Citation: R. v. M.R.R. 2021 BCPC 207 Date: 20210830 File No: 259140-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. M.R.R. BAN ON PUBLICATION

SECTION 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Sebellin Counsel for the Defendant: C. Paquette Place of Hearing: Vancouver , B.C. Dates of Hearing: July 13, August 12, 2021 Date of Judgment: August 30, 2021 INTRODUCTION

[ 1 ] These are the reasons for sentence of Mr. M.R.R., who entered a guilty plea on two charges in Information 259140-1. The Crown proceeded by indictment. First, Mr. M.R.R. pled guilty to touching, directly or indirectly, for a sexual purpose, the body of the complainant, a person under the age of 16 years, during the period of September 1, 2018 to June 30, 2019. Second, Mr. M.R.R. pled guilty to inviting, counselling or inciting the complainant, a person under the age of 16 years, to touch, directly or indirectly with a part of his body, or with an object, for a sexual purpose, the body of Mr.

M.R.R., during the period of September 1, 2018 to June 30, 2019. [ 2 ] There is a publication ban, which prohibits the publication of any information that could identify the complainant in this case. In particular, an order was made under s. 486. 4 (2) of the Criminal Code that information which may identify the person described in these reasons as the complainant must not be published, broadcasted, or transmitted in any manner. Accordingly, in these reasons, I refer to the complainant by his initials, R.B. I do so to preserve his privacy.

Similarly, I have used initials for other persons’ names, including the offender’s, to preserve R.B.’s anonymity. [ 3 ] The main issue in this case is the determination of an appropriate sentence for Mr. M.R.R. for the two sexual offences before this Court. In order to arrive at an appropriate sentence for Mr. M.R.R., I must consider a number of factors, including: the circumstances of the offence, the circumstances of the offender, victim impact statements, and the principles of sentencing set out in the Criminal Code and any applicable case law. [ 4 ] The Crown and counsel for Mr.

M.R.R. agree that a jail sentence is appropriate in the circumstances of these offences. However, they do not agree about the precise length of the jail sentence. [ 5 ] In these reasons for sentence, I review material and information placed before me during the course of the sentencing hearing. Some of the material and some of the information is graphic and sexually explicit. Much of the material and information placed before the Court is sensitive and extremely personal.

In reviewing that information and material in these reasons, it is not my intent to make anyone, including the parties in this case, the victim and his family, or the general public who may come to know of it, uncomfortable. However, a review of the evidence regarding the two offences, the victim, and the accused is necessary to give proper context to my determination of a fit sentence. CIRCUMSTANCES OF THE OFFENCES - AGREED STATEMENT OF FACT [ 6 ] Pursuant to s. 655 of the Criminal Code , Mr. M.R.R. admitted certain facts for the purpose of dispensing with the proof of those facts at the sentencing hearing.

Below, I set out the Statement of Facts for Sentencing submitted at the sentencing hearing. It is not verbatim. In some portions, I have paraphrased.

a) Mr. M.R.R. is a 46-year-old Indigenous man. He is a well-known artist. As of May 2020, he was homeless and suffering from drug addiction issues.

b) The complainant, R.B., is a young person. At the time of the events in question, he was 10 to 11 years old.

c) The mother of R.B. and Mr. M.R.R. were in a relationship for three years. They did not live together. During that time, Mr. M.R.R. and R.B. developed a father and son relationship. They were close.

d) Mr. M.R.R. and R.B.’s mother ended their relationship when R.B. was 7 years old.

e) Subsequently, Mr. M.R.R. had a relationship with a woman I shall refer to as K.F. Mr. M.R.R. lived with K.F. from 2015 to 2019 in Vancouver, British Columbia. They broke up in April 2019. K.F. moved to a new apartment, but she let Mr. M.R.R. stay in that new apartment until they broke up again in January 2020. At that time, K.F. found crystal meth and Mr. M.R.R. moved out, although he left most of his belongings.

f) R.B. was going to school and was in grade 5 between September 1, 2018, and June 30, 2019. All of the incidents that are the subject of the two charges took place during this period.

g) Mr. M.R.R. returned to R.B.’s life when R.B. was 11 years old. Although Mr. M.R.R. and R.B.’s mother were no longer in a relationship, Mr. M.R.R. looked after R.B. on various occasions. On some occasions, Mr. M.R.R. looked after R.B. at K.F.’s first apartment in Vancouver. On some of these occasions, Mr. M.R.R. and R.B. were alone. Some other times Mr. M.R.R. looked after R.B. at R.B.’s residence.

h) Two incidents of sexual assault took place at K.F.’s first apartment. In the first incident, Mr. M.R.R. had R.B. perform fellatio on him. R.B. dressed up in a pink bodysuit belonging to Mr. M.R.R. This incident was recorded on video.

i) In the second incident, Mr. M.R.R. again had R.B. perform fellatio on him. A photo was taken on that occasion.

j) Another incident between Mr. M.R.R. and R.B. was recorded on video. K.F. found the video on Mr. M.R.R.’s phone. That video showed Mr. M.R.R. penetrating the anus of R.B. with his penis.

k) Videos and images were discovered by K.F. in October or November 2018. K.F. suspected Mr. M.R.R. had been cheating on her with R.B.’s mother. She accessed Mr. M.R.R.’s cell phone and viewed the videos and images on his phone.

l) K.F. described there were many images and videos of a child performing oral sex on Mr. M.R.R. There was also a video showing Mr. M.R.R. touching his penis to the anus of the child and penetrating the child with his penis. K.F. identified Mr. M.R.R. as the man in the videos based on his voice, tattoos, and body. In one video, she heard Mr. M.R.R. say to the child, “You can suck on it for a little bit.”

m) In K.F’s opinion, it looked like the same child in each video and image. K.F. did not know it was R.B. at first. However, she found out it was R.B. later through R.B.’s images on Facebook. The videos were taken at K.F.’s first apartment. She recognized the bedding. K.F. sent two of the videos and some images to her own phone. At the time, K.F. did not know the identity of the child in the videos.

n) Initially, K.F. did not disclose the videos, nor did she confront Mr. M.R.R. K.F.’s relationship with Mr. M.R.R. ended in January 2020. After the breakup, K.F. confided in K.T., who used to date Mr. M.R.R. and had a child with him. K.F. sent K.T. one video and an image, both of which showed R.B. performing fellatio on Mr. M.R.R. She also sent a second video, but there were technical difficulties.

o) K.F. was afraid to approach the police herself. K.T. recognized the child in the video and the image as that of R.B. She contacted the RCMP on January 21, 2020, to report the matter. She sent the RCMP one video and two images. The RCMP contacted the Vancouver Police Department, which took over the investigation.

p) On January 21, 2020, the Vancouver police went to R.B.’s residence and spoke to his mother about the assaults. When his mother asked R.B. what had happened, R.B. told her that it had happened five times. R.B. denied that anal sex had occurred. However, he did say that Mr. M.R.R. had touched his bum with his fingers.

q) The RCMP provided images and video to the Vancouver Police Department. A member of the Vancouver police executed a warrant and viewed the two images and one video. The description of the contents is: (

i) IMG 7511. JPG - An adult male has his semi-erect penis exposed and touching the mouth of a child who has long dark coarse hair. The sexually explicit image shows

an act of fellatio. This was a single photo. (ii) JPEG image - An adult Indigenous male is sitting on a sandy beach. He has approximately nine tattoos, which are visible in the picture. They extend from his left arm to his left leg. This was a single photo. (iii) Video - The video is 11 seconds long. The person depicted in the video is a child of Indigenous mixed descent. The child has long dark coarse hair.

The child is wearing two-piece, bright pink, fishnet-type clothing that exposes the top chest, shoulders, arms, lower back, legs, buttocks, and feet, along with other parts of the skin that are not covered by the netting. No other clothing is visible. The video depicts the child performing fellatio on an adult male penis. The penis is semi-erect. The adult male appears to be naked. The child and the male are on a bed with a grey and white vertical striped bedspread; the grey potions appear to be tree trunk prints.

The child is lying prone to perform fellatio on the male, who appears to be seated on his buttocks with his legs extended to allow the child to lay between them. The camera shows the male’s lower left thigh, revealing dark green/black tattoo lines.

r) The police obtained and searched K.F.’s cell phone. They found a second video that K.F. had transferred to her phone in 2018 from Mr. M.R.R.’s phone, which she had sent to K.T. The contents of that video – Video IMG 7388 a re described as a video opening with a naked adult male attempting to insert his penis into the anus of a naked boy. The boy appears to be between the ages of 8 to 12 years. The child is laying on his back and has his face covered by his hands and feet. The child’s hands and feet are crossed over at the ankles; his hands are over his face while holding down his crossed legs.

This position fully exposes the child’s genitals and anus for the adult who is on his knees at the base (buttocks/genitals) of the child. The video continues, and the male eventually penetrates the child’s anus. It appears that the naked man is also the person filming in a first-person point of view style. At the 39-second mark of the video, the male masturbates and ejaculates on the child.

s) The police interviewed R.B. He admitted that Mr. M.R.R. had done something bad to him. However, he refused to get into the details other than to say that it was what Mr. M.R.R. was arrested for. R.B. described Mr. M.R.R. as part of his family, years ago, and like a father when R.B. was 7 years old. Mr. M.R.R. had left for a few years and then came back when R.B. was 11 years old and in grade 5.

t) In the interview, R.B. told the police that Mr. M.R.R. forced him to watch videos with adults and teens who were not wearing clothing. R.B. told Mr. M.R.R. to stop, but Mr. M.R.R. continued to show the videos. Mr. M.R.R. told R.B. that if he wanted to eat, or to get food, he would have to do what he had to do, in order to eat. R.B. said that inappropriate things happened with Mr. M.R.R. over 10 times. R.B. said that the things Mr. M.R.R. forced him to do mostly happened at Mr. M.R.R.’s house and twice at R.B.’s house. They happened on the bed, and Mr. M.R.R. used his phone to record video. Mr.

M.R.R. would have his clothes off and R.B. would keep his clothes on. R.B. did not tell anyone because Mr. M.R.R. told him many times not to tell anyone about it so he would not be arrested.

u) The video showing anal penetration showed that the male had a series of tattoos. Police investigators obtained photos of Mr. M.R.R.’s tattoos and compared them to the tattoos on the video. The tattoos matched. The image of the male child being penetrated did not show the face of the child, but the hair and skin matched that of R.B. For the purpose of the sentencing hearing, Mr. M.R.R. admitted he is the adult male in the video and R.B. is the child shown in the video.

v) During one of the videos, Mr. M.R.R. is heard saying to R.B., “You can suck on it for a little bit.”

w) Mr. M.R.R. was arrested on August 24, 2020. The police interviewed him. Mr. M.R.R. admitted to having R.B. perform fellatio on him on two occasions. On one of those occasions, R.B. was wearing a pink bodysuit. Mr. M.R.R. said he would physically stop R.B. before he ejaculated. On one of those occasions, Mr. M.R.R. said to R.B., “You can suck on it for a little bit.” Mr. M.R.R. denied having anal sex. Mr. M.R.R. was released on an undertaking with conditions.

x) The police searched one of Mr. M.R.R.’s cell phones but found no child sex images or videos. K.F. had indicated that all of Mr. M.R.R.’s images and photos had been stored on Google. Accordingly, the police obtained orders in the United States to search Mr. M.R.R.’s Google account. There were no child sex images or videos found on Mr. M.R.R.’s Google account. THE CIRCUMSTANCES OF THE OFFENDER [ 7 ] Defence counsel, in the course of sentencing, reviewed Mr. M.R.R.’s circumstances, which were also set out in a Pre-Sentence Report completed in May 2021 and a Gladue Report.

The Pre-Sentence Report [ 8 ] The Pre-Sentence Report prepared for this Court notes that Mr. M.R.R. did not report any close family contacts, helping professionals or close associates. Accordingly, all the information included in the Pre-Sentence Report came from Mr. M.R.R. and from

official records. [ 9 ] Mr. M.R.R. was born in the spring of [omitted for publication] in [omitted for publication], British Columbia. Initially he was in the care of his mother, but was placed in foster care as a toddler. His father regained custody of Mr. M.R.R. when he was eight years old. He did not see his mother again until he was an adult. Although he lived with his father in the Lower Mainland, he reported that his childhood was unstable. He was frequently “shuffled around” between the residences of various friends and family. He was often left to fend for himself. Mr.

M.R.R. reported he was estranged from all his family members. [ 10 ] Mr. M.R.R. has been married three times and has children from two of his previous relationships. He does not have contact with any of his children, apart from his youngest daughter, who he had casual contact with recently in the Downtown Eastside. [ 11 ] Mr. M.R.R. reported that at the time of the offences in this case and years before, he had somewhat stable living arrangements. He moved around a lot but always had a roof over his head.

For the past two or three years, he has been homeless, sleeping outside and often at the Strathcona tent city. He applied for housing and when the Pre-Sentence Report was written he was on a list for housing for people from the Strathcona tent city. [ 12 ] Mr. M.R.R. apparently did well in elementary school and secondary school. He attended the University of Victoria, but left one year later as he felt there was nothing there for him. He preferred to work with his hands. [ 13 ] As a child, Mr. M.R.R. began creating art. He was introduced to carving by his father who was a well-known carver.

He developed a passion for art, and began a successful career carving various materials, crafting jewelry, creating sculptures, and other artistic endeavors. His artwork was his main source of income for most of his adult life. Recently, he has not created much art. He fixes and sells bicycles as his main source of income. Mr. M.R.R. reported he had never been on social assistance. However, he recently signed up for social assistance so that he could get on the BC Housing list. This would help to get him stable housing. [ 14 ] Mr.

M.R.R. reported he was continuously exposed to physical, sexual, and psychological abuse throughout his youth. He disclosed the abuse to his family, but he felt they did not listen or believe him. He attended counselling to address the trauma, but did not feel listened to, and did not find it beneficial. Mr. M.R.R. has no physical conditions or injuries. He has never received a formal diagnosis for any mental illness.

However, he expressed some feelings or experiences that, according to the probation officer who prepared the report, may indicate some underlying mental health issues, including trauma, that may require further assessments and treatment. Mr. M.R.R. reported long periods of feeling depressed or sad, especially because he could not see his children. At the time of the offences, Mr. M.R.R. described his mental health as stressed. He was feeling mentally cloudy and his life was in complete chaos. He felt he was not able to adequately express what he was going through to people, and people did not seem to understand.

The probation officer noted that the issues he described may be substance induced rather than psychiatric/psychological problems, but they may warrant further assessment. [ 15 ] Mr. M.R.R. started drinking when he was eight years old. Alcohol became a problem for him almost instantly. He drank heavily throughout his teens and into adulthood. Approximately seven years ago, he quit drinking and became sober. Mr. M.R.R. reported he used crack cocaine in his 20s, but only after drinking. Cocaine was not his primary substance of choice – that was alcohol. Currently, Mr. M.R.R. is using crystal methamphetamine.

He told the probation officer who prepared the report that he started using this drug in the months prior to his current offences. However, Mr. M.R.R. does not link his offending to his substance abuse. He reported that crystal meth has a medicinal effect on him, in that it calms his mind. He is currently using crystal meth daily, and estimates he probably uses half a gram per day. He does not use any other drugs. [ 16 ] Mr. M.R.R. has only one previous offence and that was mischief committed in May 1996. He received a suspended sentence and 12 months’ probation.

He does not remember the details of that conviction apart from being intoxicated and making a bad decision. The Pre-Sentence Report states that Mr. M.R.R. does not appear to be enmeshed in a criminal lifestyle. “However, his current offences indicate that he groomed the victim, committed multiple acts over a period, and those acts were extremely serious, damaging, and traumatic for the victim. The seriousness of the current offences and the harm caused would indicate that the Subject would require a significant level of intervention to stop a repeat of this behaviour.” [ 17 ] The Pre-Sentence Report notes Mr.

M.R.R. took full responsibility for the current offences and did not deny the offences. Mr. M.R.R. stated he was in mental and emotional turmoil at the time. His life was chaotic. He was feeling a lot of mental stress, and was not thinking clearly. He also acknowledged that his own experiences as a victim of sexual abuse played a role in his behaviour, but he did not feel this was an excuse for how he behaved. However, the Pre-Sentence Report writer notes that while Mr.

M.R.R. expressed feelings of guilt and shame for his behaviour, it also appeared that he did not have a full appreciation or understanding of what he did or why he did it. The Gladue Report [ 18 ] A full Gladue Report was prepared for sentencing pursuant to s. 718.2 (

e) of the Criminal Code . The Gladue Report is not dated. The Gladue Report writer spoke with Mr. M.R.R., and the executive director of Kilala Lelum Health Centre. He also reviewed the 2015

Summary of the Final Report of the Truth and Reconciliation Commission of Canada. [ 19 ] The background provided in the Gladue Report is largely similar to the information provided in the Pre-Sentence Report. Mr. M.R.R. was born in [omitted for publication] in [omitted for publication]. He has four siblings, but did not know the ages of his siblings and was unsure of their current whereabouts. [ 20 ] Mr. M.R.R. has five children of his own; three of them are in their 20s and two of them are under the age of 11. He used to see his children but is prevented from doing so now.

He did not feel comfortable sharing the names of his children or his previous partners, but said he had no relationship with any of them. [ 21 ] Although Mr. M.R.R. was born in [omitted for publication], he grew up largely in Vancouver and attended various schools in the Vancouver area. At one point, he and his father moved to the Balmoral Hotel. He was eight years old. Mr. M.R.R. told the Gladue

Report writer that he saw many horrible things when he was young. He said that for some time he lived with one of his aunts; this was when he was around 9 or 10 years old. [ 22 ] While living with his aunt, Mr. M.R.R. described living in trauma and violence. He said that people would come into their room and try to touch his sister and his cousin, and “guys would come into my room and molest me.” He said this happened quite a bit, and on weekends it would happen more frequently. [ 23 ] Mr. M.R.R. also said there were other incidents of sexual assault when he was around the age of seven.

His mother had left him in Victoria with a man who at one point assaulted him. Mr. M.R.R. said he never told anyone about it. Mr. M.R.R. described the abuse he experience to the Gladue Report writer as having continued until he was 14 years old. At that point, he moved to Vancouver on his own. [ 24 ] Mr. M.R.R. is well educated. He graduated from high school, and later attended the University of Victoria and the University of British Columbia for one semester each. He did not complete university because he dropped out to focus on his art. Mr. M.R.R. worked as a professional artist much of his life.

His work is carried in many galleries. His pieces command a significant price. He has exhibited globally, including displays at the [omitted for publication] in [omitted for publication]. [ 25 ] Mr. M.R.R. is a status [omitted for publication] and a member of the [omitted for publication] clan. He has an extremely close connection to his heritage and his community. However, recent events have led him to be disowned by his family and his community. He told the Gladue Report writer that he currently feels disconnected from his heritage. In the past, Mr.

M.R.R. assumed the title of Chief through his matriarchal lineage. However, he did not continue in that role. [ 26 ] The Gladue Report writer dealt with the impact of colonization. Mr. M.R.R.’s family suffered directly from the impact of colonization, in particular from residential school involvement. Mr. M.R.R.’s parents and all his uncles and aunts attended residential school. He explained that they were sent to Alberta and Saskatchewan for residential school. His father and his uncles ran away several times in an attempt to get back to [omitted for publication]. Mr.

M.R.R. was unable to provide specific information regarding his family’s attendance at residential school. However, his description of his family’s silence about their involvement in residential school is typical of the intergenerational trauma faced by family members of residential school survivors as described by the Truth and Reconciliation Commission of Canada. [ 27 ] Mr. M.R.R. expressed great sadness and regret about the offences. When he was discussing this subject with the Gladue Report writer, Mr. M.R.R. began to cry and became very upset. He said he felt terrible about the situation. Mr.

M.R.R. wished to apologize for his actions and noted he was very interested in counselling. He said he had been trying to find someone to talk to for a long time. He also told the Gladue Report writer that he had been struggling with a significant mental health burden from his own childhood experiences and described wanting to break the cycle of abuse. [ 28 ] Mr. M.R.R. said he was eager to participate in all proposed interventions. He had previously attended a rehabilitation facility in Kitimat to address his alcohol misuse. This was sometime in 2007. Mr.

M.R.R. expressed a strong desire to follow dedicated programming related to mental health development and counselling. Most recently, he attempted to contact the First Nations Health Authority to enrol in counselling. He was actively pursuing other avenues to seek assistance for his mental health issues through Kilala Lelum Health Centre and the Native Court Workers and Counselling Association of British Columbia. [ 29 ] The Gladue Report writer identified a number of systemic and background factors that have affected Indigenous people in Canada and that are apparent in Mr.

M.R.R.’s circumstances: • Abuse – sexual, physical, psychological and emotional; • Alcohol/drug abuse – past and current usage; • Family attendance at residential school; • Mental health – depression; • Living situation – past homelessness; • Poverty – current experiences; • Quality of relationships – negative relationships with partners, family, extended family and community; • Absence of support networks and strengths – past and current spiritual, cultural, family, and community supports and resources. [ 30 ] The Gladue Report writer listed a number of programmes available both at the provincial and federal level.

In closing his report, the Gladue Report writer noted that Mr. M.R.R. expressed a great deal of interest in repairing the harm he caused. He proposed creating and donating a piece of art to a social service in the downtown Vancouver area. He was also desirous of attending counselling for his mental health issues and narcotic usage. The executive director of Kilala Lelum Health Centre expressed an interest in assisting Mr. M.R.R. in facilitating a donation to her organization.

However, she described some possible hesitation from the community due to the nature of the current events. [ 31 ] The Gladue Report writer also noted that due to the nature of the offences for which Mr. M.R.R. is being sentenced, a significant number of rehabilitation facilities would not admit him for treatment. THE VICTIM IMPACT STATEMENTS [ 32 ] The British Columbia Court of Appeal in R. v. Berner , 2013 BCCA 188 , addressed the role and scope of victim impact

statements. It noted that victim impact statements play an important role in sentencing. Victim impact statements read in court bring home to the offender the consequences of his/her actions. Victim impact statements also make the sentencing judge aware of the damage the criminal offence caused the victim and, indirectly, the community in general. In R. v.

Brewer , 2014 BCSC 1075 , Romilly J., as he then was, reviewed the Berner decision and the legal principles regarding victim impact statements. [ 33 ] The decisions in Berner and Brewer , and the cases reviewed therein, acknowledge the importance of victim impact statements in the sentencing process. However, they also make it clear that sentencing hearings are not tripartite proceedings; rather they are a proceeding between society, which is represented by the Crown, and a convicted person, who is represented by legal counsel.

Victim impact statements should not contain criticisms of the offender, assertions about facts of the offence, or recommendations about the severity of punishment. It is important that victim impact statements not contain material which may distract the judge from his/her proper consideration of the sentencing process before the court. [ 34 ] In

summary, the case law acknowledges that while a victim impact statement provides a necessary voice in the sentencing hearing, which ought to be considered by the sentencing judge, the complainant or victim is not a party in the criminal trial and sentencing. Additionally, the cases stress that vengeance has no role in the sentencing process. [ 35 ] In this sentencing hearing, two written victim impact statements were given to this Court. There were no objections about the victim impact statements.

However, I noted there were some redactions, which I assumed had been made by the Crown to comply with statutory requirements. One victim impact statement was from R.B.’s mother, who wished to give her statement viva voce during the course of the sentencing hearing. That statement was approximately 20 pages long. The other statement was from R.B., but it was given viva voce by his aunt. That statement, which also contained several drawings, was 16 pages long. [ 36 ] I will summarize the content of these two statements. However, I acknowledge that a

summary does not capture all of the information provided in those statements. In coming to a decision on sentence, I have taken into account the statements themselves and not my

summary of them. R.B.’s Mother’s Statement [ 37 ] R.B.’s mother expressed disbelief at the fact that she was writing a victim impact statement. She could not wrap her brain around how much the offences affected their lives. She acknowledged there was a cycle of abuse, which affected Indigenous children and Indigenous people in past decades. However, she had difficulty coming to grips with the fact that her son had been abused by a man who she loved and who she saw as her soulmate. [ 38 ] As part of the victim impact statement, R.B.’s mother reviewed aspects of her relationship with Mr. M.R.R.

I will not review everything she said in this regard but will summarize. She said, for the first time in her life, Mr. M.R.R. made her feel safe, protected and loved. She opened up to him. He was the first Indigenous man she dated in 15 to 20 years because, growing up, she had avoided Indigenous men. She noted Mr. M.R.R. comforted her, and said he would protect her and her children. She commented on their discussions and her view of the relationship with Mr. M.R.R. She noted Mr. M.R.R. said that even if things did not work out between the two of them, he would always be there for R.B.

This alone “melted” her heart. She saw Mr. M.R.R. as a great role model for R.B. and as his dad because R.B. had not had a dad until Mr. M.R.R. came along. She reviewed all the positive things about her relationship with Mr. M.R.R. [ 39 ] R.B.’s mother also reviewed all the good things Mr. M.R.R. had done for R.B. She said, even after they had broken up, she felt so happy and special. Mr. M.R.R. always came back saying how much he missed them.

He also said that no matter what, he would always be there for them, that included R.B. [ 40 ] R.B.’s mother said when the police spoke to her, she was very scared because she was Mr. M.R.R.’s next of kin and thought something bad had happened to him. When they told her about her son, she cried for hours, thinking they were wrong. What they told her could not be true. Once she accepted what the police and R.B. told her, she cried and cried. She felt guilty for bringing Mr. M.R.R. into their lives. The situation almost made her want to kill herself. However, she could not leave R.B. to fend for himself.

She was very scared about what would happen to R.B. if she was not there for him. She was concerned R.B. might commit suicide. She noted that before this she was overprotective and considered herself to be a “helicopter mom”. She thought her son would be the lucky one and would escape the cycle of sexual abuse. [ 41 ] R.B.’s mother detailed the steps she took to develop a safety plan and to get help for her son. She felt so ashamed of what the love of her life had done to her son. She found an organization that was there to provide help to get the best counselling for R.B.

She noted that the help and support came from strangers, because she was not close to her family. R.B.’s Statement [ 42 ] R.B.’s victim impact statement was read out in court by his aunt. Attached to the statement were some drawings that R.B. made. [ 43 ] In his victim impact statement, R.B. wrote that he could not trust others fully anymore. He always worries about his family and his friends. Certain things are a trigger for him now. He gets overwhelmed thinking this happens to others. He also finds it hard to meet new people. He fears for his security. He fears that when Mr.

M.R.R. gets back, he will hurt him or his family. [ 44 ] R.B. wrote that when he was in kindergarten, Mr. M.R.R. was like a father figure to him. However, now R.B. dislikes him, particularly because of how he is now. R.B. said that at the time of the first offence, he felt confused and wondered whether this was normal or not. He said the more it happened the more he stopped looking up to Mr. M.R.R. He wrote that he wanted to be the opposite of Mr. M.R.R. He is more cautious with people now, knowing that people can turn against you.

He is also anxious about the people around him. [ 45 ] R.B. dislikes the fact that now he needs to be watched all the time. He feels discomfort knowing he is being watched. He said he could not focus as much. He said Mr. M.R.R. was two different people. When Mr. M.R.R. was around his mom, Mr. M.R.R. constantly

reassured her everything was okay and how much he loved them. However, when it was just R.B. and Mr. M.R.R., he would change and be sexually abusive. [ 46 ] R.B. said that since his mom found out, he has been concerned about her and about how she is handling it all. He is glad, because this situation gave her the chance to now charge her abusers and deal with her past. He said safety plans were put in place for him to help him start his healing. He said both he and his mom have counsellors. [ 47 ] R.B. said he was not suicidal but was concerned.

He stayed quiet about the sexual abuse because he was concerned about what Mr. M.R.R. would do. In particular, he was concerned about what Mr. M.R.R. could do to the family. [ 48 ] R.B. said he is now more cautious about life in general. It is harder for him to trust people and their actions. He is sad, anxious, and confused. He is now always supervised and cannot even go to school or the store alone. He had regular counselling and was sent to treatment. THE POSITION OF THE PARTIES [ 49 ] The Crown asks this Court to impose a jail sentence in the range of three to four years in the circumstances of this case.

The Crown argues that when the Court imposes a sentence in this case, the primary consideration should be the objectives of denunciation and deterrence. The Crown relies on s. 718.01 of the Criminal Code in this regard, and points to the fact that Mr. M.R.R. abused a person under the age of 18 years. [ 50 ] The Crown submits there are three primary aggravating factors, namely, (

a) R.B. was under 18 years old at the time the offences occurred; (

b) Mr. M.R.R. was in a position of trust because he was essentially a father figure for R.B.; and (

c) the offences had a significant impact on R.B. and his family. Additionally, the Crown argues that the offences occurred over a period of 9 months. There were at least three specific sexual acts that occurred. The Crown notes that anal intercourse and fellatio are extremely intrusive acts. Additionally, some of the acts were videotaped and photographed. [ 51 ] The Crown submits that the level of moral blameworthiness of Mr. M.R.R. is high. He seems to be well educated. From his past personal experiences, he ought to have known that the effect on R.B. was going to be significant.

Additionally, there was a degree of grooming and that should be taken into account. [ 52 ] The Crown notes that s. 718.2 (

d) directs courts to consider the circumstances of Aboriginal offenders. However, although the Crown urges this Court to consider the Gladue factors, the Crown submits that denunciation and deterrence should be the primary consideration in this case. [ 53 ] The Crown relied on several cases: R. v. Friesen , 2020 SCC 9 ; R. v. LSN , 2020 BCCA 109 ; R. v. Nahanee , 2021 BCCA 13 ; R. v. Williams , 2021 BCSC 705 ; R. v. C.C.C. , 2021 BCSC 599 ; R. v. Scribner , 2020 BCSC 1685 and R. v. J.N.P. , 2020 BCSC 570 . [ 54 ] Counsel for Mr.

M.R.R. submits that an appropriate sentence in his case is 18 months in jail followed by an 18-month probation order. Defence counsel reviewed the Pre-Sentence Report and the Gladue Report regarding Mr. M.R.R.’s personal circumstances. I have reviewed the Pre-Sentence Report and the Gladue Report at length in these reasons and will not repeat the contents of those reports, which were both reviewed in defence counsel’s closing submissions. However, I will summarize some of the background points made by defence counsel:

a) Mr. M.R.R. has four siblings but has not been in contact with them. He had a breakdown in is family prior to these offences which was part of the difficulty he endured and the stress he experienced leading to the offences.

b) Mr. M.R.R. has five children but has not had contact with any of them for some time.

c) He is essentially a “lone wolf”.

d) He was homeless until May 2021 and now lives in social housing in Vancouver. The provincial government operates the housing.

e) As far as employment goes, he is an artist, and a well-known one at that. However, he is currently taking a break from his art. He maintains himself by repairing and selling bicycles. When he was practising his art, he was placed on a pedestal, which was both positive and negative. He was under a lot of pressure from his community. He was also under pressure to provide financial support to his family. The pressure he felt during that time led, in part, to his use of methamphetamines and to the current offences.

f) Currently, Mr. M.R.R. has no major health issues but has significant mental health problems. He has abstained from drinking alcohol for seven years. He currently does use methamphetamines. [ 55 ] Counsel for Mr. M.R.R. provided more detailed background about the Indigenous villages at Haida Gwaii and the results and negative impact of colonization. [ 56 ] Much of defence counsel’s submissions were based on the Pre-Sentence Report and the Gladue Report. I have considered defence counsel’s submissions but have not repeated all of them in this

summary.

APPLICABLE LEGAL PRINCIPLES [ 57 ] An offence under s. 151 of the Criminal Code (sexual interference), carries a maximum sentence of 14 years imprisonment.

Section 152 (invitation to sexual touching) also carries a maximum sentence of 14 years. However, there is no mandatory minimum, although one is provided in both sections, because in R. v. Schofield , 2019 BCCA 3 , the British Columbia Court of Appeal concluded that minimum sentences for s. 151 offences were unconstitutional. General principles [ 58 ] The purposes and principles of sentencing are set out in the Criminal Code . The British Columbia Court of Appeal in R. v. Bosco , 2016 BCCA 55 , succinctly summarized those principles.

In that case, at paragraph 29, the court wrote that the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, peaceful and safe society. To meet this purpose, judges determine and impose “just sanctions” upon those convicted of committing crimes. Sanctions are just when they are tailored to the nature of the offence and the circumstances of the offender, bearing in mind a wide array of sentencing goals and principles. Their overarching purpose is to protect society and affirm its shared values. [ 59 ]

Section 718.1 of the Criminal Code provides that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is often referred to as the proportionality principle. In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada noted that the proportionality of a sentence is intimately tied to the fundamental purpose of sentencing, namely, the maintenance of a just, peaceful and safe society through the imposition of just sanctions.

The Court noted that no matter what weight a sentencing judge places on the various objectives and other principles provided in the Criminal Code “the resulting sentence must respect the fundamental principle of proportionality.” [ 60 ] In this case, proportionality must be considered in the context of sexual offences committed against children. In a recent decision in R. v.

Friesen , 2020 SCC 9 , (which I will review later) , the Supreme Court of Canada provided direction and guidance to sentencing judges about sentencing offenders for sexual offences committed against children. [ 61 ] In s. 718.2 of the Criminal Code , Parliament set out a list of other principles that a sentencing judge should take into account. Those principles include the following:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) an offender should not be deprived of liberty, if less restrictive actions may be appropriate in the circumstances, and

d) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders but in particular for Aboriginal offenders. Specific principles applicable to child-related sexual offences [ 62 ] The Criminal Code and case law set out sentencing principles that apply in cases where the accused is convicted of child-related sexual offences. [ 63 ]

Section 718.01 specifically provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, the court must give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 64 ]

Section 718.2 (a) (ii.1) provides that any sentence imposed on an offender should be increased or reduced to account for relevant aggravating or mitigating circumstances. Evidence that the offender abused a person under the age of 18 is deemed to be an aggravating factor. [ 65 ]

Section 718.2 (a) (iii) also provides that evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim is also deemed an aggravating circumstance. [ 66 ]

Section 718.2 (a) (iii.1) further provides that evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation is also deemed to be an aggravating circumstance. [ 67 ] Additionally, in September 2019, Parliament added a new section, namely, s. 718. 04 to the sentencing provisions of the Criminal Code . That

section provides that 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 denunciation and deterrence of the conduct that forms the basis of the offence. That new

section was not in place at the time the two offences before this Court were committed. Hence, is not directly applicable to this sentencing. However, it is notable that Parliament has provided specific new guidance to sentencing judges about offences that involve the abuse of a person who is vulnerable because of personal circumstances. More importantly, in C.C.C. , Marchand J. followed Ker J. in R. v. Milne , 2020 BCSC 2101 , and concluded that even though s. 718.04 was not in force at the time of C.C.C.’s offences, the principles it sets out nevertheless applied. R. v.

Friesen – Sentencing principles for sexual offences against children [ 68 ] On April 2, 2020, the Supreme Court of Canada issued the Friesen decision, which is a significant decision about sentencing principles for sexual offences against children. The Friesen decision “is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” The opening overview of the decision leaves no doubt about the importance of sentencing in such cases.

In the opening paragraph, the Court noted that children are the future of our country and our communities. They are also some of the most vulnerable members in our society. They deserve to enjoy a childhood free

of sexual violence. See paragraph 1. [ 69 ] The Court specifically stated at paragraph 5 that it wanted to: … send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families and society at large. [ 70 ] In Friesen , the Court provided direction to sentencing judges on how to impose sentences for sexual crimes against children that fully reflect the harm done, as well as the wrongfulness of the conduct. The Court explicitly provided direction and guidance about the sentencing of offenders convicted of child-related sexual offences.

This was done to ensure that sentences for sexual offences against children correspond to Parliament’s initiatives and the contemporary understanding of the profound harm that sexual violence causes to children. [ 71 ] The Court pointed out that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code . The Court further noted that sentencing is one of the most important and most delicate stages of the criminal justice process.

Accordingly, it was important for the Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim. Given the facts of the case before the Court in Friesen , the guidance provided focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching, sexual exploitation, incest and sexual assault.

However, the Court noted that the principles it outlined in the decision are also relevant to sentencing for other sexual offences against children. See generally paragraphs 40 to 45. [ 72 ] In the course of the decision, the Court made a number of statements and observations about sentencing offenders convicted of child-related sexual offences. Below I set out some of the observations that are material to the sentencing hearing before me:

a) The primary interests protected by the legislative scheme of sexual offences against children are the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. ….. Sexual violence against children is wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. See paragraph 51.

b) Sexual violence against children can cause serious emotional and psychological harm that may often be more pervasive and permanent in its effect than any physical harm. See paragraph 56.

c) Sexual violence against children can fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community. See paragraph 64.

d) The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual violence against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. See paragraph 65.

e) Children who belong to groups that are marginalized are at heightened risk of sexual violence that can perpetuate the disadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level. See paragraph 70.

f) The Court emphasized that when a child victim is Indigenous, a court may consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence. See paragraph 70.

g) Violence is always inherent in the act of applying force of a sexual nature to a child. This includes physical and psychological violence, even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. See paragraph 77.

h) Courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence, even if an offender commits a crime that results in no actual harm. See paragraph 84.

i) The Court declined to create a national starting point or a sentencing range for sexual offences against children. However, the Court provided guidance on three specific points:

i) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; ii) Sexual offences against children should generally be punished more severely than sexual offences against adults; and iii) Sexual interference with a child should not be treated as less serious than sexual assault of a child. The Court reviewed each of the three factors listed above. See paragraphs 107 to 120.

j) The Court directed appellate courts not to discount sexual interference in comparison to sexual assault. It specifically referred to two British Columbia decisions where the British Columbia Court of Appeal appeared to have done just that by setting a range of two to six years for sexual assault involving intercourse in cases of child victims and a separate range of one to three years for sexual interference. The Court noted that it is an error of law to treat sexual interference as less serious than sexual assault. See paragraphs 119 and 120. Significant factors in determining a fit sentence for sexual offences against children

[73] In Friesen, the Court also set out significant factors to consider when determining a fit sentence for sexual offences againstchildren. It specifically noted that the factors it identified were not a checklist nor an exhaustive set of factors. Moreover, the factors theCourt addressed were not meant to displace the specific lists of factors that provincial appellate courts have set out. [74] The specific factors identified by the Court in Friesen are the following:

a) Likelihood to reoffend – The higher the offender’s risk to reoffend the more a court needs to emphasize the sentencing objective ofseparating the offender from society to protect vulnerable children from wrongful exploitation and harm.

b) Abuse of a position of trust or authority – An offender who abuses a position of trust should receive a lengthier sentence than anoffender who is a stranger to the child, all other things being equal. The Court noted, among other things, that the abuse of a position oftrust is aggravating because it increases the offender’s degree of responsibility. The breach of the duty of protection and care enhancesmoral blameworthiness. Further, the abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which isespecially morally blameworthy.

c) Duration and frequency of sexual violence – The duration and frequency of sexual violence must receive weight in sentencing. Thefrequency and duration can significantly increase the harm to the victim. The Court noted that the increased harm to the victim magnifiesthe severity of the offence. It also increases the offender’s moral blameworthiness because the additional harm to the victim is areasonably foreseeable consequence of multiple assaults.

d) Age of the victim – The age of the victim is a significant aggravating factor. The power imbalance between children and adults iseven more pronounced for younger children. It follows that the moral blameworthiness of the offender is enhanced when the victim isparticularly young and is thus even more vulnerable to sexual violence.

e) Degree of physical interference – The Court acknowledged that the degree of physical interference is a recognized aggravating factor.It reflects the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching and its violation of thevictim’s sexual integrity. The Court did not go so far as to define a range or starting point for sentences according to the type of physicalact. It strongly cautioned that provincial appellate courts should be aware of the dangers of defining a sentencing range based onpenetration or the specific type of sexual activity in issue.

The Court reviewed in detail a number of errors that courts should avoid. Itnoted that it is an error to categorize the degree of physical interference by having a hierarchy of physical acts. The type of physical actcan be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physicalinterference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio andcunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale.

The Court clearly and forcefully said this isan error.

f) Victim participation – A victim’s participation should never distract a court from the fact that adults always have a responsibility torefrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity betweenchildren and adults. See paragraphs 122 to 154 for a detailed analysis of the considerations in the factors identified above. ANALYSIS Arriving at a fit sentence [75] In arriving at a fit sentence for Mr. M.R.R., it is my duty to take an individualized approach to sentencing. That individualizedapproach is set out in the Criminal Code.

I have considered the purposes and principles of sentencing, the circumstances of the offence,the circumstances of the offender, and other statutory pre-requisites. [76] In addition, I have reviewed the cases provided by the Crown and Mr. M.R.R.’s counsel. I have also considered the commentsabout the sentencing process made by the British Columbia Court of Appeal in R. v. Carrillo, 2015 BCCA 192. That case is not at all onpoint with the case before me. However, I refer to it because of the points the court made about the sentencing process, which bearrepeating: (

a) Deciding a fit sentence is not a science. (

b) Sentencing is a profoundly contextual process particularly suited to the sentencing judge. (

c) There may not be a single appropriate sentence for a similar offender and a similar crime. (

d) While the range of sentencing emerging from earlier cases provides guidance, it is not conclusive of an appropriate sentence in anygiven case. (

e) Only substantial disparity that cannot be justified by reference to differences in offenders and the circumstances of the offence willlead to appellate intervention. [77] The Supreme Court of Canada has also commented on the role of a sentencing judge in crafting a just and appropriate sentence inR. v. C.A.M., (SCC), [1996] 1 S.C.R. 500.

In that case, Chief Justice Lamer, as he then was, said at paragraph 91: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of and in the community. [78] In Friesen, the Supreme Court of Canada noted the importance of sentencing and acknowledged that sentencing is one of the

most important and most delicate stages of the criminal justice process. It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes, and give effect to both in imposing a sentence. [ 79 ] In these reasons for sentence, I have reviewed, in some detail, the principles of sentencing that apply to this case. Additionally, I have considered the recent case law brought to my attention by the Crown and counsel for Mr. M.R.R. In Friesen the Court declined to create a national starting point or a sentencing range for sexual offences against children.

The Court also noted it has repeatedly held that sentencing ranges and starting points are guidelines – not hard and fast rules. The Court said that it was concerned about sentencing ranges based on precedents that appear to restrict a sentencing judge’s discretion. [ 80 ] The Court also stated that it was not its role to establish a range or to outline in which circumstances substantial sentences for sexual offences against children should be imposed. It went further and stated that it would not be appropriate for any court to set out binding or inflexible quantitative guidance.

Nevertheless, the Court felt it was incumbent on it to provide the message that, “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” [ 81 ] I will now review the other cases relied on by the parties, not in search for a range or a starting point but to set the context for what is happening in similar cases in the courts in British Columbia. [ 82 ] The Crown relied on Friesen , which I have reviewed extensively.

The Crown also relied on L.S.N . That case was an appeal by the Crown from a suspended sentence received by L.S.N . for sexual interference. The 37-year-old Indigenous offender had engaged in three instances of sexual touching of his 11-year-old stepdaughter. The offender had a previous conviction for sexual interference. He had failed to comply with substance abuse and sex offender counselling during his probation for that offence.

He was regarded as being high risk to reoffend pursuant to an assessment and requiring sex offender treatment. [ 83 ] The British Columbia Court of Appeal issued the L.S.N. decision approximately one week after Friesen was published. The court found that the sentence imposed on L.S.N. was demonstrably unfit. It referred to the Friesen decision on several points.

It noted that the suspended sentence imposed by the sentencing judge did not reconcile in a principled way the circumstances of the offender with the parity principle. [ 84 ] The court allowed the Crown’s appeal and imposed a sentence of two years less a day, a three-year probation, and a s. 161 order. In doing so, it noted that the sentence proposed by the Crown on the initial sentencing and again on the appeal was at the bottom end of the appropriate range.

However, having regard to the Crown’s position on sentencing, the respondent’s devastating background circumstances, the exceptional circumstances identified by the sentencing judge, Gladue considerations, and the amount of time that had passed since the offence was committed, it was appropriate to impose a sentence of two years less a day. [ 85 ] In Nahanee , another decision of the British Columbia Court of Appeal issued in January 2021, the offender appealed from a sentence of eight years imprisonment for sexual assault.

The offender had pled guilty to sexually assaulting one of his nieces on one occasion; he was 27 years old at the time and his niece was 15 years old. He also had another niece whom he assaulted on many occasions between 2010 and 2015. He was 19 years old and that niece was 13 years old when she moved in with his family. The sexual assaults on the second niece started several months thereafter. Both the victims and the offender were Indigenous. The court considered the Friesen decision. It dismissed the offender’s appeal.

In doing so, it considered, among other points, the sentencing judge’s consideration of the Gladue principles in that case. It noted that it should be borne in mind that the application of the Gladue principles in the case must also have been tempered by consideration of the fact the victims were Indigenous children. [ 86 ] In Williams , a 40-year-old Indigenous offender was found guilty of sexual assault and sexual touching of a 16-year-old Indigenous victim.

The sentencing judge imposed a three-year sentence for sexual interference, and a one-year sentence for communicating via telecommunication to facilitate the commission of a sexual offence. The sentences were to be served concurrently. The court directed a stay on the sexual assault conviction on the basis of the Kienapple principle. The sentencing judge referred to Friesen and noted that pre- Friesen precedents are of limited, if any assistance.

The court found that the sentences imposed were not unfit. [ 87 ] In C.C.C . , Marchand J., as he then was, sentenced an Indigenous offender he had found guilty of sexual assault and sexual interference of a vulnerable Indigenous girl. The victim had been placed with her maternal grandmother and the grandmother’s husband after her mother’s death. The court found that the offender was more than a step-grandparent to the complainant – he was a father figure. The court could not exactly say when the abuse of the victim started or the frequency of the abuse.

The victim was 11 years old when the step-grandfather stopped abusing her. All of the sexual abuse occurred in the family home. The abuse included sexual touching and vaginal intercourse. This case is notable for what Marchand J. said at paragraph 2: These are amongst the most painful of reasons for judgment a sentencing judge can be asked to deliver. Two crises that arise from the same historical factors pull in opposite directions. On the one hand, the circumstances call on me to denounce and deter the sexual victimization of an extremely vulnerable Indigenous girl.

On the other hand, I do not wish to exacerbate the grotesquely disproportionate rate of incarceration of Indigenous people. There is no easy solution. [ 88 ] The accused at the time of sentencing was 65 years old. He was Indigenous. He had experienced his own set of harrowing childhood experiences. He had lived in foster homes and had been placed in a residential school for two years. It appears the offender had steady work, and at the time of the offences in question he worked as a carpenter and had done so for approximately 19 years. He had a criminal record.

He submitted a number of reference letters from community members and his employer. [ 89 ] Marchand J. considered the interrelationship between the authorities and the provisions of the Criminal Code , which dictate that denunciation and deterrence are primary sentencing principles in sexual abuse of children, and in particular Indigenous children. However, the personal circumstances of the offender and s. 718.2 (

e) could not be ignored. The Crown suggested a sentence of seven to nine years, whereas the offender suggested two years imprisonment and three years probation. The court considered a number of factors and a number of cases including Friesen . The sentencing judge noted that overall, the sentencing authorities supported a sentence in the mid-to-upper single digit penitentiary range.

[ 90 ] The sentence Marchand J. imposed was five years. In imposing that sentence, he considered the case authorities and Criminal Code provisions which dictate that denunciation and deterrence are primary sentencing principles in cases of sexual abuse of vulnerable children, and in particular Indigenous girls.

However, he also noted that he could not ignore the offender’s personal circumstances and the application of s. 718.2 (e). [ 91 ] In J.N.P . , a sentencing which occurred shortly after Friesen was issued, the offender was convicted of sexual assault and sexual interference of a person under the age of 16 years, as well as invitation to sexual touching. The victim was 15 years old at the time of the offence. She was J.N.P.’s niece. The victim spent a great deal of time at J.N.P.’s home because she was friends with his eldest daughter.

One evening, when J.N.P.’s partner was away, the victim and J.N.P. were alone in the living room. He took her to a basement room. The offender pulled off the victim’s shorts and underwear. She crossed her legs, but he pulled them apart and performed oral sex on her. He then pulled down his jeans, put her hand on his erect penis, and put it in her mouth. J.N.P. ejaculated into her mouth and then left and went upstairs. [ 92 ] The offender was 46 years old at the time of sentencing. He was Indigenous. He experienced problems with alcohol and drugs in the past.

At the time of sentencing, he had abstained from both, it appears for about 10 years. He had a dated criminal record, which the court considered irrelevant. In that case the forensic psychiatrist was unable to give an opinion on J.N.P.’s risk of reoffending because of the lack of collateral information. The Crown had initially proposed a sentence of three years in jail.

However, when the hearing resumed, after the Friesen case had been decided, the Crown submitted that a sentence in the six to seven year range was necessary. [ 93 ] The defence argued that since Friesen had not changed the national benchmark for sentencing, the law was unchanged, and submitted that a sentence of two years less a day and three years probation was appropriate. The sentencing judge reviewed Friesen and the directions contained therein.

In particular, she noted that Friesen affirms that sentencing an Indigenous person for any sexual offences against children requires consideration of the systemic and background factors outlined in cases like Gladue and Ipeelee , which may have a mitigating effect. However, she noted that in Friesen the Court stated that when a child victim is Indigenous, a court may considered the heightened risk of sexual victimization faced by these children because of their indigeneity. [ 94 ] The sentencing judge concluded that the six to seven year sentence advanced by the Crown was clearly excessive.

She also concluded that a provincial sentence, in the circumstances before her, was not appropriate. A penitentiary sentence was necessary. She sentenced the offender to three years for the offence of sexual interference of a person under the age of 16. [ 95 ] Counsel for Mr. M.R.R., as noted in my

summary of the parties’ positions, relied on the principles of sentencing applicable to this case. She also relied on the Collin’s case. In that case the offender had pled guilty to one count of sexual interference. A second count of sexual assault was stayed pursuant to the Kienapple principle. The victim had gone swimming at a local aquatic centre. She was in the women’s change room changing out of her swimsuit. The offender entered the women’s change room. The victim was undressed and in one of the stalls. She told him so. She asked him to go away. He went into the stall ostensibly to assist her with her bra.

Eventually, he lifted her leg from the floor, kissed her on her mouth, and digitally penetrated her vagina. The victim told him to stop several times. It appears he did not, but eventually left. [ 96 ] At the time of the offence the victim was 15 years old. She lived with an aunt. There was no direct evidence about her background, but the court concluded on the evidence that she was Indigenous. [ 97 ] At the time of sentencing, which was approximately three years after the offence, the offender was 35 years old. He worked as a logger in remote logging camps. His employer wrote a letter of support for him.

The offender was not an Indigenous person. He was in foster care and was eventually placed with two of his siblings with foster parents who were Métis. They ultimately adopted him. The court was advised that the Government of Canada therefore considered the accused to be Métis. However, since neither counsel pressed the potential applicability of Gladue principles, the court had no evidence before it by way of a Gladue Report. [ 98 ] The court noted that even if the Gladue principles applied, that did not mean that Aboriginal offenders would necessarily receive shorter sentences.

In particular, in cases involving serious offences where there is a pressing need for denunciation and deterrence, such as sexual assaults against children committed by adults in a position of trust, it is now settled law that absent extraordinary circumstances, both Aboriginal and non-Aboriginal offenders will generally receive sentences of imprisonment. [ 99 ] In Collins , the Crown’s position on sentence was one year incarceration followed by three years probation. The defence position on sentencing was for a six-month jail sentence. The court reviewed the Friesen decision.

She noted that the offender took advantage of the trust vested in him by the victim. She noted that when this kind of essential trust is broken, the offender’s moral culpability is high and the harm caused to the victim profound. The court noted the law is clear that the need for denunciation, deterrence, and retributive punishment must take precedence. The court noted that sentencing of any offender for a sexual offence is an extremely difficult task. She considered the circumstances of the offence, the fact that the offender had betrayed the victim’s trust, and that he was morally blameworthy.

She also considered his extremely difficult upbringing and the fact that the incident was a single isolated event, and that the offender did not have any relevant criminal record. She considered the support he had from his employer, his present partner, and a psychiatrist’s opinion that the offender was unlikely to reoffend. The sentence imposed was one year in jail and a three-year period of probation. Aggravating factors in Mr. M.R.R.’s case [ 100 ] Turning to Mr. M.R.R.’s specific case, I find that there are a number of aggravating factors in this case:

a) Abuse of a position of trust – The abuse of position of trust is a statutorily recognized aggravating circumstance. It is specifically designated as such in s. 718.2 (a) (iii). Moreover, in Friesen the Court noted that trust relationships arise in a variety of circumstances and should not all be treated alike. Additionally, there is case law that supports the view that a position of trust or authority is not a closed category and is dependent on the circumstances. In this case, Mr. M.R.R. had been in a relationship with R.B.’s mother for a three-year period. It is acknowledged that during that time Mr.

M.R.R. and R.B. developed a father and son relationship. They were close. In Friesen , the Court explained that any breach of trust is likely to increase the harm to the victim and the gravity of the offence. The Court noted that a child will likely suffer more harm from sexual violence where there is a close relationship and a higher degree of trust

between the child and the offender. In Friesen, the Court also noted that the abuse of a position of trust is further aggravating because itincreases the offender’s degree of responsibility. The abuse of a position of trust exploits children’s particular vulnerability to trustedadults, which is especially morally blameworthy. In this case, there was also a degree of grooming involved. In Friesen, the Court saideven where grooming does not exploit an existing relationship of trust to build a new one, it is still aggravating in its own right.

b) Age of the victim –

Section 718.2 (a) (ii.1) statutorily provides that where an offender has abused a person under the age of 18,that is an aggravating factor. In this case, R.B. was 11 years old at the time of the offences. I find R.B.’s young age made him morevulnerable to exploitation by Mr. M.R.R. In my view, this is a significant aggravating factor. It enhances Mr. M.R.R.’s moralblameworthiness.

c) Duration and frequency of sexual violence – The offences in this case occurred between September 1, 2018, to June 30, 2019.The interactions between Mr. M.R.R. and R.B. were not spur of the moment or isolated instances.

d) Degree of physical interference – In Friesen, the Court stated that sexual violence, even if it does not involve penetration, is“extremely serious.” There is no hierarchy of physical acts. In this case, there was one instance of anal penetration and two specificinstances of fellatio. Those sexual acts are highly intrusive. There is no doubt there was a significant degree of violation of R.B.’s bodilyintegrity.

In Friesen, the Court noted that judges can legitimately consider the greater harm that may flow from specific physical acts.However, courts must not lose sight of the emotional and psychological harm to the victim that all forms of sexual violence can cause.Any sexual offence is serious.

e) Video and photographs – The Agreed Statement of Facts acknowledges that some of the interactions between Mr. M.R.R. and R.B.were recorded either by video or by photographs or possibly both. I find this to be an aggravating factor, even though a search of Mr.M.R.R.’s Google account found there were no child sex images or videos on that account. In my view, the recoding of the sexualviolence Mr. M.R.R. committed on R.B., by taking a video and photographs, further invaded R.B.’s personal autonomy and his dignity.

f) Impact on the victim considering his age and other personal circumstances – The offences had a significant negative impact on R.B.He does not trust others fully. He worries about his family and friends. He fears for his security. He is afraid that Mr. M.R.R. may hurthim or his family. He is sad, anxious and confused. He has had regular counselling and was sent to treatment. I find that R.B. was avulnerable victim, who has suffered significantly because of the offences.

g) Location of offending – On the basis of the Agreed Statement of Facts, it appears that two specific sexual incidents occurred atan apartment belonging to K.F., which was being used by Mr. M.R.R. One of the other incidents occurred at R.B.’s house. This is anaggravating factor because R.B.’s home should have been a place of safety and security. Mitigating factors in Mr. M.R.R.’s case [101] While there are aggravating factors in this case, I must also consider any mitigating factors:

a) Guilty plea – Mr. M.R.R. pled guilty to the two offences for which he is being sentenced. As has been noted in other cases, a guiltyplea is a mitigating factor, because it is an acknowledgement of responsibility for the offence. Sometimes, there are circumstances wherethere is little mitigating value in a guilty plea. In this matter, the Crown had a strong case. Nevertheless, because of the guilty plea, therewas no need to have a trial, and therefore R.B., his family, and other witnesses were spared the stresses and anxiety that come withhaving to testify at trial. In the circumstances, it is appropriate to treat the guilty plea as a mitigating factor.

b) Expression of remorse – Although Mr. M.R.R. chose not to address this Court (as is his right), through his counsel he told thisCourt he wanted to apologize to the victim and the victim’s family. He stated he had great respect for the victim and hoped that hisbehaviour did not prevent the victim from accomplishing what he wished to accomplish. The case law establishes that the lack ofremorse is not an aggravating factor, but remorse is a relevant mitigating factor. Mr. M.R.R.’s comments through counsel on the day ofthe sentencing hearing may not have brought any significant comfort to the victim or his family. However, it is nevertheless a factor thatI consider in mitigation.

c) Dated criminal record – Mr. M.R.R. has a dated criminal record for a conviction of mischief in 1996. His dated criminal record isnot for a sexual offence. In J.N.P., Iyer J. considered the dated criminal record irrelevant. However, in this case I cannot reach the sameconclusion. A clear absence of a criminal record is a standard mitigating factor. In this case, there is a dated criminal record and the factthe sexual offences against R.B. were not isolated acts. There were several sexual offences over a nine month period. Accordingly, atbest, Mr. M.R.R.’s dated criminal record is a neutral factor in determining a fit sentence.

d) Offender’s own sexual abuse – During submissions and in the Pre-Sentence Report and the Gladue Report, references were madethat Mr. M.R.R. reported being sexually abused as a child and as a young teen. In R. v. Mattess, 2021 BCPC 164, Keyes P.C.J.,considered whether the offender’s sexual abuse as a child should be considered a mitigating circumstance. She concluded she could nottake judicial notice that individuals who suffered childhood sexual abuse necessarily had diminished moral culpability.

She noted noevidence was presented to her to suggest that people who were victimized sexually as children were thereby psychologically programmedto sexually abuse others as adults. Accordingly, she did not consider the offender’s childhood sexual abuse in that case as a mitigatingfactor. However, she considered his personal history as a victim in determining his sentence. I too take Mr. M.R.R.’s personal history ofabuse into consideration but not necessarily as a mitigating factor.

e) Offender’s Indigenous status – Mr. M.R.R. is an Indigenous person, so I am statutorily required by virtue of s. 718. 2 (

e) toconsider all available sanctions other than imprisonment that are reasonable in the circumstances. R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, and Ipeelee set out a framework and principles for the sentencing of Indigenous offenders. Courts must take judicialnotice of such matters as the history of colonialism, displacement, and residential schools, and how that history continues to translate intolower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels ofincarceration for Aboriginal people. Mr.

M.R.R. is not required to establish a causal link between his Indigenous heritage and relatedbackground factors and the commission of the offences before this Court in order to be entitled to have those factors considered atsentencing. In C.C.C. at paragraph 37, Marchand J. noted that the Gladue and Ipeelee decisions changed the way Indigenous offenders

were to be sentenced, though not necessarily the result. A sentencing judge must consider two factors, namely (

i) the unique systemic or background factors which may have played a

part in bringing the particular offender before the courts; and (ii) the types of sentencing procedures and sanctions which may be appropriate in the circumstances. Marchand J. acknowledged the role of Gladue and Ipeelee in sentencing. However, he noted that while restorative sentences may be more appropriate for Indigenous offenders, taking a restorative approach will not necessarily lead to a reduced sentence. Gladue principles apply even to the most serious, violent type of offences.

However, the more serious or violent the crime the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender. See C.C.C. at paragraphs 37 to 40 .

f) Punitive effect of ostracization – Through counsel, Mr. M.R.R. maintained that in addition to his personal background, this

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