R. v. Mathieson Date:, 2016 BCPC 60

Citation: R. v. Mathieson Date: 20160114 2016 BCPC 0060 File No: 239454-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THOMAS EDWARD ARCHIBALD MATHIESON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.

(2) CCC RESTRICTED ACCESS

Counsel for the Crown: J. Horneland Counsel for the Defendant: C. Sicotte Place of Hearing: Vancouver , B.C. Date of Hearing: January 14, 2016 Date of Judgment: January 14, 2016 [ 1 ] THE COURT: I will commence my comments - they are not going to be formal reasons - by observing that the joint submission before me is a completely appropriate one. The sentence suggested is well within an appropriate range for this kind of offence in these circumstances.

And, as I am sure has been explained to the family and to the victim, in these circumstances, with an offender with no prior record, who is a low risk to reoffend, who is expected to be compliant, and with terms involving community work service, curfews, other limitations on liberty, a conditional sentence is capable of expressing society's condemnation of this offender's conduct. [ 2 ] I will just refer briefly to a passage from a case from the Supreme Court of Canada.

It is about the difference between vengeance and what we refer to in law as retribution, because sometimes those concepts are not clearly understood, particularly in highly emotionally charged offending such as is before the court and that is so terribly damaging to the victims. The Supreme Court in C.A.M. said: Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. ... 81 Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [ 3 ] What counsel have done is very carefully and appropriately considered all of the principles of sentence, the case law which has dealt with these kinds of offences and what the court can look to as an appropriate range of sentence, the particular circumstances of this offender, and the particular circumstances of this offence, and so I have no hesitation whatsoever in accepting this joint submission. [ 4 ] I will, however, make the following comments.

The reports, both the presentence report and the psychological report, reflect that Mr. Mathieson continues to minimize his responsibility for what he did. Even today in his comments, he said of his offending, which involved the repeated fondling of a child over a period of years, "I thought she would enjoy it.

I guess she didn't." He described his behaviour as "quite insensitive." This is what has been referred to in the report as amounting to cognitive distortions and rationalizations of his conduct. [ 5 ] No child of three or four or even up to puberty experiences any enjoyment while being sexually exploited by an adult whom they should be able to trust absolutely will act in their best interest. There is no pleasure for them. The pleasure, the perverse and momentary pleasure, gained by the offender during this conduct is soon forgotten.

The effect on the victim is deep, lasting, and profound and I do not, from all of the materials, conclude that Mr. Mathieson fully accepts the seriousness of his offending. The victim in this matter could not have been more innocent or vulnerable and she was without any fault of her own taken advantage of. [ 6 ] I agree with the risk assessment, that given his recent acting-out at the swimming pool, masturbating while watching a synchronized swim team comprised of young females, pubescent and teenaged, that he does continue to present a risk, although low.

I think it entirely appropriate that this offender undergo the sexual offender treatment and also be bound by probation so that the community is protected. An order under the Sex Offender Information Registration Act is also appropriate. [ 7 ] I have not forgotten in my comments that Mr. Mathieson did accept responsibility early on, in fact, at his earliest opportunity, and that he does express remorse. I accept that he feels some remorse and my comments go to his level of insight rather than any lack of remorse. [ 8 ] So there will be a conditional sentence order.

It will be for a period of 18 months. [ 9 ] The terms of that conditional sentence order will include the statutorily-required terms. [ 10 ] First, that you shall keep the peace and be of good behaviour. [ 11 ] You shall appear before the court when required to do so by the court. [ 12 ] You shall report in person forthwith to a probation officer at 275 East Cordova in Vancouver, British Columbia, and report

thereafter as required and not less than once per month in person. [ 13 ] You shall advise your conditional sentence order supervisor in advance of any change of name, telephone number, address, employment, living circumstances, or relationships. [ 14 ] You shall remain within the Province of British Columbia and shall not travel outside the province without the prior written authorization of your conditional sentence order supervisor or the court. [ 15 ] You shall reside at a residence approved of in advance by your supervisor, and not change that address without their prior written permission. [ 16 ] For the first four months of your conditional sentence, you will be bound by a house arrest curfew.

You may be outside your residence during your curfew hours for the purpose of attending to any medical emergencies for yourself or any member of your immediate family or reporting to your supervisor as your supervisor requires. [ 17 ] You supervisor may give you written permission to be outside of your residence for the purpose of attending to any scheduled medical or dental appointments; attending for any assessments or counselling; going directly to any place of employment, working, and returning home immediately thereafter; attending to any organized religious events or, I should say -- my understanding is that Buddhism is not a religion, but a spiritual practice, so I will say any religious or spiritual activities; and performing your community work service. [ 18 ] When you are away from your residence, you must carry -- does he live in a home or a townhouse or -- [ 19 ] MR.

SICOTTE: It is a basement suite they rent. [ 20 ] THE COURT: Does he have access to the yard? Does he do work in the yard? Does he have a dog? Does he -- [ 21 ] THE ACCUSED: We have a small yard [indiscernible/not near microphone] about 6 feet by 20 feet and then there is the driveway. [ 22 ] MR. SICOTTE: I don't know if Your Honour has heard that. He does have a very small yard that he can access. [ 23 ] THE COURT: Okay. Okay, so the term should be, "Inside your residence or the property on which the residence is situated." I would use curtilage, but that just confuses people. [ 24 ] MR.

SICOTTE: Yes. [ 25 ] THE COURT: All right. [ 26 ] So when you are away from your residence or the property on which it is situated, you must at all times carry with you a copy of your conditional sentence supervisor's written permission. [ 27 ] For the following eight months of your conditional sentence, you will be bound by a curfew of 7:00 p.m. to 7:00 a.m. seven days a week. [ 28 ] For the final eight months of your conditional sentence, you will be bound by a curfew of 10:00 p.m. to 6:00 a.m., seven days a week. [ 29 ] You must present yourself at the door of your residence during your curfew hours upon the demand of any peace officer or your supervisor to determine compliance with the curfew condition of this order. [ 30 ] I am going to provide that -- and I will ask you just to listen carefully, Mr.

Sicotte and Ms. Horneland. You shall not be alone in the presence of anyone under the age of 16 except with the advance written permission of your conditional sentence supervisor and then only when in the presence of another adult person who has been approved of in writing by your supervisor. You may have incidental contact with persons under the age of 16 years in public for the purpose of conducting any commercial transactions. [ 31 ] Is that a sensible term? [ 32 ] MR. SICOTTE: Yes, it is. [ 33 ] THE COURT: Okay. [ 34 ] MR.

SICOTTE: Yes, thank you, Your Honour. [ 35 ] THE COURT: All right. [ 36 ] You shall have no contact direct or indirect with S.M. or anyone identified by your supervisor who has been determined to be a detriment to your programming or counselling. [ 37 ] You are not to be found within 100 metres of any place you know to be the residence, school, or workplace of S.M. [ 38 ] You may have direct contact with R.M. only in the immediate presence of D. or S.M. [ 39 ] You shall not engage in any intimate relationship where the other person has the care, custody, or access to children under the age of 16 years until such time as your supervisor has been advised of the identity of that person and has been provided with your consent to contact that person to advise them of the content of this order and the details of your criminal history.

[ 40 ] You are to attend for, participate, and complete to the satisfaction of your supervisor any psychological or psychiatric assessments. [ 41 ] You are to attend for, participate, and complete to the satisfaction of your supervisor any treatment or counselling including, but not limited to, the forensic sex offender programs or other sex offender treatment programs. [ 42 ] Now, the s. 161 applies during the time he is bound by the CSO and probation, correct? [ 43 ] MS.

HORNELAND: Yes. [ 44 ] THE COURT: So I do not think we need to repeat it here. [ 45 ] You have a medical -- you have got sort of a Rogers order and I am not certain what the purpose of that is? [ 46 ] MS. HORNELAND: It is my understanding that sometimes medications can be prescribed if the -- if the psychiatrists deem it appropriate and that's what that is designed to allow for. [ 47 ] THE COURT: Okay. [ 48 ] MR. SICOTTE: I do not know if there is any basis for it in the matter that is before the court, Your Honour. I do not -- [ 49 ] THE COURT: Yes. [ 50 ] MR.

SICOTTE: Frankly, it does not seem -- [ 51 ] THE COURT: It certainly is something -- [ 52 ] MR.

SICOTTE: -- anything that has arisen. [ 53 ] THE COURT: -- that with some offenders who are predatory pedophiles or have some other paraphilia that it might be appropriate, but I am going to decline to order that here. [ 54 ] You will perform 100 hours of community work service under the direction of and to the satisfaction of your supervisor or community work service officer and complete those hours within the first 12 months of your period of conditional sentence. [ 55 ] You will abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed.

And that is not a term I am including because you have any issues with alcohol or drugs, but because this is, notionally, a jail sentence and you should not be engaging in the use of recreational substances while you are serving a jail sentence in the community. [ 56 ] I will turn now to the probation.

The probation will be for a period of two years. [ 57 ] The terms of that probation will be that you shall keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 58 ] You shall report in person within 72 hours of the conclusion of your conditional sentence to a probation officer at 275 East Cordova Street in Vancouver, British Columbia, and thereafter as and when directed by your probation officer. [ 59 ] You shall advise your probation officer in advance of any change of name, telephone, address, employment, living circumstances, or relationships. [ 60 ] You shall reside at a residence approved of by your probation officer and not change that residence without their prior written permission. [ 61 ] You shall not be alone in the presence of anyone under the age of 16 years, except with the advance written permission of your probation officer and only then when in the presence of another adult person who has been approved of in writing by your probation officer - and then, Madam Clerk, I am not going to try and recreate my wording, but - you may have incidental contact with persons under the age of 16 years when in public for the purpose of any commercial transactions. [ 62 ] You shall have no contact with S.M. or any other person named by your probation officer whom your probation officer has determined may be a detriment to your programming or counselling. [ 63 ] You shall not attend within 100 metres of any place you know to be the residence, school, or workplace of S.M. [ 64 ] You are not to have any contact with R.M. except in the presence of D. or S.M. [ 65 ] The same wording, Madam Clerk, that I used in the conditional sentence will apply. [ 66 ] You shall not engage in any intimate relationship with any person who has the care, custody, or access to children under the age of 16 years until such time as you have advised the conditional -- or, sorry, you probation officer of the identity and the means of contacting that person and consented to that person being informed of the content of this order and the details of your criminal history. [ 67 ] You are to attend for, accept, and complete to the satisfaction of your probation officer any psychological or psychiatric assessments.

[ 68 ] You must attend for, accept, and complete to the satisfaction of your probation officer any treatment program including, but not limited to, the forensic sex offender program or other sex offender treatment programs. [ 69 ] Before I turn to the incidental orders, any other comments or concerns about those terms? [ 70 ] MR. SICOTTE: Just with the reporting at the beginning of probation. I wonder if -- he resides out in Surrey.

I wonder if he might, instead of the East Cordova office, if he could be directed to report to the North Surrey office, which is at Suite 103, 10475 138th Street in Surrey within 72 hours of the -- [ 71 ] THE COURT: Well, I think we usually put the address where the offence originates and then they redirect them. I do not think they often redirect them back to here. Will he be there for sure in 18 months? [ 72 ] MR.

SICOTTE: Well, it's long-term, I just -- that address seems a little more conducive to the current -- that's where he will be reporting for example for his conditional sentence. [ 73 ] THE COURT: Well, you know what I will say, I will just say that he is to report as directed by his conditional sentence supervisor to a probation officer at the Community Corrections office closest to his residence. [ 74 ] MR.

SICOTTE: Thank you, Your Honour. [ 75 ] THE COURT: I think that should probably be the term in all of the orders, but I don't know why we do not do that. [ 76 ] You will be required to provide a sample of your DNA to the Vancouver Police Department located at the first floor, 3585 Graveley Street, in Vancouver, British Columbia, on any Wednesday at 10:00 a.m. and by no later than -- if I say the 27th, will he be able to get in at some point over the next two weeks? [ 77 ] MR.

SICOTTE: Can you come to Vancouver within the next two weeks to provide your DNA sample at the police station? [ 78 ] THE ACCUSED: Yes, I can do that. [ 79 ] THE COURT: Okay, by no later than Wednesday, January 27th, 2016. [ 80 ] All right. Pursuant to s. 161 of the Criminal Code -- and how long do you want this for, did you say? Do you want it for life? [ 81 ] MS. HORNELAND: I sought it for a period of 10 years. It is -- [ 82 ] THE COURT: Ten years? [ 83 ] MS.

HORNELAND: Yes, but there is no stipulation. [ 84 ] THE COURT: I am going to make conditions and exemptions as I am permitted to do under s. 161. [ 85 ] For a period of 10 years, you are prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or at a daycare centre, school ground, playground, or community centre. [ 86 ] You may be found in a public park when in transit or in the company of a third person approved of in advance by your conditional sentence supervisor or probation officer. [ 87 ] Is that satisfactory, Mr.

Sicotte? [ 88 ] MR.

SICOTTE: Yes, thank you, Your Honour. [ 89 ] THE COURT: You are prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority toward persons under the age of 16 years, having any contact, including communication by any means, with a person who is under the age of 16 years, unless the offender does so in the presence of a third person approved of in advance by your conditional sentence supervisor or probation officer. [ 90 ] I am just realizing that that will only cover the first -- or another adult aware of the details of your criminal history.

Is that going to -- I think that -- I do not know how else we would cover it past the CSO and probation. I can put "responsible adult." [ 91 ] MS. HORNELAND: Yes. Thank you. [ 92 ] THE COURT: "Another responsible adult who is aware of your criminal history." [ 93 ] All right, and I think that, then, covers -- [ 94 ] MS. HORNELAND: Sorry, as you were just making those last comments, Your Honour, and my friend and I have not discussed this, but it occurs to me that perhaps there ought to be after "responsible person," it might read, "Other than Mr.

Mathieson's wife," and I say that because these offences occurred over a period of years where she was present in the home and so I have -- my concern arises for that reason. [ 95 ] THE COURT: Yes, except that -- I understand your concern, but she was not aware at the time. She is now aware.

[ 96 ] MS. HORNELAND: It is true, yes. [ 97 ] THE COURT: Right, and I am taking into account his age and other circumstances, but we are now in a situation where he is going to -- she is the most likely person that is going to be -- [ 98 ] MS. HORNELAND: To be -- [ 99 ] THE COURT: -- present with him. His family are all aware. I expect they will be vigilant. So, in all those circumstances, I do not think we need go further than just having another responsible adult aware of his history. [ 100 ] MS. HORNELAND: Okay. Thank you. [ 101 ] THE COURT: And further comments or -- [ 102 ] MR.

SICOTTE: No, nothing, Your Honour. [ 103 ] THE COURT: -- issues or anything? [ 104 ] MR. SICOTTE: Thank you. [ 105 ] THE COURT: All right, again, my gratitude to counsel for your very able and careful submissions, and we shall stand down. [ 106 ] MS. HORNELAND: Your Honour, sorry to interrupt -- [ 107 ] THE COURT: Oh, victim -- [ 108 ] MS. HORNELAND: -- the SOIRA order. [ 109 ] THE COURT: Oh, yes, the SOIRA order. [ 110 ] MS. HORNELAND: Yes. [ 111 ] THE COURT: So for a period of 10 years, you will be bound -- [ 112 ] MS. HORNELAND: Sorry, Your Honour, it is for 20. [ 113 ] THE COURT: Twenty -- [ 114 ] MS.

HORNELAND: Yes, thank you. [ 115 ] THE COURT: -- years, you will bound by the terms of the Sex Offender Information Registry Act , and now the order will be reviewed with him by the justice of the peace and signed at that time. [ 116 ] MS. HORNELAND: Thank you. [ 117 ] MR. SICOTTE: Thank you, Your Honour. [ 118 ] MS. HORNELAND: I can direct a stay of proceedings to Count 2 of this Information. [REASONS FOR SENTENCE CONCLUDED]