R. v. J.M.H.K., 2021 BCPC 50

Citation: R. v. J.M.H.K. 2021 BCPC 50 Date: 20210317 File No: 236337 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M.H.K. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: C. Stanley Counsel for the Defendant: J. Grenier Place of Hearing: Surrey , B.C. Date of Hearing: November 9, 10, 12, 13, 19, December 7, 2020 Date of Judgment: March 17, 2021 [ 1 ] On December 7, 2020 the Court, after a trial, convicted the accused of:

From the 28 th day of June, 2019 to the 6 th day of July, 2019, inclusive, at or near Langley, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or an object, the body of S. A-K., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . [ 2 ] The Crown proceeded by

summary conviction. The facts are set out in the Reasons for Judgment dated December 7, 2020, and will be briefly summarized here: The accused’s daughter S. A-K born [omitted for publication], was staying at her father’s house during late June through early July 2019. She was six and seven years old. From the video recorded interview with a police office that was admitted into evidence at the trial, the Court found the facts: She and her father were in her bedroom. He told her to take her clothes off – “get naked” – then lie on her bed on her back, holding a book that she was apparently to read.

Her father pulled down his underwear and exposed his penis. He lay on top of her and “humped” her. His penis touched her crotch area as he moved up and down. There was no penetration. It did not hurt. This lasted seven minutes. He got up, told her to put her clothes on and he dressed as well. They went for lunch with the rest of the family. S. A-K said that similar incidents happened on at least 10 occasions since she was three years old. [ 3 ] When presented with a document written on behalf of S. A-K.by her 12 year old sister H.

A-K., the accused reported the allegation to child protection (MCFD) as he thought that his in-laws would use the statement against him in an ongoing custody fight over his daughters. [ 4 ] The accused testified at the trial and denied the facts set out by his daughter. The Court did not believe him and convicted him. He continues to deny the offence. [ 5 ] To assist the Court in sentencing, a Pre-Sentence Report (PSR) and a Forensic Psychological Evaluation Report were prepared and filed as exhibits on sentencing.

The Pre-Sentence Report was prepared by Probation Officer Ashley Jones and sets out the accused’s background. The accused is 37 years old. He has no prior criminal record. He was born in Alberta. His parents moved to British Columbia when he was a child. He appears to have been a well behaved child, close to his family. He has a brother 3 years younger. He was employed until he was dismissed due to the conviction. Once his sentence is complete he intends to return to work. His mother died last year.

Since July 2019 when he was released on bail, he has lived with his father and brother. [ 6 ] The accused’s two oldest children are S. A-K. and six year older sister H. A-K. Their mother, from whom the accused separated in 2009, died on May 11, 2019. He was living with his second wife at the time of the offence. He has 2 children from that relationship. He now lives with M. C. who has no children. He has supervised visits with the 2 youngest children but has not seen or had contact with S. A-K. or H. A-K. since July 2019.

They live with their maternal grandparents. [ 7 ] The accused was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) as an adult and sees psychiatrist Dr. Paul Devlin on a regular basis. From the PSR: Dr. Paul Devlin confirms that he has been Mr. K.’s treating psychiatrist for a few years and he knows the J. K. family well. He offers that Mr. K. comes from a supportive family, free from any forms of abuse. He believes Mr. K. is well adjusted and honest. In terms of Mr. K.’s ADHD, his symptoms include short attention span and difficulty completing tasks. He reports Mr.

K. is not hyper, impulsive, impatient or reactive. [ 8 ] The accused has been supervised on bail and compliant as required. From the PSR: Mr. K. is currently being supervised on bail by this writer. He appears to be following his conditions and reports as directed. There have not been any concerns with compliance during bail supervision.

He appears to be forthcoming about his circumstances and has provided the writer with contact information for adults to supervise walks in parks to ensure they are aware of the court history and conditions, in accordance with his Release Order. [ 9 ] The PSR provides the following Victim Information: The victim, S. A-K. is Mr. K.’s daughter . She just turned seven years old when the charges were reported. The victim and her sister are living with their maternal grandparents and Aunt J. A. Ms. J.A. was contacted in the preparation for this report. She informs that leading up to the trial, both H. A-K. and S.

A-K. experienced a lot of anxiety about the thought of their statements not being believed and the prospect of them moving back with their father. She informs that now that he has been found guilty, the girls seemed to be doing better. She advises S. A-K. continues to struggle with sleep and does not like to be touched. Both girls are on a waitlist for sexual abuse counselling. Ms. J. A. is seeking other service providers as the resource suggested by MCFD appears to be backlogged. Ms. J.

A. reports the girls have completed some grief counselling because their mother also died in May 2019, a couple of months before it was discovered Mr. K. was sexually abusing S. A-K. Ms. J.A. states that she has seen vast improvement in both children now that they do not have contact with their father and wonders if the historical behavioural issues were a trauma response. [ 10 ] Two “Victim Impact Statements” were filed on sentencing. One from J.A. reads: J. K. has affected not only his daughters S. and H. but our entire family. He has created so much trauma and has broken trust.

He has caused many sleepless nights trying to calm S. after nightmares. S. is afraid to sleep alone and has trouble falling asleep. H. has difficulty showing emotions and is often isolated with her feelings. Both H. and S. have expressed on numerous occasions that they never want contact with their father (J. K.) ever again. In the future, our family never wants any contact with J. K. Sincerely, J. A. [ 11 ] The second “victim Impact statement” is from S. A-K.

She expressed that she does not want to see her father. [ 12 ] The 17 page Forensic Psychological Evaluation Report by Duncan Greig is very detailed and comprehensive. [ 13 ] In addition to his diagnosis of ADHD, the accused has a long history of depression. He does not have an alcohol or drug problem.

Other than these reported incidents (striking a former partner in self defence and a bully in school) and the index offence, there is noevidence that Mr. K. has ever engaged in threatening, violence or other criminal behaviour. [14] After summarizing the evaluation and testing conducted, the psychologist concludes under Risk Statements: Based on the information available at the time of the evaluation, it is my opinion that Mr. K. currently poses a low risk of re-offendingwith sexual violence. In this instance, “low” indicates that Mr. K. is not considered in need of any special intervention or supervisionstrategies designed to manage sexual violence risk. [15] Under

Summary and Recommendations: Mr. K. is a 37-year old man who was found guilty of one charge of sexual touching of a person under the age of sixteen years. He has ahistory of periodic depression with some anxiety, which has typically been exacerbated by mounting stress in his intimate relationshipsand at his job, as well as in the context of a years-long, acrimonious child custody battle.

Although, in the past, he has perhaps waited toolong to seek professional help when his depressive symptoms were worsening, he has ultimately engage well in mental health treatmentprovided by his former doctor, by his current psychiatrist, and by psychotherapists. He has also benefitted from having a strong socialsupport network, including his father, his brother, and at least two good fiends. He is also well-supported by his relatively new intimatepartner. At the time of evaluation, and based on the available information, it is my opinion that Mr. K. did not meet DSM-5criteria for any mental disorders.

His mood has been good for some time, and he is coping effectively with the stressors in his life. Hehas a historical diagnosis of ADHD, but it has been well-managed by his psychiatrist for the past five years. Presently, this conditiondoes not appear to be impairing his functioning. [16] The psychologist goes on to say that given the accused’s adamant denial of offending, it is unlikely that he would benefit fromsex offender treatment and a better option for him may be one-to one psychological treatment that provides generalized rather thanoffence-specific counselling.

Sentencing Positions [17] It is the crown’s position that an appropriate sentence would be a 15-month jail term followed by an 18 month probation order.The defence position is for a sentence of 90 days followed by 18 months’ probation. The Criminal Code: 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of 90 days. [18] The crown has proceeded with a

summary conviction offence.

Section 151 (

b) applies. [19] The minimum punishment for a term of one year for an indictable offence has been found to be unconstitutional: R. v. Scofield1019 BCCA 3. There is yet to be a ruling by a British Columbia court on the constitutionality of the minimum term of 90 daysimprisonment for a

summary conviction, however the same reasoning for finding the minimum sentence for an indictable convictionwould likely apply and lead to the minimum sentence for a

summary conviction also being found to be unconstitutional. This wouldmean that an accused would be eligible for a conditional sentence. Defence counsel in the case at bar decided to not argue this point.Crown counsel says that it ought not to be considered in this case as the accused should be sentenced to a period of imprisonment beyondthe minimum and a conditional sentence would not be appropriate. [20] The leading case guiding the Court on the appropriate considerations in determining an appropriate sentence for s151 sexualinterference is R. v. Friesen 2020 SCC 9 , [2019] S.C.J No 100. [21] From the Court

Summary: Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences againstchildren in the Criminal Code. At the sentencing stage, in order to effectively respond to sexual violence against children, sentencingjudges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and giveeffect to both in imposing a sentence.

This will help bring sentencing law into line with society’s contemporary understanding of thenature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.Parliament’s creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offencesscheme from sexual propriety to wrongful interference with sexual integrity.

The prime interests that the legislative scheme of sexualoffences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasison these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm.

In particular,courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionalityprinciple, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding themis key to imposing a proportionate sentence. Courts must impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normativecharacter of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.

Specifically,courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flowsfrom these offences; and (3) the actual harm that children suffer as a result of these offences. Sexual offences against children are

inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potentialharm materializes, and actual harm vary from case to case. Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account whendetermining the offender’s degree of responsibility.

Intentionally applying force of a sexual nature to a child is highly morallyblameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves thewrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencingto the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to thesentencing objective of denunciation. The fact that the victim is a child increases the offender’s degree of responsibility.

Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of suchoffences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing. Parliament’sdecision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distributionof proportionate sentences for these offences. To respect Parliament’s decision, courts should generally impose higher sentences than thesentences imposed in cases that preceded the increases in maximum sentences.

Parliament’s decision to prioritize denunciation anddeterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts toimpose more severe sanctions for sexual offences against children. …………… In order to promote the uniform application of the law of sentencing, the following non-exhaustive significant factors to determine a fitsentence for sexual offences against children must be considered.

First, the higher the offender’s risk to reoffend, the more the courtneeds to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongfulexploitation and harm. Second, an offender who abuses a position of trust to commit a sexual offence against a child should receive alengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thusthe gravity of the offence, and it also increases the offender’s degree of responsibility.

Third, sexual violence against children that iscommitted on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the fullcumulative gravity of the crime and the offender’s increased degree of responsibility. Fourth, the age of the victim is also a significantaggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthinessof the offender is enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activity at issue posesseveral dangers.

In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence ornon-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type ofphysical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physicalinterference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physicalacts.

Sixth, a child’s participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, achild’s non-resistance should not be equated to “de facto consent”; a victim’s participation should not distract the court from the harmthat the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim’s participation is an aggravatingfactor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children. [22] The British Columbia Court of Appeal case of R. v.

Plenhanov 2020 BCCA 249 , [2020] B.C.J No. 1473 is a case ofsexual assault against six year old child. The Court of Appeal referred to R. v. Friesen, supra. and quoted the following passages: [20] The court set out a number of important considerations, including these: [50] To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness ofsexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important. … [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodilyintegrity, sexual integrity, dignity, and equality of children. … … [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attentionon emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional andpsychological harm that, as this Court held in R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, “may often be more pervasiveand permanent in its effect than any physical harm” (p. 81). … [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers.

Becausemuch sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trustrelationship [citation omitted]. … Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart familiesor render them dysfunctional [citation omitted]. … … [65] The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children isespecially wrongful because it turns this value on its head.

In reforming the legislative scheme governing sexual offences againstchildren, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity [citation omitted]. Yetinstead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objectswhose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults thatenables adults to violently victimize them [citations omitted]. …

[74] It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence [citations omitted ]. Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity [citations omitted]. Application of Friesen principles to sentencing of the accused J.

K. [ 23 ] Aggravating factors include that the accused was the victim’s father with whom she lived part of the time. As such he was in a position of trust to her and invited her to confide in him. The victim was young – six years old. [ 24 ] Perhaps a neutral factor more than a mitigating one is that he does not have a prior criminal record. The psychological assessment concludes that he is a low risk to reoffend. [ 25 ] Even before sentencing there has been some denunciation and deterrence. He has not seen his children S. A.-K. and H. A.-K. since the offence date.

He has lost his job. [ 26 ] There are no exceptional circumstances that warrant a departure from a sentence that this offence would and should attract. For a

summary conviction, as this is, case law indicates that the range is between 3 and 12 months jail followed by probation.

Sentence [ 27 ] Having regard to the sentencing principles and the unique circumstances of this accused, an appropriate sentence is 6 months jail followed by a probation period of 18 months. [ 28 ] The terms of probation will include the statutory ones, plus you are to report to a probation officer forthwith upon your release from custody and thereafter as directed by the probation officer; you are to attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer; you are to have no contact, directly or indirectly with S. A.-K. or H.

A.K.; other than in a public place, you will not be alone in the presence of any female person who is under the age of 16 years unless another adult who is aware of this conviction and sentence is present. [ 29 ] A DNA sample will be taken from the accused while he is in custody. [ 30 ] A copy of this Reasons for Sentence and the Forensic Psychological Assessment Report are to be provided to the accused’s probation officer. _____________________________ Judge T.J. Gove Provincial Court of British Columbia