R. v. J. L. B. Date:, 2017 BCPC 24

Citation: R. v. J. L. B. Date: 20170131 2017 BCPC 24 File No: 23447 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. L. B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: M. Fras Counsel for the Defendant: G. Verdurmen Place of Hearing: Salmon Arm , B.C. Date of Hearing: December 5, 2016 Date of Judgment: January 31, 2017 [ 1 ] The offender entered a guilty plea to the charge of sexually assaulting K.R. on July 1, 2015 and October 29, 2015 contrary to

section 271 of the Criminal Code . Circumstances of the Offence [ 2 ] The offender is the owner of a pet supply store. The complainant was an employee of the offender’s pet supply store during the summer of 2015. The complainant was 20 years old and the offender was 52 years old. The court was provided with an agreed statement of facts regarding the assaultive behaviour. The offender touched the complainant on her buttocks, on her thighs, and kissed her, all without her consent, in intentionally sexualized circumstances.

No information was provided suggesting the behaviour was frequent or regular. [ 3 ] A victim impact statement was provided that made clear the 20-year-old complainant was significantly impacted emotionally and for a time felt unable to work. An update was provided by counsel and it appears the complainant has been able to move past her trauma and is now doing well. Circumstances of the Offender [ 4 ] J.B. is approximately 53 years old. He is a British citizen who was raised in a small village and after high school attended catering college.

He reports that all his jobs have been in the hospitality or retail trades, or in sales. [ 5 ] He married his first wife in London in 1984 and had two children. The family immigrated to Canada in 1991 and moved to Salmon Arm. [ 6 ] Three years after their arrival, he and his wife divorced and he met his current spouse who had two children of her own. They have a blended family of four children and five grandchildren and also have various pets. [ 7 ] In 1993 J.B. worked at a hotel running the restaurant, pub, and the beer and wine store.

He then managed two [omitted] stations and also worked at a local sports bar. [ 8 ] In 1998 he started his pet supply business store with a business partner and now has two other stores in other locations, with a total staff of 12 people, all women. [ 9 ] J.B. is passionate about [omitted] and has been involved in running teams in various leagues in the Salmon Arm and the Okanagan area for 25 years. He coached the Salmon Arm woman’s team for four years. The age range of the women’s team members was 17 to 45.

In a written statement he describes himself as follows: I am a vegetarian and have been for nearly 15 years. I am avid anti-hunting, anti-racism and pro-LGBT and animal rights. I believe in religious freedom but I myself am agnostic.

All my working life has had me working alongside, managing, employing women. [ 10 ] Implied in this information is that his actions towards the complainant are not characteristic of his behaviour to, or views of, women in general. [ 11 ] He is described in a reference letter as a person who gives back to the community by making charitable donations and contributing to fundraising drives. During the Fort McMurray fires, donations were being sought to assist with looking after pets and animals of the people who were displaced by the fire.

He sent $600 worth of pet supply product, and also arranged for and sent collected donations from customers. [ 12 ] J.B. has no criminal record. [ 13 ] J.B. has arranged for and attended, at his own expense, the required hours to complete the sex offender treatment program with Dr. Evan Lopez. In his written report, Dr. Lopez states the following: [J.B.] came to the sessions on time and prepared to work. [J.B.] presented as a friendly man who quickly established a working rapport. He demonstrated a willingness to work on the program and presented no difficulties with the material.

He was fully engaged and was able to clear[ly] identify and discuss the material and concepts presented. During the treatment hours we covered a number of modules that are used in the completion of the provincially administrated SOTP [sexual offender treatment program]. … … [J.B.] has demonstrated an appropriate level of remorse and guilt and has taken full responsibility for his actions. He demonstrated an understanding of the issues associated with the differences between employer and employee and how his thinking errors and triggers played in the situation that developed.

Moreover, he presents a strong level of commitment to never again repeat his mistake. His self- management plan is a document representation of his demonstrated desire and new commitment, which is a tool that he can refer back to [to] continue on his path of maintenance. [ 14 ] Dr. Lopez says that although his report was not a risk assessment, he did nevertheless consider a risk assessment instrument referred to as the STATIC-99R, and noted that J.B. received a score consistent with low risk for future sexual recidivism. Dr.

Lopez went further and made the following comment: Moreover, given that this is his first involvement with the law and based on what was covered during our sessions together, it is believed that [J.B.] can be considered to be a low risk for future recidivism. [ 15 ] The court was provided with five very positive and detailed letters of reference for J.B. Several were written by female employees who have worked with J.B. and attest not only to his good character but also to the lack of witnessing or experiencing anything related to the incidents that occurred with the complainant.

It is clear in all of the letters that all of the authors are aware of the purpose for the letter and the context within which the letter was to be used.

[16] Counsel for J.B. expresses his concern that given J.B. is not a citizen, but is a permanent resident of Canada, there may verywell be immigration consequences that correspond to, and may be triggered by, the particular sentence he receives. The sentencing position of the Crown [17] The Crown submits that the charge of sexual assault in an employer employee context mandates an emphasis on denunciationand deterrence, as well as rehabilitation. [18] Crown’s sentencing position is a 60 day conditional sentence order followed by 18 months’ probation.

Crown seeks theancillary orders of registration in the DNA databank and registration in the sexual offender information registry for 10 years. The sentencing position of the Defence [19] Mr. Verdurmen, counsel for J.B., emphasizes that while all sexual assaults are serious, the assaultive behaviour in this case is atthe low end of the spectrum.

He points out that a conditional discharge is available as a sentence and submits that this is one of thoserare cases where the combination of the circumstances of the offence and the circumstances of the offender make an appropriatelycrafted probation order attached to a conditional discharge the appropriate disposition. [20] Mr. Verdurmen emphases that a particular circumstance the court should consider that makes a conditional dischargeappropriate is the fact that the accused may very likely have his permanent resident status revoked if he receives a sentence other than adischarge. [21] Mr.

Verdurmen refers me to the following case law: • R. v. B.L., 2011 BCPC 254; • R. v. T.J.H. 2012 BCPC 115; • R. v. Kanthasamy, 2005 BCCA 135 , [2005] 195 C.C.C. (3d) 182 (BCCA); • R. v. J.H., [2012] O.N.C.J. 753; • R. v. Martinez-Marte, [2008] BCCA No. 136 [22] Mr. Verdurmen further submits that registration of J.B. in the sexual offence information registry is not necessary, would be adisproportionate response with significant negative consequences, and, if the sentence is one of a conditional discharge, the court hasdiscretion whether or not to order registration.

Analysis and Decision [23] The Criminal Code sections 718 to 718.2, which relate to the purpose and principles of sentencing, govern this sentencingproceeding.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful andsafe society. [24] This purpose is achieved by imposing just sanctions that have one or more of the following objectives: to denounce unlawfulconduct, to deter the individual offender and other persons from committing offences, to separate offenders from society wherenecessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote asense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [25] A sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. [26] Although sentencing parity is a goal, a court must give due consideration to the particular circumstances of the offence and theindividual offender in ensuring a just sanction. [27] In R. v. T.J.H. (above) the offender was for a brief period of time persistent in his inappropriate behaviour towards his friend’sfiancée, notwithstanding she had made clear she did not welcome his advances.

His conduct included touching her in a sexual way onthe outside of her clothing on her genitals. Judge Baird Ellan noted the incident was serious because it had a significant impact on thecomplainant and that it was a betrayal on the part of the offender’s friend.

Nevertheless, after commenting that it is unusual for the courtto grant a discharge for an offence of sexual assault, Judge Baird Ellan determined that, in the particular circumstances, which notablyincluded a guilty plea, a conditional discharge with 18 months’ probation was the appropriate sentence. [28] Judge Baird Ellan, after considering the relevant case law and statutory amendments to the Sexual Offender InformationRegistry Act (SOIRA), determined that a person who is discharged does not need to report under the Act, and that the Act simply doesnot apply.

Her reasoning, in part, is set out in paras. 30 and 34 as follows: 30. There is also the case in this province, Reyes-Borgwardt, [2010 BCSC 1594] by Justice Grauer, where it is not as in depth ananalysis, but it is, in my view, and with respect, a considered analysis in the sense of that the judge turned his mind to the issue anddecided that the provisions did not apply where a discharge is granted. It was before the amendment that removed from the court anydiscretion as to whether to impose an order, but this is a separate decision made by the judge in that case. 31.

So that would appear, also, to be binding on me in the circumstances, although again, it predates the amendment. Theamendments that occurred in April 2011 remove from the Court the discretion to consider whether an order under the Sex OffenderRegistry is grossly disproportionate to the circumstances of the offence and the offender, and I have had occasion to consider that in thepast.

32. There is some suggestion on the authorities that where discharge is granted, the presumption being that a person will never comeback to court again because it is an isolated incident, it would be disproportionate to have them report for 10 years or whatever therequirement is under the Act. 33. I do not need to consider that, but I do wonder whether the amendments in April 2011 might cast some question on the reasoningof the cases that predate the amendments, that decided that the Act does apply where discharges are imposed. 34.

Now, the Court has no discretion not to have a person report if they are convicted, and it would seem to me the courts might wantto revisit whether in those particular circumstances, absent the discretion, a person who was discharged must of necessity report underthe act. My holding is that that is not the case, that a person who is discharged does not need to report and that it is not mandatory and,actually, the act simply does not apply because of largely the reasoning that I find persuasive in the Jayswal decision [2011 ONCJ 33]. [emphasis added] [29] In the case of R. v.

B.L. (above), Judge Palmer sentenced the offender to a conditional discharge with a significant restitutionorder for his sexual assault perpetrated on one of the offenders’ female employees. In that case the offender invited his employee intohis office, put his arm around her waist and tried to kiss her while fondling her breasts under her shirt and also tried to undo her pants. The offender stopped when the complainant told him to.

Judge Palmer found compliance with the sex offender information legislationto be grossly disproportionate given the offender’s circumstances, his post offence conduct, and his strong community support, anddeclined to make the SOIRA order. [30] I pause to note that as stated above by Judge Baird Ellan in R. v.

T.J.H., that the discretion to not make a SOIRA order on thebasis of disproportionality was removed by the April 2011 amendments to the Act. [31] The above two cases are examples where, in the appropriate circumstances, a court may grant a conditional dischargenotwithstanding the charge is one of sexual assault. [32]

Section 730 of the Criminal Code sets out the circumstances where the court may order an offender to be discharged, eitherabsolutely or on conditions prescribed in a probation order. The effect of the discharge is to avoid a criminal record. In circumstanceswhere the discharge is conditional, the offender will have to abide by all the conditions set out in the probation order.

The court may usethe discharge provisions of the Criminal Code where the court considers it to be in the best interest of the accused and not contrary to thepublic interest. [33] The principles in imposing a discharge were set out by the BC Court of Appeal in the case of R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450.

The principles laid down can be summarized as follows: [34] In determining whether a discharge is in the best interests of an offender, it is presupposed the offender is a person of goodcharacter, without previous conviction, and that it is not necessary to enter a conviction against him in order to deter him from futureoffences or to rehabilitate him.

A significant consideration is whether a conviction against the offender would have significant adverseconsequences. [35] The BC Court of Appeal in Fallofield also determined that while general deterrence remains a consideration as to whether adischarge would, or would not, be contrary to the public interest, that consideration should not preclude the judicial use of the dischargeprovisions. Immigration Consequences [36] Although a discharge should not be granted because of adverse immigration consequences where it would otherwise clearly beinappropriate (see R. v.

Melo (1975), (ON CA), 26 C.C.C. (2d) 510 OCA), consideration must be given to the effectof a conviction on the rights of an accused, including the right to emigrate and immigrate. In some cases it will be appropriate toconsider any serious negative immigration consequences arising from a conviction. (see R. v. Abouabedellah (1996), (QC CA), 109 C.C.C. (3d) 477 (Que.

C.A.). [37] With regards to J.B.’s case, I note that sexual assault, even when the circumstances could be said to fall at the low end of thespectrum as they do here, is a serious matter that can have, as it did in this case, a significant negative impact on the complainant.

I alsonote it is an aggravating factor when the assault occurs in the workplace between an employer and employee given the imbalance ofpower. [38] However, in the particular circumstances of this case and given the particular circumstances of J.B., that include evidence ofexemplary character, and his positive post offence conduct that included taking self-funded sexual offender counselling, I am persuadedthat a conviction is not necessary to deter or rehabilitate J.B. [39] I find that other persons who may find themselves in a similar position as J.B. would be deterred from acting as he did towardshis 20-year-old employee when they consider the impact this charge has had on him.

Not only was there the humiliation andembarrassment he created for himself both professionally and personally, including the humbling experience of having to request lettersof reference from present employees, and other persons who know him well, but there was, and will remain, the significant stressassociated with the uncertainty of the possible severe immigration consequences. [40] A further deterrent aspect can be built into the conditions of probation. [41] I find that it is in the accused’s best interests to receive a discharge given that it will reduce the likelihood of the severeimmigration consequences of his actions and will hopefully allow him to remain running his three pet supply stores, and supporting hisfamily.

In this case it is also not contrary to the public interest given that general deterrence will have been achieved and that J.B. will beable to continue to contribute through his volunteer efforts to society and to continue running a successful business that currentlyemploys 12 other people.

[ 42 ] The sentence will be a conditional discharge followed by 18 months’ probation on the following terms: 200 You shall keep the peace and be of good behavior. You shall appear before the court when required to do so by the court. 201 You shall report in person to the probation officer within 24 hours to the probation office at number 101 – 6 th St., Northeast Salmon Arm, BC, and after that you shall report as a when directed by the probation officer. 203B When first reporting to the probation officer, you shall inform him/her of your present residential address and phone number.

You shall not change your address or phone number at any time without first providing written notice to your probation officer. 208 You shall have no contact or communication directly or indirectly with K.R. 211A You shall not attend at, or be within 25 metres of, any place which you know or believe to be the residence, school or workplace of K.R. 227 You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer relating to sexual offence prevention and/or respectful relationships. 233 You shall either complete 50 hours of community work service under the direction and supervision of the probation officer, or, alternatively, make a $1,000 donation to the nearest woman’s transition house, the identity of which to be determined by the probation officer.

Your community work service hours must be completed, or your monetary donation must be made, by July 1, 2017. [ 43 ] Sex assault, no matter how minor the circumstances, remains a primary designated DNA offence.

I am required to order, and so order, you to attend at the RCMP detachment in Salmon Arm, British Columbia, on Thursday, February 2, 2017, between the hours of 9 a.m. and 4 p.m. and thereafter as necessary, to provide a sample or samples of your bodily substances for purposes of registration in the national DNA databank. [ 44 ] With respect to the question of making a SOIRA order, not only am I bound by my sister Judge Baird Ellan’s decision in R. v.

T.J.H. , as referred to above, but I wholly agree with her reasoning that a discharge is not a ‘conviction’ and, given the reference to the word conviction in the English version of the Act , that the Act does not apply to a person who has received a ‘discharge’ under s. 730 of the Criminal Code . The Honourable Judge R. D. Morgan Provincial Court of British Columbia