R. v. T.J.B.J., 2022 BCPC 246

Citation: R. v. T.J.B.J. 2022 BCPC 246 Date: 20221020 File No: 25779-1 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. T.J.B.J. Publication Ban Pursuant to: CCC 486.4(2.2) and CCC 486.3 CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: D. Reznikov Counsel for the Defendant: J. McCarthy Place of Hearing: [omitted for publication] , B.C. Date of Hearing: September 16, 2022 Date of Judgment: October 20, 2022

A Corrigendum was released by the Court on November 10, 2022. The corrections have been made to the text and theCorrigendum is appended to this document. [1] T.J.B.J. has been convicted of sexual invitation and sexual touching. The two charges both stem from two incidents betweenOctober 2008 and October 2010 involving the accused’s preschool-aged male cousin. Sentencing was adjourned to obtain a pre-sentencereport with a Gladue component and a psychiatric risk assessment. [2] The court also has the benefit of a Victim Impact Statement from the parents of the victim.

This Victim Impact Statement detailsthe unfortunately too-common and long-term emotional harm that has been caused to both the victim and his immediate family. [3] The pre-sentence report writer contacted the accused and his parents. The report reveals the accused had a difficult upbringingbecause of his father’s alcohol use. The accused has had no long-term relationships with women. The accused’s mother believes him tobe innocent of all past and present charges. The accused’s father stated he does not believe his son “did these things”. The accusedcontinues to deny the offences in this information.

The pre-sentence report notes sexual contact initiated by a similar-aged cousin withthe accused occurred when he was approximately seven years of age. The accused completed grade 12 in 2006. He is currentlyunemployed and has a limited work history. [4] The accused has the following related criminal records: 1)

Section 151 (sexual interference) and

section 152 (sexual invitation) convictions in 2001, for which he was sentenced inNovember 2012. 2)

Section 151 in October 2005 and a second

section 151 conviction also in 2005, for which he was sentenced in July 2013. 3)

Section 271 (sexual assault) and a second

section 271 conviction in 2006, for which he was sentenced in December 2017. There is a different victim on each of the six convictions. [5] The pre-sentence report states that the accused completed the Forensic Sex Offender Program in 2013 and it was noted by thesupervising psychologist that the accused showed insight. The probation supervisor reported that the accused has consistently reportedand self-reports that he has been sober from alcohol since December 2017. [6] The forensic psychological assessment concluded that the accused is of moderate risk to reoffend.

That was based on hisproblems with intimate and non-intimate relationships, problems resulting from suffering child abuse, sexual deviance and attitudessupportive of sexual activity with children. At page eight, the report noted “the ‘new’ convictions do not indicate that he reoffended afterbecoming involved with the criminal justice system.” These “new” convictions are the ones currently before the court. [7] The Crown relied on a number of cases. The first was R. v. Friesen, 2020 SCC 9.

Paragraph 5 reads: [5] . . . we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerabilityand cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must imposesentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, asinformed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexualviolence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching andongoing harm that it causes to children, families, and society at large. [8] The second case relied on by the Crown was R. v. N.S.N.C., 2020 BCSC 1843. Paragraph 47 referred to the Friesen decision andstated, “the range of sentences in circumstances involving one or two distinct sexual assaults against a young child involving an abuse oftrust or authority, is in the range of two to five years.” [9] The third case relied on by the Crown was R. v. Williams, 2020 BCCA 286.

In paragraph 52, the court held that: [52] . . . insufficient time has passed since Friesen for the courts of this province to have considered and applied the decision such thatthis Court could undertake a purposive analysis of the appropriate range at this time. The Friesen decision was released in April 2020 and the Williams decision was released in October 2020. [10] The fourth case relied on by the Crown was R. v. Polay, 2021 BCSC 1872. In paragraph 48, the court held that the Friesen caseapplied to offences that occurred before the release of the Supreme Court of Canada’s decision.

Reference was also made at paragraph54 to the totality principle, holding that it does not operate to reduce the sentence for an offence that was committed at a similar time toother offences for which the offender has already been sentenced. Such is the case here. [11] The Crown then cited five other British Columbia Supreme Court cases along with N.S.N.C. that imposed sentences rangingbetween three and seven years for sexual offences against children.

These cases were decided after Friesen and refer to it. [12] The defence argued that each of the Crown’s sentencing precedents should be distinguished on its facts. It was pointed out that,as stated in paragraph 37 of Friesen, ranges and starting points are only guidelines. [13] The defence stressed that reduced moral culpability as explained in R. v. Gladue, (SCC), [1999] 1 SCR 688,and R. v. Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, must be considered along with deterrence and denunciation. This is true.

[14] The defence relied on R. v. Allen, 2012 BCCA 377. Paragraph 59 of that decision explains the “primary importance” ofdenunciation and submits that, while denunciation is of primary importance, it does not eliminate the consideration of other factors. Thisis true. [15] The defence reinforced the need for proportionality by reference to R. v. Anderson, (BC CA).

Paragraph 35reads: [35] The need for "proportionality" in order that a sentence properly reflect "moral blameworthiness" on the part of the wrongdoer isdictated by concern that there will otherwise be a loss of public confidence in the administration of the law, perhaps the most importantfactor in preserving the security of society. . . . [16] The defence also relied on R. v. Horvath, (SK CA), for the principle that general deterrence of others “hasvery little or no role to play in a decision about where a pathological gambler should serve his or her sentence of imprisonment.” Thedefence also cited R. v.

Hilbach, 2019 BCPC 73, which adopts the Horvath decision’s scepticism of general deterrence. [17] The defence relied on R. v. Thompson, 1989 ABCA 212. In the second paragraph on page four, the court notes that self-reformbetween the date of the offence and the date of sentencing is a mitigating factor. Reference is also made to paragraph 45 of Andersonwhere it states: [45] The factor of "remorse" is often important.

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

But to the extent that anaccused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, andas a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of furtheroffending, the existence of remorse in this sense obviously has much importance. [Emphasis in original.] [18] In the case at hand, remorse is absent as the accused maintains that he did not commit the offences of which he was convicted. [19] The self-imposed abstinence from alcohol since he was sentenced in 2017 does reduce his risk to reoffend. [20] The defence also relied on R. v.

Angelillo, 2006 SCC 55. Paragraph 24 reads: 24 . . . The fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and thedegree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. . . . The sentenceimposed on a repeat offender may well be more severe, but this is not contrary to the offender’s right not to be punished again.

From thestandpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process. [21] The relevant principles of sentencing are laid out in sections 718, 718.01, 718.1, and 718.2 of the Criminal Code. The relevantfactors in s. 718 are: denunciation; deterrence; separation of the offender from society; rehabilitation; reparations; promotion of a senseof responsibility in the offender; and, acknowledgement of the harm done to the victims and community. [22]

Section 718.01 reads: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [23]

Section 718.1 reads, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.” [24]

Section 718.2 requires the court to consider aggravating and mitigating circumstances that include: 718.2 . . . (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, . . . [25]

Section 718.2(

b) instructs the court that sentences should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. [26]

Section 718.2(

e) instructs the court that all available sanctions, other than imprisonment, that are reasonable in the circumstancesand consistent with the harm done to victims, or in the community, should be considered for all offenders, with particular attention to thecircumstances of Aboriginal offenders. [27] In R. v. G.M., 2015 BCCA 165, our Court of Appeal at paragraph 17 states that denunciation and deterrence are the paramount

objectives in sentencing child sexual abuse cases. [28] In R. v. Stuckless, (ON CA), the Ontario Court of Appeal states, “Sexual abuse is

an act of violence. Whencommitted against children, the violence is both physical and profoundly psychological.” [29] In R. v. G.E.W., 2014 BCSC 2597, at paragraph 65, Mr. Justice Myers states, “The sentencing range for aboriginal offendersinvolving sexual interference with breach of trust is the five to eight-year range”. In that case, the offender himself was the victim ofserious harm in the residential school system. The sentence of seven years is distinguishable on its facts as the case included incest withtwo daughters as well as offences under

section 151. [30] In R. v. K.R.J., 2014 BCCA 382, in paragraph 33, it is noted “that the Court has signalled a preparedness to accept more severesentences for sexual abuse of children than may have been imposed in the past.” [31] In R. v. T.P.C., 2000 BCSC 742, at paragraph 16, Mr. Justice Romilly, quoting Otis J.A. in R. v.

L.(J.J.), (QC CA), lists some factors to be considered in sentencing of sexual offences. [32] The first factor listed is the “nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats,violence, psychological threats and manipulation, etc.” In the case at hand, we have the use of physical violence to hold the victim downand psychological violence in issuing a warning to the child that if he disclosed, it would “rip their family apart.” [33] The second factor listed in T.P.C. is the frequency and timeframe of the offences.

In the case at hand, two incidents occurred inapproximately two years. [34] The third factor listed in T.P.C. is the abuse of trust or authority. In this case, there was a clear breach of the trust relationship thatsociety expects from a blood relative who often lived with the victim’s family and was trusted to babysit him. [35] The fourth factor is “underlying disorders in the offender”. No such disorders are disclosed in the psychological assessment. [36] The fifth factor listed in T.P.C. is previous convictions.

As noted above, the formal convictions for earlier offences were notentered until after the dates of these offences. As per R. v. Andrade, 2010 NBCA 62, in paragraph 20, the Coke rule is applicable only tomandatory sentences that are required because of previous convictions.

The court held “what is or is not an aggravating factor and howone should deal with the offender’s prior criminal record is a matter better left to the sentencing judge having regard to the factual matrixunder consideration.” [37] The sixth factor is the offender’s behavior since the commission of the offence such as confessions, collaboration in theinvestigation, the immediate involvement in a treatment programme, and empathy for the victim.

This is related but not identical to the“self-reform” suggested by the defence as laid out in Anderson. [38] The eighth and final factor listed in T.P.C. is the effect on the character of the victim and lingering effects of the abuse. In thecase at hand, the victim’s father testified that there was a marked change in his son after the incidents. He described the child as changingfrom a happy little boy to someone who was angry, depressed and lacking in self-esteem. [39] The maximum sentence for both

section 151 and

section 152 was14 years between 2008 and 2010. [40] The Crown has suggested a sentence of 5 years. [41] The defence has suggested a sentence of 2.5 years. [42] The current range of sentence is unclear, although both Crown and defence submit that a penitentiary sentence is applicable. It isclear that Parliament and the courts have been consistently increasing the sentences for child sexual abuse. [43] Mr. Justice Johnson sums it up well in paragraph 38 of R. v. Leung, 2016 BCSC 214.

He writes: [38] Authorities are always difficult to deal with on sentencing, because sentencing, as the courts repeatedly say, is an acutelypersonalized process.

Each offender is to be sentenced according to what that offender has done, in light of who that offender is and thecircumstances surrounding the offence, the impacts on the victims, the threat or risk to society. [44] Proportionality remains as the fundamental principle. [45] There are aggravating factors: • The offences are very serious as the victim was a pre-school child. • Force was used to hold the child on his knees. • Psychological threats were used to silence the victim. • The accused was in a position of trust. • The victim’s personality was markedly degraded by the crimes. • The accused has other convictions for sexual offences against his child cousins.

The six previous offences occurred before thecurrent charges but their convictions were entered after the accused had been sentenced on the earlier offences. This discloses a pattern. [46] There are mitigating factors:

• The accused was relatively young in 2008, as he was born in 1987. • He is a First Nation person, as is the victim. • The accused’s childhood displays the intergenerational damage of the residential school system. As per Ipeelee , that does reduce his moral blameworthiness. • The accused has quit drinking alcohol and has not been charged for a criminal offence since 2017. The exception is a breach of probation by attending a public event where children could reasonably be expected to be present.

I put no weight on the breach of probation conviction in this sentencing. [ 47 ] After consideration of all the evidence, case law and submissions presented at the sentencing hearing, I conclude the appropriate sentence should be five years in gaol on each charge, to be served concurrently. [ 48 ] In addition to the custodial sentence, I make the following ancillary orders:

a) An order under s. 490.012 that the offender registers in the Sex Offender Information Registry for life.

b) An order under s. 487.051 that a DNA sample be taken from the offender pursuant to s. 487.04 of the Criminal Code as the convictions are for primary designated offences.

c) An order under s. 109(2) of the Criminal Code prohibiting the offender from possessing: 1. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years following release; and 2. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

d) I authorize the Chief Firearms Officer or the Registrar of Firearms to issue an authorization, a licence or a registration certificate as the case may be to T.J.B.J. for sustenance purposes in accordance with the following terms and conditions: The firearm or ammunition may only be possessed on the way to and from and in the course of a legal hunt and you must not possess the firearm or ammunition if you are intoxicated.

e) Pursuant to s. 161 of the Criminal Code , you are prohibited for 10 years from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre and seeking, obtaining or continuing any employment whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves a position of trust or authority towards persons under the age of 16.

f) The Warrant of Committal shall be endorsed with the following order: Pursuant to

section 743.21(1) of the Criminal Code , you must have no contact of any kind with L.J. while you are in custody.

g) Pursuant to s. 737(2.1) of the Criminal Code , I waive the requirement that you pay Victim of Crime Surcharges on the two Criminal Code convictions. [ 49 ] On Information 26244, which is a guilty plea to driving while prohibited in July 2021, I sentence you to 14 days in gaol consecutive to all other sentences. [ 50 ] On Information 26333, which is a guilty plea to driving while prohibited in October 2021, I sentence you to 14 days in gaol consecutive to all other sentences. ____________________________ W.F.M. Jackson, P.C.J.

Provincial Court of British Columbia CORRIGENDUM - Released November 10, 2022 In the Reasons for Judgment dated October 20, 2022, the following changes have been made: [ 51 ] Paragraph [24], quoting s. 718.2(a) (ii), (ii.1) and (iii.1) of the CCC , subparagraph (iii.1) has been amended to: (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, [ 52 ] Paragraph [41], has been amended to: “The defence has suggested a sentence of 2.5 years.” [ 53 ] Paragraph [45], the third bullet, which included the statement “The accused was in a position of trust”, was amended so that this statement now stands alone as the fourth bullet.

The Honourable Judge W.F.M. Jackson Provincial Court of British Columbia