R. v. B.M.W., 2020 BCPC 9

Citation: R. v. B.M.W. 2020 BCPC 9 Date: 20200123 File No: 25174-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Redacted for Publication REGINA v. B.M.W. Publication Ban pursuant to s. 486.4(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Brennan, D. Counsel for the Defendant: Murphey, M. Place of Hearing: Smithers , B.C. Date of Hearing: November 26, 2019, January 8, 2020 Date of Judgment: January 23, 2020

INTRODUCTION [ 1 ] B.M.W. is before the Court on Information 25174-1 for sentencing after having pled guilty on March 4, 2019, to one count of sexual interference and one count of sexual assault of B.J. Count 1 is a historical sexual offence charging B.M.W. with coming into B.J.’s bedroom one night when she was 12, placing his hands under her shirt and touching her breasts. B.J.’s parents discovered B.M.W. in their daughter’s bedroom and threw him out of the house. B.M.W. didn’t live in B.J.’s residence nor did he have permission to enter it. B.J.’s mother does not know how B.M.W. gained access to their home.

Count 4 charges B.M.W. with pulling down B.J.’s pants and underwear and performing cunnilingus on her while she was passed out from intoxication in his home. All offences occurred in [omitted for publication], BC. The sexual interference occurred between December 17, 2002, and December 17, 2003; the sexual assault occurred almost 15 years later on June 17, 2018.

ISSUES [ 2 ] The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, B.M.W. [ 3 ] The matter came before me for hearing on January 8, 2020. At that time I heard submissions of counsel, received their respective authorities, and the following documents were tendered into evidence: Exhibit 1: the Pre-sentence report of Probation Officer Graham Lindsay filed June 2, 2019; Exhibit 2: The Psychological Risk Assessment of Dr.

David Lopes [ 4 ] At the conclusion of the sentencing hearing, I reserved my decision. These are my reasons for sentence. Circumstances of the OffenceS [ 5 ] Count 1 of Information 25174-1 charges B.M.W. with sexual interference of B.J. between December 17, 2002, and December 16, 2003. At the time of the first offence, B.M.W. was 33 and B.J. was 12 years old. B.J. was residing with her parents in their home in [omitted for publication], BC, also called [omitted for publication]. B.M.W. did not live with B.J.’s family, but their parents were close friends.

B.M.W. came uninvited into the J. home in the early morning hours. All the J. family members were in their bedrooms sleeping. B.M.W. made his way into B.J.’s bedroom. She was laying on her bed with an infant and a six year old who she was babysitting at the time. B.M.W. stuck his hand up her shirt and felt her breasts. B.J.’s parents woke up and came into her bedroom where they found B.M.W. standing beside their daughter’s bed watching her. They wrestled B.M.W. out of the house.

At the time, the parents were not aware B.M.W. had sexually assaulted their daughter while in her bedroom. [ 6 ] Count 4 of Information 25174-1 charges B.M.W. with sexually assaulting B.J. on June 17, 2018, when she was 27 years old. B.J. had been at B.M.W.’s home in [omitted for publication], along with B.M.W., J.J., K.B., and B.J.’s cousin, M.N. They had all been drinking. In fact, B.M.W. says his guests were at his residence drinking by the time he arrived home after work. B.J. became intoxicated and passed out on the sofa. At some point in the early morning hours, the party ran out of alcohol.

B.M.W. ordered all the guests to leave except B.J. who was lying on his sofa unconscious. The remaining guests tried unsuccessfully to rouse B.J. B.M.W. ordered them to leave without B.J., which they protested. Eventually B.M.W. drove J.J., K.B., and M.N. out of his house. B.J. remained behind unconscious and alone with B.M.W. When she woke up, B.M.W. had his head between her legs, performing cunnilingus. Her pants and panties had been removed. B.M.W. was fully clothed.

B.J. yelled at B.M.W., “ What the fuck are you doing . . . get the fuck away from me.” She went home crying and told her mother, R.J., what happened. There was no one in B.M.W.’s residence at the time of the assault except B.M.W. and B.J. [ 7 ] R.J. reported the assault to the police. An RCMP officer arrived at 7:34 a.m. on June 17, 2018. B.J. smelled of liquor and was still wobbly on her feet. Nevertheless, she was able to communicate with the officer what had happened. The police took B.J. to the hospital and the medical staff performed a sexual assault kit.

DNA matching B.M.W.’s was found on the interior crotch portion of B.J.’s leggings. The DNA analysis did not identify the source of the biological fluid, whether it was saliva or semen. B.J. did not and could not consent to the sexual activity. [ 8 ] While the police were investigating the June 17, 2018 sexual assault, B.J. disclosed to the officer B.M.W. had sexually abused her when she was younger. [ 9 ] Although he pled guilty to the offence of sexual inference and sexual assault B.M.W. claims to have no memory of the events as a result of his excessive alcohol consumption.

As to the June 17, 2018 offence, B.M.W. told Dr. Lopes, “there was a big party . . . too much liquor coming in . . . I passed out on the table and woke upon in my room. Which basically means I don’t remember nothing pretty well.” [ 10 ] B.M.W. has said with respect to both offences he drank alcohol to the point of blacking out and has no memory of his wrong doing. Circumstances of the Offender including Indigenous status [ 11 ] B.M.W. is 50 years old. He is a member of the Wet’suwet’en Nation.

He lives in [omitted for publication], BC, a Wet’suwet’en reserve community distressed by the legacy of residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. [ 12 ] B.M.W. is the second oldest of six children: two boys and four girls. He was born and raised in [omitted for publication]. His childhood was troubled and his father physically abused him. In the mid-1980s B.M.W. and one of his sisters were placed in foster care because of their parents’ alcohol consumption.

B.M.W. was sexually abused at his cousin’s residence while he was still a young child.

[ 13 ] Although he attended elementary school locally [omitted for publication], B.M.W. was sent to a residential school in Prince George for Grades 8 to 10. B.M.W. had problems socially and scholastically. He was streamed into special education in Grade 8 onward and was often in trouble at school for fighting with other students. B.M.W. left school in Grade 10, although he has some vocational certifications, including First Aid and BEAR awareness. [ 14 ] B.M.W. worked for four years at the [omitted for publication] finger joint plant in [omitted for publication].

He lost his job for being late too many time and he didn’t get along with his supervisor. B.M.W. attributes his attendance problems to alcohol abuse. B.M.W. also worked for the [omitted for publication] Band as a carpenter on various housing projects on the reserve. His former employer describes B.M.W. as a hard and intelligent worker who would benefit if he learned a trade. [ 15 ] B.M.W. was still a young man in his early 20s when both of his parents died from alcohol abuse and his brother from a hit and run motor vehicle accident. He has two sons from two different relationships.

B.M.W. does maintain telephone contact with his eldest son (now 18-year-old) who lives with in Vancouver, BC. [ 16 ] B.M.W. has succumbed to alcohol addiction intermittently over the years. He is most vulnerable to alcoholism in times of tragedy. B.M.W. sought out and engaged one-on-one counselling with Michelle McFadden of [omitted for publication] Health Centre. After 12 sessions, Ms. McFadden left the facility and B.M.W. abandoned his counselling for a time. He has since resumed counselling with Mental Wellness Counsellor, Joann Lameck, and has been sober now since November 11, 2019.

Other than his alcohol addiction, B.M.W. told Dr. Lopes he had no pressing medical issues and had never been diagnosed with a mental health condition. Dr. Lopes opined that during his interview with him, B.M.W. did not demonstrate any symptoms consistent with the presence of a mental health condition.

B.M.W. does indicate in the presentence report to PO Lindsay that four months ago he was diagnosed as suffering from anxiety for which he is taking medication. [ 17 ] On July 7, 2018, B.J.’s brother, B.T.J., broke into B.M.W.’s home, smashed in his door and physically assaulted him, causing B.M.W. injury and damaging his property. B.T.J. was charged under Information 25197-1, and on November 14, 2018, convicted of breaking and entering a dwelling house at [omitted for publication], BC and committing an indictable offence and with assaulting B.M.W. with a weapon.

B.T.J. explained to the Court these acts of violence were retribution for B.M.W. sexually molesting and sexually assaulting his sister on two different occasions. Judge Jackson imposed a six month jail sentence followed by two years’ probation. The [omitted for publication] Band closed B.M.W.’s residence because of the extensive property damage forcing B.M.W. to relocate.

B.M.W. now resides with his uncle. [ 18 ] As B.M.W. continues to deny any memory of the offences, he has not expressed any empathy to their impact on B.J. [ 19 ] Despite B.M.W.’s alcoholism and criminal antecedents, he has the support of his family and members of the community. B.M.W. provided PO Lindsay with a number of letters of support commending B.M.W. for the assistance he provides to his family and elders gathering firewood, snow plowing, and fishing. Many of B.M.W.’s family members attended the sentencing hearing in support of him.

Criminal Record [ 20 ] B.M.W. has an extensive criminal record beginning in 1989. He has multiple convictions for violent, property, administrative, and driving offences.

He has 15 convictions for assault and one for uttering threats; he has 18 convictions for breaching court orders, seven convictions for impaired driving or driving while under prohibition, nine convictions for property offences, including theft, mischief, and break and entry. [ 21 ] At the time of the Count 1 offence (December 17, 2002 to December 16, 2003), B.M.W. had an adult criminal record with 38 convictions, which included multiple convictions for assault. [ 22 ] At the time of the June 17, 2018 offence, B.M.W. had been convicted of 14 further offences, including multiple assaults.

B.M.W. was on probation on which I had placed him on June 6, 2018, after convicting him of an assault which had occurred on September 9, 2017, in [omitted for publication]. The terms of the Probation Order included conditions B.M.W. was to: a. Keep the peace and be of good behaviour; b. Not to posses or consume alcohol, except while inside his residence, or while transporting it sealed directly to his residence. He was not to be found in any public place in an intoxicated state; and c.

Attend, participate in, and successfully complete any intake, assessment counselling, or program as directed by the probation officer for, among other things, anger management and alcohol abuse. [ 23 ] As Defence counsel submits, alcohol has had a major deleterious effect on B.M.W.’s life. However, there is a six year gap in B.M.W.’s criminal record. This extended period in which he “kept the peace” included two years when B.M.W. maintained his sobriety out of “fear of dying” if he continued drinking.

He resumed drinking again in 2014, “because there was more death in his family.” Presentence reports [ 24 ] The Court received a Psychological Risk assessment from Dr. Evan Lopes, a registered psychologist working under contract for the Forensic Psychiatric Services Commission, and a Presentence report prepared by Probation Officer, Graham Lindsay, of Smithers Community Corrections.

In both reports, B.M.W. denies any memory of the offences, claiming he blacked out after excessive alcohol consumption. [ 25 ] In his Pre-Sentence Report completed June 2, 2019, PO Lindsay identified the following interventions which would militate B.M.W.’s risk of reoffending:

a. B.M.W.’s participation in the Forensic Sex Offender Program; b. ongoing counselling for anger management, childhood trauma, and alcohol abuse; and c. ongoing sobriety. Psychiatric Risk Assessment [26] Dr. Lopes interviewed B.M.W. on May 16, 2019. Dr. Lopes states on pg. 8 of his report: Notwithstanding, B.M.W. presents as having a total lack of insight into his risk factors, triggers, cognitive distortions, and overallbehavioural progression in relation to his offences.

Although it is possible that he may have a level of understanding regarding hismotivations, he presented as unwilling to discuss the topic. [27] Dr. Lopes observed (on pg. 8), that although B.M.W. has stopped drinking in the past, he returns to the maladaptive behaviour.Dr. Lopes opines B.M.W. does not have the necssary tools for a long-term commitment. [28] In assessing B.M.W.’s recidism risk, Dr. Lopes engaged the Community Risk/Needs Management tool to assess ongoing needsand risks, the STATIC-99R to assess static risk factors and the STABLE-2007 to assses the dynamic risk factors. Dr.

Lopes concludedB.M.W. presents a moderate risk to sexually reoffend. [29] Dr. Lopes comments on the role of alcohol in the offences (at p. 13): Although B.M.W. indicated that he offended while under the heavy influence of alcohol, it should be noted that alcohol intoxication isnot the cause of the offences but instead act as a disinhibitant. Notwithstanding, B.M.W. does seem to have a problem with alcoholabuse, which remains unaddressed. [30] As a course of rehabilitative action, Dr.

Lopes recommends the B.M.W. participate in and complete: a. an intense alcohol abuse treatment program; b. a motivation enhancement preceding a substance abuse treatment; c. a strong relapse prevention program following substance abuse treatment; and d. sex offender treatment. Victim impact statement [31]

Section 722 of the Criminal Code directs a sentencing judge consider a victim impact statement for “the purpose of determiningthe sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 , the Court of Appeal held (at para. 12) that victim impactstatements play an important role in the sentencing process.

At para. 13, the appellate court in Berner stated, “the content of thestatement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.” [32] B.J. did not provide a formal written Victim Impact Statement, but she did speak to PO Lindsay about the offences. She said themost recent offence caused her to lose sleep and feel depressed. She has attended counselling because of the sexual assaults. B.J. ishaving difficulty overcoming the offence because both she and B.M.W. live in [omitted for publication], which is a small close knitcommunity.

B.J. sees B.M.W. out and about in [omitted for publication], which rekindles her memory of the assault. The Positions of the Parties [33] The Crown proposes a fit and proper sentence for both offences is a minimum of three years’ incarceration. The Crown alsoseeks the following ancillary orders: a. Pursuant to s. 487.051 of the Code, the Crown seeks an order requiring B.M.W. provide a number of samples of bodilysubstances that are reasonably required for the purposes of forensic DNA analysis be taken from B.M.W.; b.

Pursuant to ss. 490.012 and 490.013(2.1) of the Code, B.M.W. is to comply with the Sex Offender Registration Act (SOIRA) forlife; c. Pursuant to s. 109(2) of the Code, an order prohibiting B.M.W. possessing any of the weapons set out in that subsection for life; d. Pursuant to s. 743.21 of the Code, an order prohibiting B.M.W. from communicating with B.J., directly or indirectly, during thecustodial portion of his sentence. e.

Pursuant to s. 161(1)(a.1), an order that for 10 years B.M.W. be prohibited from: 1. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably beexpected to be present, or a daycare centre, school ground, playground, or community centre; and 2. going to any place he knows to be the residence, school or workplace of B.J. [34] The Defence asks only the Court impose the lightest sentence possible taking into consideration B.M.W.’s personalcircumstances.

Crown case authorities [35] The Crown relies on the following authorities: R. v. Kelly, 2002 BCCA 190; R. v. P.A.S., 2009 BCCA 360 ; R. v.R.E.L., 2010 BCCA 493; R. v. Worthington, 2012 BCCA 454 and; R. v. Pouce Coupe, 2014 BCCA 255. [36] R. v. Kelly, 2002 BCCA 190, is an appellate decision with respect to offences of breaking and entering, sexual assault, andconfinement, which occurred on October 1, 2000. The Indigenous offender, Dirk Kelly, pleaded guilty to the three offences. He was 20years old at the time of the offence with a dated and unrelated youth criminal record; he had no adult convictions.

While intoxicated withalcohol and drugs, he broke into a home, cut the phone line, sexually assaulted the sleeping victim by touching her and putting hisfingers in her vagina, threatened to use a knife (which was not produced), and confined her. Mr. Kelly fell asleep and was awakenedwhen arrested by police. Mr. Kelly had a chaotic upbringing and had made significant strides toward turning his life around. He hademployment ready for him at completion of his sentence. The trial judge imposed a six year jail sentence, which Mr.

Kelly appealed.The Court of Appeal reduced the sentence to four years, holding that given his troubled upbringing and youth, the Court ought to givesignificant weight to Mr. Kelly’s prospects for rehabilitation. [37] P.A.S., 2009 BCCA 360 is an appeal from sentence by an offender after pleading guilty to one count of sexual assaultfor one incident involving his 14-year-old step-daughter. Mr. P.A.S. was the common law partner of the victim’s mother. While thevictim was sitting at a computer the accused began rubbing her breasts and engaged in digital penetration. He also fondled her andperformed oral sex.

He rubbed his penis against her, but did not engage in intercourse. The offence occurred in November 2004, andreported to the authorities in 2007. P.A.S. had no criminal record and there was no suggestion he was a paedophile or sexual deviant. Hedid have a drinking problem which he had not yet overcome. Consequently, the sentencing judge found P.A.S. presented a real risk toreoffend, and if that were to happen, the consequences would be significant to any victim.

The sentencing judge was not satisfied aconditional sentence would not endanger the safety of the community and imposed a one year jail term followed by three years’probation, along with the usual ancillary orders. The Court of Appeal dismissed the appeal finding the sentence was clearly within therange of available sentences and not demonstrably unfit. [38] In R. v. R.E.L., 2010 BCCA 493 the offender appealed his five year jail sentence after pleading guilty in ProvincialCourt to sexually assaulting his stepdaughter over a six-year period.

The offences began when the victim was six years old and continueduntil she was 12. The sexual assaults included fondling, oral sex, digital penetration, and attempted intercourse. The accused had no priorrecord, expressed remorse, and sought treatment. In upholding the five-year sentence Hinkson, J.A., as he then was, observed that someof the cases to which he was referred in which lesser sentences were imposed concerned historical sexual offences. He noted theprinciple of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust.Referencing R. v.

T.A.D. (1995), 68 B.C.A.C. 236, Justice Hinkson described the usual range for long-term, highly-intrusive sexualabuse of a child by a person in a position of trust as “five to eight or nine years.” (In T.A.D., the Court increased the sentence from threeto six years jail where the offender sexually abused his stepdaughter over a period of nine years. The abuse included acts of sexualintercourse when the victim was younger than 14.) [39] In R. v.

Worthington, 2012 BCCA 454 the offender appealed a four year jail sentence after a guilty plea to sexuallyabusing his stepdaughter between March 2007 and October 2008 when she was 14 and 15 years old. The sexual contact involved kissing,sexual touching, masturbation, oral sex, and rubbing his penis against her vagina once or twice a month over a period of 18 months. Theaccused admitted grooming the victim. He did not receive the benefit of a guilty plea because the victim had to testify in a Gardinerhearing. The B.C. Court of Appeal upheld the four year jail sentence.

Although the Crown failed to prove the sexual abuse involvedpenetration the appellate court found Mr. Worthington’s behaviour egregious. Justice Saunders stated at para. 41: 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 behavior 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, overlaid with the breach of trust in the family relationship. [40] R. v. Pouce Coupe, 2014 BCCA 255, the Indigenous offender appealed a three year jail sentence imposed upon being convictedafter a trial for violently sexual assaulting a 15-year-old victim. The offence occurred in a remote Indigenous community in North-eastern British Columbia. At the time of the offence Mr.

Pouce Coupe was 19 years old; he was 22 at the time of sentencing. Mr. PouceCoupe drove the 15-year-old victim to an isolated area, threw her to the ground, and placed at least one of his hands around her neck andforced sexual intercourse upon her. The victim had red marks on her neck and scratches on her back on one knee and an ankle. Shepleaded with him to stop. The sexual assault ceased when another vehicle arrived. Mr. Pouce Coupe had no criminal record. The Gladuereport, indicating Mr. Pouce Coupe’s background involved foster care and substance abuse.

He denied the offence but indicated awillingness to comply with counselling. The sentencing judge did not find Mr. Pouce Coupe posed a risk of future sexual violence. [41] The sentencing judge imposed a jail sentence of three years, which Mr. Pouce Coupe appealed.

The Court of Appeal upheld thethree year jail sentence noting it fell in the lower half of the accepted range of two to six years for sexual assault involving intercourse.Justice Tysoe did not find unreasonable the sentencing Judge’s conclusion a shorter jail sentence with a restorative justice plan would notbe successful in light of the fact that the community and the family did not accept that the offender was guilty, and hence hisrehabilitation may be negatively impacted.

The Court of Appeal reduced the lifetime weapons prohibition imposed by the sentencingjudge to a period of 10 years and referred the appellant’s s. 113 application to Provincial Court. Pouce Coupe is often cited for theproposition the range of sentence in British Columbia for sexual assault involving intercourse is two to six years: see R. v. Scofield, 2019BCCA 3 , para. 59; R. v. G.M., 2015 BCCA 165 , para. 22. Defence case authorities [42] The Defence relies on R. v. Delaney, 2018 ONCJ 984 and R. v.

Andrews, 2019 ONCJ 436 , two decisions ofthe Ontario Court of Justice, where the Crown had proceeded summarily on charges of sexual assault.

[43] In R. v. Delaney, 2018 ONCJ 984 , the salient issue was whether the offender ought to serve his sentence in thecommunity rather than behind bars. On April 17, 2018, Mr. Delaney pleaded guilty on one count of sexual assault which occurred onDecember 17, 2016. The offence occurred at a Christmas party in 2016, when Mr. Delaney became intoxicated and made severalaggressive and obnoxious sexual advances towards various women who were present at the party and/or who had gone into one of thetrailers on the property to sleep.

After attempting unsuccessfully to have sexual relations with two of the woman who had gone to bed,Mr. Delaney went into the bedroom where the female party hostess was sleeping alone. He didn’t even know her because Mr. Delaneyand his girlfriend had been invited to the party by the victim’s brother-in-law. The victim awoke to find Mr. Delaney sticking his fingersin her vagina. She immediately pushed him away and told him to leave. Instead he persisted and she had to tell him to get out and stopthree times. Eventually he left when he heard a sound in the hallway outside the bedroom.

Later that evening, the victim’s husband, uponlearning what had happened attacked Mr. Delaney with his fists and a children’s plastic bat. Mr. Delaney suffered a black eye and a twoinch laceration. [44] Mr. Delaney, who was 45 at the time of the offence and expressed genuine remorse for his behaviour. He had no criminalrecord and lived a prosocial lifestyle. The mitigating impact of a guilty plea in that case was diminished because Mr. Delaney delayedmaking it for 16 months after the offence, thereby prolonging the victim’s distress. Mr.

Delaney psychological assessment indicated hedid not suffer from any psychopathology and posed a very low risk to reoffend. [45] At sentencing the Crown sought a custodial sentence in the range of 9-12 months, followed by probation; defence sought aconditional sentence. In his reasons for sentence, Justice Peter West comments on the impact of Mr. Delaney’s insobriety on hisculpability: [65] Further, the fact he had consumed alcohol to excess and had ingested cocaine does not in any way excuse his conduct.

Sexualassault is a general intent offence and drunkenness, intoxication or being under the influence of an illicit substance does not provide adefence. [46] Justice West determined the appropriate and fit sentence was a custodial sentence of nine months to be followed by three years’probation. He ultimately imposed a sentence of nine months reduced by seven days to account for the collateral consequence of Mr.Delaney’s injuries sustained as the result of the victim’s husband hitting him with a plastic bat, followed by two years’ probation. [47] In R. v.

Andrews, 2019 ONCJ 436 , the offender was convicted after a trial of sexually assaulting his girlfriend on July28, 2017. The Crown sought a custodial sentence of nine to 12 months to be followed by two years’ probation together with the usualancillary orders. At the time of the commission of this offence Mr. Andrews had a criminal record for an over .80 charge in 2016,however, apart from this, he led a pro-social life, was gainfully and steadily employed, and a contributing member of the community.While Mr. Andrews and the victim were not cohabitating, they were in an intimate relationship.

On the offence date, the victim gave Mr.Andrews permission to spend the night at her home because he was too intoxicated to go home. Not having an extra bed, she allowedMr. Andrews to share hers. She told him repeatedly throughout the evening that she did not want to have sex with him. She was tired andhad taken her sleeping medication. Despite that Mr. Andrews tried to initiate sexual activity with the victim when they first went to bedand she rebuffed his advances. Mr. Andrews waited until the victim fell asleep then attempted to have sexual intercourse with her whileshe was asleep. The victim had trusted Mr.

Andrews would not continue pursuing sexual activity after she fell asleep because of theirrelationship. Justice West imposed a nine month conditional sentence with restrictive conditions involving house arrest with ESP andcommunity service followed by two years’ probation. [48] In this case the Crown has proceeded by indictment. In R. v.

Solowan, 2008 SCC 62 , the Supreme Court of Canadaheld a sentenced should not be reduced or increased as a result of a Crown election: [15] A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had theCrown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be"scaled down" from the maximum on

summary conviction simply because the defendant would likely have received less than themaximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from thesentence that the accused might well have received if prosecuted by

summary conviction. Additional case authorities [49] Given many of the authorities provided to me by counsel differ significantly in the circumstances of the offence and offenderthan the case before me, I have reviewed further authorities which I have referenced below. Most, if not all, these authorities involvesexual offences by an indigenous offender, often against an indigenous female victim, many of which occurred in small indigenouscommunities. The cases I have reviewed include: R. v. Wells, 2000 SCC 10; R. v. Williams, 2011 BCCA 194 ; R. v. Yamelst,2013 BCSC 1689 ; R v. R.R.G.S., 2014 BCPC 170 ; R. v.

Eustache, 2014 BCCA 337 ; R. v. McLean, 2014BCSC 1293; R. v. E.M.Q., 2015 BCSC 201 ; R. v Narcisse, 2017 BCSC 2485; and R. v. Pete, 2019 BCCA 244 . [50] R. v. Wells, 2000 SCC 10, is a decision of the Supreme Court of Canada involving a sexual assault on an 18-year-old victimwho was asleep or unconscious due to alcohol intoxication. The offence occurred on May 15, 1994, and Mr. Wells was convicted after ajury trial on November 8, 1996. Mr. Wells attended a house party at the victim’s home Tsuut’ina Nation Reserve (also known as theSarcee Reserve) in South-western Alberta.

He sexually assaulted the victim in her own bedroom, causing abrasions to her vagina,although there was no evidence of penetration. He was convicted after a trial. The victim suffered hurt and humiliation when she learnedof the event the next morning. Both the victim and offender were Indigenous. Mr. Wells had two prior convictions for assault but notsexual assault. Like the victim he had no memory of the assault. He showed no remorse, however his pre-sentence report was generallyfavourable and recommended a conditional sentence. Moreover, Mr.

Wells had completed a 28 day alcohol treatment program and wasassessed as posing no threat to the community, as long as he abstained from alcohol use. The sentencing judge characterized theoffender’s actions as a “major” or “near major sexual assault” and took into account there was no evidence of planning or deliberation,and no gratuitous violence. The trial judge imposed a 20 month jail sentence which the SCC upheld on appeal. [51] In R. v. Williams, 2011 BCCA 194 , the offender appealed from a two year jail sentence imposed after he pleaded

guilty to the sexual assault. The 41-year-old offender sexually assaulted a 14-year-old girl who was unconscious. Both the offender andvictim were Indigenous. The offences occurred in Port Alberni sometime before 2010. The offender was a serious alcoholic and wasintoxicated at the time of the offence. Mr. Williams got into bed with the young victim, removed her underpants, and had his hand on hervagina when he was discovered by friends of the victim. She did not really wake up until she was at the hospital, where she was found tohave a vaginal tear, and white fluid in her vagina. Mr. Williams pled guilty.

The sentencing judge considered not only the enduringadverse impact of the sexual assault on the victim, but also the broader community. Madam Justice Newbury, for the court stated atpara. 5: [5] The sentencing judge reviewed Mr. Williams’ personal circumstances and the circumstances of the offence in his reasons. He agreedwith the Crown that the main concern in this case was denunciation and deterrence, especially given the victim’s age.

He then said this: [17] Another very important aspect of my decision today is based on me and my personal experience in coming to this community almostevery month for the last 17 years. Over that period of time there have been a large number of cases where women had consumed toomuch alcohol, went to bed, fell deeply asleep or passed out, and were then taken advantage of by a male and sexually assaulted in the bedin the home in which they felt safe. For a very long time now I have been treating this very seriously and trying to deter people from thisbehaviour.

I have to admit, in the last few years it seems that we have had fewer of these cases. It probably does not have anything to dowith me, but a recognition in the communities that this has been a problem, but it does occur from time to time and in this case it didoccur.

It is exactly the same pattern as we have seen a number of times, except that I have to admit in this case, with the victim onlybeing 14 years old, that is a special aggravated factor. [18] I have felt that for years, that when considering the provisions in the Code in regards to aboriginal offenders and the Gladue case, Ialso have to consider the aboriginal communities in this area.

I have had very many aboriginal people, citizens and leaders, speak to meand say that they are equally concerned about some of the things that a very few of their members perpetrate against their own people,and they are as concerned about their children as non-aboriginal people, and as one said to me years ago, “It doesn’t matter if my child isattacked or abused by an aboriginal offender or by a non-aboriginal offender, my child still suffers.” So I feel that in these kinds ofsentencings, I need to speak to those aboriginal communities and to the aboriginal parents and say to them, “I will do everything that is inmy power to deter people from inflicting themselves in this manner on your children.” [52] The sentencing judge went on to consider Mr.

Williams’ need for rehabilitation to assist him in overcoming his alcoholaddiction and disadvantaged background. The judge concluded Mr. Williams would receive far more help in a federal institution than ina provincial one. Ultimately, the Court sentenced Mr. Williams to two years’ imprisonment and three years’ probation, which the Courtof appeal upheld. Justice Newbury states at para. 9, of the appellate decision: [9] . . . There is much to be said for the sentencing judge’s concern for the protection of Aboriginal victims such as this child, andfor the role of deterrence in the Aboriginal community.

I do not believe, however, that the Court neglected to give weight to the systemicfactors in s. 718 or to rehabilitation generally. He considered all of these principles and reached a sentence that was 'within the range'. Hewas not required to then "shave off" something extra in recognition of the offender's Aboriginal status. [53] R. v. Yamelst, 2013 BCSC 1689 is also a sentencing decision involving sexual intercourse with an unconscious female. Mr.Yamelst was convicted after a jury trial of one count of sexual assault. In that case, the victim was asleep and woke to find Mr. Yamelsthaving intercourse with her.

He was intoxicated at the time and remembered little. The offence occurred on December 30, 2010, inSpences Bridge a small and predominantly Indigenous community in the BC interior. [54] Mr. Yamelst was 22 years old at the time of the offence and 24 at sentencing. He had a minimal criminal record for twooffences of drinking and driving. He had a tragic history having lost his mother in an accident and being abandoned by his father.

He wasalso adversely affected by multiple Gladue factors, including the attendance of his grandparents in the Indian residential school system,witnessing alcohol abuse, engaging in substance and alcohol abuse himself, experiencing racism, family dislocation, unemployment, anda lack of employment opportunities. Mr. Justice Willcock states at paras. 26 and 47 of Yamelst: [26] As I said at the outset of these reasons, a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances.

Unfortunately, sexual assaults on sleeping and impaired or intoxicated women are so common thatthere are a considerable number of comparable cases to which I may look in order to determine what sentences have been imposed onsimilar offenders for similar offences. … [45] Counsel have provided me with some cases that are of assistance in fixing an appropriate jail sentence. The cases which mostclosely resemble the circumstances of the offender, the victim, and the offence in this case establish a range of appropriate sentencesfrom approximately 16 to 30 months' incarceration.

Those are cases that involve no breach of trust, no planning or manipulation, nopersistence in the face of active resistance, no gratuitous violence, and no repetition of the assault. These cases are at the low end of therange considered by Gower J. in R. v. White [2008 YKSC 34]. [55] Justice Wilcock concluded the appropriate range of sentence to be 16 to 30 months for such an offence. He imposed on Mr.Yamelst a sentence of 18 months' jail and 18 months' probation. [56] In R. v.

Berry, 2015 BCCA 210 , the BC Court of Appeal cited with approval (at para. 27) Justice Wilcock’s commentson the plethora of cases involving sexual assaults on sleeping victims. Judge Gillespie (now Chief Judge Gillespie) applied thesentencing range identified in Yamelst in R. v. Martin-Clements, 2014 BCPC 87 ), another case involving a sexual assault of anintoxicated sleeping victim after a house party. Gillespie J, imposed a sentence after trial of two years jail, less time served, followed bytwo years’ probation. [57] R. v.

R.R.G.S., 2014 BCPC 170 , is a sentencing decision after a four day trial wherein the accused was convicted ofsexual interference and being unlawfully in a dwelling house with intent to commit an indictable offence. The offence occurred in 2012in Kispiox, a small Indigenous community in northwest BC. The Crown proceeded summarily. The 27-year-old indigenous offender,

R.R.G.S., was in a relationship with his spouse for approximately nine years. For the first four years they lived with his spouse’s parents,two sisters, and twin nieces who were then between the ages of four and eight years old. After they moved out of his spouse’s parent’sresidence, the offender and his spouse continued to have contact with the nieces. When one of the twin nieces was fourteen years of age,R.R.G.S., entered into her residence without permission and went into her bedroom where she was sleeping. He was able to hug her, kissher neck and back, and move apart her legs before she woke.

She sat up and told him to stop. He did so immediately and got up and leftthe room and went out of the house the same way he had come in.

The next day he sent her a text message that he was sorry. [58] In R.R.G.S.’s sentencing hearing, Judge Birnie found the following factors aggravating: a. the victim was only 14 years of age at the time; b. the offender, had a trust-like relationship with the victim as her uncle and able to gain access to the home and her room based on hisfamiliarity with the residence as he had lived there in the past; c. the offence took place in the victim’s bedroom and while she was sleeping, in a place she would expect to feel safe and at a timewhen she was extremely vulnerable; d. the offender had a prior but unrelated criminal record the sentencing judge found minimally aggravating; and e. the offending behaviour involved an element of planning. [59] Judge Birnie found mitigating the fact the offender was (

a) a young man (27 years old at the time of the offence and 29 atsentencing); (

b) working; (

c) had a young child and appeared to take his parental responsibilities seriously; (

d) remorseful; and (

e) madesome efforts to take counselling to try and assist with his drinking and to deal with his own childhood trauma and gain some insight intohis offending behaviour. Judge Birnie found R.R.G.S.’s experience of alcoholism, violence, and sexual molestation as a child flowedfrom the breakdown of family and community values and traditions as a result of colonization, settlement, and residential schools. Shedid not find, however, the Defence had established on the balance of probabilities the offender suffered or was likely to suffer from eitherFetal Alcohol Effect (“FAE”) or any other mental illness.

Ultimately, Judge Birnie imposed a 90-day intermittent sentence followed bythree years’ probation. [60] With respect to R.R.G.S.’s constitutional challenge to the mandatory minimum sentence for the s.151 offence Judge Birniefound light of all of these factors a 90 day jail term would not constitute a punishment which is “so excessive as to outrage standards ofdecency” in this case. It is not grossly disproportionate and does not create a breach of R.R.G.S.’s s. 12 Charter right. [61] R. v.

Eustache, 2014 BCCA 337 is appeal from a sentence of 12 months jail followed by two years’ probation uponthe offender being convicted of sexual assault after trial. The offence occurred on July 11, 2011, on the Chua Reserve near Barriere, BC.Mr. Eustache was 48 years old at the time of the offence and 51 at sentencing. The victim, who had just turned 18, went to Mr.Eustache’s home for a party and consumed a considerable amount of alcohol. She passed out. At around 5:00 am, Mr. Eustache removedthe bottoms of the unconscious victim and was rubbing his genitals on hers when he was interrupted by her cousin.

There was noevidence of penetration. Mr. Eustache attended residential school for many years and experienced a troubled childhood marked bysexual abuse, neglect, and parental alcoholism. He had a dated criminal record for impaired driving offences and one conviction forassaulting the victim's mother when she refused to have sex with him. The sentencing judge noted that Mr. Eustache’s difficult childhoodand residential school experience affected his overall moral culpability.

The offence had a significant and lasting impact on the victim.The trial judge imposed a sentence of one year followed by two years' probation imposed in that case, which the Court of Appeal upheld,noting that the upper end of the sentencing range for this offence would have been three years. [62] In R. v. McLean, 2014 BCSC 1293, Justice Romilly convicted a 26-year-old Indigenous offender after trial for sexual assault.The offender and victim had attended a wedding in Gitsegukla, a small Indigenous community in northwest British Columbia.

Thevictim and her sister stayed at their father’s house, where there were various guests coming and going. At some point the victim passedout from intoxication and her sister put her to bed on the couch. The following morning the victim’s brother discovered the offendersleeping with the victim. He was positioned behind the victim with his pants pulled down to his knees and the victim’s dress pulled up toher waist. When the victim awoke, still intoxicated, she found her anus hurt like she had had sex. She knew the offender casually and didnot consent to having sex with him.

The victim’s brother, then proceeded to beat the offender causing him serious facial injuries. Mr.Mclean’s DNA was found inside the victim’s anus. [63] Mr. McLean grew up in the care of his alcoholic mother who was a residential school survivor. He had never livedindependently and had a long criminal record that included two prior convictions for sexual assault against minors. Forensic psychiatrist,Dr. Morgan, found Mr. McLean to be at moderate to high risk of reoffending. He was serving a conditional sentence at the time of theoffence.

Justice Romilly imposed a sentence of three years' imprisonment, less time served (which at that time was 16 months inpresentence custody), followed by two years’ probation. [64] In R. v. E.M.Q., 2015 BCSC 201 , the offender was convicted of sexual interference after trial. The offence occurred inthe Xeni Gwet’in community in the Nemiah Valley. Both the offender and victim were Indigenous. The victim, then 14 years old, agreedto babysit the baby daughter of her friend, C.M. and the offender, E.M.Q.

The victim stayed the night and slept on the couch whileE.M.Q. and C.M. went out to a house party where they consumed alcohol. E.M.Q. came up to the living room where he woke up thevictim and attempted to kiss her and touch her breasts and vagina. The victim resisted but eventually E.M.Q. succeeded in touching heron her clothing in the pelvic area above her vagina. E.M.Q. stopped the assault when C.M. arrived and the victim escaped. The offenderwas 21 years old at the time of the offence and 23 at sentencing. His father and grandfather attended residential school.

E.M.Q. wasraised in a home where violence and alcohol abuse were prevalent. E.M.Q.’s father physically abused both him, his mother, and hissiblings. [65] E.M.Q. had a prior criminal record and was on a recognizance prohibiting him from having contact with C.M. at the time of theoffence. E.M.Q. says he "blacked out" and did not recall the sexual assault. He did not plead guilty and showed no remorse. Since theoffence E.M.Q. has attended and completed a treatment for Indigenous people for alcohol abuse and counselling for the development of

family and social relationships. It would seem E.M.Q. was in a position of trust vis-à-vis the victim, although this was not expresslyidentified as an aggravating factor. Justice Pearlman upheld the one year mandatory minimum sentence in s. 151 of the Code as notviolating s. 12 of the Charter and imposed a sentence of 13 months, less credit for time served, plus two years' probation. [66] In R. v. Casimir, 2016 BCSC 65, Justice Tindale convicted Mr. Casmir of sexual interference after a trial. Mr.

Casimir was anindigenous man who was found to have sexually abused a13-year-old victim who became intoxicated and passed out at a drinking party.Her friend put her to bed, fully dressed. Mr. Casimir, who was 30 years old at the time, went into her bedroom, removed her pants andundergarments and had sexual intercourse with her while she was unconscious. He was charged with this offence six and one-half yearslater. At the time of sentencing Mr. Casimir was 37 years old, married, and the father of four young children.

He had attended residentialtreatment to overcome his alcohol addiction had been sober for over five years. The Court found Mr. Casimir suffered from the systemicproblems that plague many Indigenous people, including substance abuse, cultural displacement, isolation, poverty, and limitededucation and family dysfunction. Justice Tindale found exceptional and unique circumstances of the case, namely the inexplicabledelay in bringing the matter to court, Mr. Casimir's remarkable rehabilitation and his responsibility for four young children.

Heconcluded these factors warranted a sentence below the range of two to four years and imposed a sentence of 12 months' imprisonmentfollowed by two years' probation for sexual assault. [67] In R. v. Hackett, 2016 BCSC 1424 , the 28-year-old Indigenous offender was convicted of sexually assaulting an 18-year-old on June 8, 2014, in Campbell River, BC. The victim went to bed intoxicated after a party at her boyfriend’s apartment. Herboyfriend had been arrested earlier that evening for assaulting her and removed from the residence. The victim, who was intoxicated,went to sleep on her boyfriend’s bed fully clothed.

She gave Mr. Hackett permission to stay the night and sleep on a foamy located onthe floor next to the bed as her friends occupied the living room. The victim awoke abruptly to find Mr. Hackett beginning to penetrateher vagina with his penis. Her pants and underwear were down around her knees. She was very angry and forced Mr. Hackett out of theapartment. Mr. Hackett was found to be a low to moderate risk to reoffend. He had a serious criminal record, which included previousconvictions for assault, although none for sexual assault.

The presentence report identified systemic and background factors that mayhave played a

part in bringing Mr. Hackett before the court. Mr. Hackett’s childhood was marked by widespread alcohol abuse,instability, and neglect. His mother, aunties, and grandparents attended residential school. Mr. Hackett began to drink at a very youngage. His drinking was a serious problem by his mid-teens; he attended treatment but continued to binge drink. Justice Fleming concludedhis history of intergenerational alcohol abuse, his own struggle with alcohol and its effects on others, along with his consumption ofalcohol at the time of the offence, all indicate that if Mr.

Hackett was to become a peaceful, productive member of the community, herequired further treatment. Justice Fleming imposed a jail sentence of two years less a day followed by two years' probation. [68] R. v. Narcisse, 2017 BCSC 2485 , is a sentencing decision of Madam Justice Donegan with respect to a sexual offencewhich occurred on June 24, 2015, in Kamloops, BC. The offender, Mr. Narcisse, was found having sexual intercourse with a 19-year-oldvictim who had passed out from the effects of alcohol at a house party in her own home. Mr.

Narcisse had no relationship with the victimand had been told by her roommate to leave her alone. Her friend observed she was profoundly intoxicated after an evening of drinkinggames. He escorted her to her bedroom and lay her on the bed fully clothed. When he checked on her later, he found Mr. Narcisse havingintercourse with the unconscious victim. Mr. Narcisse refused to stop the assault when victim’s friend appeared and demanded he leave.Instead, Mr. Narcisse pushed the friend outside the room and slammed the door. Mr.

Narcisse eventually left the bedroom when thevictim’s friend returned and confronted him with a knife. [69] Madam Justice Donegan commented on the impact of the offence on the victim, B.K., at para. 58: [58] . . . Mr. Narcisse took advantage of her extreme vulnerability by having intercourse with her while she was completely incapable ofconsent. She was unconscious. This constitutes one of the most profound and demeaning examples of disregard for the personal integrityof another that one could imagine. The effect on B.K., as outlined in her victim impact statement, has been significant. [70] Mr.

Narcisse, was 23 years old at sentencing and 21 at the time of the offence. He pled guilty following the trial testimony oftwo Crown witnesses who saw Mr. Narcisse sexually assault the victim. Nevertheless, Justice Donegan still considered the late guiltyplea an indication of Mr. Narcisse’s remorse as it spared the victim from the stress and trauma of testifying at trial. Justice Doneganimposed a sentence of two years less a day followed by two years' probation – a sentence she characterized as at the bottom end of therange for a fit sentence for this type of offence. [71] R. v.

Pete, 2019 BCCA 244 , is an appeal from sentence after a trial. Mr. Pete was convicted of breaking and entering adwelling house on December 1, 2015, and sexually assaulting his 13-year-old cousin. Both the offender and the victim were Indigenousresidents of a small northern British Columbia community near the Yukon border. In the early hours of December 1, 2015, Mr. Peteaccessed the victim’s home through a wood chute. She awoke in the early hours of the morning to Mr. Pete kissing her and touching herbreasts and vagina over her clothes. He left when she awoke and threatened to call her father or brother. Mr.

Pete was a youngIndigenous first time offender. The sentencing judge imposed a sentence of three years. Mr. Pete appealed on the basis the sentencingjudge erred in failing to apply the rule in Code by considering treating convictions entered him after he committed the subject offence asprior convictions. The Court of Appeal agreed and substituted a two year sentence for the three year sentence imposed by the trial judge.Justice Butler, for the appellate court stated: [89] The judge rightly noted that deterrence and denunciation are significant sentencing principles with this kind of assault.

She alsoappropriately highlighted the aggravating factors. However, as I have indicated, she gave little heed to the appellant’s status as a first-time offender. As a result, she imposed a sentence at the highest end of the range for this kind of sexual assault in the course of breakingand entering. [90] As I have indicated, I would impose a sentence of two years before taking time served into account. A sentence of this lengthappropriately gives effect to the principles of deterrence and denunciation, taking into account the aggravating factors and the risk theappellant poses to the community.

This includes the need to acknowledge, denounce and deter the excessive sexual violence experiencedby Indigenous women and girls: R. v. Barton, 2019 SCC 33, paras. 198–200. Further, it fairly accounts for the appellant’s personalcircumstances. These include his status as a first-time offender and the relevant Gladue factors.

Legislative Framework Maximum and minimum sentences for ss. 151 and 271 [72] In this matter, the Crown has proceeded by indictment. Count 1 charges B.M.W. with a sexual offence which occurred 16 yearsago. In 2003 an offence of sexual interference (s. 151 of the Criminal Code) where the Crown has proceeded by indictment attracted amaximum term of imprisonment of 10 years. There was no minimum sentence. On July 17, 2015, the Tougher Penalties for ChildPredators Act, SC 2015, c 23, came into force. The Parliament legislated new penalties for sexual offences against children.

Themaximum sentence for sexual offences under s. 151 and s. 271 when charged indictably was increased to 14 years and the minimumsentence to one year. [73] In R. v. Scofield, 2019 BCCA 3 and its companion case, R. v. Horswill, 2019 BCCA 2 , the B.C. Court ofAppeal 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., 2016BCSC 1759 , Madam Justice Beames found unconstitutional the mandatory minimum one year sentence for a sexual assaultagainst a person under the age of 16. Purpose and principles of sentencing [74]

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. [75]

Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 , at para. 39. [76]

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. [77] In R. v. Ipeelee, 2012 SCC 13, LeBel, J., states in para. 37, in part: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [78]

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. This

section came into force on November 1, 2005, with Bill C-2,

An Act to amend theCriminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. In R. v. R.J.B.,2016 BCCA 428 at para. 29. Justice Bruce held the principle set out in

section 718.01 is a codification of a pre-existingsentencing principle. Justice Abella (as she then was) in R. v. Stuckless, (ON CA) states: 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. [79] Other important sentencing considerations are set out in

section 718.2, which holds a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Bill C-2 also amended the“Purpose and Principles of Sentencing” portion of the Criminal Code with the inclusion s. 718.2(a)(ii.1), which makes aggravatingevidence that the offender, in committing the offence, abused a person under the age of eighteen years.

As the authorities indicate,however, abusing a child under the common law has always been aggravating and called for a denunciatory and deterrent sentence: R. v.S.B.T., 2010 BCCA 145 , para. 16. [80] On December 14, 2012, the Protecting Canada's Seniors Act, SC 2012, c 29, was given royal assent. It introduced s. 718.2(a)(iii.1) into the Criminal Code making statutorily aggravating the fact the offence had a significant impact on the victim.

Again, thisprovision did not represent a change in the law but merely a codification of a common law principle which applied prior to its enactment.That has always been a part of the principles of sentencing: R. v. Dunn, (ON CA). [81] On September 3, 1996,

An Act to amend the Criminal Code (Sentencing) and other Acts S.C. 1995, c. 22 (“Bill C-41”), cameinto force and with it

Section 718.2(a)(iii) which makes aggravating the fact the offender was in a position of trust or authority in relationto the victim. In other words, s. 718.2(1)(iii) was in force at the time of the offence charged under Count 1. [82]

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.” [83]

Section 728.2(

c) codifies the totality principle which holds that where sentences are imposed consecutively, the combined

sentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend thetotality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or itseffect 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. [84] 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. [85] 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. [86]

Section 718.04 was a legislative response to the Final Report of the National Inquiry into Missing and Murdered IndigenousWomen and Girls which states in its introduction [footnotes and citations omitted]: Sexual violence is a huge problem in all its forms: Indigenous women are sexually assaulted three times more often than non-Indigenouswomen . . . and most of the women and children trafficked in Canada are Indigenous. . .

According to researchers . . . sexually exploitedIndigenous children and youth make up more than 90% of the visible sex trade, even where Indigenous people make up less than 10% ofthe population. . . The majority of Indigenous women who are later sexually exploited or trafficked were sexually abused at an early age,making them easy targets for traffickers who prey on this vulnerability and count on society’s turning a blind eye. [87] In R. v.

Barton, 2019 SCR 33 at paras 198-201, the Supreme Court of Canada recognizes that Indigenous females have beenhistorically victimized, continue as victims of cultural and social biases that manifest in the justice system, and have endured high rates ofsexual violence.

As indicated above, the BC Court of Appeal in Pete, recognized the need to acknowledge, denounce and deter theexcessive sexual violence experienced by Indigenous females, as well as the Gladue factors relevant to the offender. [88] As set out above, the Courts on numerous occasions, have unequivocally condemned the act of sexually assaulting a child or asleeping or unconscious complainant and, in doing so, has sent a strong message that sexually assaulting someone in a vulnerableposition is an aggravating factor on sentencing.

In other words, notwithstanding the fact s. 718.04 was not in force at the time B.M.W.committed these offences on B.J., a victim’s vulnerability has always been a relevant factor in sentencing. Sentencing Indigenous Offenders [89]

Section 718.2(

e) imposes on a sentencing judge a statutory duty to consider the unique systemic and background factors whichmay have played a

part in bringing a particular offender before the Court and the types of sentencing procedures and sanctions that maybe appropriate because of the offender’s particular indigenous heritage. R. v. Gladue, (SCC) and R. v. Ipeelee, 2012SCC 13 establish the principles and framework for sentencing indigenous offenders. The offender is not required to establish a causallink between background factors and the commission of the offence before being entitled to have those factors considered by thesentence judge.

Judges may take judicial notice of the broad systemic and background factors affecting indigenous people generally andcase-specific information from the offender and the presentence reports. In R. v.

Ipeelee, Lebel J. states at para. 60: To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and howthat history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substanceabuse and suicide, and of course higher levels of incarceration for Aboriginal peoples… [90] B.M.W. is a member of the Wet’suwet’en First Nations and therefore the principles relating to sentencing Indigenous offendersas set out in s. 718.2(

e) apply. B.M.W. epitomizes how the history of Canada’s Indigenous peoples continues to translate into lowereducational attainment and incomes, higher unemployment, higher rates of substances abuse and suicide, and higher levels ofincarceration. I am satisfied the systemic and background factors affecting Indigenous people in Canadian society have impactedB.M.W.’s life in such a way as to diminish his moral culpability. B.M.W. committed these offences when he was heavily intoxicated. Heis and has been an alcoholic his entire life.

He suffers from transgenerational trauma and alcoholism arising from the Indigenous peoples’involvement with colonialism, displacement, and residential schools. B.M.W. attracted a criminal record at a young age, lost his parentsto alcohol abuse, has only Grade 10 education, and experiences long periods of unemployment. I am satisfied that those factors, bothsystemic within society and specific to B.M.W. did play a role in his criminal behaviour. In my view the Gladue factors attributable toB.M.W. ought to be taken into account to arrive at an appropriate sentence.

Individualization [91] As the sentencing judge, I must consider the gravity of the offences of which B.M.W. was convicted, his degree ofresponsibility in their commission, having regard to his unique individual circumstances. This individualization in sentencing requiresme to consider all aggravating and mitigating circumstances, and the collateral consequences. An aggravating factor, either statutorily orjudicially mandated, will induces a court to impose a longer sentence than otherwise may be imposed. A mitigating factor will reduce thesentence that might otherwise be imposed.

The absence of an aggravating factor does not equate to a mitigating factor or vice versa: seeScofield, paras. 35-36 and R. v. Prince, 2018 BCSC 987 , para. 72. The Crown bears the burden of proving disputed aggravatingfactors beyond a reasonable doubt; the Defence bears the burden of proving disputed mitigating factors on a balance of probabilities: R.v. Dreger, 2014 BCCA 54 , para. 45. [92] I have set out below the circumstances I find relevant in determining a fit sentence for B.M.W. (

a) the frequency of the abuse

[93] Repetitive acts of sexual abuse increases the gravity of the offence and the moral culpability of the offender: R. v. Vautour,2016 BCCA 497. In this case the sexual abuse occurred on two distinct occasions, separated by approximately 15 years. (

b) the severity of the abuse [94] The severity of the abuse is a relevant factor in sentencing: R. v. Pete, 2019 BCCA 244. Sexual assaults which are highlyintrusive of the victim’s physical, psychological and sexual integrity, attract significant jail sentences. In this case, the nature of thesexual touching charged under Count 1 falls at the lower end of the spectrum of sexual offences. The sexual touching charged underCount 4 was far more intrusive to B.J.’s bodily integrity. (

c) the duration of the abuse [95] The duration of the sexual abuse also affects the gravity of the offence and the moral culpability of the offender: Vautour, para.46. In this case, the abuse in each occasion was relatively brief. (

d) whether the abuse occurred in the victim’s home [96] The abuse in Count 1 occurred in the victim’s home, which ought to be a place of safety and security: see R. v. S.S.S., 2018BCSC 2470 ; para. 38; R v Rosario, 2018 BCSC 2483 , para. 48. B.M.W. was neither a resident nor invitee of thathome. (

e) the age of the victim at the time of the offence [97] As set out above, the fact B.J. was only 12 or 13 years old at the time of the first offences gives paramountcy to the sentencingprinciples of deterrence and denunciation. Recently, in R. v. S.C.W., 2019 BCCA 405, majority of the BC Court of Appeal held avictim’s young age can be considered aggravating in the charge of sexual interference even though it was an essential element of thatoffence. Mr. Justice Goepel stated: [36] I agree with the approach of the Ontario Court of Appeal.

Parliament has expressly legislated that the age of the victim is anaggravating factor on sentencing. A.D.’s age was relevant to assessing her degree of vulnerability and the age difference between A.D.and the appellant is relevant to assessing his degree of culpability. Considering the age of the victim at the sentencing stage, despite itbeing an element of the offence, aligns with the purposes and principles of sentencing.

If sentencing is to be an individualised processand sentences are to be proportionate to the gravity to the offence, the specific circumstances of each offence must be taken into accountat sentencing, even where those circumstances overlap with the elements of the offence. The egregiousness of the sexual offence againsta child increases as the age of the child decreases.

Taking into account the age of the victim is an appropriate consideration of thespecific facts of the individual offence. [98] Justice Newbury, however states: [40] I would leave open for another day the question of whether the effect of a statutory aggravating factor is different in principle froma common law one; and whether the Ontario authorities referred to in Mr.

Justice Goepel’s reasons adequately address the question ofaggravation, as opposed to mere relevance to the determination of a fit sentence. [41] I see the significance of the victim’s age in cases such as this (i.e., where one element of the offence depends on the victim’s age) asone of degree. All other things being equal, greater moral blameworthiness obviously attaches where the victim is age 5 or 6, or 11 or 12,in comparison to age 15. It may be that s. 718.2(ii.1) should be seen merely as a codification of that principle.

Whether on the other handit should be regarded as an additional factor that may increase the sentence that would otherwise be imposed in the circumstances of theoffence (including the victim’s age) before the court in any given case is a highly theoretical issue that in my opinion need not bedecided in the case at bar. (

f) whether the offender was in a position of trust [99]

Section 718.2(a)(iii) of the Criminal Code requires the sentencing judge to take into account as an aggravating factor whetherthe offender was in a position of trust or authority in relation to the victim. Although B.M.W. and B.J.’s parents were close friends, I findB.M.W. was not in a position of trust vis-à-vis B.J., and the Crown does not argue otherwise. (

g) the date of the offence [100] The time lapse between the date of the offence of sexual interference and the date it was charged is relevant. Still, the passage oftime alone does not attract a reduction in the length of the sentence. It does not diminish the gravity of the offence or the the degree ofB.M.W.’s responsibility: R. v. Archibald, 2012 ABCA 202 . The only sentencing principles which may be affected by the lapseof time are those of individual deterrence and rehabilitation: R. v A.D., 2018 BCSC 891 , at para. 93 citing In R v. H.S. 2014ONCA 323 and R. v. Spence, 1992 ABCA 352 .

The 16 year delay in charging the sexual interference may havecarried weight if B.M.W. had led an exemplary life since its commission and demonstrated remorse. Although B.M.W. hasacknowledged his misconduct with his guilty pleas, he has not shown any genuine remorse. He has not rehabilitated himself as hissubsequent reoffending has demonstrated. In other words, the man before the Court today is not a “changed man.” (

g) whether the abuse was accompanied by any gratuitous violence [101] The degree to which the sexual abuse is accompanied by gratuitous violence is also relevant to the ultimate sentence. In R. v.Williams, 2019 BCCA 295 , the BC Court of Appeal interpreted “gratuitous violence” as meaning acts or threats of actualviolence, coercion, or other ways of overcoming resistance. In this case, there is no evidence of gratuitous violence in either of theoffences for which B.M.W. is being sentenced.

(

h) whether the offender pleaded guilty [102] B.M.W. pled guilty, which is a highly mitigating factor, particularly in the case of a historical sexual assault: R. v. E.S., 2017BCCA 354. Nevertheless, B.M.W. does not fully accept responsibility for the offences, rather blames alcohol for his criminal behaviour. (

i) whether the offender demonstrated remorse [103] B.M.W. has expressed no remorse in addition to his guilty plea. He claims to have blacked-out during the incidents, thusminimizing his responsibility and showing little insight into his criminal behaviour. Although he blames his offending on hisconsumption of alcohol he has not taken positive steps to deal with his alcohol problem. Taylor JA’s comments in R. v. Anderson, (BC CA), 1992 CarswellBC 441, are apposite: [29] The factor of "remorse" is often important.

Insofar as it might be suggested that the court should regard those who come before it ina submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitudethey are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that an accusedperson is able to demonstrate that he or she has, since the commission of the crime, come to realize the gravity of the conduct, and as aresult has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending,the existence of remorse in this sense obviously has much importance. [Emphasis in original.] [104] Whereas genuine remorse may be a mitigating factor, the absence of remorse is not aggravating: Pouce Coupe, para. 24; andE.M.Q., at para. 87.

Still, the absence of remorse can disentitle an accused to leniency which might otherwise have been extended. (

j) the offender’s criminal record [105] A criminal record can be an aggravating factor which the Court can use to increase the severity of the sentence. Having said that,an offender is sentenced for the offences before the Court, not for his criminogenic history. In this case, B.M.W. has an significantcriminal record for violent offences, albeit this is his first conviction for sexual assault. (

k) the offender’s degree of intoxication [106] B.M.W.’s degree of intoxication during the commission may be relevant as either mitigating or aggravating factor. In R. v.Leslie, 2016 BCCA 213 . The Court of Appeal commented intoxication may reduce an offender’s moral blameworthiness andthereby justify a lower sentence. (Also see: R. v Espinosa Ribadeneira, 2019 NSCA 7 .) In R. v. Forner, 2019 BCPC 208, Judge Korturbash notes (at para. 21) intoxication can also be aggravating: [21] In R. v.

Newton, 2016 BCSC 1440 , the court held that the fact that the accused made a conscious decision to embark onthe use of mind-altering drugs which carried a high risk of "inducing behaviour out of their conscious or rational control" mustunderstand that they will be held accountable for the harm they do to others while they are intoxicated or in an altered state. The courtwent on to say the accused's state of extreme intoxication by illegal drugs was an aggravating factor. It said he knew he had an addictionproblem, but turned down any help. [107] In R. v.

Craig, 2005 BCCA 484 , the BC Court of Appeal did not consider the offender’s intoxication as significantlymitigating in a case of aggravated assault. Madam Justice Kirkpatrick states, at para. 15 [citations omitted]: [15] I am not persuaded that the respondent's intoxication is a significant mitigating factor. He had been drinking to excess but that didnot cause him to do what he did. It may have reduced his inhibitions, but it did not reduce his moral blameworthiness for his violentattack and the injuries he caused to the victim. . . [108] As noted in R. v.

Hicks, 2007 NLCA 41 , the fact the offender did something completely out of character whileintoxicated can be considered mitigating in sentencing. In such circumstances, the offender’s favourable prospects for rehabilitationjustify leniency. Where the offender’s actions were not out of character, but rather a continuation of a pattern of crime, intoxication is anaggravating circumstance or, at best, a neutral factor: R. v. Dunn, (ON CA); R. v.

Foster, 2015 SKCA 114 . [109] In Ribadeneira, the Nova Scotia Court of Appeal held the assessment of self-induced intoxication on an offender’s moralculpability is contextual. In my view B.M.W.’s self-induced intoxication in this case is not a mitigating factor in terms of reducing moralculpability. In reaching this conclusion, I have taken into consideration: a. there is no evidence B.M.W. was intoxicated to the point of being in an alcohol-induced delirium: Ribadeneira, para. 79 citingR. v. Hicks, (BC CA); b. there is no evidence B.M.W.’s state of mind caused him to act out of character while intoxicated.

His lengthy criminal recordindicates that when intoxicated B.M.W. can commit violent offences; c. there is evidence that despite his intoxication, B.M.W.’s actions involved some degree of planning or premeditation in that heorchestrated B.J. being left alone with him while unconscious; and d. there is no evidence B.M.W. has successfully addressed his alcoholism which led to his criminal conduct. (

l) the offender’s age and health [110] The offender’s age and health will often play a role in sentencing: R. v. Swope, 2015 BCCA 167. B.M.W. is 50 years old and hasnot provided the Court with evidence of poor health, beyond his alcoholism. (

m) whether the offender is Indigenous

[111] B.M.W. is an indigenous offender who as suffered significant social disadvantage growing up. I am satisfied the principlesespoused in Gladue and Ipeelee apply to diminish his moral culpability for the offences for which he is being sentenced, notwithstandinghe professes no recollection of his criminal wrong doing. (

n) whether the offender presented an ongoing risk to the community [112] A significant concern to the Court in assessing the appropriate sentence in sexual offences is the risk the offender presents to thecommunity. This is particularly so where the Court is considering a sentence which is both punitive and rehabilitative. Dr. Lopes hasassessed B.M.W. as a moderate risk to reoffend. (

o) the offender's family and community support [113] B.M.W. does have support of his family and in the community as evidenced by their attendance at the sentencing hearing andletters of support provided to PO Lindsay. (

p) the offender's bail condition [114] There is nothing particularly onerous about B.M.W.’s bail conditions. In fact he was at the beginning of an 18 month ProbationOrder at the time of the second offence. (

q) the impact of the offending on the victim [115] The impact of the offending behaviour on B.J. is significant. It is exacerbated by the fact that both she and B.M.W. reside in asmall Indigenous community and inevitably their paths cross while they are out and about in the community. Aggravating, Mitigating Factors, and Collateral consequences [116] In this case I find mitigating: a. B.M.W.’s early guilty pleas; b. B.M.W.’s family and community support; and c. his Indigenous heritage. [117] I find aggravating: a. B.M.W.’s criminal record; b. at the time of the first offence, B.J. was only 12-13 years old; c. the first offenc

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