang also said he had discussed with Mr. Burgar several times that his working diagnosis for him was exhibitionism. Dr. Wang told Mr. Burgar the treatment would be quite similar. [ 66 ] Mr. Burgar suggested to Dr. Wang that he had failed to read material about impulse control disorder or check information on the Web.

Dr. Wang said they had discussed his working diagnosis on a number of occasions and he thought Mr. Burgar was satisfied with

their discussions. Dr. Wang did not recall telling Mr. Burgar he had not read the materials, but if Mr. Burgar said that, then it was probably true. [ 67 ] Dr. Wang said he was very confident about his diagnosis. He went back as far as 1977 in reviewing materials and the opinions of a number of well-known psychiatrists. Dr. Wang agreed he was treating Mr. Burgar for exhibitionism instead of impulse control disorder. [ 68 ] It was put to Dr. Wang that he had stopped treating Mr. Burgar because of this difference between their views. Dr. Wang said he and Mr. Burgar had worked together between 2007 and 2010.

At one point, Mr. Burgar had said he did not want to work with Dr. Wang. However, later, Mr. Burgar advised through his probation officer that he again wanted to see Dr. Wang. [ 69 ] Mr. Burgar asked Dr. Wang a series of questions about Cyproterone. Dr. Wang acknowledged he had to obtain specific permission to have the drug approved. This was because the drug was not ordinarily covered under MSP. Dr. Wang said the drug has primarily two uses. One is for prostate cancer and the other is for sexual disorders like exhibitionism. Dr. Wang did not recall Mr. Burgar asserting this was not helping him.

He looked at his notes and Mr. Burgar had reported he had a positive result and he thought it was helping him. [ 70 ] Dr. Wang acknowledged Mr. Burgar's dosage was adjusted based on how the medication affected his sexual thoughts. He also noted that sometimes Mr. Burgar adjusted the dose himself. Mr. Burgar suggested the Cyproterone had not been effective. Dr. Wang did not accept that premise. He said Cyproterone was stopped because Mr. Burgar had a physical problem. Once the problem was resolved, Mr. Burgar told him he did not need to take Cyproterone. [ 71 ] Mr. Burgar suggested to Dr.

Wang he was wrong in his assertion that Mr. Burgar had restarted on Cyproterone in May 2009. Dr. Wang said he stood by what he said in his report. Dr. Wang said what he wrote in the report was that Mr. Burgar had restarted Cyproterone on his own after escalating thoughts after an incident of exposure and Mr. Burgar did not want to discuss it. [ 72 ] Dr. Wang was asked a series of questions about impulse control disorder. He said impulse control disorder in the DSM is a category of mental impairments that leads to problems with impulse control. Examples of this are pyromania and kleptomania.

It was put to him that it could include impulsive exposing. Dr. Wang said that is not one of the impulse control disorders in the DSM. Conditions falling under impulse control disorder share certain features, but Mr. Burgar's situation does not fall under impulse control disorder as per the DSM. [ 73 ] Dr. Wang said his diagnosis of Mr. Burgar's condition is exhibitionism. He was asked, if that was the case, why had treatment failed. Dr. Wang said this was a complicated question. Dr. Wang said a major obstacle in Mr. Burgar's treatment was based on Mr. Burgar's lack of engagement. He noted that in the past Mr.

Burgar was often antagonistic and that could cause problems with treatment. [ 74 ] Mr. Burgar pointed to a statement made in Dr. Wang's report that his judgment was "chronically impulsive." Dr. Wang acknowledged he used that term in his report, but said that was not a diagnosis of Mr. Burgar's condition. Dr. Wang said Mr. Burgar's history of exposing behaviours is well explained under the paradigm of sexual disorder, specifically exhibitionism. [ 75 ] He noted that the treatment Mr. Burgar received during approximately the last four decades was under a model of sexual offending behaviour.

The treatment model consisted of medication to manage sexual impulsivity and the sexual disorder as well as cognitive behavioural therapy to try to understand Mr. Burgar's thoughts, emotions, and behaviour. Dr. Wang said that is quite different from impulse control disorder. [ 76 ] Dr. Wang categorically stated Mr. Burgar's clinical diagnosis is not impulse control disorder. It is exhibitionism and personality disorder, but Dr. Wang believes Mr. Burgar also has impulsivity issues. Dr.

Wang said exposing behaviour can be impulsive, but that is different from saying the exposing behaviour is due to an impulse control disorder. Mr. Burgar's Criminal Record [ 77 ] I now turn to Mr. Burgar's criminal record. I am referring to the record marked as Exhibit 6 in the sentencing proceedings, that is, the amended CPIC record. [ 78 ] That record shows the following: assault with intent in 1969 in Surrey which sentence was varied on appeal to a one-year suspended sentence; indecent exposure under s. 169 (

a) of the Criminal Code in 1971, University Hill, British Columbia, probation for one year; break and enter with intent in 1982 in Vancouver, one year and probation two years; trespass by night under s. 173 of the Criminal Code , 1982, Surrey, British Columbia, three months; indecent act under s. 169 of the Criminal Code , two counts, 1985, New Westminster, British Columbia, 60 days intermittent plus probation for two years; sexual assault under s. 246(1) of the Criminal Code , 1988, Vancouver, British Columbia, and a jail sentence of five years; indecent assault in 1980, no indication of location, probation for two years; indecent assault, two counts, 1986, no indication of locations, six months' jail -- [ 79 ] THE ACCUSED: Your Honour, that is indecent act, not -- [ 80 ] THE COURT: I am sorry, thank you very much, both of those were indecent act.

Thank you for correcting me, Mr. Burgar, if I misspoke. I certainly did misspeak the second time. [ 81 ] THE ACCUSED: Sorry about that. [ 82 ] THE COURT: Thank you for correcting me. [ 83 ] So that was indecent act, two counts, 1986, no indication of location, six months' jail concurrent and probation for two years; trespassing at night under s. 177 of the Criminal Code , 1993, in Surrey, British Columbia, two months' consecutive to an unexpired portion of a sentence; theft under, two counts, 1995, in Surrey, British Columbia, 14 days on each count concurrent; possession of

property obtained by crime under $5,000, Surrey, British Columbia, 1995, one day and probation for one year; possession of break-in instruments, attempted theft, two counts, in New Westminster, 1996, one month on each count concurrent. There was also failing to comply with a recognizance, 1996, no indication of location, 10 days in jail. [ 84 ] I have reviewed the record up to 1999. One of the things I wish to make clear is that I have reviewed the whole record, but since what I am dealing with today is a historical sexual assault, the only purpose for which I have considered Mr.

Burgar's subsequent offences and convictions is for the purpose of determining whether there is some evidence of conduct that should be regarded as a mitigating factor in the many years subsequent to the offence in this case. Otherwise, I have not considered his offences after 1999 in relation to this sentencing. In doing so, I have followed the same procedure followed by Mr. Justice Willcock in R. v. Kane , 2011 BCSC 345 . Victim Impact Statement [ 85 ] The complainant completed a victim impact statement on November 21, 2012.

She wrote that the 1999 assault changed her life and attitude both emotionally and physically. She does not go to public washrooms without someone with her or someone waiting for her. She does not go anywhere without another person present, not because of her disability, but because of her experience with the assault. [ 86 ] After the assault, the complainant fell into a deep depression and attended a mental health program for a number of months.

She wrote the attack affected her attitude towards men and, although she has overcome the immediate negative reaction to men, she finds she now has less trust in men generally. After the attack, she was not able to deal with the public or go back to work. She also stopped her physiotherapy exercises for a while. [ 87 ] At the time of the assault the complainant was healing from an injury. However, the attack caused her to experience additional problems with her neck. She is continuing to receive treatment for neck pain. The complainant said that when she was assaulted, she was able to walk without canes.

However, since the attack, she has always walked with a cane. She must now use a walker. She said the assault reduced her confidence about walking without an apparatus. The complainant still seeks counselling from time to time. She will never forget the incident because it changed her life completely. Legal Principles [ 88 ] I now turn to the law and the principles of sentencing. The purpose and principles of sentencing are set out in the Criminal Code .

The overarching purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions. [ 89 ] The objectives of sentencing are: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 90 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In addition to the fundamental principle, the sentencing judge must also take into consideration a number of other principles including any relevant aggravating or mitigating circumstances relating to the offence or the offender; parity, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 91 ] I now turn to range of sentence.

The Crown, in its submissions, pointed out that a maximum sentence for sexual assault, proceeded with by indictment, is 10 years with no minimum sentence prescribed.

The Crown submitted there is a huge range of sentences possible for sexual assault given that the offence covers conduct ranging from an intentional brushing of the buttocks to a protracted rape. [ 92 ] The Crown also pointed to decisions of our Court of Appeal for the proposition that a range of sentences does not preclude a sentence different from that within the range based on grounds of deterrence, denunciation, or the gravity of a particular offence. Neither does a range of sentence preclude a lesser sentence if some special circumstances warrant. [ 93 ] In R. v.

Bernier , 2003 BCCA 134 , Madam Justice Newbury noted that a range of sentence is simply a continuum within which cases may be placed depending on the facts and the relationship of the principles of sentencing. She acknowledged that ranges are a convenient shorthand for counsel to use in making submissions on sentencing. However, the usefulness of ranges will always be limited by the fact that the sentencing judge must consider each case on its own facts.

In the same case, Madam Justice Prowse noted that because sentencing is an inherently subjective and individualized process, ranges of sentences are simply guidelines and not rules. [ 94 ] References to range of sentences should not distract the court from giving appropriate weight to the principles of sentencing set out in the Code and from adjusting each sentence to the specific circumstances of the offence and the offender. A review of sentencing cases clearly establishes there is a broad range of conduct which can constitute sexual assault. [ 95 ] In R. v. B.S.B. , 2008 BCSC 1526 , Mr.

Justice Romilly undertook a detailed review of range of sentences for sexual assault and the factors to consider in imposing a sentence for sexual offences. He noted that a number of cases in British Columbia established that the range of sentences for sexual assault, where sexual intercourse has taken place, was two to six years. I appreciate that is not the circumstance in this case. In other cases where the Crown proceeded summarily, sentences ranged from a few months to two years less a day. A Fit Sentence in this Case [ 96 ] In arriving at a fit sentence for Mr. Burgar, I have considered the following:

(

a) The nature and intrinsic gravity of the sexual assault committed on the complainant - Although there were no threats, manipulation, or violence, except that associated with the assault itself, a number of factors are significant. First, it occurred in a public washroom where the complainant was entitled to expect privacy while the complainant was sitting on the toilet with her shorts pulled down. Second, because of previously sustained injuries, the complainant was limited in her movements and was still undergoing physiotherapy treatments.

In fact, on the date of the incident, she was on her way to physiotherapy. Third, given she was inside the stall of the public washroom, she was virtually trapped by Mr. Burgar's actions. Although the sexual assault in this case did not involve sexual intercourse, Mr. Burgar's actions, which consisted of attempting to put his body under the stall door, banging the stall door open, forcing his body up against the complainant and masturbating onto her chest area, place the assault in the mid-range of seriousness. (

b) Frequency, the period of time over which the offence took place - This was a one-time offence which took place over a short period of time. However, given all of the circumstances, this does not detract from the seriousness of the offence. (

c) Abuse of trust - There was no abuse of trust or abuse of authority as Mr. Burgar and the complainant were strangers. (

d) Offender's previous convictions - As noted in my review of his criminal record before April 16, 1999, Mr. Burgar had been convicted of one assault with intent, one indecent exposure, four indecent acts, two trespass-at-night, two break-and-enter-with-intent, as well as several theft-unders, and possession of stolen property. More importantly, Mr. Burgar had been convicted of sexual assault in December 1988 and sentenced to five years in jail. (

e) Factors relating to the accused such as disorders underlying the commission of the offence; the offender's psychological difficulty, intoxication, et cetera - There was no indication that Mr. Burgar was intoxicated at the time of the offence. Mr. Burgar himself denies having committed the offence. He has not pointed to any underlying disorders in relation to this particular offence. However, Dr. Wang's report of June 7, 2012, indicates his diagnosis at that time, that is, in 2012, was exhibitionism and depressive disorder not otherwise specified.

Given that the offence in this case occurred in 1999, there is no admissible medical evidence before the court to indicate what psychological difficulties or disorders, if any, Mr. Burgar may have been experiencing at the time the offence occurred. In this regard, I note that a psychological report prepared in 1990 for parole purposes was excluded after Mr. Burgar objected to its production. [ 97 ] In arriving at a fit sentence, I have taken into account the principle of rehabilitation.

However, in this case, the principles of denunciation, deterrence, and protection of the public are of primary importance. [ 98 ] I will now address credit for time served. I will first address the credit Mr. Burgar should receive for the s. 9 Charter breach. I accept the Crown's submission that a credit of .05 calculated on the basis of straight time served in presentence custody is the appropriate credit Mr. Burgar should be given for the s. 9 Charter breach. [ 99 ] I reject the submissions of Mr. Burgar with respect to the calculation of credit he should receive on the s. 9 breach in their entirety.

His submissions would result in a windfall and not an appropriate credit to mitigate the effect of the Charter breach. [ 100 ] Second, I will address the credit to be given to Mr. Burgar for time he has served in presentence custody. The maximum credit currently allowed by statute is 1.5 days for each day in presentence custody. However, this offence occurred in 1999. Accordingly, Mr. Burgar is entitled to have his presentence custody calculated on the basis of two for one. [ 101 ] As of today, Mr. Burgar has served 506 days in custody.

Therefore, he will receive double that; namely, 1,012 days' presentence time in custody as credit. To that will be added .05 times 506 days which equals 25.3 days' enhanced credit for the s. 9 Charter breach. The total credit for presentence time in custody is 1,037.3 days. [ 102 ] I am sentencing Mr. Burgar to an additional 240 days in custody. Accordingly, the sentence is 240 days' custody in addition to the time already credited of 1,037.3 days. The effective sentence is essentially three-and-a-half years.

Ancillary Orders [ 103 ] The Crown requested that I make an order under s. 743.6(1) and delay parole eligibility. Although the effective sentence I have imposed would have resulted in incarceration in a federal institution, I am not prepared to make the order requested by the Crown. [ 104 ] I am making a mandatory DNA order under s. 487.051(1). [ 105 ] I am also making a mandatory firearm prohibition order under s. 109(1)(a). [ 106 ] I am also making a mandatory SOIRA order under s. 490.12(3) and 490.013. [ 107 ] Last but not least, I am imposing a probation order.

As the sentence I have imposed does not exceed a term of two years, I am not precluded from ordering probation pursuant to s. 731 of the Criminal Code ; see R. v. Goeujon , 2006 BCCA 261 , and R. v. Mathieu et al , 2008 SCC 21 . Given the nature and circumstances of the offence of which I have convicted and sentenced Mr. Burgar, as well as Mr. Burgar's circumstances, I conclude a probation order will assist in Mr. Burgar's rehabilitation. Therefore, Mr. Burgar will be placed on probation for a period of three years. [PROBATION ORDER CONDITIONS NOT INCLUDED IN PUBLISHED VERSION]

[REASONS FOR SENTENCE CONCLUDED] CORRIGENDUM - Released June 19, 2014 In the Reasons for Sentence dated April 29, 2014, the following change has been made: [1] On the cover sheet, the “Date of Hearing” date of April 29, 2014, should be changed to “December 2, 13, 2013; January 23, 2014”.