R. v. C.C.H., 2019 BCPC 331

Citation: R. v. C.C.H. 2019 BCPC 331 Date: 20191206 File No: 233580-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. C.C.H. BAN ON PUBLICATION PURSUANT TO S. 486.4(1) OF THE CRIMINAL CODE ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Counsel for the Crown: C. Stewart Counsel for the Defendant: P. Evans Place of Hearing: Surrey , B.C. Date of Hearing: November 21, 2019 Date of Judgment: December 6, 2019 Introduction

[ 1 ] On August 6, 2019, C.H. (“Mr. H.”) pled guilty to one count of sexual exploitation of a person with a disability, contrary to s. 153.1 of the Criminal Code . [ 2 ] Mr. H.'s victim was B.B. (“B.”), his granddaughter. B. suffers from spastic quadriplegia cerebral palsy. She is confined to a wheelchair, has no control over her limbs, suffers from cognitive delays, and requires assistance with all facets of her daily living. [ 3 ] For reasons that I will describe shortly, Mr.

H.'s sexual crimes against his profoundly disabled granddaughter are so shocking and disturbing it is hard to capture the magnitude of this offence in words. [ 4 ] To his significant credit, Mr. H. has pled guilty to this offence and in doing so he has spared this devastated family the trauma of taking this case to trial. [ 5 ] These are my reasons for the sentence I am imposing on Mr. H. Background [ 6 ] Mr. H. is 78 years old. B. and her twin brother G. were born with cerebral palsy. B. suffers from quadriplegia and G. suffers from paraplegia.

B. has cognitive delays and struggles to raise her voice. [ 7 ] B.'s parents are V.B. (“Ms. B.”) and C.H., Jr., Mr. H.'s son. C.H., Jr. is the stepfather of B. and G. and entered into their lives when they were three years old. B. considers Mr. H., Sr. to be her grandfather. [ 8 ] B. and G. attend a day program between 8:00 in the morning and three o'clock in the afternoon during the weekdays. Ms. B. and Mr.

H., Jr. work and so B. and G. require a caregiver during the week between 7:00 to 8:00 a.m. and from 3:00 to 5:00 p.m. when their parents come home from work. [ 9 ] In October 2017, B. and G.'s caregiver had quit for personal health reasons. The accused was retired and living next door to the B./H. family and so Mr. H., Sr. agreed to fill in as the caregiver for B. and G. Among his duties, Mr. H. had to feed B. and G., and had to change B.'s diaper, clean her genital area, and assist her onto the toilet. Mr.

H. was paid $600 a month to perform his caregiving duties. [ 10 ] On November 19, 2018, a family friend saw Mr. H. kiss B. on her mouth and reported the kiss to V.B. Ms. B. asked B. if the accused had ever touched her inappropriately and B. disclosed to her mother that Mr. H. had been touching her for several months. [ 11 ] In an Agreed Statement of Facts, Mr. H. says that over a number of months he engaged in the following with his vulnerable and disabled granddaughter: digital penetration of B.'s vagina, kissing her vagina, and one occasion of kissing and fondling B.'s breasts.

Circumstances of the Offence [ 12 ] I just mentioned the sexual acts committed by Mr. H. against B. but the circumstances of this offence are far more troubling than simply the physical acts. [ 13 ] As I have already noted, B. has no control over her limbs. She had no ability to prevent Mr. H. from sexually assaulting her. B. told her grandfather to stop but he did not. B.'s disability prevents her from calling out for help. She was and is as vulnerable to criminal acts by others as anyone could imagine. But for the fortuitous observation of the kiss by the family friend, who knows how much longer Mr.

H.'s offending would continue. [ 14 ] I find that the circumstances of this offence are extremely serious and call out for a significant sanction by the court. Circumstances of Mr. H. [ 15 ] Mr. H. is 78 years old, has a Grade 7 education and has been gainfully employed throughout his adult life. He retired at 65 years of age, and enjoys good physical and mental health. [ 16 ] Mr. H. had a happy and healthy upbringing. He married his first wife when he was 21 years old. They had four children together but, sadly, their youngest son D. died as an infant at the age of six.

This first marriage suffered following the passing of D. and eventually the couple divorced. [ 17 ] Mr. H. married his second wife when he was in late thirties. The couple remained together until his second wife passed away in 2006. Mr. H. has not entered into another relationship since the passing of his second wife. [ 18 ] Mr. H. has no criminal record. [ 19 ] Since the family has learned of Mr. H.'s offences, there has been significant fallout in the relationships within the family. While it is not clear to me, I believe Mr.

H. may still have the support of a few of his extended family members but, quite clearly, he has lost his relationships with a large part of his family. [ 20 ] In the psychiatric and pre-sentence report, Mr. H. expressed remorse for his crime. He was unable to articulate why he offended against B. He said at one point that he thought she liked what he was doing to her, but he also acknowledges that she was saying no and asked him to stop. He did not stop. [ 21 ] Mr. H. has been assessed to be a low risk for reoffending, and Dr. Lopes recommends that Mr.

H. participate in and complete the sex offender treatment program. Sentencing Principles

[ 22 ] The purposes and principles of sentencing are set out at s. 718 of the Criminal Code . They include denunciation, specific and general deterrence, separating offenders from society where necessary, rehabilitation, to provide reparations to the victims and community, and to promote a sense of responsibility in offenders. [ 23 ] All sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 24 ] In arriving at a fit sentence, the judge must take account of any mitigating and aggravating factors present in the specific case.

Among the aggravating factors in this case is Mr. H.'s abuse of his position of trust over B. which is a statutorily aggravating factor under our Criminal Code . [ 25 ] Lastly, the sentence imposed must be in parity or similar to sentences imposed on similar offenders, for similar offences. [ 26 ] For sexual crimes against children, our Courts of Appeal and the Supreme Court of Canada have clearly stated that denunciation and deterrence are the primary sentencing principles the sentencing judge should emphasize.

While B. was not chronologically a child during these offences, both counsel before me acknowledge that denunciation and deterrence are the paramount sentencing principles I must bear in mind in determining a fit sentence for Mr. H. Determination of a Fit Sentence for Mr. H. [ 27 ] As I have indicated, in arriving at a fit sentence for Mr. H., I must factor into my decision the mitigating and aggravating factors present in this case. Mitigating Factors 1. Mr. H. comes before this court with no criminal record. He has, for the past 78 years, been a law-abiding and contributing member of society.

What he did to B. comes with no explanation and is inconsistent with how Mr. H. has lived his life until these events began. 2. Mr. H. has taken full responsibility for his crime and he has entered a guilty plea. By doing so, he has spared B. and her family the trauma of testifying at trial. On November 21st, 2019, during the sentencing submissions, the anguish and emotional trauma of that experience for this family was very hard to watch. This family has been destroyed, but by entering his guilty plea, Mr.

H. has done all he can do to accept responsibility for his crime and spare the family from testifying at trial. The guilty plea is a significant mitigating factor in this case. 3. Mr. H. has expressed his remorse to the authors of the psychiatric risk assessment and the Pre-Sentence Report. During the sentencing submissions, Mr. H. spoke to me and the family members who were present in the courtroom. He spoke of his remorse for what he has done. It was a genuine expression of his heartfelt remorse. 4. Mr. H. has been determined to be a very low risk to reoffend.

In effect, he poses a very low risk to the safety of the public. 5. To a much lesser degree but nonetheless a somewhat mitigating factor is the consequences to Mr. H.'s personal life and his relationship with his family. Before going any further on this topic, any negative personal consequence to Mr. H. as a result of his sexual offending against B. is profoundly overshadowed by the impact of these offences on B. and her immediate family. So while I acknowledge that there have already been consequences to Mr.

H., those consequences will play a much lesser role in the mitigation of the sentence I am imposing today. Aggravating Factors [ 28 ] The aggravating factors that I must keep in mind when considering a fit sentence for Mr. H. are among the most aggravated circumstances I have seen in this court. 1. B.'s vulnerability [ 29 ] B.'s disabilities left her completely defenceless to her grandfather's predatory, sexual offences. I use the word predatory, because B. was unable to fend off her grandfather's sexual advances. She could not call out loud enough for help.

She was saying no and stop to her grandfather and he persisted knowing all of this. His offending lasted for months, until the fortuitous intervention of a family friend. B. was about as helpless and vulnerable a victim as one can imagine. Her vulnerability is a significant aggravating factor. 2. Mr. H.'s abuse of his position of trust and authority [ 30 ] Prior to the events giving rise to this sentencing proceeding, Mr. H.'s status within the B./H. home was that of a close, loving and loved, and caring father, father-in-law and grandfather.

By all accounts, he had a very close and loving relationship with B. and G. It was because of the strength of the relationship between Mr. H. and the B./H. family that when B. and G.'s caregiver left to attend to her personal matters, the family turned to Mr. H. to step in and care for his grandchildren. The family turned to Mr. H. because they trusted him, without reservation, that he would lovingly and responsibly care for his grandchildren. By virtue of his sexual offending against B., Mr. H. shattered that trust to its core.

For anyone faced with the responsibility to care for such a vulnerable person as B., to then violate the trust and sexually offend against their charge is such an enormous breach of trust and human values, it is difficult to capture with words. To put it shortly, the breach of trust in this case is as enormous a violation of trust as one can imagine. B.'s personal, physical and sexual integrity were violated by the one person nobody would worry about caring for his granddaughter, but it happened. I cannot overstate this aggravating factor in my decision. 3.

The impact of the offence [ 31 ] As the Crown has described this factor in its sentencing submissions, the impact of this offence on B. and her family has been

catastrophic. Ms. Stewart, for the Crown, read out to me B. and G.'s Victim Impact Statements. Their words, their feelings, theiremotions, were difficult to listen to. These two individuals are changed people as a result of Mr. H.'s offences against B. B. is medicated.She has been suicidal. The sole destroying impact of Mr. H.'s offences against B. is a significant aggravating factor. [32] Mr. H.'s son, C.H., Jr., B.'s stepfather, did as good a job as anyone could to convey the destructive emotional consequences ofhis father's crime.

Displaying incredible emotional strength, C.H., Jr. stood up in court and read out to me his Victim Impact Statement.It was a moving but difficult statement to listen to. [33] Nothing that I do today will lessen the pain this family is suffering, but for B. and G., having a stepfather with the kind ofstrength and courage your stepfather has shown in this proceeding, puts you in very good hands. Add to that the impact in your lives ofyour mother, V. Her impact statement is heartbreaking, just as all the others are. [34] I am a bit at a loss for words to articulate the impact of these crimes on this family.

What I will say is there is some remarkablestrength in this family and that strength will be vital to ensure that B. is able, at some level, to move beyond the devastating impact this has had on her life. B., you struck me, on November 21st, as a strong, young woman. Hang on to that strength. Position of the Parties [35] In her sentencing submissions before me, Ms. Stewart, on behalf of the Crown, urged me to consider imposing a penitentiaryterm of imprisonment of three years. In support of that submission, Ms. Stewart relies on a number of cases that I will review shortly. [36] Mr. H., through his counsel, Mr.

Evans, urges me to consider imposing a nine to 18-month conditional sentence that wouldhave Mr. H. serve his jail sentence in the community under house arrest, with a few limited exceptions, and to perform 200 hours ofcommunity work service. In the alternative, Mr. Evans argues that if I find that a conditional sentence order does not adequately meet therelevant sentencing principles and that a conventional jail sentence is a fit sentence, then a sentence in the range of four to six monthswould be a fit sentence. Review of the Relevant Case Law [37] In support of the Crown's submissions on sentence, Ms.

Stewart refers to four cases which I summarize now. [38] In R. v. D.M., 2019 ONSC 5407, a recent decision from the Ontario Superior Court of Justice, dated September 27, 2019,Justice Boswell imposed a five-year jail sentence on D.M. following a conviction after a jury trial. The victim in D.M. was disabled,although more intellectually than physically. D.M's. offences against his victim, a 17-year-old boy, involved three instances of oral andanal intercourse that the victim did not consent to. D.M. was a family friend of the victim's family and spent much time with the victim,W.C.

D.M. was 21 years old at the time of sentencing. He was a hard-working man with no criminal record and was engaged to bemarried. The facts of that case included a clear violation of trust by D.M. and the fact that he took advantage of W.C.'s intellectualdisability. [39] In R. v. V.S., 2013 ONSC 6026, Justice Kelly of the Ontario Superior Court of Justice found V.S. guilty following a trial onthree counts of sexual crimes against his two adopted daughters. V.S. had also entered guilty pleas to some other charges.

Justice Kellyconvicted V.S. of French kissing one daughter, R.S., on one occasion when she was 10 to 13 years old; and with respect to his secondadopted daughter, A.M.S., his crimes started when A.M.S. was 18 years old and involved fondling and kissing her breasts, touching anddigitally penetrating her vagina, having A.M.S. masturbate him to ejaculation and two attempts at sexual intercourse. [40] V.S. came before the court with no criminal record. He was gainfully employed.

He was the sole financial support for hisfamily and he was in a new relationship with a woman in Australia. [41] In the case before Justice Kelly, the Crown asked for a five-year jail sentence, and V.S. sought two intermittent jail sentencesand a conditional sentence order of two years less a day. Justice Kelly sentenced V.S. to a four-year jail sentence after taking account ofthe fact that A.M.S. was developmentally and intellectually delayed, the breach of trust by offending against his daughters, and themultiple and escalating acts against A.M.S.

Justice Kelly also took note of the fact that V.S. had no record, strong family support, wasgainfully employed, expressed remorse, and was a low risk to reoffend. [42] A feature of the case before Justice Kelly was that the accused there, V.S., maintained that the offences occurred at theinsistence of the two children. Indeed, Mr. V.S. described himself to the court as the victim. In the end, Justice Kelly imposed a four-year jail sentence after noting Justice Moldaver's comments in R. v. D.D., (ON CA), [2002] O.J. No. 1061, in theOntario Court of Appeal dating back to 2002. [43] I note here in this R. v.

V.S. case and in the decision of Justice Moldaver in R. v. D.D., the victims were chronologicallychildren. In the case before me, B. was not a chronological child at the time of Mr. H.'s offences against her. [44] These cases where the victim is chronologically an adult but is intellectually and physically the equivalent of a child, they aretricky. So taking guidance from case precedents where the crimes were committed against children, and the victim before the court ischronologically an adult, but is in every other respect the equivalent of an infant child, requires careful consideration.

In my view, takingaccount of all of B.'s circumstances, I find that she is closer to the child end of the spectrum than the adult end of the spectrum. [45] In R. v. C.C., 2013 ONSC 654, Justice Spies of the Ontario Superior Court of Justice imposed a three-year sentence on Mr. C.who was a close family friend and neighbour of S.A., a 20-year-old severely developmentally delayed girl who was infatuated with Mr.C. S.A. had the mental age of a three to five-year-old child and did not understand the concept of sexual intercourse. On one occasionMr.

C. engaged in unprotected sexual intercourse with S.A., resulting in her pregnancy. The fetus was aborted. [46] Mr. C. took the case to trial and was convicted. He was 49 years old. He had no criminal record, he had nine children and wasillegally in Canada. The Crown sought a five-year jail sentence. Mr. C. sought a 12 to 24-month jail sentence. Justice Spies imposed a

three-year jail sentence finding that Mr. C. should have known that S.A. could not consent to the sexual intercourse, and that Mr. C. took advantage of S.A.'s significant disabilities. [ 47 ] Looming in the background of that case was Mr. C.'s inevitable deportation from Canada given his illegal status in Canada. [ 48 ] Lastly, in R. v. Thompson , 2017 SKCA 33 , the Saskatchewan Court of Appeal overturned the sentencing judge's sentence of 22 months and replaced that sentence with a three-year jail sentence. [ 49 ] Mr. Thompson was a family friend of his victim's mother.

This was a case of historical sexual assaults that occurred in the late 1990s. Mr. Thompson was also a massage therapist and he took on his victim, C.C., as a client. During the course of his many massage treatments of C.C., Mr. Thompson digitally penetrated C.C. 40 or 50 times. C.C. never consented to the sexual activity. C.C. had intellectual disabilities. The Saskatchewan Court of Appeal found that, given the breach of trust of his patient and close family friend, a three-year jail sentence was required to adequately address the sentencing principles in that case.

The Defence Authorities [ 50 ] In support of his position on a fit sentence in this case, Mr. H., through his counsel, Mr. Evans, filed a book of five authorities. [ 51 ] The first, R. v. Proulx , 2000 SCC 5 , is now a very well-known decision of the Supreme Court of Canada that confirms that a conditional sentence order is available in a case such as this and that, in rare cases, a conditional sentence order can meet the denunciatory and deterrent sentencing principles that are paramount in these kinds of cases. [ 52 ] In R. v. Streichert , 2001 BCCA 502 , the B.C.

Court of Appeal upheld a four-month jail sentence, followed by 20-months probation imposed by a Provincial Court judge following Mr. Streichert's guilty plea to sexually touching the 14-year-old complainant. The sexual offences included digital penetration and oral sex. [ 53 ] Mr. Streichert was a prominent member of a small community in the Kootenays. He was married with two children. There is no indication of what the connection was between Mr.

Streichert and his 14-year-old victim other than he was in a position of trust over the victim, A.W. [ 54 ] Unfortunately, this case does not include any discussion regarding the relevant sentencing principles and how a four-month jail sentence meets those sentencing principles. In fact, this case reads more like a sad outcome for Mr. Streichert than any analysis of his crimes against A.W. In fact, beyond the reference to the victim by her initials, there is no mention in the decision at all about A.W., her circumstances, and the effect on her as a victim of Mr.

Streichert's crimes. [ 55 ] In my view, this decision is an outlier and no longer is consistent with the current state of the law concerning sexual crimes committed by adults against children, let alone cases where the adult is in a position of trust and authority over the victim. [ 56 ] In R. v. D.T. , 2011 ONCJ 545 , D.T. was the uncle of his disabled victim who was confined to a wheelchair due to cerebral palsy. She was profoundly disabled.

D.T. was charged with digitally penetrating his victim on one occasion, although D.T. acknowledged he had done so on many other occasions. [ 57 ] D.T. took the case to trial on the basis that he believed the sexual offence was with the consent of his 33-year-old niece. D.T. was 51 years old at the relevant time. [ 58 ] The Crown, in that case, proceeded summarily, which meant that the maximum sentence available was 18 months in jail. The Crown sought an 18-month jail sentence. Mr. D.T. sought a much reduced jail sentence of a few months.

At the time of sentencing, D.T. continued to believe the sexual activity was consensual. [ 59 ] Justice Dean of the Ontario Court of Justice imposed the maximum sentence of 18 months in jail, followed by three years' probation due to the profound victimization of a severely vulnerable adult. [ 60 ] In R. v. J.K. , 2015 BCPC 246 , Judge Callan of our Provincial Court, sentenced J.K. to 12 months in real jail, followed by two years' probation. J.K. was a pastor and a teacher in a rural northern community. S.Z. was a student in the small schoolhouse in the community.

The crimes by J.K. were historical, occurring roughly 25 years earlier. Over a two-year period, J.K. touched S.Z.'s vagina with no penetration and on one occasion J.K. had S.Z. touch his penis.

Since the time of the offences, J.K. had moved with his family to Manitoba and there were no further offences in the time that J.K. had moved away. [ 61 ] J.K. had no criminal record, was the sole breadwinner for his family, and he had two children in college who depended on him for financial assistance. [ 62 ] The case is largely a consideration of the factors to consider between imposing a conditional sentence order and imposing a conventional jail sentence. [ 63 ] In that case, the Crown sought 18 months in jail and the accused sought an 18 to 24 month conditional sentence order. [ 64 ] Following a thorough analysis of the principles and relevant case authorities, Judge Callan imposed a 12-month jail sentence, followed by two years of probation.

Conclusion Regarding a Fit Sentence for Mr. H. [ 65 ] Based upon my review and consideration of the foregoing facts, sentencing principles and case law, I find that a conditional sentence order would not adequately meet the relevant sentencing principles in this case. The vulnerability of B., the prolonged breach of trust by Mr. H. and B.'s pleas for Mr. H. to stop and not sexually assault that went unheeded, all call out for a sentence to be served in real jail.

[ 66 ] As Justice Moldaver said in R. v. D.D. , supra , with reference to sexual offences against children, and B. was not chronologically a child but was in all other respects a child [as read in]: We as a society owe it to our children to protect them from the harm caused by sexual predators. Absent exceptional circumstances, and I find none here, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

And lastly, Justice Moldaver said: ... as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. [ 67 ] Justice Moldaver's comments have some applicability in Mr. H.'s case.

As I have indicated, B. was not chronologically a child, but in most other respects she was the equivalent of a child. [ 68 ] A mid to upper level single digit penitentiary jail sentence would greatly exceed the three years sought by the Crown with respect to Mr. H. I also note that the maximum sentence I can impose for this crime is five years in jail. [ 69 ] I confess, I have struggled with this decision. I have seriously considered a sentence of two years in jail followed by three years of probation, but it is very difficult to articulate a reason why a two-year jail sentence would be a fit sentence.

The period of probation would include protective conditions preventing Mr. H. from having contact with or coming within 100 metres of B. and her family, but given the destruction of the relationships within this family, those protective conditions, I find, are not needed. [ 70 ] The other term of a probation order would include counselling so that Mr. H. could pursue further sex offender counselling once out of jail. I am of the view that any benefit to Mr. H. by taking the sex offender treatment program can be gained during the course of his incarceration. His crimes against B. were opportunistic.

That opportunity will never again present itself to Mr. H. I find that rehabilitating Mr. H. is not a pressing sentencing objective given the opportunistic crime and Mr. H.'s low risk to reoffend. [ 71 ] Bearing in mind the need to denounce the crime in this case to deter like-minded offenders, Mr. H.'s high moral culpability for his prolonged and repeated offences against B., and for breaching the family trust placed in Mr.

H., and the impact this crime has had on B. and the family generally, I have determined that a conventional jail sentence is required in this case. [ 72 ] As both counsel noted and as many cases repeat, sentencing is an individualized process and two cases are never exactly the same. [ 73 ] Keeping in mind the primary principle of proportionality and in trying to achieve parity with the cases I have reviewed in reaching my decision in this case, I have determined that a fit sentence in this case is three years, to be served in a federal penitentiary. [ 74 ] Mr.

H., if you could stand, please. [ 75 ] Today I sentence you to a term of three years in prison. [ 76 ] I make the following ancillary orders. 1. I order that you are to register as a sex offender pursuant to the Sex Offender Information Registry Act , s. 490.012 and 490.011, and that will be for a period of 10 years. 2. I will order that you provide a sample of your DNA for registration in the federal DNA data bank pursuant to s. 487.051 of the Criminal Code . 3. I also order that during the time you are serving your prison sentence you are to have no contact directly or indirectly with B.B., G.B., V.B. and C.H.

Jr. [ 77 ] Given the date of these offences, there is no victim fine surcharge to be imposed. (REASONS FOR SENTENCE CONCLUDED)