R. v. M.S, 2021 BCPC 347

Citation: R. v. M.S 2021 BCPC 347 Date: 20210903 File No: 233984-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.S. BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. WEATHERLY Counsel for the Crown: J. Harris Counsel for the Accused: T. Larmer Place of Hearing: Surrey , B.C. Date of Judgment: September 3, 2021

[ 1 ] THE COURT : On February 22, 2021, after a trial I found M.S. guilty on Count 2 of Information number 233984, that he, from the 1st day of August, 2017 to the 8th day of October, 2017 inclusive, at or near Surrey, in the Province of British Columbia, did sexually assault T.S., contrary to s. 271 of the Criminal Code . I found him not guilty on Count 1, a count of sexual touching, contrary to s. 151 of the Code. The Circumstances of the Offence [ 2 ] T.S. is the adopted daughter of M.S. and S.S. Her parents separated in 2013 and T.S. continued to reside with her mother, S.S.

When T.S. was close to her 19th birthday, T.S. and her mother were in conflict regarding T.S.'s chores and T.S. not having a job. S.S. asked T.S. to find a job or move out. In August of 2017, T.S. asked her father, M.S., if she could move in with him and he allowed her to do so. [ 3 ] At the time that T.S. moved in with her father he was approximately 29 years older than T.S. When T.S. moved into her father's residence she was unemployed. She had been diagnosed with anxiety years earlier for which she was taking medication.

While living with her mother she held a job briefly at a [omitted for publication] restaurant which she was fired from because she did not show up to work for her shift or shifts. According to T.S., whose evidence I accept on this point, she did not show up for work because of her anxiety. M.S. was aware of the problem that T.S. had with anxiety. When living at her father's residence, T.S. had no money and no savings. Her father paid for the rent of his basement suite and he paid for all of the groceries.

She relied on him for food and shelter. [ 4 ] The sexual assault that I found took place involved M.S. kissing T.S. on the mouth while putting his tongue in her mouth, grinding his body against hers, touching and biting her breast on two occasions and two incidents of sexual intercourse. On the evidence I cannot conclude that the acts of sexual intercourse were unprotected acts of sexual intercourse; that is, that a condom was not used. [ 5 ] Within two or three weeks of T.S. moving in with her father, M.S. began kissing her with long kisses with his tongue in her mouth.

The kissing progressed to two incidents of sexual intercourse and both of these incidents were initiated by M.S. The first incident of sexual contact that led to sexual intercourse took place on the bed. M.S. initiated the contact with T.S. by kissing her with his tongue in her mouth. He then started "grinding" on her by moving up and down against her with his penis touching her but with his clothes still on.

He bit her breast, he put his penis inside of her and eventually ejaculated. [ 6 ] The second incident of sexual contact that led to intercourse took place when M.S. and T.S. were laying on the mattress on the floor. T.S. was awake and M.S. was asleep. M.S.'s girlfriend called on the phone to wake M.S. up. T.S. put her head on M.S.'s chest and said good morning. M.S. spoke briefly on the phone with his girlfriend. When M.S. got off the phone he once again initiated sexual contact with T.S. by kissing her with his tongue in her mouth. She kissed him back.

He then rolled her on her back and began biting her breast with "a bit of force" which hurt her. He put his penis in her and began having sex with her by rocking back and forth until he ejaculated. M.S. initiated all of the sexual activity with T.S. T.S. was induced to consent to the sexual activity by M.S.'s abuse of his position of trust and her consent to the sexual activity was vitiated pursuant to s. 273.1(2) (

c) of the Criminal Code . The Impact on the Victim [ 7 ] T.S. declined to provide a written victim impact statement but she told the author of the pre-sentence report that because of the offence that she generally finds it hard to trust people. T.S. told Crown counsel that the most significant consequence to the offence for her has been the loss of her relationship with her father. T.S. hopes that at some point in time she can have a normal, non-sexual father/daughter relationship with her father. [ 8 ] S.S. provided a victim impact statement to the court.

In her victim impact statement S.S. sets out the significant impact the offence has had on her as T.S.'s mother. She has suffered physically and psychologically and is still involved in counselling because of the offence. The Circumstances of the Offender [ 9 ] M.S. is 51 years of age and a life resident of the Lower Mainland area of British Columbia. He has no criminal record. In addition to being the father of T.S., he is also the father of two adopted sons aged approximately 22 and 16. He has a Bachelor of Education and he has a certificate in Early Childhood Education.

He has a long history of regular employment at a variety of jobs, including working for non-profit agencies supporting people with developmental delays and complex needs, for approximately 14 years. For the past two years he has been employed as a shipper/receiver at a bakery. [ 10 ] M.S. resides with and assists his elderly parents. M.S. has had the same girlfriend for approximately five years. He has the support of his parents and his girlfriend. M.S. also has the support of other family members and friends, many of whom provided letters of support to the court on M.S.'s behalf.

The general theme of the letters is that: M.S. is a private but pro-social person; M.S. is a good person with a good heart who is very giving; M.S. has strong Christian values, and M.S. is a reliable, hard-worker who is helpful to his colleagues. The Pre-sentence Report and the Forensic Psychological Report [ 11 ] The pre-sentence report notes an unremarkable childhood and general background and is relatively positive. M.S. maintains that no sexual assault took place so his attitude and understanding regarding the offence could not be determined.

M.S. has been compliant with the conditions of his judicial interim release. M.S. indicated to the author of the pre-sentence report that he will follow any court orders. [ 12 ] The forensic psychological report is also relatively unremarkable. The report notes no evidence of substance abuse or mental

health issues and it notes that M.S. is at a low risk to reoffend. The report notes that because M.S. is so adamant in his denial of the index offence he is unlikely to benefit from sex offender treatment. The Sentencing Position of the Crown [ 13 ] Ms. Stewart, on behalf of the Crown, relied on the following cases: R. v. G.M., 2015 BCCA 165 ; R. v. B.S.B., 2010 BCCA 40 ; R. v. Pouce Coupe, 2014 BCCA 255 ; R. v. Jaden, 2018 BCSC 1685 ; R. v. Sandhu , 2020 BCSC 1190 ; R. v. Griffin, 2021 ONSC 2618 ; R. v. Friesen, 2020 SCC 9 . [ 14 ] Ms.

Stewart submits that one of the leading decisions on sentencing offenders of sexual assault involving intercourse is the British Columbia Court of Appeal decision in G.M. in which the court found the range of sentences for sexual assault involving intercourse is two to six years' incarceration. She submits that the primary sentencing principles of sentencing in cases of this nature are denunciation and deterrence. She submits that the appropriate sentence in this case is three years' incarceration. [ 15 ] In Jaden the offender pled guilty to sexual assault involving one incident of unprotected intercourse.

He was 51 years old and had no prior record. He was employed, married with four children and had family and community support. He was remorseful. The victim was 15 years old. The offender was a supportive friend to the victim's mother and he provided groceries and money to the victim's mother. The offender was sentenced to a three-year custodial sentence. Ms.

Stewart says that Jaden is distinguishable because the victim was under 18 years old which is an aggravating factor that is not present in the case at bar; however, she adds that the breach of trust committed by M.S. is much more egregious than in Jaden . [ 16 ] In Sandhu the offender employer was convicted of one count of sexually assaulting his 18-year-old employee after a trial.

Over a period of three months the accused sexually assaulted the victim multiple times, including approximately 10 forced "hand jobs", touching her buttocks and breasts over clothing and, in one incident, sexual intercourse without protection. In degrading circumstances he had shaved her pubic hair. The offender was 50 years of age and had no criminal record and had support from friends and family.

The court gave primacy to the principles of denunciation and deterrence and sentenced him to three years incarceration. [ 17 ] In Griffin the offender was convicted after trial of both sexual assault and sexual exploitation based on the same facts but a stay of proceedings was entered in relation to the sexual assault count based on R. v. Kienapple . The offender was also convicted of uttering threats. The offender had been the intimate partner of the victim's mother and had lived with the victim when she was between the ages of 10 and 14 years old. He was the father of the victim's half brother.

The offender and the victim's mother had separated but the victim considered him to be a father figure. When the victim was 16 she was addicted to drugs and living on the street. She reached out to the offender for help and he took her to his cottage. They consumed cocaine together and had unprotected sexual intercourse once. He threatened her that if she told anyone she would be in danger. A sentence of six years' incarceration was imposed on the sexual exploitation charge. Ms.

Stewart acknowledges that Griffin was more aggravating than the case at bar, given that it was an offence committed against a child under the age of 18, the accused had a prior conviction of violence towards the victim's mother and the victim herself was extremely vulnerable; however, Ms. Stewart submits that it demonstrates the need to denounce the sexual exploitation of young women by offenders in the position of a father figure. [ 18 ] In addition to the sentence of three years' incarceration, the Crown seeks the following mandatory ancillary orders.

Pursuant to s. 487.051(1), the mandatory DNA order and, pursuant to s. 490.01(2) and 490.01(3), the mandatory order that M.S. comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years. The Position of the Defence [ 19 ] Mr. Larmer, on behalf of M.S., relied on the following cases: R. v. McLean, 2014 BCSC 1293 ; R. v. Kenyon, 2018 BCPC 191 ; R. v. Adubofour-Poku, 2017 BCPC 192 ; R. v. Frost, 2016 MBQB 21 ; R. v. Ralph, 2014 BCSC 467 . [ 20 ] Mr.

Larmer submits that in the circumstances of the case at bar the appropriate range of sentence is 18 to 24 months' incarceration and the appropriate sentence is between six to 18 months' incarceration. Prior to reviewing the cases he provided to the court, Mr. Larmer noted some distinguishing facts in the Crown authorities from the case at bar. Mr. Larmer submits that the Jaden decision is distinguishable from the case at bar because it involved a child victim who suffered significant trauma and: The assault involved intercourse which was forced.

In the case at bar the victim was a willing participant but the nature of the relationship made the intercourse abusive and inappropriate . [ 21 ] Mr. Larmer submits that the Sandhu decision is distinguishable from the case at bar because the sexual activity in Sandhu was forced upon the victim against her will and in the case at bar T.S. consented without any threats, promises or violence. [ 22 ] Mr.

Larmer submits that the Griffin decision is distinguishable from the case at bar because it involved a child victim and therefore both s. 718.01 and the Friesen decision were applicable and they are not applicable to the case at bar. The offender threatened and coerced the victim into sexual activity in Griffin but in the case at bar T.S. was a willing participant; that the victim in Griffin suffered significant trauma and the offender in Griffin had a criminal record. [ 23 ] I turn now to the cases relied on by the defence.

The McLean decision involved an offender who had anal intercourse with the victim who had consumed a large amount of alcohol and was passed out. The offender was an aboriginal person with Gladue factors with a related criminal record. Justice Romilly noted at paragraph 47 that the range of sentence for sexual assaults involving intercourse in this province is between two years and six years and that the three-to-five-year range generally involves a breach of trust or a significant degree of bodily harm. He described a sex assault as "a serious and violent crime" (para. 60).

Justice Romilly sentenced McLean to an effective sentence of three years' incarceration, followed by probation. [ 24 ] In Kenyon the court imposed consecutive sentences for three instances of forced intercourse involving three different victims. Judge Brown imposed 12 months on the first offence and 18 months for the two subsequent offences; however, quite significantly I note that in the Kenyon case, unlike in the case at bar, the Crown proceeded summarily and the two sentences of 18 months' incarceration

were the maximum sentences that Judge Brown could have imposed on those two counts. [ 25 ] The Adubofour-Poku case involves a sexual assault involving a single incident of sexual intercourse after a party between the offender and the 18-year-old victim. The offender was found guilty after a trial and a jail sentence of 12 months' incarceration was imposed; however, as in the Kenyon decision, this was a case where the Crown had proceeded summarily. At paragraph 17 of the Adubofour-Poku case, Judge Harris said, in part: In reviewing the cases, it is clear the offence of sexual assault in

summary proceedings typically attracts a custodial sentence in the range of 9 - 18 months. [ 26 ] In the case at bar the Crown proceeded by indictment and as such the Kenyon and the Adubofour-Poku decisions are distinguishable and of little assistance to this court. [ 27 ] In Power the offender was the criminal defence lawyer of the victim who was a vulnerable 14-year-old indigenous client. The offender invited the victim to his home where he gave him alcohol, exposed him to pornography and performed oral sex on him. After a trial the offender was found guilty of one count of sexual exploitation, contrary to s. 153(1) (

a) of the Criminal Code . He was sentenced to 18 months' incarceration, followed by probation, which was upheld by the Court of Appeal. Of course in the case at bar M.S. has been convicted of sexual assault and not sexual exploitation and the case at bar involves acts of sexual intercourse. [ 28 ] In Frost the offender was the employer of the 17-year-old victim.

The offender had a consensual sexual relationship with the victim over a period of approximately six weeks that included intercourse; however, because the offender was in a position of trust of the 17-year-old victim her lack of consent was not necessary to make out the charge and after a trial the offender was found guilty of one count of sexual exploitation, contrary to s. 153(1) (

a) of the Criminal Code . He was sentenced to 18 months' incarceration, followed by probation. Mr. Larmer submits that the facts of this case are similar to the case at bar but I note that this, too, is a case of sexual exploitation and not sexual assault. [ 29 ] In Ralph the offender was a former teacher of the victim who was between 11 and 13 years old at the time of the offence. The sexual contact began with kissing, touching, cuddling and progressed to oral sex.

After a preliminary hearing, the offender pled guilty to sexual interference, contrary to s. 151 of the Criminal Code and was sentenced to a conditional sentence of two years less a day. As in the cases of Power and Frost , this is not a case of sexual assault. The Principles of Sentencing [ 30 ]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing and states, in part: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and any other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparation for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims or to the community. [ 31 ]

Section 718.04 states: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. I find that we had, in this case, a vulnerable victim given the circumstances that existed at the time that the offence took place. [ 32 ]

Section 718.1 states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 33 ]

Section 718.2 states: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, I pause to note that we have that present in this case. (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

Analysis and Sentence [34] In the case at bar I found that T.S. was induced to consent to the sexual activity by M.S.'s abuse of his position of trust and herconsent to the sexual activity was vitiated pursuant to s. 273.1(2)(

c) of the Criminal Code. As I understand Mr. Larmer's position, hesubmits that because T.S. consented to the sexual activity with M.S. and he was found guilty by virtue of s. 273.1(2)(

c) of the CriminalCode, and because there was no physically-forced intercourse or physical injuries suffered by T.S., that the court should consider thiscase similar to that of a sexual exploitation case and sentence M.S. accordingly. [35] I respectfully disagree with Mr. Larmer on this point. In that regard I note that Parliament chose to pass legislation that certainfact situations vitiate any actual consent given, for example in situations where consent is obtained fraudulently, s. 263(3)(

c) of the Code(R. v. Hutchinson 2014 SCC 19 , 2014 1 SCR 346). Also, pursuant to s. 273.1(2)(

b) in situations where the complainant isincapable of consenting to the activity, for example, if they cannot form the capacity to consent due to the consumption of alcohol ordrugs (R. v. Daigle, (QC CA), 1998 127 CCC (3d) 130, affirmed by the Supreme Court of Canada at (SCC), 1998 1 SCR 1220). In such cases, similar to s. 273.1(2)(

c) with respect to the case at bar, although there may be "no forcedintercourse", any consent that may be given is vitiated and therefore non-consensual and the sexual activity in question constitutes sexualassault. [36] In the Criminal Code the sentencing regime in such cases is the same as it is in a case resulting in a conviction for sexual assaultin which the Crown did not rely on a Criminal Code provision to vitiate consent. [37] Additionally, while sexual assault is inherently

an act of violence, the fact that M.S. did not physically force intercourse on T.S.or physically injure T.S. in the course of sexually assaulting her does not mean that the matter should be treated like a sexual exploitationcase for sentencing purposes; rather, it constitutes a lack of an aggravating factor with respect to the circumstances of the sexual assault. [38] I find the aggravating factors in the case at bar to be that M.S. was in a position of trust which is statutorily aggravating pursuantto s. 718.2(a)(iii), as well as the case law.

Additionally, intercourse took place on two separate occasions and also because T.S., becauseof her personal circumstances at the time, was a vulnerable person which statutorily aggravating pursuant to s. 718.04. [39]

Section 718.01, which is the statutorily aggravating factor involving child victims under the age of 18, is not applicable becauseat the time of the offence T.S. was 18 years old. [40] I turn now to the mitigating factors. As noted in R. v. Kodimyala, 2020 BCCA 275, mitigating factors are those related to "thegravity of the offence or to the degree of responsibility of the offender" at paragraph 35, citing R. v. Pham, 2013 SCC 15 at para. 11.

Ifind the mitigating factors to be M.S. has no criminal record, M.S. is and has been gainfully employed throughout much of his life,including altruistic employment, M.S. has the support of some family members and his girlfriend and he helps out his elderly parents.M.S.'s lack of remorse is not an aggravating factor; rather, it is to be treated as the lack of a mitigating factor. [41] I agree with the Crown that the breach of trust in the case at bar is particularly egregious and that there is no position of trust thatis more sacred than that of a parent to their child.

At the time of the incidents of sexual assault there was a huge power imbalancebetween T.S. and M.S. T.S. had no job, no money and no savings. T.S. relied on M.S. for food and shelter. She struggled with ongoinganxiety and at times she could function more like a 12 or a 13-year-old, rather than the 18-year-old woman that she was, all of whichM.S. was aware. T.S. was induced to consent to their sexual activity by M.S.'s abuse of his position of trust. [42] As noted earlier, Mr.

Justice Romilly stated at paragraph 47 of the McLean decision that while the range of sentence for sexualassault involving intercourse in this province is between two years and six years, the three-to-five-year range generally involves a breachof trust or a significant degree of bodily harm. While I acknowledge that ranges are simply guidelines, I find there is nothing in thecircumstances that would take the appropriate sentence for this case out of the range stated by Mr. Justice Romilly.

In the case at bar,there were two occasions of sexual intercourse and a very egregious breach of trust. [43] The sentencing process is an individualized process in which I have to take into account not only the circumstances of theoffences and the role offender played, but also the specific circumstances of the offender (R. v. Angelillo, 2006 SCC 55). [44] I have carefully considered all of the evidence presented, the relevant sentencing principles in the Criminal Code as well as all ofthe cases provided by counsel.

I have also considered all of the submissions of counsel and I have taken into consideration all of theaggravating and mitigating circumstances. [45] While I consider M.S.'s rehabilitation, I conclude that in the case at bar the primary principles of sentencing that I must apply aredenunciation and deterrence. I find that there is a high degree of moral blameworthiness on the part of M.S. [46] The appropriate sentence is three years' incarceration and that is the sentence I sentence you to, sir. [47] I turn now to the ancillary orders. Pursuant to s. 487 of the Criminal Code this offence is primary designated.

I make an order inForm 5.03 authorizing the taking of the number of suitable samples of bodily substance that are reasonably required for the purpose offorensic DNA analysis. [48] Pursuant to s. 490.012 and 490.013 of the Criminal Code, I order that you comply with the provisions of the Sex OffenderInformation Registration Act for a period of 20 years. (DISCUSSION) [49] THE COURT: Pursuant to s. 109(1)(

a) and 109(a.1)(iii) of the Criminal Code there is a mandatory 10-year firearms prohibition,sir. You are prohibited from possessing (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restrictedweapon, ammunition and explosive substance for a period of 10 years following your release from prison, and (

b) any firearm orrestricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[ 50 ] Mr. Larmer, surcharge? [ 51 ] CNSL R. LARMER: Your Honour, given that he's in custody I'm going to ask that you find it an undue hardship and waive it in the circumstances. [ 52 ] THE COURT: Any comment, Crown? [ 53 ] CNSL C. STEWART: No, Your Honour. [ 54 ] THE COURT: He is going to be in custody for a period of time, he will not be working. Due to financial hardship I will waive the surcharge. (REASONS FOR SENTENCE CONCLUDED)