R. v. S.P.J., 2022 BCPC 97

Citation: R. v. S.P.J. 2022 BCPC 97 Date: 20220510 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.P.J. BANS ON PUBLICATION:

SECTION 486.4 AND 517 OF THE CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: D. Brennan Counsel for the Defendant: B. Zargarian Place of Hearing: [Omitted for publication], BC Dates of Hearing: April 25, 26, 2022 Date of Judgment: May 10, 2022

INTRODUCTION [1] On November 10, 2021, after 12 days of trial, I found S.P.J. guilty of 16 offences charged under Information 9487-1: sevencommitted against his daughter; eight against his granddaughter; and one against his son. Although historical, the offences were seriousviolent crimes. S.P.J. is now before me for sentencing. [2] Specifically, on November 10, 2021, I found S.P.J. guilty of the following Criminal Code offences in force at the time of thecommission of the offence: A. Offences committed against S.P.J.’s biological daughter, P.R.J., formerly P.R.C. (“P.J.” or “P.”) a.

Counts 11, 12 and 13 of Information 9487-1: the offences of indecent assault of a female (s. 149); incest (s. 150); sexual intercoursewith a female under the age of 14 (s. 146(1)) that occurred in [Village One], British Columbia, between January 1, 1979 to December 31,1981, inclusive; b. Counts 14 and 15 of Information 9487-1: incest (s. 155(2)); and sexual assault (s. 271(1)) that occurred in [Village One], BritishColumbia, between January 1, 1995 and December 31, 1995, inclusive; c.

Counts 16 and 17 of Information 9487-1: sexual assault (s. 271(1)); and indecent assault (s. 149) that occurred in Prince George,British Columbia, between January 1, 1983 to December 31, 1989, inclusive. B. Offences committed against S.P.J.’s granddaughter, E.M., formerly known as E.J. (“E.M.”) a. Counts 1 and 2 of Information 9487-1: the offences of sexual assault (s. 271(1)); and sexual interference (s. 151) that occurredbetween January 1, 2000 and December 31, 2002, in Prince George, British Columbia; b.

Counts 3, 4 and 6 of Information 9487-01: the offences of sexual assault (s. 271), sexual interference (s. 151); incest (s. 155(2)) thatoccurred between January 1, 2000 and December 31, 2004, in or near [Village Two], British Columbia; c. Counts 7, 8, and 10 of Information 9487-01: the offences of sexual assault (s. 271); sexual interference (s. 151); incest (s. 155(2)) thatoccurred between January 1, 2007 and December 31, 2008, in or near [Village One], British Columbia. C. Offence committed against S.P.J.’s biological son, V.T.M.: a.

Count 18 of Information 9487-01: assault with a weapon (s. 257(a)) which occurred between January 1, 2013 and December 31,2013, in [Village Three], British Columbia. [3] The Crown and defence agree and I concur that Counts 2, 4, 8, 11 and 17 ought to be conditionally judicially stayed pursuant tothe principle against multiple convictions espoused in R. v. Kienapple, (SCC). Accordingly, I direct a conditionaljudicial stay of Counts 2, 4, 8, 11 and 17 of Information 9487-01.

S.P.J. now stands convicted of the following offences: Count 1: sexually assaulting E.M. at Prince George between 2000 and 2002; Count 3: sexually assaulting E.M. at [Village Two] between January 1, 2000 and December 31, 2004; Count 6: committing incest with E.M. at [Village Two] between January 1, 2000 and December 31, 2004; Count 7: sexually assaulting E.M. at [Village One], between January 1, 2007 and December 31, 2008; Count 10: committing incest with E.M. at [Village One] between January 1, 2007 and December 31, 2008; Count 12: committing incest with P.R.C. at [Village One] between January 1, 1979 and December 31, 1981; Count 13: sexual intercourse with a female under the age of 14 with P.R.C. at [Village One] between January 1, 1979 and December 31,1981; Count 14: committing incest with P.R.C. at [Village One] in 1995; Count 15: sexually assaulting P.R.C. at [Village One] in 1995; Count 16: sexually assaulting P.R.C. at Prince George between January 1, 1983 and December 31, 1989; and Count 18: assaulting V.T.M. with a weapon at [Village Three] in 2013. [4] Neither the offence of sexual assault nor sexual interference is an included offence of incest: R. v.

G.R., 2005 SCC 45 . Issue [5] The issue before the court is a fit and proper sentence, taking into account the relevant purposes and principles of sentencing, thecircumstances of the offence and the particular circumstances of the offender S.P.J. Circumstances of the offences

[6] The circumstances of the offences are particularized in my November 10, 2021 Reasons for Judgment indexed as R. v. S.P.J.,2021 BCPC 276 , which I will not repeat in detail here. Briefly, I found: a. S.P.J. forced vaginal intercourse on P.R.C., his biological daughter, when she was six or seven years old and staying at hergrandparents’ home at 882 BCT, [Village One], BC (Counts 12 and 13); b. S.P.J. sexually assaulted P.R.C. when she was 10 or 11 years old, in Grade 4, by trying to touch her vagina over her clothing whilethey were living at the CG complex in Prince George, BC (Count 16); c.

S.P.J. forced vaginal intercourse on P.R.C. when she was an adult (about 22 years old) and was asleep beside her husband in her ownbed in her own home at 102 T. Street, [Village One], BC (Counts 14 and 15); d. S.P.J. sexually assaulted E.M., his biological granddaughter, when she was six or seven years old in her home on Ahbau Street, inPrince George, BC (Count 1); e. S.P.J. forced vaginal intercourse on E.M. when she was about eight years old while she was visiting with his family in [VillageThree] ([Village Two]), BC. (Counts 3 and 6); f.

S.P.J. forced vaginal intercourse on E.M. when she was 12 or 13 years old, at her home in [Village One], BC (Count 7 and 10); and g. S.P.J. assaulted his son V.T.M. in their home in [Village Three] in 2013 by punching him in the face while holding a crow bar. At thetime, V.T.M. was 13–14 years old (Count 18).

Evidence at sentencing hearing [7] The court has received the following documents into evidence at the sentencing hearing: Exhibit 1: Book of Exhibits for sentencing, enclosing: Tab 1: Information 5263 sworn February 24, 1995, charging S.P.J. with the sexual assault of B.M.C. on February 24, 1995; Tab 2: Information C08254CD charging S.P.J. with sexually assaulting N.G. on January 30, 2000; Tab 3: S.P.J.’s Justice Conviction List dated December 11, 2020, and Criminal Record as of January 25, 2019; Tab 4: S.P.J.’s letter delivered to J.M.J. on July 3, 2018 and entered as Exhibit 2 at trial, and D.J.’s handwritten letter signed by V.T.M.entered as Exhibit 2 at trial; Tab 5: Probation Order dated March 6, 1996, with respect to S.P.J.’s conviction for sexually assaulting B.M.C. on February 24, 1995, onCourt File 5263-C; Tab 6: S.P.J.’s Undertaking to a Judge Woodward given January 31, 2000, with respect to the allegations of sexually assaulting N.G. onJanuary 30, 2000, on Court File C08254CD; Tab 7: S.P.J.’s Conditional Sentence Order of March 7, 2001, imposed after his conviction of sexually assaulting N.G. on January 30,2000, Court File C08254CD; Tab 8: S.P.J.’s Probation Order of March 7, 2001, after conviction of sexually assaulting N.G. on January 30, 2000; Tab 9: S.P.J.’s Undertaking to a Peace officer on November 16, 2016, with respect to allegations of sexually assaulting R.J. on July 30,2016, on Court File 24550-1; Tab 10: S.P.J.’s Recognizance After Allegation imposed by Judge Jackson on August 10, 2017, with respect to allegations by R.J. madeJuly 30, 2016, on Court File 24550-1; Tab 11: S.P.J.’s Recognizance of Bail imposed by Judge Jackson on April 30, 2019, with respect to the charges before the court onInformation 9487-1; Tab 12: Transcript of the Proceedings at Sentencing before Judge Ramsay on March 7, 2001, in the matter of R. v.

S.P.J., Court FileC08254CD; Tab 13: The Pre-Sentence Report of Probation Officer Stacey Huskins filed with the [Village One] Provincial Court Registry on March16, 2022; Tab 14 The updated Psychological Assessment of Dr. Kimberly L. Kreklewetz, filed with the court on April 1, 2022; Tab 15: The Gladue Report prepared by Stuart Cadwallader of Kulus Consulting and Development filed with the court on April 14,2022; Tab 16 The Psychological Assessment of Dr. Kimberly L.

Kreklewetz, a registered psychologist with the Forensic Psychiatric ServiceCommission, filed with the court on January 19, 2022; Exhibit 2: Victim Impact Statement of P.R.C., dated October 24, 2019; Exhibit 3: Victim Impact Statement of V.T.M., dated October 24, 2019;

Exhibit 4: Letter of Support from J.J.; Exhibit 5: Letter of Support from R.A.; Exhibit 6: Letter of Support from D.J.; Exhibit 7: Letter of Support from P.M.M.; Exhibit 8: Letter of Support from A.W.; and Exhibit 9: Letter of Support from S.M. [ 8 ] The court also received authorities and heard submissions from counsel. The court also heard directly from S.P.J. on his own behalf and from a number of elders and hereditary chiefs who spoke on his behalf and on behalf of the community. Circumstances of the offender [ 9 ] S.P.J. was born on [omitted for publication] 1954 and is 68 years old.

He was raised in [Village One], BC, and is member of the [omitted for publication] First Nation [omitted for publication] and the [omitted for publication] Nation. S.P.J.’s mother Z.J. was born in [omitted for publication] and his father S.J. was born in [omitted for publication]. S.P.J.’s first language was Dakelh/Carrier. S.P.J. is the second youngest of eight children. S.P.J. reports a good upbringing in a home free of substance misuse, physical or sexual abuse. S.J. worked in a local mill and Z.J. stayed home and cared for S.P.J. and his seven siblings.

S.P.J.’s school years [ 10 ] S.P.J. attended the [omitted for publication] School in [Village One] from 1959 until 1967-1968. For clarity’s sake, the [omitted for publication] School was not an “Indian Residential School” nor an “Indian Day School” as defined under the Indian Act . It was a parochial school operated in [Village One] by the Roman Catholic diocese of Prince George. [ 11 ] S.P.J. told Probation Officer (“PO”) Huskins he left school permanently when he was 14 years old and in Grade 8 in 1968. He told Dr.

Kreklewetz that in 1967 he “had to walk away from it” as both he and his cousins (R1 and R2) experienced physical, emotional and sexual abuse at school. By way of physical abuse, the school principal strapped the palms of his hands for “not listening” and “made [him] eat soap for speaking Carrier”. S.P.J. claims a nun named Sister A. sexually abused him and his now-deceased cousins. He says R1 and R2 committed suicide because of the abuse.

S.P.J. reports the nun "put a scare into us . . . into me especially . . . [threatening] if I told anyone that God would strike me down". [ 12 ] In the case of [omitted for publication], the plaintiff, [omitted for publication], asserts S.P.J. provided her with a Statutory Declaration stating that he and his cousin R1 suffered physical abuse at the hands of J.F. He said one nun told the students that “we had to be quiet about the abuse [or] God would strike us down” (at para. 123).

At the sentencing of this matter, S.P.J. reiterated that he and his cousins also suffered physical abuse at the hands of J.F. while attending [omitted for publication] School. He made no mention of this fact in his interviews to the authors of the pre-sentence sentencing reports. S.P.J.’s family life [ 13 ] S.P.J.’s mother died in 1967 from stomach cancer. Grief-stricken, S.J. began drinking heavily and died six months later from liver cirrhosis. After his parents’ deaths, S.P.J. and his brother M.J. went to live with their elder sister M.W., who in turn died six months later from yellow jaundice.

S.P.J. says his home was quiet and lonely after his parents’ passing and he missed their love, support and guidance. Only two of S.P.J.’s seven siblings are still alive. S.P.J.’s employment [ 14 ] S.P.J. has worked in various jobs in various locations since his early teens. While still in school, he took on jobs such as snow shovelling and chopping firewood in order to "keep food on the table". In 1969, S.P.J. began working in a sawmill in the outskirts of [Village One] and then in camp from 1970 to 1972. In 1976, S.P.J. began working for [omitted for publication], a sawmill, near [Village One].

In 1980, he became certified in small engine repair through the College of New Caledonia and in 1981-1982, S.P.J. worked for [omitted for publication]. S.P.J. confirms that he worked managing a rental shop in [omitted for publication] in 1989 and then for [omitted for publication] from 1989 to 1990. In 1991, S.P.J. obtained his Class 1 licence, after which he worked as a commercial truck driver. S.P.J. retired in 2018 and now survives on his Canada Pension and Old Age Security benefits.

Adult relationships [ 15 ] S.P.J. married B.M.C. in 1972 and they are the biological parents of four children: P.R.C., born [omitted for publication], 1973 (now “P.J.”); J.J., born [omitted for publication], 1975; E.J., born [omitted for publication], 1976; and A.R.J., born [omitted for publication], 1982. [ 16 ] The J-C family lived in [Village One] and Prince George and briefly in Fort Nelson. S.P.J. and B.M.C. separated in late 1994 or early 1995. [ 17 ] S.P.J. says he formed an intimate relationship with D.J. in 1997, although D.J. testified she moved in and began living with S.P.J. at 102 T.

Street, [Village One], in the spring of 1996. S.P.J. and D.J. married on [omitted for publication], 2017. They have four children: S.M., born [omitted for publication], 1998; V.T.M., born [omitted for publication], 1999; P.M.M., born [omitted for publication], 2001; and C.M., born [omitted for publication], 2002. S.M., V.T.M. and P.M.M. were born in Prince George; C.M. was born in [Village One], BC. All S.P.J. and D.J.’s children are now adults. [ 18 ] Over the years, the J-M family lived in various residences in [Village One], Prince George, [Village Four], [Village Two] and

[Village Three]. S.P.J. now resides with D.J. in [Village Three], with P.M.M. and C.M. S.P.J. and D.J. described their relationship as “positive and very supportive”. D.J. told Stuart Cadwallader there “had been no incidents of domestic violence or other issues throughout their time together”. The evidence at trial suggested otherwise. Efforts toward rehabilitation [ 19 ] In the Pre-Sentence Report and Psychological Assessment, S.P.J. admits that in the past he struggled with alcohol at various times in his life. S.P.J. has never used street drugs or marijuana, nor has he abused prescription drugs.

S.P.J. began drinking when he was 18 years old and his alcohol consumption became problematic in his early 20s. S.P.J. acknowledged drinking to the point of ''falling asleep" and of having no subsequent memory of events.

However, S.P.J. says he never allowed his use of alcohol to interfere with his work, stating, "I was always very careful to control my drinking because I didn't want it to [affect] my Class 1 license, so [I] tried to keep the partying to weekends and also would go through periods where I didn't drink at all”. [ 20 ] In 1981, S.P.J. became a “born again Christian” and in 1983-1984, he spent six weeks in the residential treatment facility at [omitted for publication] Wellness Centre in [omitted for publication], BC. In 1994, S.P.J. attended Crossroads Treatment Centre in Kelowna. S.P.J. told Dr.

Kreklewetz that he connected with a lawyer while at Crossroads with whom he is still in contact. He says this was the first time he disclosed the abuse he suffered at [omitted for publication] School. S.P.J. told PO Huskins that as a result of the sexual abuse he experienced at the hands of a nun at [omitted for publication] School, he could not look at women until he met B.M.C. Also, S.P.J.’s experience caused him to feel fear and negativity towards women. [ 21 ] S.P.J.’s involvement with the criminal justice system suggests that at times his alcohol consumption was a significant problem.

On March 6, 1996, S.P.J. was placed on a Probation Order of Judge C.J. Truman after his conviction for sexually assaulting B.M.C. on February 24, 1995 (Exhibit 1, Tab 5).

A term of his probation was to attend counselling for alcohol and substance abuse. [ 22 ] In the transcript of the Proceedings at Sentencing (Exhibit 1, Tab 12), Judge Ramsay states (at p. 7, para. 3), “ S.P.J. admits that he has an alcohol problem which contributed to his present predicament.” The Conditional Sentence Order(“CSO”) and Probation Order Judge Ramsay imposed on S.P.J. after convicting him of sexually assaulting N.G. both prohibited him from consuming alcohol and required him to engage in counselling (Exhibit 1, Tab 7 and 8).

According to D.J., S.P.J. attended [omitted for publication] in [Village Two], BC, in October 2001 until December 2001 . [ 23 ] While he was before the court dealing with the offences with respect to N.G., S.P.J. sexually assaulted E.M. in Prince George as charged in Count 1 of Information 9487-1.

After he was discharged from the [omitted for publication], S.P.J. sexually assaulted E.M. in [Village Three] as charged under Counts 3 and 6. [ 24 ] On November 13, 2007, S.P.J. was convicted of impaired driving on September 29, 2007 (Exhibit 1, Tab 3). [ 25 ] As a result of an incident which occurred on July 30, 2016, at or near [Village Two], BC ([Village Three]), S.P.J. was placed on a Recognizance after Allegation made by R.J. Judge Jackson imposed the s. 810 Recognizance on August 10, 2017, for a period of 12 months. The conditions of the Recognizance included the provisions (terms) that: a.

S.P.J. have no contact or communication with R.J. or go to any place she might be (Conditions 3 and 4); b. S.P.J. not possess or consume intoxicants, except: (

a) inside his residence so long as there are no females present who are not members of S.P.J.’s immediate family, and (

b) during his wedding celebration with his marriage to D.J. (which was scheduled for [omitted for publication], 2017) (Condition 7); and c. S.P.J. attend, participate in and complete any intake, assessment, counselling or program as directed by his probation officer, which included any intake, assessment, counselling or program for sexual offence prevention and respectful relationships (Condition 8). [ 26 ] On October 2, 2017, Dr. Evan Lopes of the Forensic Psychiatric Commission conducted an intake assessment for S.P.J.’s attendance at the Forensic Sex Offender Treatment Program that started in November 2017.

Dr. Lopes indicated S.P.J. denied the allegations giving rise to the August 10, 2017 Recognizance and proffered a diagnosis of "substance use disorder (alcohol) in remission by self-disclosure". S.P.J. completed the sex-offender treatment program on December 1, 2017. Dr. Lopes’ Discharge

Summary describes S.P.J. as an “excellent contributor to the group”, who consistently attended sessions, was well prepared and did not demonstrate any resistance when discussing the offence. S.P.J. appeared to grasp the material and consistently took notes of relevant material. [ 27 ] After reviewing Dr. Lopes’ December 2, 2017 Discharge

Summary, Dr. Kreklewetz states in her Forensic Psychiatric Report: . . . Dr.

Lopes indicated that the dynamic risk factors that were unchanged for S.P.J. through treatment were "significant social influences – [S.P.J.] offended again while in the presence of [S.P.J.'s] wife as such he has no mitigating social influences . . . lack of concern for others – S.P.J. does not show remorse or guilt for his offences or his victims . . . sex as coping – S.P.J. seems to turn to sexually inappropriate behaviors when he is disinhibited by alcohol." It was also documented that "[S.P.J.'s] tendency to deny his offences might become an issue in treatment and subsequently his supervision." Substance use was also a noted acute risk factor that would require continued monitoring. [ 28 ] Also in his Discharge

Summary, Dr. Lopes states it was apparent S.P.J. did learn the tools provided in treatment and rated him as presenting a low to moderate-low risk of reoffending. S.P.J.’s mental and physical health [ 29 ] S.P.J. has no professional diagnosis for any mental illness. S.P.J. claims he suffered sexual, physical, psychological and emotional abuse at elementary school. He acknowledged to PO Huskins he had a “negative attitude” towards women, which he attributes to the sexual abuse he suffered at the parochial school.

[30] S.P.J. says that he has been diagnosed with colon cancer, possibly skin cancer, a heart condition, asthma, bronchitis, loss ofcartilage in his knees and some hearing loss. He claims he could not seek treatment for his various maladies because of the terms of his“probation”, which I assume he meant bail. I note that at his bail hearing, S.P.J.’s counsel at the time alerted the court to S.P.J.’s need toattend to medical treatment in [Village One] for his heart condition.

Accordingly, the Recognizance of Bail that Judge Jackson imposedon S.P.J. on April 30, 2019, permits S.P.J. to go to into [Village One] with the written permission of his bail supervisor. There is nosuggestion in the Pre-Sentence Report that Community Corrections refused S.P.J.’s request to attend [Village One] for medicaltreatment. I recognize the COVID-19 pandemic in 2020 – 2022 may have made it difficult for S.P.J. to attend medical appointments. Criminal record [31] S.P.J. has a criminal record which includes two prior convictions for sexual assault.

In 1996, he was convicted of sexuallyassaulting his estranged spouse B.M.C., for which he received a 90-day jail sentence. In 2001, Judge Ramsay found S.P.J. guilty after atrial of sexually assaulting his 12-year-old babysitter N.G., which occurred on [omitted for publication], 2000. He was sentenced onMarch 7, 2001, to a 15-month conditional sentence in the community, followed by two years’ probation. The terms of the CSO requiredS.P.J. to host a shame feast for the hereditary chiefs.

I gather from N.W. and J.W. this did not happen. [32] S.P.J. also has a 1972 conviction for common assault and 2007 conviction for impaired driving. [33] The Coke rule holds that “a harsher sentence with respect to a second offence cannot be imposed unless the offender wasconvicted for the first offence prior to the commission of the second.” In R. v.

Pete, 2019 BCCA 244, at para. 40, the BC Court ofAppeal confirmed that sentencing judges should not treat post-offence convictions as aggravating circumstances calling for a harshersentence, but that post-offence convictions can be considered for the purpose of “ascertaining an offender's moral culpability andprospects for rehabilitation”. [34] In R. v. R.M., 2019 BCCA 409, the BC Court of Appeal held the absence of a criminal record loses some of its force as amitigating factor when the crime at issue is repeated over a period of time: see R. v. C.C.C., 2021 BCSC 599, at para. 93.

In R. v R.G.S,2021 BCSC 1333 , Justice Fleming commented this diminished significance is because an offender who repeats his offence overthe years can “hardly suggest he was acting out of character or is otherwise of good character.” In this case, albeit intermittently, S.P.J.repeated his offences against different victims over decades. Family and community support [35] S.P.J. does have family and community support as evidenced in the letters from J.J. (Exhibit 4), R.A. (Exhibit 5), D.J. (Exhibit 6),P.M.M. (Exhibit 7), A.W. (Exhibit 8), S.M. (Exhibit 9), and B.W. (Exhibit 10).

I also heard directly from a number of Elders, includingN.W., who was the spokesperson for the hereditary chiefs in S.P.J.’s sentencing hearing on March 7, 2001, as well as: T.M. (S.P.J.’sniece); R.W. (S.P.J.’s sister); K.P.M.; and M.M.

I am also mindful of the supportive comments made by a number of S.P.J.’s witnessesat trial, including J.J., E.J., A.R.J., R.T., K.C. and R.C. [36] I accept there were periods in his life when S.P.J. was a pro-social, hard-working, contributing member of his community.Despite these proceedings, S.P.J. still enjoys the love and support of his wife D.J. and his daughters P.M.M. and S.M. I accept a lengthyprison sentence would have an adverse impact on S.P.J.’s family and community members who depend on him for support, assistance,comfort and companionship.

I also accept incarcerating S.P.J. for a lengthy period may further fragment his already fractured family anddivided community. Victim impact [37] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada indicated that victim impact statements “will usually provide the‘best evidence’ of the harm that the victim has suffered” (at para. 85). Even so, the trial produced ample evidence of the adverse impactof the assaults on the victims in this case. [38] The court has been provided with two Victim Impact Statements, one from P.R.C. (Exhibit 2) and the other from V.T.M. (Exhibit3).

Probation Officer Stacey Huskins also interviewed P.R.C. and E.M. when preparing the Pre-sentence Report. [39] P.R.C. says that S.P.J. was abusive to her throughout her childhood. His abuse had a devastating impact on P.R.C.’s life. She washospitalized for depression and diagnosed with Post-Traumatic Stress Disorder (“PTSD”), and takes prescription medication for anxietyand depression. She is on medical leave from her employment with the [omitted for publication]. P.R.C. has significant trust issues.

Shefears people and different surroundings; she fears rooms without windows; she fears being alone; she fears men; she fears for herchildren. [40] P.R.C. started drinking at a young age to “numb the pain of her childhood”. She only achieved a measure of sobriety in 2008 withthe premature birth of her daughter H. She relapsed when she learned that S.P.J. had also sexually offended against her daughter E.M.P.R.C. has attended counselling for the past four or five years. [41] Sadly, P.R.C. reproduced in her family her own childhood experience of substance misuse, family violence and residentialinstability.

Thus, E.M.’s childhood mirrored her mother’s. [42] The physical, psychological and emotional harm of the sexual violence S.P.J. visited upon P.R.C. and E.M. was amplified by thepolarization of their immediate and extended family. All of P.R.C.’s younger siblings who she helped raise and care for testified in thedefendant’s case. P.R.C. and E.M. were faced with threats that unless they recanted, S.P.J. would incite J.J. and E.J. to have P.R.C. andJ.M.J. charged with sexual offences. [43] When describing the sexual offences which occurred when she was six or seven and living in Prince George, E.M. testified: . . .

It was so disgusting. My heart was so shattered. . . . I was so sad. . . . I was so upset and hurt that I thought somebody I was supposed totrust would do that. I didn't talk to anybody. I didn't tell them. I was so alone feeling, not realizing how much support I had. . . . I lovedmy grandpa. I still do. [44] When she was about 13 years old, E.M. disclosed the sexual assaults and her pregnancy to her best friends at the time, M.W. andJ.A. Although they urged her to tell her parents or someone about the assaults, E.M. did not do so.

She says she was too scared of herown family and concerned about what “everybody would think [of her] for not saying anything sooner”. She testified: I remember telling them that my grandpa was raping me and that my parents were drinking a lot, and that I was having a really hard time,and that I wasn't okay mentally. I was really depressed and upset and I needed somebody to vent to and I didn't know who to talk to. Andthey kept telling me I should go and talk to somebody about it, but I was too scared. [45] E.M. says the offences took a physical and emotional toll on her. She too has been diagnosed with PTSD.

She became “a heavyaddict”, using illicit drugs throughout her pregnancies. The Ministry of Child and Family Development has been involved with herfamily because of E.M.’s substance misuse. E.M. says she is currently connected to [omitted for publication] and has abstained fromsubstances for three months. Due to the severity of her addiction, E.M. has not been able to seek or obtain employment. She attributes hermental-health issues and substance misuse to her grandfather's sexual offences against her.

E.M. in turn has reproduced in her family thedysfunction that plagued her mother and her grandparents. [46] V.T.M. says as a result of the offence against him, he is permanently disabled with PTSD and cannot work. He has attended theNechako Treatment Centre and is now on medication for anxiety and depression. As a result of the physical abuse at the hands of hisfather, V.T.M. has made poor lifestyle choices and has difficulty with his intimate relationships. Although he has friends, he wants to bealone.

CROWN AND DEFENCE POSITIONS ON SENTENCING Crown authorities and position [47] The Crown provided the court with the following authorities, which I have read and considered: R. v. Friesen, 2020 SCC 9; R. v.Nahanee, 2021 BCCA 13 , leave to appeal granted (SCC); R. v. H.C.T.T., 2020 BCCA 366 ; R. v.M.P.S., 2017 BCCA 397; R. v. R.M.D., 2014 BCCA 56; R. v. R.J.G., 2007 BCCA 631; R. v B.D.M, 2021 BCSC 1738; R. v.

S.P.S., 2019BCPC 158 . [48] The Crown submits the appropriate jail sentence for S.P.J.’s crimes against P.R.C. and E.M. is eight years for each victim,served consecutively, for a total of 16 years’ imprisonment. The Crown submits the authorities indicate the appropriate jail sentence forsexual offences in the circumstances of these offences and this offender is 12 to 16 years. In formulating its sentencing position, theCrown has taken into consideration the principle of totality. The Crown also seeks a six-month consecutive sentence for offence ofassault causing bodily harm against V.T.M.

Defence authorities and position [49] The defence has provided the court with the following authorities, which I have read and considered: R. v. C.C.C., 2021 BCSC599; R. v. R.G.S., 2021 BCSC 1333; R. v. Stauffer, 2007 BCCA 7; R. v. Swope, 2015 BCCA 167. I have read the cases and haveconsidered them. [50] The defence submits the mitigating factors support a global jail sentence of seven to ten years. The defence stresses the court hasto give significant consideration to: a. S.P.J.’s Indigenous background; b. S.P.J.’s strong Gladue factors; c.

S.P.J. was sexually-abused while attending the [omitted for publication] School; d. S.P.J.’s sexual offending against his daughter and granddaughter is causally linked to his own victimization; and e. S.P.J.’s age and failing health. [51] The defence submit that the cases of C.C.C., R.G.S. and B.D.M. are the most analogous to the case before the court. [52] In formulating its position, the defence has taken account of the principle of totality and proposes the following sentences forS.P.J.’s sexual offences: a.

For the offences against P.R.C. charged under Counts 12 and 13, a term of imprisonment of four to five years, to be servedconcurrently to those sentences imposed under Counts 14, 15, and 16, and consecutively to all other sentences imposed today; b. For the offences against P.R.C. charged under Counts 14 and 15, a term of imprisonment of four to five years; to be servedconcurrently to those sentences imposed under Counts 12, 13, and 16, and consecutively to all other sentences imposed today; c.

For the offences against P.R.C. charged under Count 16, a term of imprisonment of one year; to be served concurrently to thosesentences imposed under Counts 12, 13, 14, and 15, and consecutively to all other sentences imposed today; d. For the offences against E.M. charged under Count 1, a term of imprisonment of one year, to be served concurrently to thosesentences imposed under Counts 3, 6, 7 and 10, and consecutively to all other sentences imposed today;

e. For the offences against E.M. charged under Counts 3 and 6, a term of imprisonment of four to five years, to be served concurrentlyto those sentences imposed under Counts 1, 7 and 10, and consecutively to all other sentences imposed today; f.

For the offences against E.M. charged under Counts 7 and 10, a term of imprisonment of four to five years, to be served concurrentlyto those sentences imposed under Counts 1, 3 and 6, and consecutively to all other sentences imposed today. [53] For the offence against V.T.M. charged under Count 18, the defence proposes a one-month jail term concurrent to all othersentences imposed today. [54] If the court believes the global jail sentence ought to be in the range of seven years, then the defence proposes the total jailsentence for the offences against P.R.C. ought to be three years served consecutively to a total four-year jail sentence for the offencescommitted against E.M.

The sentence for assaulting V.T.M. would remain one month concurrent to other sentences imposed today. Purposes and principles of sentencing [55]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, to 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. [56]

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 goal in sentencing is a fair, fit and principled sanction andproportionality is the organizing principle in reaching this goal: R. v. Parranto, 2021 SCC 46, para. 10. It is grounded in elementalnotions of justice and fairness and is indispensable to the public’s confidence in the justice system: R v Safarzadeh-Markhali, 2016 SCC14, at paras. 70-71; Lacasse, 2015 SCC 64 , at paras. 3-6. 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: Lacasse,supra, at para. 130. [57] Today, s. 718.01 of the Criminal Code directs the court to give primary consideration to deterrence and denunciation whensentencing for any offence involving abuse of a person under 18. This

section came into force in 2005 with Bill C-2:

An Act to amend theCriminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, SC 2005 c 32. This enactment wasto “protect children and other vulnerable persons from sexual exploitation, violence, abuse and neglect.” In R. v. D.G., 2014 BCCA 84 (atpara. 17), the Court of Appeal held that although s.718.01 applies prospectively, offences against a child have always been aggravatingand often called for denunciation and deterrence: Also see R. v. S.B.T., 2010 BCCA 145, para. 16; R. v. D.N., 2018 BCCA 190, para. 20;R. v. Stuckless, (ONCA); and R. v.

D.(D.), (ONCA). [58] In Friesen, the Supreme Court describes Parliament’s decision to prioritize the principles of denunciation and deterrence forsexual offences against children “as a reasoned response to the wrongfulness of these offences and the serious harm they cause.” Thecourt commented, “The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexualexploitation and objectification of children is highly morally blameworthy because children are so vulnerable”. In R. v.

Plehanov, 2020BCCA 249, Justice Grauer for the BC Court of Appeal held (at para. 19), the principles espoused in Friesen have a general applicationeven in cases where the offence predates the legislative changes. [59] Other important sentencing considerations are set out in s. 718.2.

Section 718.2(

a) states that a sentence should be increased orreduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Today, the CriminalCode legislates the following factors as aggravating: (

a) s. 718.2(a)(ii)) – the offender abused a member of their family; (

b) s.718.2 (a)(ii.1) –the young age of the victims (under the age of 18); (

c) s. 718.2 (a)(iii) – the offender was in a position of trust or authority inrelation to the victim; and (

d) s. 718.2(a)(iii.1) – the offence had a significant impact on the victim. [60] On September 3, 1996,

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

Section 718.2(a)(iii), which makes aggravating the fact the offender was in a position of trust or authority in relation tothe victim. [61] Sections 718.2(a)(ii.1) and (iii) also came into force in 2005 with Bill C-2.

Section 718.2(a)(iii.1) came into force when Bill C-36,

An Act to Amend the Criminal Code (Elder Abuse), received Royal Assent on December 14,

Section 718.2(a)(ii) in its presentform came into force when Bill C-75,

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to makeconsequential amendments to other Acts, SC 2019, c 25, received Royal Assent on June 21, 2019. [62] A review of the relevant legislative history indicates that Parliament has incrementally expanded protection for children againstsexual abuse: Friesen, paras. 95 -100. In 2015, Parliament increased the maximum sentence for these offences from ten years to 14 yearsthrough Bill C-26: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23.

It also added mandatory minimum penalties andincreased the maximum penalty for certain sexual offences against children. In Friesen, the court reasoned the increases in availablesentences in the Criminal Code since 1987 indicate Parliament’s intention to treat sexual offences against children more severely thanthey had been in the past.

Courts should generally impose higher sentences than the sentences imposed in cases that preceded theincreases in maximum sentences. [63] In Nahanee, the BCCA considered whether the trial judge erred in applying statutory aggravating factors that were not in effectat the time the offences were committed; specifically, the provision in s. 718.2(a)(ii), which holds as aggravating abuse involving afamily member.

The Court of Appeal acknowledged (at paras. 70-71), the fact that statutory provision was not in effect at the materialtime was irrelevant, because the family relationship would inevitably have been treated as a separate aggravating factor that exacerbatedthe harm. [64]

Section 718.2(

b) codifies the parity principle which holds a sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. The parity principle means that any disparity between sanctions for different offenders

needs to be justified: R. v. Ipeelee, 2012 SCC 13, at para. 79. In Friesen, however, the court cautions (at paras. 109-110) sentencingjudges against relying on precedents in order to adhere to an obsolete sentencing range that no longer reflects Parliament’s view of thegravity of the offence. [65]

Section 728.2(

c) codifies the totality principle that holds that where sentences are imposed consecutively, the combined sentenceshould not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend the totalityprinciple if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or its effect iscrushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), (SCC). [66] Sections 718.2(

d) and 718.2(

e) codify the restraint principle that 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). Violent offences against vulnerable victims [67] 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. [68]

Section 718.04 was a legislative response to the Final Report of the National Inquiry into Missing and Murdered IndigenousWomen and Girls that records disproportionate rates of oppression and violence towards Indigenous females arising from, among otherthings, historical multigenerational and intergenerational trauma, and social and economic marginalization. Although the offences beforeme predate the enactment of s. 718.04, the common law has long recognized the principles underpinning this section.

When sentencing asexual offender, the common law considered as a key sentencing factor the victimization of vulnerable Indigenous girls or unconsciousIndigenous women. In R. v. C.C.C., 2021 BCSC 599, Justice Marchand, (as he then was) cites (at para. 28) with approval R. v.Milne, 2020 BCSC 2101, where Justice Ker noted s. 718.04 is not a penalty provision, but rather represents a codification of applicablesentencing principles in cases involving the abuse of a vulnerable person. As a result, even though s. 718.04 was not in force at the timeof C.C.C.’s offences, the principles apply retrospectively.

Also see: R. v. Barton, 2019 SCR 33 , at paras 198-201; R. c.L.P., 2020 QCCA 1239, at paras. 80 and 91; R. v. P.M.M., 2019 BCPC 276; R. v. L.J.P., 2020 BCPC 270 . Also see: R. v.S.P.S., 2019 BCPC 158 , at para. 21. In R. v.

Mattess, 2021 BCPC 164 , Judge Keyes points out (at para. 81) the reasonParliament codified s. 718.04 was because the courts had not adequately or consistently prioritized denunciation and deterrence wherethe sexual assault victim was vulnerable and in particular, where the victim was Aboriginal. [69] All the offences for which S.P.J. has been convicted are serious crimes of violence that attract considerable judicial and socialopprobrium. Hence, denunciation and deterrence are primary sentencing considerations: Friesen; R. v. MacDonald, 2012 BCCA 155,para. 49; R.J.G., paras. 20 and 25. In R. v.

M. (CA), (SCC), the Supreme Court of Canada explained (at para. 81) theobjective of a denunciatory sentence is to communicate society’s condemnation of that particular offender’s conduct. This means thefocus is more on the offence than on the offender. The reason for this priority focus on conduct is to better reflect the gravity andwrongfulness of the conduct and the serious harm it causes”: Friesen, paras. 104 – 105. Nevertheless, although they necessarily take on areduced role, factors personal to the offender such as rehabilitation and Gladue factors remain important.

Determining the appropriate sentence [70] All the offences are historical, meaning they occurred long before they were charged. In Stuckless, citing R. v. Fones, 2012MBCA 110, the Ontario Court of Appeal held that in cases of historical sexual assault, the court must sentence an offender in accordancewith the provisions of the Criminal Code and the case law in effect at the time of sentencing unless they are inconsistent with anystatutory provisions to the accused’s benefit.

This means that S.P.J. is entitled to the benefit of lesser maximum sentences pursuant to thelegislative provisions in force at the time of the offence. Still, the court must consider the offender, the offence and the interests ofsociety at the time of sentencing such that current case law is relevant. Citing R v Paradis, (NL CA), Pepall, J.A., inhis concurring judgment in Stuckless, states in part: [93] . . .

The Newfoundland Court of Appeal explained the reasoning for this approach in Paradis, at para. 11: Regard must be had to the offender, to the offence and to the interests of society, at the time of sentencing. It is only at the time ofsentencing . . . that the elements of general and individual deterrence, punishment, and rehabilitation, and the degree to which any or allshould be applied, can be considered in arriving at a fit sentence.

And in para. 94 [citations omitted]: [94] Criminal laws generally do not operate retrospectively, and an accused is entitled to the benefit of a lesser punishment if thelegislated punishment for an offence has changed between the time of the commission of the offence and the time of sentencing. [95] A consideration of the seriousness of the offences requires the court to look to the potential penalty imposed by Parliament.

In orderto determine the legislative parameters governing the sentencing of the respondent in this case, it is necessary to review the historicalsexual offences with which the respondent was charged. [71] In Friesen, (at paras 108-109) the court held an increase in either the maximum or the minimum legislated sentence should causean upward adjustment of the sentencing range. [72] Pursuant to s. 11(

i) the Canadian Charter of Rights and Freedoms, S.P.J. has the right to have his sentence determined on thebasis of the maximum sentence in force at the time of the offence: R. v. N.S.N.C., 2020 BCSC 1843 , paras. 22. The inflationaryeffect resulting from increases to the maximum sentence for sexual assault since the offence date would not apply. However, the court’s

current understanding of the wrongfulness and enduring impact of sexual offences against children does apply when assessing theprinciple of proportionality: N.S.N.C., para. 35; R. v Norberg, 2021 BCSC 2425 , citing Friesen at paras. 73-75, 110. [73] Applying sentencing ranges and principles that existed at the time the historical sexual offence took place would be inconsistentwith the Supreme Court of Canada’s direction in Friesen. The courts must depart from sentencing precedents that fail to reflectsociety’s current awareness of the impact of sexual abuse on children: Friesen, paras. 109-114.

Accordingly the appropriate sentencingcomparator cases for parity imposed on similar offenders for similar offences involving sexual violence against children should bepost-Friesen: R. v. Alfred, 2021 BCCA 71 , at para 33, citing R. v. Williams, 2020 BCCA 286, at para. 73; R. v. Plehanov, 2020BCCA 249, at para. 19; R. v. Gerrard, 2021 BCSC 1219, at para. 18; and R. v. Polay, 2021 BCSC 1872, at para. 49 .

Maximum jail sentence for the offences against P.R.C. [74] The first-in-time offences for which S.P.J. stands convicted are those with respect to P.R.C. charged under Counts 12 and 13 ofInformation 9487-1, namely, (

a) incest (s. 150); and (

b) sexual intercourse with a female under the age of 14 (s. 146(1)) that occurred in[Village One], BC, from January 1, 1979 to December 31, 1981. Count 12, which is the offence of sexual intercourse with a femaleunder the age of 14 years, attracted maximum sentence of imprisonment for life.

Count 13, which is the offence of incest, attractedmaximum sentence of imprisonment of 14 years. [75] The second-in-time offence is that charged with respect to P.R.C. under Count 16 of Information 9487-1; namely, sexual assaultcharged as s. 271(1) of the Criminal Code (formerly s. 246.1(1)) that occurred in Prince George, BC, between January 1, 1983 andDecember 31, 1989. On January 4, 1983, Parliament proclaimed in force Bill C-127,

an Act to amend the Criminal Code in relation tosexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C.1980-81-82-83, c. 125. By this amendment, the Parliament repealed the previous gendered offences of rape, attempted rape, sexualintercourse with the feeble-minded and indecent assault on a female or male and replaced them with s. 246.1. Bill C-15,

An Act to amendthe Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, which came into force on January 1, 1988, renumbered sexual assaultas s. 271. At the time S.P.J. committed the offences against P.R.C. charged under Count 16, the maximum sentence of imprisonment forsexual assault was ten years. [76] The third-in time offences are those charged in respect to P.R.C. under Counts 14 and 15 of Information 9487-1, namely: theoffences of incest (s. 155(2)); and sexual assault (s. 271(1)) that occurred in Prince George, BC, between January 1, 1995 and December1, 1995, inclusive.

Count 14, the offence of incest, at the time attracted the maximum sentence of imprisonment of 14 years; Count 15,the offence of sexual assault, attracted the maximum penalty of imprisonment of 10 years.

Maximum jail sentence for the offences against E.M. [77] The fourth-in-time offences were those charged with respect to E.M. under Count 1 of Information 9487-1, namely, sexualassault contrary to s. 271(1) of the Criminal Code that occurred between January 1, 2000 and December 31, 2002, in Prince George, BC.At the relevant time, the offence of sexual assault where the Crown has proceeded by indictment, attracted the maximum term ofimprisonment of ten years. [78] The fifth-in-time offences are those charged under Counts 3 and 6 of Information 9487-01 with respect to E.M., namely: (

a) theoffences of sexual assault (s. 271); (

b) incest (s. 155(2)) that occurred between January 1, 2000 and December 31, 2004, in or near[Village Two], BC.

At the time the offence of sexual assault (Count 3) where the Crown proceeded by indictment attracted themaximum term of imprisonment of ten years; the offence of incest (Count 6) attracted the maximum sentence of imprisonment of 14years. [79] On July 20, 2005, Bill C-2 (which brought into force s.718.01 and 718.2(a)(ii.1) also tripled the maximum sentences for sexualinterference, invitation to sexual touching and sexual exploitation in cases in which the Crown proceeds summarily from six months to18 months. [80] The sixth-in-time offences are those charged under Counts 7 and 10 of Information 9487-01 with respect to E.M.; namely, theoffences of sexual assault (s. 271) and incest (s. 155(2)) that occurred between January 1, 2007 and December 31, 2008, in or near[Village One], BC.

At the time, Count 7, the offence of sexual assault, where the Crown has proceeded by indictment, attractedthe maximum term of imprisonment of 10 years. Count 10, the offence of incest, attracted the maximum sentence of imprisonment of14 years. [81] The seventh and last-in-time offence is that charged under Count 18, the offence of assault with a weapon against V.T.M. thatoccurred between January 1, 2013 and December 31, 2013. Where the Crown has, as here, proceeded by indictment, the maximum termof imprisonment is ten years. This penalty remains unchanged.

Sentencing for sexual offences against children [82] In Friesen, the Supreme Court of Canada set out a new analytical framework applicable to the sentencing of sexual offencesagainst children. The Supreme Court acknowledged the prevalence of sexual violence against children, the disproportionate impact theseoffences have on girls and young women, and the lasting harms caused by this type of criminal conduct.

The court sent a “strongmessage” as to how sentencing objectives and principles are to be applied in any case involving a sexual offence committed against achild: [5] . . . that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harmto children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional tothe gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencinginitiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentencesmust accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes tochildren, families, and society at large.

[ 83 ] Although sentencing is an individualized exercise, the Supreme Court noted in Friesen (at paras. 100, 105 and 114 ) that sexual offences against children, “will frequently require substantial sentences” to reflect the high moral culpability of the offender, the consequential harm caused by their conduct and the need to give effect to Parliament’s direction that offences of this kind be treated more severely, with the primary goals of general deterrence and denunciation firmly in mind. [ 84 ] Friesen sets out (at paras.122–147) a non-exhaustive list of factors that will significantly impact the determination of a proportional sentence: (

a) the risk of the reoffending; (

b) abuse of a position of trust; (

c) the frequency and duration of the abuse; (

d) the age of the victim; and (

e) the degree of physical interference. Friesen factors in determining a proportional sentence Factor (a): the risk of reoffending [ 85 ] The first Friesen factor in determining a proportional sentence is to assess offender’s risk of reoffending. This risk is also clearly relevant to the objective of rehabilitation: Friesen at para 124 . Dr. Kreklewetz’s final risk assessment (Exhibit 14) determined S.P.J.’s risk level on a sliding scale.

She states: Results of the STATIC-99R place S.P.J. in the Average range for sexual recidivism, whereas on the RSVP (which includes dynamic risk factors), his risk level falls within the Moderate-High to High range. His level of risk is thought to increase when he is under the influence of substances (specifically alcohol). Risk may also increase in circumstances when S.P.J. is exposed to triggers of his sexual traumatic experiences and / or when he is experiencing episodes of anger, whereby sexual violence may be used as a means of experiencing or taking back a sense of power or control.

Future victims are likely to be adult or minor family members ( or close friends / relations with whom S.P.J. has cultivated ongoing relationships), and with whom he is in a position of trust and power / authority. Given access to these types of vulnerable victims, S.P.J.'s risk level based on a combination of static and dynamic risk factors is believed to be best characterized as falling within the Moderate- High range. However, at the time of the clinical interview, S.P.J. had limited contact with underage family members due to court- imposed conditions.

Should this contact continue to be prohibited (and S.P.J. continue to maintain sobriety), his risk for sexual reoffence towards a stranger or casual acquaintance (minor or adult female) is judged to fall within the Low-Moderate to Moderate (or Below- Average to Average) range. S.P.J.'s treatment recommendations remain unchanged from the initial report. [Emphasis in original.] [ 86 ] In this case, the risk factors inform not only the length of the jail sentence, but also the ancillary orders sought by the Crown, and in particular the s. 161 Order.

Factor (b): abuse of a position of trust [ 87 ] The second Friesen factor in determining a proportional sentence for a sexual offence against a child is whether the offender abused a position of trust. The presence of this factor increases the harm to the victim; thus, the gravity of the offence. It also increases the offender’s degree of responsibility: Friesen , paras. 125-130 .

In this case, S.P.J. was in a position of trust or authority vis-à- vis E.M. and P.R.C. [ 88 ] In R. v Z.K., 2021 BCSC 1926 , after a trial, Justice Duncan of the BC Supreme Court held at para. 52, “All things being equal, the abuse of a position of trust to commit a sexual offence against a child should result in a lengthier sentence than where an offender is a stranger to the child” (also see Norberg , para. 107 ). Factor (c): the frequency and duration of the abuse [ 89 ] The third Friesen factor is the frequency and duration of the sexual abuse: Friesen , paras. 131 – 133 .

In ZK , Justice Duncan states at para. 54, in part: [54] . . . Immediate harm is multiplied by the number of assaults, and long-term emotional and psychological harm can also become more pronounced where the sexual violence is repeated and prolonged. This factor further increases an offender's moral blameworthiness, because additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. [ 90 ] S.P.J. has been convicted of three incidents of sexual abuse against each of P.R.C. and E.M.

The incidents were sporadic, did not involve grooming and are best characterized as horrific opportunistic rapes. [ 91 ] E.M.’s description of the family plan to keep the children safe while the adults were drinking is chilling. The children were sequestered behind locked doors and could not go to the bathroom until the coast was clear of any rogue-intoxicated adult who might prey on them. Factor (d): the age of the victim [ 92 ] The fourth Friesen factor is the age of the victim.

Children who are particularly young are even more vulnerable to sexual violence, thereby exacerbating the offender’s moral blameworthiness. In Friesen , the Supreme Court held at para. 134: [134] The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose “dependency is usually total” and who are “often helpless without the protection and care of their parents” . . .

Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life. [ 93 ] In this case, S.P.J. perpetrated sexual violence against P.R.C. when she was six or seven, again when she was ten and again when

she was 22. S.P.J. perpetrated sexual violence against E.M. when she was six or seven years old, again when she was eight and againwhen she was 13-14 years old. Factor (e): the degree of physical interference [94] The fifth Friesen factor is the degree of physical interference. The Supreme Court recognizes that relevant to sentencing in thesetypes of cases is the sexual nature of the touching and its violation of the victim’s sexual integrity. Penile penetration can create a risk ofdisease and pregnancy, particularly if unprotected.

Nevertheless, Friesen cautions the sentencing courts against establishing a hierarchyof physical acts or treating penetration as the most egregious conduct. The modern focus is not so much on bodily integrity, but rather onthe psychological and emotional harm to the child: Friesen, para. 135. These harms include damage to the victim’s personal autonomy,bodily and sexual integrity, dignity and equality, to their relationships with their families and communities, and harms to the families,communities and society. [95] The more intrusive sexual offences against P.R.C. and E.M. were horrific.

They involved an intoxicated adult male violentlyraping a pre-pubescent child. P.R.C. describes being in shock. She was scared and in a lot of pain and “thought the rape was never goingto end”. E.M. said she was in so much physical pain she wanted to throw up. Sentencing ranges for sexual offences against children post-Friesen [96] The Crown submits the post-Friesen sentencing authorities suggest a range of sentence of 12 to 16 years. The defence submitsthat given the mitigating factors, the range is 7 to 10 years.

Sexual offences against a sleeping adult woman [97] With respect to the offences charged under Counts 14 and 15, P.R.C. was a young adult. At the time of the offence, she wassleeping and intoxicated and thus, an extremely vulnerable victim.

Paragraph 89 of Friesen is particularly relevant of the offencescommitted against P.R.C. in 1995: [89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve thewrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim's humandignity. . . . Aggravating, mitigating factors and collateral consequences [98] Individualization in sentencing requires me to consider all aggravating and mitigating circumstances, and the collateralconsequences.

An aggravating factor, either statutorily or judicially mandated, will induce a court to impose a longer sentence than whatotherwise may be imposed. A mitigating factor will reduce the sentence that might otherwise be imposed. The absence of an aggravatingfactor does not equate to a mitigating factor or vice versa: R. v. Scofield, 2019 BCCA 3, at para. 36; Friesen, para. 150. The Crown bearsthe burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burden of proving disputedmitigating factors on a balance of probabilities: R. v.

Dreger, 2014 BCCA 54, para. 45. [99] The court must consider whether S.P.J. suffered any legally relevant collateral consequence arising from the commission of anyof offence, the conviction for any offence, or the sentence imposed for any offence, that impacts the offender: R v Suter, 2018 SCC 34,para. 47. Mitigating factors [100] In R. v. Hagen, 2021 BCCA 208 , Justice DeWitt-Van Oosten held (at para. 43) the principle of proportionality means: [43] . . . factors that attenuate moral culpability always require meaningful consideration at sentencing, even in the context of a graveoffence.

This will include, but is not limited to, cognitive impairment or mental health issues shown to affect an offender’s capacity tocontrol their impulses or appreciate the seriousness of their conduct or its risk; mental illness; addiction; traumatic personal events thatmay contribute to their offending behaviour; or Gladue factors. Cognitive Impairment [101] I have no evidence that S.P.J. suffers from any cognitive impairment that affects his capacity to control his impulses or appreciatethe seriousness of his conduct or its risk.

Although S.P.J. left school in Grade 8, he did recommence his education and obtained his Grade12 Diploma through the College of New Caledonia in 1970. In 1980 he attended at and completed a six-month diploma course at CNC insmall engineer repair and in 1991, obtained his Class 1 commercial driver’s licence. Mental health issues [102] S.P.J. says he has never received a mental health diagnosis nor been assessed for specialized therapeutic services. In herPsychological Pre-Sentence Report, Dr.

Kreklewetz proffered the following diagnosis: Alcohol use disorder (in sustained remission; per self-report); Pedophilic Disorder (non-exclusive type, sexually attracted to females); and Post-Traumatic Stress Disorder (Query). [103] Dr. Kreklewetz states in her psychological assessment of January 18, 2022, Exhibit 2, p. 9: . . . S.P.J. denied a history of suicidal ideation, self-harm, manic or hypomanic episodes or symptoms. S.P.J. similarly denied current

suicidal ideation, plan, or intent. S.P.J. denied experiencing hallucinations or delusions. When asked about hallucinations, he shared that"I don't believe in hearing voices . . . I read the Bible a lot." S.P.J. denied a history of panic attacks and anxiety. . . . [104] Dr. Kreklewetz opines (Exhibit 2, p. 11) that based on his endorsing a history of physical and sexual abuse when he was nineyears old while attending the [omitted for publication] School, there is a “possible indication” S.P.J. suffers PTSD, which is a majormental illness. Dr. Kreklewetz says that increased diagnostic clarification is required.

S.P.J. endorses experiencing flashbacks but deniedexperiencing nightmares related to his trauma or being particularly hyper-vigilant. Dr. Kreklewetz did say, however, (Exhibit 3, pg. 4)that his risk of sexual recidivism may increase if S.P.J. is “exposed to triggers of his sexual traumatic experiences and/or when he isexperiencing episodes of anger, whereby sexual violence may be used as a means of experiencing or taking back a sense of power orcontrol.” [105] Dr.

Kreklewetz also notes (Exhibit 2, p. 13) that S.P.J. “endorsed experiencing depression throughout his life, however, he did notmeet the criteria for a major mood disorder at the time of assessment. [106] Although PTSD and depression are medically recognized disorders, there is a dearth of medical evidence as to the existence,nature and magnitude of the disorders and the overall role they played in the commission of the offences. I am not able to conclude thatS.P.J. suffers from one or more mental health issues that are causally connected directly or indirectly to his offending.

Addiction [107] With the exception of the offences charged under Counts 16 against P.R.C. and Count 1 against E.M. S.P.J. was intoxicated byalcohol at the time he committed the offences. S.P.J. has struggled intermittently with an alcohol addiction for much of his adult life. Hesays he stopped drinking permanently four years ago and has not relapsed. Although he believes that substance misuse is no longer anissue in his life, he is still interested in attending an Indigenous spirituality-based residential treatment and trauma program. Mental illness and self-induced intoxication [108] In R. v.

Badhesa, 2019 BCCA 70, the BC Court of Appeal noted (at para. 39) that self-induced intoxication that leads to violenceis typically “the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy”.

In R. v K.M, 2022BCSC 360 , Justice Donegan states at para. 180, “Self-induced intoxication may explain or underpin an offender’s behaviour,but it does not excuse or reduce his or her moral blameworthiness”. [109] The appellate court in Badhesa recognizes (at para. 40) “an offender’s volitional and decision-making capacity in connection withself-induced intoxication and related violence may stem, at least in part, from mental illness or other cognitive disability.” Depending onthe circumstances, both the mental illness and related self-induced intoxication may reduce the offender’s moral culpability where itindirectly contributed to the commission of the offence.

In other words, to measure and properly reflect the offender’s moral culpability,the court must take into account the existence of disorders that are capable of impairing judgment. [110] In paragraph 43 in Badhesa, the court added that “detailed and specific medical evidence is essential to a proper understanding oftheir relationship in a particular case, if any, as well as their impact on the offender’s moral culpability. Generalizations are insufficient.”In R. v. Penttila, 2020 BCCA 63 , Justice Fitch describes the evidence required: [74] . . .

That evidence should set out the diagnosis, the factual foundation upon which the diagnosis rests, whether the disorder wasoperative at the time of the commission of the offence and, to the extent it can be determined, whether the disorder caused or contributedto the offending behaviour. Ideally, it should also canvass the offender’s prospects for rehabilitation with appropriate treatment. Such anassessment will usually involve canvassing collateral sources of information. [111] In R. v.

Forner, 2020 BCCA 103, at para. 28, citing Badhesa, Justice Grauer confirmed offenders need not show a direct causallink between their mental illness and criminal conduct. The link may be indirect, such as depression contributing to alcohol abuse andaddiction together contributing to the offence. [112] In R. v. Merkel, 2021 BCCA 445 , the Court of Appeal held (at para. 54) the offender must establish on a balance ofprobabilities that impairment of their mental health contributed to the offence.

A sentencing judge cannot treat as a mitigating factor the“potential effects” of intoxicants and mental illness on the respondent’s judgment and behaviour. [113] I reiterate, the evidence before the court does not establish S.P.J. suffered from a mental health condition that contributed to hisoffending behaviour. I do not accept S.P.J.’s criminal conduct is attributable to the interplay between his self-induced intoxication andany mental illness. Traumatic personal experiences [114] The personal circumstances of the offender must always inform the sentencing process.

An offender’s disadvantaged backgroundmay attenuate his moral culpability: R. v. L.S.N., 2020 BCCA 109, at para. 52. [115] S.P.J. says he suffered childhood trauma in elementary school in the form of physical, emotional and sexual abuse. He also lostboth his parents when he was 13 years old and had to navigate the difficult adolescent years without parental guidance and familialsupport, particularly after his older sister died. [116] In Friesen, the Supreme Court of Canada appears to recognize that victims of sexual abuse might become sexual abusersthemselves.

At para. 64, the Supreme Court states in part: [64] . . . children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves whenthey reach adulthood . . . Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation andnormalization of the violence in a given community . . .

[117] The defence submits that S.P.J.’s offences, which he continues to deny, were fuelled by his own experiences of sexual violence inthe [omitted for publication] School. Hence, S.P.J.’s moral culpability is attenuated as a result of his traumatic past, thereby entitling himto a significantly reduced sentence. [118] I accept S.P.J.’s palms were strapped as that was not an uncommon form of corporal punishment in elementary school in the early60’s. It was not until February 14, 1973, that BC's Education Minister Eileen Dailly banned the strap in schools.

I accept that overall,S.P.J. found elementary school a profoundly negative experience. [119] The only evidence of Sister A. having sexually abused S.P.J. in elementary school is S.P.J.’s own self-serving out-of-courtstatements to the authors of the sentencing reports. The Crown says it is not in a position to “disprove” his allegations and not inclined torequire S.P.J. to meet his burden of proof in this respect. [120] Sexual abuse against children is a despicable crime.

It is shrouded in secrecy and thus difficult to detect and difficult to prove.Before this Court convicted S.P.J. of sexual abuse, the police had to investigate the crime; his accusers and other witnesses had to attendcourt and testify at a lengthy trial; the Crown had to prove S.P.J.’s guilt beyond a reasonable doubt. The defence submits because theCrown does not contest S.P.J.’s allegation, the court ought to find as a fact S.P.J. was sexually abused as he claims.

I am troubled by theproposition the court must blindly endorse as true an unsubstantiated allegation that over 55 years ago, S.P.J.’s elementary school teachersexual abused him weekly for approximately two years. The apparent reason for making such a damning finding against a non-participant is to justify imposing a lenient sentence for S.P.J.’s sexual crimes against his daughter and granddaughter. My reluctance toaccede to such a request stems from the following: a.

Beyond his bald assertions, there is no independent evidence of S.P.J. having suffered the sexual abuse he claims to have sufferedwhile attending [omitted for publication] School. The court was not made aware of any investigation into these allegations, even thoughS.P.J. claims to have disclosed the abuse in 1994 while attending Crossroads Treatment Centre; b. His sentencing after trial in 2001 for the sexual assault of N.G. focused primarily on S.P.J.’s Gladue factors.

Ultimately, JudgeRamsay ordered a rehabilitative sentence in the community, which included organizing, attending, participating and completing a shamefeast in [Village One]. No mention whatsoever is made in Judge Ramsay’s Reasons for Judgment of S.P.J.’s allegation he was sexuallyabused while attending [omitted for publication] School; c. S.P.J. has demonstrated a willingness to deflect or deny personal responsibility for his criminal wrongdoing. For example, when hefirst met with Dr. Kreklewetz, he never disclosed the fact he was convicted of sexual assaulting N.G. in 2001; d. Although he entered into a

Section 810 Recognizance with respect to the allegations of R.J., S.P.J. denied any wrongdoing toDr. Lopes and claims he simply took the blame for some other male; and e. S.P.J. also asserts that he and his cousins were physically assaulted by J.F. while attending [omitted for publication] School.According to Sister M.M., the principal of [omitted for publication] School from 1967 to 1971, J.F. first came to [omitted for publication]School in 1969: see [omitted for publication]. S.P.J. told Dr.

Kreklewetz he and his cousins left [omitted for publication] School in 1967,which would be two years before J.F. arrived; f. In his interview with Dr. Kreklewetz, S.P.J. suggested the three victims concocted their allegations to: (

a) frustrate his marriage toD.J.; and (

b) obtain compensation from a “previous investigation into the sexual abuse that S.P.J. experienced during his school years(i.e., as family members of a residential school survivor).” S.P.J. and D.J. married on [omitted for publication], 2017, almost a yearbefore the victims made their complaint to the RCMP.

S.P.J. did not attend residential school and the court was not made aware of anyinvestigative body which substantiated his allegations of having suffered sexual abuse while attending [omitted for publication] School. [121] Although I have serious doubts as to his truthfulness, I accept S.P.J. experienced some form of childhood trauma, which ismitigating. I do not find it in the public interest for the court to blithely endorse an offender’s unsubstantiated allegations of his ownchildhood sexual abuse in order to purchase leniency.

To do so could have a chilling effect on persons willing to work with children,including teachers, social workers, coaches, day-care providers, or all manner of volunteers. Suffice it to say, I accept that S.P.J. had adifficult childhood that mitigates his moral culpability to a degree. Gladue factors [122] S.P.J. is an Indigenous offender and the principles espoused in 718.2(

e) of the Criminal Code, as interpreted by the SupremeCourt of Canada in R. v. Gladue, , and R. v. Ipeelee, 2012 SCC 13, apply. The sentencing judge has a statutory dutyimposed by s. 718.2(

e) to consider the unique systemic and background factors that may have played a

part in bringing the particularoffender before the court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’sparticular Indigenous heritage. The offender is not required to establish a causal link between background factors and the commission ofthe offence before being entitled to have those factors considered by the sentence judge. Judges may take judicial notice of the broadsystemic and background factors affecting Indigenous people generally and case-specific information from the offender and the Pre-Sentence Reports.

An offender’s Indigenous heritage is often considered a special and mitigating factor for sentencing purposes:see Sheck v. Canada (Minister of Justice), 2019 BCCA 364 . [123] In Friesen, the majority stated (at para. 92) the court must apply the principles espoused in Gladue and Ipeelee “even in extremelygrave cases of sexual violence against children.” Recently, in Nahanee, 2021 BCCA 13 , the BC Court of Appeal acknowledged(at para. 85) the application of the Gladue principles must be tempered by consideration of the fact the victims were S.P.J.’s extremelyvulnerable Indigenous children.

Justice Willcock stated: [85] The effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do notsufficiently deter violence against Indigenous children. [124] I accept the systemic and background factors affecting Indigenous people in Canadian society have likely impacted S.P.J.’s life in

such a way as to diminish his moral culpability. The Gladue Report and Pre-Sentence Report include extensive, highly-specificbiographical information of S.P.J.’s experience as an Indigenous man, including his cultural connection to the [omitted for publication]Nation, his distressed childhood, its link to intergenerational trauma, and his struggle with alcohol addiction. I accept those factors, bothsystemic within society and specific to S.P.J., played a role in his offending.

Age and physical health at sentencing [125] It is not uncommon in cases of historical sexual assaults for the offender to be elderly or in poor health. In this case, S.P.J. assertsa congeries of health issues. The BC Court of Appeal has held the mere fact that an accused is elderly is not, in and of itself, a mitigatingfactor when determining a term of incarceration, unless the evidence shows that he or she has little chance of serving the sentence beforepassing away: see R. v. Swope, 2015 BCCA 167; R. v. Salehi, 2022 BCCA 1; R. v. R.J.G., 2007 BCCA 631; R. v. Shah, (BC CA).

In Swope, the Court of Appeal held that while an offender's health status may be relevant at sentencing, it is not acontrolling or decisive factor and is best considered as part of the overall circumstances of the offender, rather than as a basis fordeducting time from an otherwise appropriate sentence. The evidence must show the correctional authorities cannot properly oradequately address an offender’s physical challenges.

In Stauffer, Justice Ryan states (at para. 54) “if the offender suffers from ill health,it is best dealt with by the prison authorities under s. 121 of the Corrections and Conditional Release Act, RC, 1992, c. 20.” [126] The defence has not adduced evidence that S.P.J.’s specific health concerns could not be accommodated or treated by thecorrectional authorities. However, as the Court of Appeal has affirmed in Swope at para. 35, “There is scope for courts to becompassionate towards aged and infirm persons in the course of sentencing”.

In R. v S.S.S, 2018 BCSC 2470 , Justice Schultestreated offender’s advanced age as a factor in mitigation that reduced the length of the sentence. In Salehi, the Court of Appeal stated atpara. 65, “It is clear that medical conditions that make imprisonment more onerous should be considered in sentencing.” I find it likelythe cumulative toll of S.P.J.’s various physical ailments would be exacerbated by incarceration. Accordingly, I will take intoconsideration S.P.J.’s age and failing health when determining the length of his jail sentence.

Compliance with bail conditions [127] S.P.J. has been on a Recognizance of Bail since April 30, 2019. In R. v. G.T.A., 2021 BCCA 425 , Justice Marchand (ashe then was) commented that compliance with bail conditions is not typically mitigating: [60] Further, “people who are on bail are expected to behave themselves”: R. v. R.M.D., 2014 BCCA 56 at para.7. Compliance with bailconditions is typically neutral although, as a matter of discretion, in some cases compliance with strict bail conditions may be consideredmitigating: R. v.

L.I., 2017 BCCA 444 at paras. 11–13. . . . [128] In this case, S.P.J.’s Recognizance of Bail was fairly onerous. Not only did it restrict him from communicating or contacting thevictims, it also prohibited him from going within 20 kilometres of [Village One]. Among other things, S.P.J. was subject to a curfew(from midnight to 6:00 am), prohibited from

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