R. v. J.M., 2019 BCPC 235

Citation: R. v. J.M. 2019 BCPC 235 Date: 20191011 File No: 24974-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M. Publication Ban Pursuant to

Section 486.4(1) of the Criminal Code REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Feinberg, L., Avery, S. Counsel for the Defendant: Murphey, M. Place of Hearing: Smithers, B.C. Date of Hearing: September 13, 2019 Date of Judgment: October 11, 2019 Introduction [ 1 ] On May 10, 2019, after a seven-day trial, I convicted J.M. of the following offences under Information 24974-1: Count 1 , charging J.M. from July 1, 2013 to July 1, 2015, inclusive, at or near [omitted for publication], BC, with sexual interference of C.B., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code .

Count 2, charging J.M. from July 1, 2013 to July 1, 2015, inclusive, at or near [omitted for publication], BC, with sexual assaulting C.B.contrary to

Section 271 of the Criminal Code. Count 4, charging J.M. from November 1, 2017 to November 30, 2017, inclusive, at or near [omitted for publication], B.C., withsexually assaulting C.B., contrary to s. 271 of the Criminal Code. [2] On May 10, 2019, I acquitted J.M. of Count 3 which charged him with sexually exploiting C.B. from November 1, 2017, toNovember 30, 2017, at or near [omitted for publication], B.C. [3] On May 10, 2019, pursuant to the principle against multiple convictions espoused in R. v.

Kienapple, (SCC), Idirected a conditional judicial stay of proceedings of Count 2, charging J.M. with sexually assaulting C.B. between July 1, 2013, and July15, 2015. Issues [4] The issue for the court is to determine a fit and proper sentence taking into account all of the relevant purposes and principlesof sentencing, the circumstances of the offence and the particular circumstances of the offender, J.M. [5] This matter came before me for a sentencing hearing on September 13, 2019. At that time, I heard submissions of counsel andreceived their authorities.

I also received into evidence the following exhibits: Exhibit 1: a Presentence Report from Community Corrections ordered on May 10, 2019 and filed July 11, 2019; Exhibit 2: a Psychological Risk Assessment from Forensic Psychiatric Services Commission, ordered May 10, 2010, and filed on July11, 2019; Exhibit 3: the Victim Impact Statement of C.B.; Exhibit 4: J.M.’s Justin Conviction List as of September 13, 2019; and Exhibit 5: a transcript from the Proceedings of Sentencing on December 21, 2016, in R. v.

J.M., [omitted for publication], Court file[omitted for publication]. [6] Following his counsel’s sentencing submissions, J.M. addressed the court and J.M. Murphey presented to the court thestatement of T.M. At the conclusion of the sentencing hearing I reserved my decision; these are my reasons for sentence. Circumstances of the Offences [7] The circumstances of the offences are set out in R. v. J.M., 2019 BCPC 105 . Briefly, I accepted the evidence of C.B.(“C.B.”) of five incidents of sexual touching that occurred during the offence period charged under Count 1 of Information 24974-1.

Allof these incidents occurred when C.B. was 14 or 15 years old and a foster child in J.M. and T.M.’s care. The incidents included fondling,digital penetration, cunnilingus, fellatio, vaginal and anal intercourse. One incident occurred in J.M.’s truck when he was giving C.B. aride home after she went to the library and four incidents occurred in J.M. and T.M.’s home where C.B. resided. C.B. was a virgin at thetime. The sexual touching made her feel “really weird and awkward and horrible” and she found the intercourse painful.

The analintercourse was particularly painful and caused her to bleed from her rectum. [8] I also accepted C.B.’s evidence with respect to one incident of sexual assault charged in Count 4, which occurred in November2017 when C.B. was 17 and no longer living in J.M. and T.M.’s home. It occurred when J.M. took C.B. to his new residence on [omittedfor publication] in [omitted for publication], BC, where he had non-consensual sexual intercourse with her.

C.B. had not anticipated thiswould happen, and although she did not ostentatiously protest the sexual activity, neither did she consent to it, and afterwards feltawkward, sore and used. J.M. insisted no sexual activity occurred and did not advance a defence of honest but mistaken belief in C.B.’sconsent. [9] Approximately three weeks after their sexual encounter in November 2017, J.M. began communicating with C.B. on FacebookMessenger.

These communications came to the attention of C.B.’s stepmother who reported them to social workers at the Ministry ofChild and Family Development, who in turn reported the communications to the police. It was these text messages which ultimately ledto J.M. being charged with the offences of sexual interference, sexual assault, and sexual exploitation. [10] J.M. steadfastly denied and continues to deny having sexual contact with C.B. in any way, at any time, in any place, for anyreason. There was no independent evidence to contradict J.M.’s bare denial of the offences, apart from C.B.’s testimony.

I believed theincidents of sexual contact occurred as C.B. described them. I considered J.M.’s denials in the context of the evidence as a whole and Idid not believe them. On May 10, 2019, I convicted J.M. of the offences now before me for sentencing. Circumstances of the Offender [11] J.M.’s personal circumstances are set out in the Presentence Report (Exhibit 1) and Psychological Risk Assessment Report(Exhibit 2). [12] J.M. was born on [omitted for publication], and is now 53 years old. He was raised by his parents in [omitted for publication],until they separated when J.M. was 14 years old.

J.M. then lived with his father in [omitted for publication], BC, for a few years where heattended high school. J.M. returned to finish his high school education in [omitted for publication], BC. [13] J.M. is trained as an automotive mechanic and has been employed in that capacity for local car dealerships most of his workinglife.

[14] J.M. and T.M. married in 1992 and divorced in 2016. They have four daughters, who are now ages 26, 24, 21 and 19. Althoughtheir marriage came to a cataclysmic end, J.M. and T.M.’s current relationship is cordial and supportive. T.M. attended the sentencinghearing and confirmed her and their daughters’ support for J.M. [15] J.M. has and continues to be steadily employed as an automotive mechanic. He is able to budget his modest annual income of$45,000 to cover his mortgage, utilities, transportation and household expenses.

He also paid spousal and child support to his wife aftertheir separation in 2016, in the amount of $1,500 per month. He continues to assist his family by providing them with vehicles andfirewood. [16] When he is not working, J.M. spends a great deal of time maintaining vehicles for himself, his family and friends. [17] J.M. has no addictions and at most, consumes one beer per day.

He has no physical or psychiatric illnesses; he takes nopsychiatric medications; and he does not suffer from any personality disorders. [18] Since his troubles in the recent years, which includes his divorce, convictions for violent offences against T.M., and nowconvictions for sexual offences against C.B., J.M. has participated in counselling therapy. He continues to profess his innocence of thesexual offences against C.B.; nevertheless, J.M. has engaged in counselling and expressed his willingness to continue to do so.

Criminal Record [19] On December 21, 2016, J.M. was convicted of three violent offences against his ex-wife, T.M.: (

a) pointing a firearm (s. 87.1CC); (

b) uttering threats to cause death or bodily harm (s. 264.1(1)(

a) CC); and (

c) assault (s. 266 CC). All of these offences occurred onJune 5, 2016, at the family residence on [omitted for publication] near [omitted for publication], BC. The firearm, a shotgun, wasunloaded at the time of the offence. J.M. received a four month conditional sentence followed by 12 months’ probation plus a 10 yearfirearms’ prohibition. J.M.’s only other criminal offence is from November 21, 2001, when he was convicted under s. 144(1)(

b) of theMotor Vehicle Act for driving without reasonable consideration of others, and was fined $200. [20] Between his conditional sentence, probation, and bail, J.M. has been subject to court-ordered conditions for three years. There isno reported breaches of those court orders beyond his failure to “keep the peace and be of good behaviour” in November 2017, bysexually offending against C.B. Presentence Reports [21] The court received a psychological risk assessment from Dr.

Clifford Kerr, a psychiatrist in the employ of the ForensicPsychiatric Services Commission, and a presentence report prepared by Probation Officer (“PO”) Patricia Braiden, of [omitted forpublication], Community Corrections. In both reports, J.M. denied committing the offences, otherwise, he participated in the assessmentprocess. [22] The court cannot consider J.M.’s refusal to admit the offences to the psychiatrist or probation officer an aggravating factor insentencing. In R. v. Funk, 2014 BCSC 383 , Mr.

Justice Davies held an offender’s residual right against self-incrimination isprotected under s. 7 of the Charter of Rights and Freedoms and does not evaporate post-conviction. An offender cannot be compelled toadduce inculpatory evidence if he chooses not to do so. The offender cannot be punished for not fully participating in the assessment, norcan the court make an adverse inference with respect to his refusal to participate: R. v. Donovan, 2004 NBCA 55. Psychiatric Risk Assessment [23] Dr. Kerr opined that J.M. presents a low risk to reoffend. In formulating this opinion, Dr.

Kerr considered J.M.’s personalcircumstances, past and present. J.M. is pro-social; he has no medical, psychiatric, cognitive, emotional or addiction issues. He isgainfully employed and has a good relationship with his daughters and ex-spouse. Dr. Kerr also relied on my findings that it was likelyC.B. who initiated the first incident of sexual contact and J.M.’s offences were opportunistic and situational and did not involvegrooming.

I gather from comments C.B. made about herself and her apparel in her statement to Constable Heuberger that at the time ofthe sexual offences, C.B. was a fully-developed teenage girl. In other words, she was neither prepubescent nor did she appear to be so.Dr. Kerr made no suggestion J.M. suffers from a pedophilic disorder. [24] I note Dr. Kerr seems to have misunderstood the offences for which J.M. was convicted in December 21, 2016, and on May 10,2019. He seems to believe that in each instance, J.M. was convicted of all the offences for which he was originally charged, which wasnot the case.

Victim Impact Statement [25]

Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for “the purpose ofdetermining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 , the Court of Appeal held (at para. 12) that victimimpact statements play an important role in the sentencing process. At para. 13, the appellate court stated “the content of the statement isrestricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.” [26] At trial, C.B. testified: Then, when all this happened I was emotionally wrecked, for sure.

I was stressed out about it too. But I was emotionally unstable,because I didn’t know how to handle it and like I said in the video, sex is supposed to be with two partners that make love or that loveeach other, in this situation, it wasn’t even close. So, that hurt as well. [27] C.B. also provided a formal Victim Impact Statement (Exhibit 3) in which she says: I trusted him, but he was not trustworthy.

I wanted to live a Christian life but he took that away from me. My desire for a Christian relationship was ruined and I no longer felt likea Christian. I had no voice and still work to have one. I lost all my ideas and views of what love is. [28] C.B. told PO Braiden she experienced a lot of trauma in her past and learned the importance of “moving on with life”, which iswhat she intends to do. Still, it is clear from her testimony at trial the sexual abuse diminished C.B.’s sense of self-worth.

In her January10, 2018, video-recorded statement to Constable Heuberger, C.B. expressed disappointment in herself for succumbing to temptation andfalling into one of “Satan’s traps.” In cross-examination C.B. stated: A. …the secret was always with me. I felt horrible myself. And I didn’t want to talk about it because I was disgusted with myself. Ididn’t want people to know. Q. Didn’t want them to know what? A. Mostly that I sinned. Because I grew up in Christian homes. There are things you shouldn’t say. There are things that are evenawkward.

So, when I grew up in a lot of homes, it was even awkward to say like boobs. It was awkward to say anything. So when youfeel you did something is wrong, sometimes it is hard to tell someone else who might think it’s even worse. I didn’t really know how tosay anything either or how to bring it up. I wanted to tell people, I just didn’t know how. Legislative Framework Maximum and Minimum Sentences [29] In this matter the Crown has proceeded by indictment.

In July 2013 an offence of sexual interference and sexual assault chargedunder ss. 151 and 271 of the Criminal Code, where the Crown has proceeded by indictment, attracted a maximum term of imprisonmentof 10 years and a minimum sentence of one year. This was the penalty when J.M. committed the offence of sexual interference chargedin Count 1. [30] On July 17, 2015, the Tougher Penalties for Child Predators Act, SC 2015, c 23, came into force. The Parliament legislatednew penalties for sexual offences against children.

The maximum sentence for ss. 151 and 271 offences when charged indictably wasincreased to 14 years and the minimum sentence remained one year. The court accepts the increase in the maximum sentence is alegislative signal that sexual offences are to be treated more seriously than they have in the past. In R. v. Vautour, 2016 BCCA 497, Justice Kirkpatrick commented (at para. 54) “for too long crimes such as this, involving children and inflicted by persons in aposition of trust, have attracted unwarranted leniency.” [31] Recently, in R. v. Scofield, 2019 BCCA 3 , and its companion case R. v.

Horswill, 2019 BCCA 2 , the B.C.Court of Appeal held the mandatory minimum sentence set out in s. 151 was unconstitutional and of no force and effect. In R. v.E.R.D.R., 2016 BCSC 1759 , Madam Justice Beames also found unconstitutional the mandatory minimum one year sentence fora sexual assault against a person under the age of 16. Purpose and Principles of Sentencing [32]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [33]

Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 , at para. 39. [34]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. The Supreme Court of Canada has held that proportionality as articulated in s. 718.1 is afundamental principle of sentencing - “the sine qua non of a just sanction”. It is grounded in elemental notions of justice and fairness, andis indispensable to the public’s confidence in the justice system”: R. v. Safarzadeh-Markhali, 2016 SCC 14, para. 70. [35]

Section 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing forany offence involving abuse of a person under 18. Other important sentencing considerations are set out in

section 718.2, which states asentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or theoffender. Today, the Criminal Code legislates the following factors as aggravating: (

a) s.718.2(a)(ii.1), the young age of the victims; (b)s. 718.2(a)(iii), the offender was in a position of trust or authority in relation to the victim; and (

c) s. 718.2(a)(iii.1), the offence had asignificant impact on the victim. [36] On September 19, 2019, s. 718.04 of the Criminal Code came into effect. It 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 denunciationand deterrence of the conduct that forms the basis of the offence. [37] Although the offences and J.M.’s conviction for those offences predate s. 718.04 coming into force, I do not consider it asubstantive change to the principles in play at a sentencing hearing.

Section 718.2(a)(iii.1) already requires a sentencing judge to take

into consideration the impact of the offence on the victim. In my view, a victim’s vulnerability to sexual violation and its impact are twosides of the same coin. Moreover, courts have long recognized the victim’s vulnerability as an aggravating factor in sentencing child sexoffenders: see R. v. Klassen, 2012 BCCA 405 ; R. v. Seagull, 2013 BCSC 1811 , para. 53; R. v. Pappas, 2005 BCSC1431 cited in R. v. D.C.E., 2012 BCPC 491 , at para. 34; R. v. Roberts, 2015 BCPC 266 ; and R. v.

Campbell-Ball,2019 SKCA 41, para. 60. [38] C.B. was a child-in-care who had been in multiple foster homes before she aged out earlier this year. C.B. told ConstableHeuberger she had been in an abusive home when she was young. Foster children are vulnerable in a way that transcends their age.Negative stereotypical depictions of foster homes abound, as do negative stereotypes of foster children. It is profoundly unfair to thewell-meaning and compassionate persons who endeavour to provide a safe and loving home to society’s physically, psychologically andemotionally bruised and broken children.

Equally unfair is to assume foster children are so damaged they are without conscience. [39] I have no reason to believe J.M. and T.M. did not take C.B. into their home with the best of intentions. Unfortunately, C.B.’srelationship with the T.M quickly and completely unravelled. C.B. described J.M. and T.M.’s residence to PO Braiden as a “very angryhome” where she argued a lot with T.M. I was left with the impression from T.M.’s evidence that during her two-year placement withthe J.M. and T.M., C.B. was incessantly mistrusted, managed and monitored.

The J.M. and T.M.’s residence was not a loving home forC.B. as it was for J.M. and T.M.’s own daughters. At best it was a waystation where C.B. was warehoused until it was time for her tomove on. I conclude that insecurity, loneliness and rejection made C.B. exceptionally vulnerable to sexual abuse. [40]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle… means that any disparitybetween sanctions for different offenders needs to be justified.” In Canada the appellate courts diverge on the application of parity insexual offences. In R. v. Williams, 2019 BCCA 295 , the Court of Appeal held (at paras. 53 to 57) that in BC, as in mostprovinces, the appellate courts adopted the approach of sentencing ranges for a particular offence.

Smith JA for the appellate court inWilliams stated (at para. 57) that sentencing ranges “provide an optimal balance between furthering parity and individualization in asentence. … They are intended to assist judges in arriving at a sentence that is consistent with sentences for similarly situated offenders,in similar circumstances…" [41]

Section 728.2(

c) codifies the totality principle which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender: see R. v. G.F., 2018BCCA 339 . It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious ofthe individual offences involved, or its effect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. [42] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if lessrestrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e). Sentencing Principles for Child Abuse [43] Many of the authorities provided to the court in this sentencing hearing reference R. v. D.(D.), (ON CA),and R. v.

Woodward, 2011 ONCA 610, which emphasize that children are our most valued and most vulnerable assets and society has aduty to protect them from the harm caused by sexual predators. The harm is enduring, intergenerational and well-recognized. In R. v.K.R.J. 2016 SCC 31 , Justice Karakatsanis, for the majority, noted at para. 83, that sexual offences against children have“persisted for centuries.” Justice Brown (in dissent) goes on to discuss the societal impact of those offences: [131] … Their legacy is toxic.

They are notorious for their devastating impact, often ruining the lives of their victims, and of thosewhose lives intersect with those victims as they move into adulthood. Trauma from childhood sexual abuse may reverberate forgenerations, creating pernicious cycles of abuse. [44] Over 20 years ago Abella JA (as she then was), in R. v. Stuckless, (ONCA), described the impact of sexualabuse on a child: Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. [45] Accordingly, in cases of child sexual abuse, the objectives of denunciation, deterrence and the need to separate sexual predatorsfrom society takes precedence: R. v. E.S., 2017 BCCA 354 at paras. 53 and 58, citing Woodward and R. v. O.M., 2009 BCCA 287, atpara. 60; G.F., at para 49. In R. v.

R.E.L., 2010 BCCA 493, Chief Justice Hinkson states at para. 10: The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation anddeterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code.

Such assaults not only violate thechild’s physical integrity, but erode the child’s ability to develop emotional trust, and create the sort of profound and long-lastingconsequences that are evident in the appellant’s victim. [46] Both the Crown and defence have provided case law in support of their respective positions on sentence. I have consideredthese along with other authorities I have found helpful. I am mindful of Mr.

Justice LeBel’s caution (at para. 44) in Nasogaluak, thatgeneral ranges are not hard and fast rules to be applied to the sentencing process, but are guidelines for the judge to follow to encouragegreater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. Individualization in Sentencing [47] Sentencing is a highly individualized process. A fit sentence is one which is proportionate to the gravity of the offence and thedegree of responsibility of the offender. The correctional imperative of sentence individualization informs the sentencing process: R. v.

Pham, 2013 SCC 15 at para. 8, thus, proportionality is determined both individually and comparatively. Individualization and parity ofsentences must be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code: Williams, at para. 51 citingLacasse at paras. 53–54. [48] In arriving at a fit sentence, case authorities are helpful, but not determinative. The myriad of relevant factors generate asignificant variation in the range of sentences, particularly in sexual offences of children. Justice Saunders’ words in R. v. Wesley, 2014BCCA 321, are apposite: [25] Notwithstanding the able submissions on behalf of the appellant, it does not appear to me that the cases establish two tight rangesof sentence, two to four years and five to eight years, as contended.

In the case of sexual assault of children the variables areconsiderable, the background of the offenders are so different, the range of offending behaviour is so broad, the nuances of relationshipbetween offender and victim are so varied, and the needs of the community involved are so disparate that I do not consider the cases canbe separated into the two tight divisions posited. [49] Saunders JA cautioned sentencing judges from over-reliance upon appellate decisions to determine the appropriate range ofsentence.

She states at para. 26: In considering the many cases presented for our assistance, I observe first that many of them were appeals by the offender where thequestion was whether the sentence was beyond the appropriate range. Dismissal of those appeals does not tell us where the top of therange is, rather it tells us what is not the top of the range.

Such cases, therefore, do not provide a great deal of help in determiningwhether this sentence exceeds the top of the appropriate range. [50] Nevertheless, as Justice Hunter comments in E.S., at para. 62, sentencing ranges do serve a useful purpose in determining a fitsentence: While sentencing ranges are to be treated as guidelines only, and sentences must always be individualized to the offender, thesestatements provide appropriate yardsticks to measure the fitness of a sentence for the type of offence committed by this appellant.

Crown’s Position on Sentencing [51] The Crown proposes a fit and proper sentence for J.M. is eight years’ jail, together with various mandatory and discretionaryancillary orders. Specifically, the Crown submits a fit sentence on Count 1 for sexual interference between 2013 and 2015, is five years.For Count 4, the sexual assault in 2017, the Crown submits a fit sentence is four years reduced to three to take into account totality. Thesentences on Counts 1 and 4 ought to be served consecutively. [52] In support of its position, the Crown relies on the following authorities: (

a) R. v. D.N., 2018 BCCA 190; (

b) R. v. E.T.K., 2016BCPC 346; (

c) R. v. E.S., 2017 BCCA 354; (

d) R. v. G.M., 2015 BCCA 165; (

e) R. v. H.C.T.T., 2018 BCSC 2341; (

f) R. v. K.J.M., 2016BCPC 306; (

g) R. v. K.S.T., 2019 BCPC 112; (

h) R. v. M.P.S., 2016 BCSC 1175; (

i) R. v. M.P.S., 2017 BCCA 397; (

j) R. v. R.A.J., 2010BCCA 304; (

k) R. v. S.S.S., 2018 BCSC 2470. All of the Crown’s cases, save G.M., involve sexual offences against children under theage of 16. Count 1: Sexual Interference [53] With respect to the offence of sexual interference charged under Count 1, the Crown relies on R. v. T.A.D.(1995), 68 B.C.A.C.236, wherein the BC Court of Appeal stated that in a case involving sexual offences against children over an extended period, theappellate court has upheld sentences of up to 12 years or more, but the usual range is from 5 to 8 or 9 years.

T.A.D. is referenced in D.N.at paras. 97 and 98; R.A.J., at para, 26; E.S. at para. 61; R.E.L., at para. 21; G.F., at para. 50. The Crown points out in S.S.S., at para. 80,Justice Schultes’ comment in that sentences below the 5 to 9 year range are usually in the context of a guilty plea which the courtsrecognize as a significant mitigating factor and an expression of remorse. [54] In all the Crown’s cases the offender had breached a position in trust; the offences were highly intrusive of the victim’s bodilyintegrity and most involved various forms of penetration.

Also, in many of Crown’s authorities, the frequency, duration, and age of thevictim were far more aggravating than is present in this case. In some cases the victim became pregnant, in others, the sexual abuse wasaccompanied by extensive grooming, coercion, making pornography or gratuitous violence. The sentences range from a low of 4.5 years’jail in K.S.T., to a high of 8 years in D.N., R.A.J., K.J.M., E.T.K., and M.P.S. In E.S., the court imposed a sentence of 6 years’ jail, inS.S.S., 7 years, and in H.C.T.T., 7.5 years.

It bears reiteration that in J.M.’s case, the Crown is only seeking a 5 year jail sentence for thesexual interference conviction. Count 4: Sexual Assault [55] The Crown submits the range of sentences for sexual assault involving intercourse with a person over the age of 16 is 2 to 6years: see G.M., para. 22, citing R. v. B.S.B., 2010 BCCA 40 at para. 6, and R. v. Pouce Coupe, at para. 31. Defence Sentencing Authorities [56] The defence submits a fit sentence for J.M. is between 2.5 years and 3 years’ jail. In support of its proposition the defence relieson the following authorities: (

a) R. v. P.D., (ONCA); (

b) R. v. M., 2000 BCSC 683; (

c) R. v. C.G.D., 2009 BCSC 404;(

d) R. v. C.K.B., 2012 BCPC 482; (

e) R. v. R.E.M., 2005 BCSC 698; (

f) R. v. Rich, 2014 BCCA 24; (

g) R. v. K., 2016 BCSC 1637, and(

h) R. v. Melendez, 2016 BCPC 91. [57] In most of the defence cases the victim was younger than C.B. when the abuse began, involved far more incidents of sexualtouching and carried on far longer than it did in this case. In every case the court imposed sentences less than the five years’ jail theCrown seeks for the offence of sexual interference. The courts imposed jail sentences ranging from a low of 18 months in R.E.M., to ahigh of four years in C.K.B. In M. and Melendez the court imposed a sentence of two years less one day followed by probation; in Rich,

2.5 years; in K., 30 months; and in C.G.D., three years. I note R.E.M. appealed his 18 month custodial sentence and Justice Low for theBC Court of Appeal, in R. v. R.E.M., 2008 BCCA 516, stated: [5] The appellant had sexual intercourse with the victim when she was as young as nine years of age. The abuse was not as frequent as insome historical cases of this kind but it did not cease until the victim ran away from home at age seventeen. The circumstances of theseoffences were egregious.

The sentence imposed was at or below the low end of the range for offences committed by similar offenders insimilar circumstances. [58] Three of the defence authorities, namely, P.D., C.G.D., and C.K.B, involve guilty pleas, which are highly mitigating. Five cases,P.D., M., R.E.M., Rich, and K., involve convictions for sexual assaults committed at a time when the statutory maximum sentence wasten rather than 14 years, and s. 718.01 of the Criminal Code had not yet been enacted. Historical sex assault cases, such as R.E.M., Richand K., generally result in lower sentences: see R. v.

T.J.B., 2015 BCSC 855, para. 4; R. v. J.R.A.C., 2014 BCSC 2163 , para. 40;R.E.L. However, offending against a child under the common law has always been aggravating and called for a denunciatory anddeterrent sentence: see in K., at para. 36, E.S., para. 52, citing R. v. S.B.T., 2010 BCCA 145. [59] In R. v. Worthington, 2012 BCCA 454, the BC Court of Appeal commented at paras. 34 and 35 that authorities from a formerera may not reflect the appropriate balance of principles now required by the Criminal Code, particularly when the maximum sentencewas lower. In R. v.

A.E.S., 2018 BCCA 478, the appellate court found the sentencing judge erred by relying on cases to settle a range thatwere not appropriate to the offences and facts before her. Madam Justice Bennett, writing for the court, stated at paras. 61-62: I readily acknowledge that over time there has been an increasing recognition by the courts that sexual offences against children arelikely to be extremely damaging to their victims, and this case is no exception. The victims in this case suffered greatly because of theirfather’s assaults against them.

However, a sentencing court cannot overlook the maximum penalty in effect at the time, which defined the outer end of sentencingoptions, and how that maximum would affect the fit range of sentences. Range of Sentence [60] Not surprisingly, none of the authorities provided by counsel are on “all fours” with the case before me. Each case can bedistinguished by the facts and sometimes by the questions of law.

For example, D.N. involved what the sentencing judge referred to as“dramatically aggravating circumstances”, such as the young age of the victim when the offending began (age six or seven), its duration(eight years) and escalating nature, the offender’s flight from justice and breach of his no-contact bail order. In order to give sufficienteffect to the parity principle in the context of this case, I have considered a number of cases including those provided by counsel andmany of the authorities referred to in those cases. I have appended a shorthand

summary of my review to this decision. The surfeit ofcases underscores ubiquity of child abuse. I find Justice Schultes’ comments in R. v. Rosario, 2018 BCSC 2483 apposite: [76] Obviously every sentence must be individually tailored, by balancing the aggravating and mitigating factors and the specificprinciples of sentence that are entitled to the greatest weight in those circumstances.

But taking the sentences in comparable situationsinto account when arriving at the ultimate sentence fulfils the equally important statutory sentencing objective of sentencing similaroffenders and offences similarly. [77] No two sentences are identical and the cases could be parsed endlessly for similarities and differences. What should be sought aremeaningful common factors and sentencing principles that influenced the sentences that were ultimately imposed.

Aggravating, Mitigating and Collateral Consequences [61] Individualization in sentencing requires the court to consider all aggravating and mitigating circumstances and the collateralconsequences. As a result, sentences for offenders convicted of sexual offences against children vary significantly depending on thecircumstances. Those circumstances may include: (

a) the frequency of the sexual abuse; (

b) the severity of the sexual abuse; (

c) theduration of the sexual abuse; (

d) whether the abuse occurred in the victim’s home; (

e) the presence of grooming; (

f) the age of thevictim; (

g) whether the offender was in a position of trust; (

h) whether the abuse was accompanied by any gratuitous violence; (i)whether the offender pleaded guilty; (

j) whether the offender expressed remorse; (

k) the offender’s criminal record; (

l) the offender’s ageand health; (

m) whether the offender was socially disadvantaged; (

n) whether the offender presented an ongoing risk to the community;(

o) the offender’s family and community support; (

p) the offender’s bail conditions; and (

q) the impact on the victim. [62] Many of the factors cited above have been distilled from Justice Romilly’s decision in H.M.T.Q. v. T.P.C., 2000 BCSC 742, atpara. 16, referenced in K.J.M. Some of these factors are either aggravating or mitigating, others, although relevant, are neither. Anaggravating factor, either statutorily or judicially mandated, will induce a court to impose a longer sentence than otherwise may beimposed. A mitigating factor will reduce the sentence that might otherwise be imposed.

The absence of an aggravating factor does notequate to a mitigating factor or vice versa: see Scofield, paras. 35-36 and R. v. Prince, 2018 BCSC 987 , para. 72. [63] The Crown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burdenof proving disputed mitigating factors on a balance of probabilities: R. v. Dreger, 2014 BCCA 54, para. 45. (

a) the frequency of the sexual abuse [64] Repetitive acts of sexual abuse increases the gravity of the offence and the moral culpability of the offender: R. v. Vautour,2016 BCCA 497. The sexual abuse charged under Count 1 in this case involved five incidents. The fact there was more than one isaggravating; however, in most, if not all the authorities counsel provided to this court, the abuse involved far more incidents. Some casesinvolve sexual abuse which occurred daily, or at least several times a week, over a number of years. Before it stopped, the victim wassubjected to countless incidents of abuse.

In Vautour, for example, the Court of Appeal found the sentencing judge erred by failing toconsider that over 4.5 years, the offender had inflicted hundreds of incidents of sexual abuse on the victim. As Justice Schultescomments in S.S.S. (at para. 13), in addition to the 20 specific incidents of abuse the victim identified, she also experienced an

“undifferentiated montage of other incidents to which no specific number can be ascribed.” (

b) the severity of the sexual abuse [65] Count 1 involved fondling, digital penetration, cunnilingus, fellatio, vaginal and anal intercourse. Count 2 involved vaginalintercourse. These sexual acts were highly intrusive of C.B.’s physical, psychological and sexual integrity. J.M. wore no condom duringvaginal intercourse which exacerbated C.B.’s risk of pregnancy and sexually transmitted disease. It is an aggravating factor when asexual offender takes no measure to safeguard the victim from the potential consequences of unprotected sexual intercourse: see R. v.Jaden, 2018 BCSC 1685, and H.C.T.T., at para. 10.

As Judge Keyes commented in R. v. W.J.P., 2016 BCPC 19 (at para. 87), an offenderwho has already fathered children knows “perfectly well, as does any adult, that pregnancy is the inevitable result of having repeatedunprotected vaginal intercourse.” [66] The courts now recognize the seriousness of a sexual assault is not dictated by the existence or non-existence of penetration:D.N., at para. 25, citing R. v. Hume, 2016 BCCA 230; R. v. Scofield, 2019 BCCA 3 , paras. 35-36; R. v. R.J.B., 2016 BCCA 428, para. 11; In K., at para. 45, and K.S.T., at para. 62.

The court cites the following passage from Saunders JA for the BC Court ofAppeal in Worthington: [41] … I would go so far as to say the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a caseinvolving a breach of the trust at the heart of the child-parent relationship is the extent to which that relationship was violated, theduration of that violation, and the offender’s appreciation of that violation as the behaviour continued.

We are here concerned with theoffence of sexual assault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuseinherent in the youth of the complainant, over-laid with the breach of trust in the family relationship. [67] In Worthington, Saunders JA, cited from R. v. W.Q., (ON CA), where the Ontario Court of Appeal referredto its earlier decision in Stuckless: The absence of penetration does not automatically relegate the sexual abuse of children to the “lower range” of sexual offences.

There isno question that “additional force”, “collateral crimes”, and penetration are aggravating factors. But their absence does not therebytransform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, thenumber of victims, the frequency of the assaults and their devastating impact on the lives of their victims. [68] This means the fact there was no intercourse in the first four incidents charged under Count 1 is not mitigating and does notmilitate towards a lesser sentence.

Nevertheless, I find the intercourse which occurred on the fifth incident charged under Count 1 andthe sixth incident charged under Count 4 is aggravating because it was painful, highly invasive of C.B.’s bodily integrity, and put her atrisk for pregnancy, disease, or injury. (

c) the duration of the sexual abuse [69] As with the frequency of the abuse, its duration also affects the gravity of the offence and the moral culpability of the offender:Vautour and S.S.S., para. 38. In H.C.T.T., Justice Harvey notes, at para. 50, the repetitive and ongoing nature of H.C.T.T.’s offending.

Hestates “These were not one-off or explained in any way mitigated by a pattern of behaviour attributable to a psychological deficit oraddiction.” [70] In this case, the sexual interference charged under Count 1 is from July 1, 2013, to July 1, 2015, which is the entire period oftime C.B. lived in J.M. and T.M.’s home as a foster child. It is not the actual duration of the sexual abuse. I found the sexual offencesoccurred in a cluster sometime after C.B. turned 14. The abuse stopped before C.B. left J.M. and T.M.’s care, even though J.M. still hadaccess to her. Exactly when it stopped is unclear.

Equally unclear is who put a stop to it. C.B. simply said the fifth incident was the lastincident of sexual activity with J.M. while she lived in his home. I am left with the impression the sexual activity began and ended withina fairly discrete period, perhaps six months or so. The limited duration of the abuse against C.B. is a significant distinguishing factor, asis her age when the abuse began. [71] The sixth incident charged under Count 4 began sometime after 4:00 or 4:15 p.m. and ended in time for J.M. to return C.B. tothe high school before 5:30. (

d) whether the abuse occurred in the victim’s home [72] Four of the six incidents of abuse occurred in C.B.’s own home, which ought to have been a place of safety and security: S.S.S.,para. 38; Rosario, para. 48. The other two incidents occurred when C.B. was alone with J.M. and isolated from others. (

e) presence of grooming [73] Grooming a victim is an aggravating factor in the context of child sexual abuse: S.S.S., at paras. 38 and 66; T.J.B., at para. 31;and R. v. D.L.W., 2014 BCSC 43, at para. 89. It is a common factor in many sexual offences which have occurred from the time the childis very young until the abuse is eventually disclosed or stopped. For example, in D.N., if the victim wanted a ride or money, the offenderwould negotiate with her to let him perform sexual acts on her: see D.N., para. 7.

In E.S. the offender used “various forms ofpsychological pressure to force [the victim] to accept the abuse”: see para. 6. In C.G.D., the offender offered his stepdaughter candy forsexual favours, which she refused. In many cases, including, H.C.T.T., the offender used pornography to initiate the complainant intosexual behaviour: see para. 8. In M.P.S., the victims were continually reminded that should they report the sexual abuse, they would“again face terrible disruption in their family life and an uncertain future”: see. M.P.S. (BCSC) para. 11. In K.S.T. as in R. v.

G.J.S., 2014BCSC 1105, the offender extended privileges for permission to sexually abuse the victim. Madam Justice Holmes in G.J.S. (at para. 31)attributes this form of manipulation to intensifying the victim’s feelings of guilt and self-loathing which so unfairly afflicts abusedchildren. [74] Grooming is considered a type of predatory behaviour where the offender attempts to prepare the child victim for increasingly

more intrusive sexual abuse: In R. v. P.E.S., 2018 MBCA 124, Steel JA explains [Some citations omitted]: [37] So, for example, it is common for the perpetrator to start with initial discussions of sexually related topics or watching pornographicvideos together which may lead to kissing, touching and other forms of intimate conduct, including oral sex and sexual intercourse… Thevictim may be offered alcohol or drugs or given gifts of money and jewellery in order to lessen the victim’s inhibitions and to make themmore receptive to the sexual overtures.

The perpetrator may target a victim who is especially vulnerable because of difficulties at home,immaturity or other similar characteristics. [38] Often cases that employ the concept of “grooming” involve conduct that was planned and premeditated (see Kiska). On the otherhand, in cases where grooming is not found to have occurred, the conduct is characterised as spontaneous, impulsive, unplanned or spurof the moment. [39] In R. v. M.R., 2015 ONSC 7825 , the offender volleyball coach was charged with two counts of sexual assault and onecount of sexual exploitation involving a teenaged volleyball player.

In that case, a clinical child psychologist provided expert evidenceabout grooming. She described it as follows (at p 31): She says that it is a gradual desensitization, leading to more intrusive sexual contact. Methods used include creating sexually chargedenvironments through eroticized conversations and offering alcohol as a disinhibitor. The gradual eroticization and feelings of complicityin a victim to requests by an abuser can be effective as threats of harm by an abuser to silence a victim. [40] Most recently, the Quebec Court of Appeal addressed the concept of grooming in the luring context in R. v.

Rayo, 2018 QCCA 824. In that case, Kasirer JA cited a 2010 study which described grooming as (at para 139): Grooming is often characterized as seduction – a slow and gradual process of active engagement and a desensitization of the child’sinhibitions – with an increasing gain in power and control over the young person. [75] In this case I found no evidence of grooming. It was the fact J.M. made little attempt to build a relationship with C.B. which ledme to conclude it was C.B. who likely initiated the sexual activity.

J.M. did not orchestrate the first incident, rather he took advantage ofan opportunity to engage C.B. in sexual activity when it arose. Still, the fact of a child consenting or initiating sexual activity does notrepudiate a trust relationship or the obligation of the adult to decline the invitation. Notwithstanding the consent, desire or wishes of theyoung person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with thatyoung person: R. v. B.J.T., 2019 ONCA 694, para. 87, citing R. v.

Audet, (SCC); C.K.B., para.5. [76] After the first incident, it was J.M. who initialized the subsequent sexual activity. [77] As to Count 4, I have already determined J.M. was no longer in a position of trust towards C.B. I do not consider J.M. andC.B.’s prior sexual activity as evidence of a form of grooming for the November 2017 incident. Nor do I consider J.M. offering C.B. aride or coffee at the time of the sixth incident as grooming.

I am satisfied, however, there was some degree of premeditation in the sexualactivity comprising the sixth incidence wherein J.M. took C.B. to his new residence on [omitted for publication] where they had sexualintercourse. [78] Although I do not find J.M.’s predatory behaviour amounts to “grooming” as described in P.E.S., it is still aggravating, but to alesser degree than in cases such as D.L.W. or S.S.S. (

f) the age of the victim [79] Here there is no contest C.B. was between the ages of 13 and 17 during the offending periods. Her exact age when the sexualinterference occurred is uncertain. I concluded in my Reasons for Judgment the incidents charged in Count 1 likely commenced when shewas 14 and ended when she was either 14 or 15. [80] There is divergent opinion whether or not the young age of the victim ought to be considered an aggravating factor in sentencingbecause it is an essential element of the offence of sexual interference. In R. v.

Johnston, 2011 NLCA 56 , White J.A. for theNewfoundland Court of Appeal found the sentencing judge erred in principle in finding as an aggravating factor in a pornography charge“the nature of the crime itself which involves the victimization of children and the utter destruction of their lives”. White JA states atpara. 18: It is self-evident that an aggravating factor is one that induces a court to impose a sentence that is longer than it would otherwise imposefor an offence of the type before it.

In order for a factor to be aggravating in a particular case, there must be another case in which it isnot present. [81] In S.S.S., at para. 67, and again in Rosario, at para. 69, Justice Schultes held that since the victim’s young age was an essentialelement of the offence of sexual interference, it would be double counting to further aggravate its commission by reference to thestatutory factor of her being under 18. [82] In R. v.

Akumu & Boima, 2017 BCSC 1051 , however, Justice Fisher did consider the age of the victim as anaggravating factor as prescribed by s. 718(2)(ii.1) of the Criminal Code even though the age of the victim is an essential element of theoffence which also gives rise to a mandatory minimum sentence (para. 62). She states: [44] Ms. Hartney submitted that A.W.'s age is not an aggravating circumstance despite s. 718.2(a)(ii.1) because her age is an element ofthe offence of sexual interference, citing R. v. V.J.S., 2016 SKPC 112 .

In that case, the court held at para. 34 that “[a]n elementof the offence required to establish guilt cannot also serve to aggravate the seriousness of the offence or the degree of responsibility ofthe offender”. [45] While there may be some logic to this line of thinking, it runs contrary to the express words of s. 718.2(a)(ii.1), especially when

considered in the context of the sentencing principles generally and the clear direction in s. 718.01. It also runs contrary to manyauthorities that have considered abuse of a person under 18 as an aggravating circumstance in sentencing offenders for sexual interferenceand like charges. See, for example, R. v. P.D.W., 2015 BCSC 660 ; R. v. O.C.M., [2012 B.C.J. No. 2924 (SC); and R. v. Lowney,2015 BCSC 1721 . [83] R. v. Mathieson, 2018 YKSC 49 , leave ref’d in R. v. Mathieson, 2019 YKCA 6 , was a Crown appeal ofsentence. At issue was the sentencing judge’s refusal to apply s. 718.01 as a further aggravating factor because the victim’s age wasalready recognized in s. 271(

b) by the mandatory minimum sentence. The sentencing judge reasoned that to further increase the sentencefor sexually assaulting a person under the age of 16 on the basis that the victim is under the age of 18 would not be logical orappropriate. [84] Justice Campbell found the sentencing judge erred in failing to consider a relevant aggravating factor and in doing so imposedtoo low of sentence for the sexual assault of a 14 year old victim.

She states: [49] I find that the case law and the sentencing framework provided by the Criminal Code support the position that s. 718(2)(a)(ii.1),which deems the abuse of a person under the age of 18 to be an aggravating factor, is to be considered in addition to s. 718.01 and to theminimum term of imprisonment mandated by s. 271(

b) when the victim is under the age of 16. [50] The only conclusion that can be drawn from the sentencing judge’s stated reasons is that he declined to give effect to and did notconsider the victim’s young age as a statutorily aggravating factor independent of the mandatory minimum sentence.

In doing so, thejudge erred in failing to consider a relevant aggravating factor in sentencing the respondent. [85] Justice Campbell did not discuss the impact of the decisions holding the statutory minimum sentence for sexual offences asunconstitutional. [86] At the time of the sexual interference and sexual assault, C.B. was 14 and 17 years old. There is some logic to the propositionthat the younger the child is, the more vulnerable he or she is to sexual predation. A six-year-old would not have the resolve C.B.demonstrated in December 2017 to terminate her contact with her abuser.

Given the divergent binding authorities, I am declining to findthe fact C.B. was under 18 years of age at the time of the offence of sexual interference as aggravating under s. 718(2)(a)(ii.1). I come toa different conclusion with respect to the the sexual assault which occurred when C.B. was 17, particularly now as the statutoryminimum set out in s. 271(

a) has been declared unconstitutional and of no force and effect. Even so, C.B. was almost 18 at the time ofthe sexual assault, so her age is less aggravating than the fact of her vulnerability given her earlier relationship with J.M. [87] The fact C.B. was not prepubescent at any time while the offending was ongoing distinguishes this case from many I haveconsisdered. In Worthington, the sexual abuse began when the victim was 14 and 15 and persisted for 18 months.

I note JusticeSaunders’ comment at para. 41, “I recognize that in the case before us for sentencing, the offences started when the step-daughter was inher teen years and so lacks the repellent aspect of abuse of a small child.” [88] With respect to Count 4, C.B. was 17-years-old, soon to be 18. J.M. was 35 years older than C.B. In R. v. Jaden, 2018 BCSC1685, Justice Dewitt-Van Oosten held a 36-year age gap between the offender and victim is a significant difference and is recognized asan aggravating factor. (

g) whether the offender was in a position of trust [89] In D.N., Justice Dickson states (at para. 25) where there is a breach of trust in the context of cases involving sexual offencesagainst a child “the primary measure of the offence is the extent to which the offender violated the relationship, the duration of theviolation, and the offender’s appreciation of that violation as the abusive behaviour continued.” In my view, a significant aggravatingfactor in this case is J.M.’s position of trust vis-à-vis C.B. during the offence period in Count 1. [90] In all cases I have considered with respect to the sexual interference conviction, the offender was in the position of trust towardthe victim.

In some cases the offender was a biological parent or a stepfather, in others, he was the grandparent or foster parent or familyfriend. In contesting evils, sexual abuse of a child who is a blood relative is generally regarded as more serious: J.R.A.C., para. 41; R. v.R.M.D., 2014 BCCA 56 . If the abuse involves intercourse, the offender would likely be charged with incest under s.155, whichattracts a maxium sentence of 14 years’ imprisonment, and where the victim is under 16 years old, a minimum punishment of five years. (

h) whether the offences were accompanied by any gratuitous violence [91] It goes without saying that gratuitous violence is a serious aggravating factor in sexual offences. In Williams, the Court ofAppeal held the phrase “gratuitous violence”, as used in R. v. Hajar, 2016 ABCA 222, contemplates acts or threats of actual violence,coercion or other ways of overcoming resistance. For example, in R.A.J. the offender not only sexually assaulted his young daughter foreight years, he also beat her at least twice a week. Some of the beatings precipitated the sexual abuse.

In K.L.M. the offender held the 13-year-old victim down and forced intercourse upon her despite her refusals. [92] In this case there was no evidence of the sexual activity being accompanied by physical violence or threats. Except in thesecond incident, there is little evidence of C.B. actively resisting the sexual activity and J.M. overpowering her manifest will. C.B.’sability to resist was not undermined by alcohol or drugs. The intrusive nature of the sexual activity, including vaginal and analintercourse, are aggravating because they are a significant invasion of C.B.’s sexual integrity.

They did not, however, constitute“gratuitous violence”. As the Court of Appeal in Williams stated at para. 86 “The lack of legal consent renders the sexual activity illegal;it does not transform voluntary sexual activity into gratuitous violence.” [93] It bears reiteration that C.B.’s de facto consent when she was under the age of 16, or her passive submission to the sexualactivity when she was 17, are not mitigating factors which militate to a lower sentence for these offences.

There is simply no gratuitousviolence in addition to the sexual violations which may militate toward increasing an otherwise fit sentence. In Akumu, at para. 52,Justice Fisher references Hajar, a majority decision of the Alberta Court of Appeal sitting as a five-member panel. Justice Fisher states:

The court in Hajar also rejected the idea that less harm is done to children by the crime of sexual interference where the child has givende facto consent to the sexual activity. It stressed Parliament's determination that sexual activity between a child under 16 and an adult(and others not within the close-in-age exception) is inherently harmful and therefore prohibited in all circumstances, and held (at para.94) that “[t]reating de facto consent as if it makes the sexual activity less grave or the offender less responsible undermines the veryprotection Parliament sought to ensure for children under 16”. (

i) whether the offender pleaded guilty [94] As a general rule, a guilty plea is mitigating: see E.S., P.D., and C.K.B. A guilty plea can bring finality to the criminalproceeding, spare judicial resources, and reduce the trauma and inconvenience to the witnesses. It is particularly mitigating in sexualoffences where the victim is still a child. The absence of a guilty plea is never aggravating.

In C.D.G., Justice Griffin states at para. 32: The most significant factor which mitigates against the longest range of sentence for these crimes is the fact that once he was reported tothe police, C.G.D. turned himself in, confessed to the crimes, and pleaded guilty. This meant that the young victims were spared thetrauma of having to testify in court against him and of then being subject to the rigours of cross-examination.

Further, young witnessesoften have trouble remembering events precisely, especially when the events occurred over years in respect of the sexual assaults.Reasonable doubt as to the reliability of children’s evidence can sometimes arise making conviction uncertain. By pleading guilty,C.G.D. ensured his own conviction and spared the child victims and the community this uncertainty. [95] J.M. did not plead guilty to any of the offences. He has a constitutional right to make full answer and defence and to require theCrown to prove its case beyond a reasonable doubt.

To consider a “not guilty plea” as aggravating would in effect punish those whochoose to rely on their constitutional right to a trial: R. v. Courson, 2013 BCSC 2163. Moreover, to punish an accused for exercising hisconstitutional rights risks fostering false confessions. Still, J.M. cannot benefit from the leniency which attaches to a guilty plea as ademonstration of remorse, as reflected in the sentencing authorities. (

j) whether the offender expressed remorse [96] As indicated above, an early guilty plea is generally considered a sign of remorse, meaning the offender regrets his wrongdoing.Remorse requires a clear statement, by words and deeds, acknowledging the harm done: R. v. F.H.L., 2018 ONCA 83. It is not self-pity.Genuine remorse can be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particularoffence. To be considered a true mitigating factor, the remorse must demonstrate concern for the offending conduct and not theoffender’s loss.

Genuine remorse is relevant because it facilitates rehabilitation. [97] Whereas genuine remorse may be a mitigating factor, the absence of remorse is not aggravating: S.S.S., para. 32; R. v. J.C.S.,2017 BCCA 87 ; Dreger, paras. 47, 50; R. v. E.M.Q., 2015 BCSC 201 , at para. 87. Still, its absence of remorse canalso disentitle an accused to leniency which might otherwise have been extended. [98] Although J.M. has not demonstrated specific remorse for these offences against C.B., neither has he expressed any animustoward C.B. He continues to maintain his innocence, which he is entitled to do.

Nevertheless, he did say: … I don’t know why C.B. accused me of these things, but I hope she is doing okay. What you heard about my previous record, which isreally out of the ordinary for me, I kept out of trouble whole life up until then. I guess it was a lot of bad choices on my part. The fact myex-wife is here I think shows I think she has forgiven me. If there is any rehabilitation I have to do or counselling, I am certainly willingto do that. I hope to stay out of trouble from now on.

I guess that is all I have to say. [99] In my view, J.M.’s lack of remorse is not as intractable as in D.N. or E.S. or M.P.S. where the offenders showed no insight intotheir wrongdoing or its impact on the victim. (

k) the offender’s criminal record [100] A criminal record can be an aggravating factor which the court can use to increase the severity of the sentence. In the majority ofthe cases I considered (i.e. R.A.J., M.P.S., S.S.S., P.D., K., M., R.E.M., Melendez, Rosario, Williams), the offenders had no criminalrecord. In C.K.B., Judge Cohen refused to accept a joint submission as to sentence because of the offender’s lengthy criminal record. Hedetermined a fit sentence was in the range of two to three years where the offender had no criminal record.

The sexual abuse includedkissing, fondling, oral sex and multiple incidents of vaginal intercourse with his 13-year-old stepdaughter over a one-year period. JudgeCohen ultimately sentenced C.K.B. to four years’ jail because of his “horrendous criminal record.” In Rich and K.S.T. the court did notconsider the offender’s criminal record aggravating because it was either minor or dated. In R. v.

M.B., 2019 BCPC 2 , JudgeHarris had difficulty considering the offender’s lack of a criminal record as a justification for reducing a sentence because “a simple factis, people are expected to be law abiding.” He did accept, however, the lack of criminal record was indicative of the offender’srehabilitative prospects. [101] Convictions for other criminal activity can only be aggravating if the sentence on those matters had been imposed before thepredicate offence occurring. In R. v.

Pete, 2019 BCCA 244 , the BC Court of Appeal held a sentencing judge should not treatpost-offence convictions as prior convictions or an aggravating factor requiring a harsher sentence. However, the fact the offender hascommitted subsequent offences may be relevant to his character, the prospects for rehabilitation and his risk of reoffending. [102] In this case J.M. is a first offender for the purposes of sentencing his conviction for sexual interference charged in Count 1, and asubsequent offender for sexual assault charged in Count 4.

In November 2017, at the time of the sexual assault, J.M. was still onprobation for his offences against T.M. The Crown asserts J.M.’s criminal record is highly aggravating because it is recent anddemonstrates a propensity for violence. The Crown further argues as aggravating the fact the incidents giving rise to the December 21,2016, convictions had a sexual context. The Crown put into evidence a transcript of the December 21, 2016, sentencing hearing: Exhibit5.

When reading in the circumstances of the offences to the court at that hearing, the Crown said J.M. was upset because his wife refusedto have sex with him the previous night. J.M.’s then defence counsel did not argue otherwise.

[103] J.M. is before the court for sentencing for his offences against C.B., not for his offences against T.M. I accept his record isaggravating with respect to the November 2017 offence of sexual assault, although I do not agree it is as aggravating as the Crownsubmits. The Crown did not charge J.M. with a sexual offence as a result of the June 5, 2016, incidents. I am not prepared to recast theDecember 21, 2016, convictions as sexual offences for the purpose of this sentencing hearing. The nature and circumstances of thoseoffences are significantly different than the one before the court.

Moreover, the rehabilitative sentence the Crown sought on December21, 2016, indicates J.M.’s conduct fell at the lower end of the seriousness spectrum. [104] What I glean from Exhibit 5 is that by June 2016, J.M. and T.M.’s marriage was disintegrating and that J.M., as heacknowledges, made very poor decisions for which he was genuinely remorseful. (

l) the offender’s age and health [105] As can be gleaned from a number of the authorities presented to the court in this sentencing hearing, the offender’s advanced ageand attendant infirmities be a mitigating factor: M.P.S., para. 12, S.S.S., para. 75, citing R. v. Swope, 2015 BCCA 167; and K., para. 37.Unlike the offenders in M.P.S. and S.S.S., K., Melendez and Williams, J.M. is middle age and has not argued he suffers from any serioushealth concerns, physical, mental or emotional. (

m) whether the offender was socially disadvantaged [106] J.M. is not Indigenous so the principles espoused in R. v. Gladue, (SCC), and R. v. Ipeelee, 2012 SCC 13, arenot engaged. Nevertheless, the court is still obligated to recognize an offender’s disadvantaged background in the sentencing process. Anoffender whose childhood is marked by violence, addictions, abandonment, neglect, and family dysfunction are often left with a poorlyfunctioning moral compass. An offender cannot always overcome the crippling effects of early deprivation: R. v. R.B.M., (BCCA), paras. 16 - 18 and 23.

Although there is some indication in the presentence reports that J.M. may not have had the benefitof a perfect childhood, there is no evidence he experienced severe suffering or privation. (

n) whether the offender presents an ongoing risk to the community [107] A pressing concern for a sentencing judge is the offender’s likelihood of recidivism. That is often gauged by the offender’scriminal record. Notwithstanding J.M.’s criminal antecedents, Dr. Kerr considers him a low risk to reoffend. J.M. is not mentally ill or anaddict, nor has he a serious personality disorder. Although he continues to profess his innocence, J.M. has indicated a willingness toparticipate in a rehabilitative process. I accept J.M. presents a low risk to the community and find it a mitigating factor in sentencing. (

o) the offender’s family and community support [108] J.M. has positive relationships and an admirable work history. It appears he does have community supports in place and waswilling to take treatment. The Crown has suggested that T.M.’s support of her ex-husband is motivated at least in part by the ongoingfinancial support he provides to her and their children. J.M. and T.M. were married for 24 years and raised four children.

I do notpresume the dramatic end to their marriage eradicated all concern or affection they may have for each other. [109] Family or community support which encourages an offender to blame the victim is not mitigating because it may negativelyimpact the offender’s rehabilitation: see C.K.B., para. 26; K.S.T., at para. 111. Although I have concerns as to T.M.’s penchant forblaming C.B., I accept J.M.’s pro-social lifestyle, familial and community support, is mitigating, in that it will ultimately facilitate hisrehabilitation. (

p) the offender’s bail conditions [110] J.M. was released on a Promise to Appear and an Undertaking to a Peace Officer on January 16, 2018. The most onerouscondition prohibited J.M. from communicating directly or indirectly with C.B. As C.B. no longer lived in the area I cannot see how itunduly restricted J.M.’s mobility or impinged on his lifestyle. So, unlike J.M. Melendez, J.M. was not subject to years of onerous bailconditions which kept him from his home and family.

J.M.’s situation is not unlike that of the offender in M.S.P, wherein JusticeDickson found (at para. 33) that given M.S.P.’s relatively undemanding bail conditions, his compliance with those conditions was not asignificant mitigating factor. (

q) the impact on the victim [111]

Section 718.2(iii.1) provides that it is aggravating if an offence had a significant impact on the victim, considering their age andother personal circumstances, including their health and financial situation. A sentencing judge can acknowledge that sexual offencescommitted against children will likely cause psychological harm: R. v. Rosenthal, 2015 YKCA 6 , 2015 YKCA, at para. 6, citingR. v. McDonnell, (SCC). [112] C.B. presents as remarkably resilient in the face of the adversity she suffered in her young life. Still, I recognize the offencescontributed to her feelings of unworthiness.

I conclude C.B. has likely suffered the type of emotional distress that is predictable andinevitable when sexual offences are committed against an adolescent by a far older caregiver. Collateral Consequences [113] As set out in K.S.T. (at para. 98) the sentencing judge must also consider any collateral consequences arising from commissionof an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: Pham, and R. v. Suter,2018 SCC 34 .

In this case the defence has not argued any collateral consequence which the court ought to consider whencrafting a proportionate sentence. I do acknowledge, however, that if J.M. is incarcerated for a lengthy period, he will not be able tocontinue to support his family as he has done for most of his adult life. Analysis

[ 114 ] J.M. is before me for sentencing upon being convicted after trial for two sexual offences against C.B. These offences occurred both during and after J.M. was her foster parent. The sexual abuse started when C.B. was about 14 years old and involved five incidents which occurred within an unspecified period, which I have determined to be under six months. A sixth incident of sexual assault occurred approximately 28 months after C.B. left J.M. and T.M.’s care, when C.B. was 17.

I have considered the circumstances of the offence and those personal to J.M., whether they be aggravating or mitigating or neutral, as well as the collateral consequences of a custodial sentence. I am mindful of the purposes and principles of sentencing and take guidance from the relevant case authorities. In considering J.M.’s culpability in these offences, I have not lost sight of C.B., now a young woman, and the impact of these offences on her sense of self-worth and emotional wellbeing. I find a jail sentence of five years is a fit and proper sentence for Count 1, and two years for Count 4.

Consecutively or Concurrent [ 115 ] In R. v. H.C.T.T. , 2018 BCSC 2341 , Justice Harvey considered how the convictions for the four separate offences ought to be served. He referenced Justice G.C. Weatherill’s comments in R. v. R.J.Y., 2016 BCSC 2151 : [30] The test for the imposition of a consecutive or a concurrent sentence is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W. , [1998] B.C.J.

No. 838 at para. 35 . [31] I accept that the accused’s acts comprised a linked series of acts within a single endeavour during A.Y.'s childhood; namely, the ongoing sexual abuse and exploitation of her for his sexual pleasure. Justice Harvey concluded the acts constituting the offences for which H.C.T.T. was being sentenced were part of a linked series of acts within a singular endeavour, namely the ongoing sexual abuse and exploitation of his daughter. [ 116 ] The case before me is very different than H.C.T.T.

I do not see the offences in Count 1 and 4 linked, which is why I acquitted J.M. of the charge of sexual exploitation at trial. I estimate the offences of sexual interference and sexual assault were separated by over two years during which time C.B. and J.M. had minimal contact. In my view, the offences were not part of a linked series of acts within a single endeavour and therefore ought to be served consecutively. This would mean a global sentence of seven years’ incarceration.

Applying the totality principle, I am reducing the total sentence by six months for each offence for a global jail sentence of six years. Ancillary Orders [ 117 ] For the most

part I find the ancillary orders sought by the Crown appropriate. The Crown has sought an order under s. 161 of the Code to prohibit certain communication and conduct with children after J.M. is released. This provision applies because he has been convicted of an offence under s. 151 of the Code involving a person under the age of 16 years. The circumstances surrounding J.M.’s misconduct militate toward some restrictions on his post-release conduct. Nevertheless, I find the term and conditions sought by the Crown in the s. 161 order overbroad.

Disposition: [ 118 ] J.M., for the offence of sexual interference charged in Count 1 of Information [omitted for publication], I sentence you to a term of imprisonment of four and one-half years to be served consecutively to any other sentence I impose today on Count 4. [ 119 ] For the offence of sexual assault charged in Count 4 of Information [omitted for publication] , I sentence you to a term of imprisonment of 18 months to be served consecutive to the sentence I imposed on Count 1. [ 120 ] The global jail sentence for Counts 1 and 4 is six years. [ 121 ] Pursuant to

section 487.051 of the Criminal Code , I make an order authorizing the taking of the number of samples of bodily substances that are reasonably required for the purpose of a forensic DNA analysis. These will be taken from you while you are in custody. [ 122 ] Pursuant to

section 109 of the Criminal Code , I prohibit you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. [ 123 ] Pursuant to

section 743.21 (1) of the Criminal Code , you are prohibited from communicating directly or indirectly with C.B. during the custodial period of your sentence. [ 124 ] Pursuant to

section 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for life. [ 125 ] Pursuant to s. 161 of the Criminal Code , after your release from custody, and for a period of five years, I order that you are prohibited from: a. going to any dwelling-house in which C.B. ordinarily resides; or b. 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 towards persons under the age of 16 years. [ 126 ] Pursuant to s. 743.2 of the Criminal Code , I order that a copy of these Reasons for Sentence be forwarded to the Correctional Service of Canada. [ 127 ] There is no Victim of Crime Surcharge associated with these two convictions as they were committed prior to July 22, 2019.

___________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia APPENDIX BRIEF SURVEY OF SENTENCING DECISIONS ON CHILD SEXUAL OFFENCE CASES LEXICON General Δ = Offender π = Victim HSO=Historic Sex Offence OD = Offence Date This is the year(

s) of the offending (in some cases an approximation) DIS = Disposition T = Trial GP = Guilty Plea GH = Gardiner Hearing Age #1 This is the age of the victim(

s) when the offending began Age #2 This is the age of the victim(

s) when the offending ended DUR = Duration duration of the period of offending Y- Year(

s) M = Months W= Weeks ICD= Incident(

s) CR = Offender’s Criminal Record N = No criminal record Y = Yes, criminal record Y- D = Dated Criminal record Y-M = minimal Criminal Record PSO = conviction for prior sex offence(

s) REL = Offender’s relationship to the victim BP = Biological Parent AP = Adoptive Parent SP = Surrogate Parent GP = Grandparent SP = Step Parent SGP = Surrogate Grand Parent FP=Foster Parent RV = Relative T = Teacher IP = Intimate Partner C = Coach RL = Religious Leader ACQ = Acquaintance SM = Social Media Date SR = Stranger SEVERITY HM = Offences occurred in the victim’s home VT = Voyeurism KG = Kissing FKG = French Kissing SXT = Sexual touching MAS= Masturbation OS = Oral Sex (fellatio or cunnilingus) DP = Digital Penetration UP = Unprotected intercourse VI = Vaginal Intercourse AI = Anal Intercourse UPRN = used pornography to groom the victim MPRN = Made pornographic images of the victim CP = used coerced or extortion or psychological pressure GR = grooming GV = Gratuitous Violence SNT = Sentence And Duration Y = Year(

s) M = Month(

s) D = Day(

s) CSO = Conditional Sentence P = Probation A = Auxillary orders COUNT 1: SEXUAL INTERFERENCE The first table consists of all BC cases, save P.D. (which is from Ontario). The citations are with respect to sexual offences against one or more victims by an offender in a position of trust. These offences include sexual interference, sexual assault, incest, sexual exploitation, and some historical offences, such as rape and indecent assault. For the most part the offences occurred in the victim’s home and involved multiple incidents. The offences generally had a significant impact on the victim.

The cases are organized by the age of the victim when the abuse began. AUTHORITIES OD DIS AGE #1 AGE #2 DUR CR REL SEVERITY STN R v O.M. , 2009 BCCA 287 ; cited in C.K.B; K.; S.S.S.; ? GP 2-3 15 13 Y Y BP PSO SXT; VI; VI; FP ;HM; Δ=sexually assaulted as a child 5 Y R. v R.I.L , 2006 BCSC 1603 ; cited in C.K.B. 1968- 1982 T 3 17 14 Y N SP HSO; Δ = age 65 at SNT; SXT & VI; HM; 4 Y

R v K.V.E., 2013 BCCA 521; cited in M.P.S.; S.S.S.; Vautour 1974- 1990 1996 - 2002 GP 4 8 12 7 18 16 18 12 16 Y 8 Y 6 Y 5 Y ? BP GP 4 πs; SXT, OS, VI, CP, GR; Δ =age 78 at SNT, Δ was sexuallyassaulted as a child; consideredthe πs his harem 10 Y R v R.J.Y., 2018 BCCA 30,cited in H.C.T.T.; 1990- 2002 T 4 16 Y ? BP SXT; OS, DP, VI; HM; R. v. R.S.H., 2005 BCSC 927; R. v. Hall, 2005 BCCA 566;citied in C.G.D.; C.K.B. 2002- 2004 T 4-5 6-7 2 Y N FF SGF SXT π over her clothes; HM; Δ = age 62 at SNT ; Δ blamedwife for not having sex with himas frequently as he wanted 22 M 2 Y P AR v.

C.G.D., 2009 BCSC 404; cited in Rosario; 2002- 2008 2008 GP 5 12 11 12 5 Y 1 ICD SP FF 2 πs; SXT; OS; several 100 if not1000s ICD; no VI; HM; 2nd π = luring no SXT 3 Y 90 D A R v Vautour, 2016 BCCA 497,cited in K.S.T.; 1989 1993 GP 5 9-10 4.5 Y N SFP HSO; OS, DP, MAS; 100s ICD;HM; Δ = pedophilic disorder 30 M R v G.J.S., 2014 BCSC 1105,cited in K.; 1993 - 1999 T 5 10 6 Y N SP HSO; SXT= daily; VI=3 ICD, CP;GR; HM; Δ = low risk toreoffend; 3.5 Y R. v.

Rennie, 2013 BCSC 909; cited in Melendez 2010- 2011 T 5 6 5 6 1 ICD 1 OCD Y SP 2 πs : SXT; FKG; HM Δ = no prior CR for sex offences;Δ= Mental health and addictions; 22 M 1 Y P AR v S.L.D., 2017 BCPC 349,cited in M.B. 2012- 2016 GP 6 10 4 Y N BP KG; SXT, OS; UPRN;GR;CP;HM; No VI; Δ = sexually abusedwhen a child; Δ = high risk ofrecidivism 5 Y A R. v.

Safaee, 2009 BCCA 36, cited in Melendez 2007 GP 6 6 2 ICD N O SXT, UPRN 2 ICD on 1 D Δ= age 51 daycare worker 18 M 2 Y P AR v J.D.M., 2001 BCSC 563,cited in C.G.D. 1993- 1999 T 6 11 6 Y Y-D SP SXT, DP; HM; Δ= age 49 at OF;was sexual dysfunctal and helddeviant sexual fantasies 2 Y – 1 D 2 Y P A R. v. R.E.L., 2010 BCCA 493;cited in C.K.B.; Melendez;K.S.T.; S.S.S. 2000- 2006? GP 6 12 6 Y N SP SXT, DP, OS, attempted VI; HM 5 Y A R. v. P.D., ;cited in R.E.

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