R. v. B.L.M., 2022 BCPC 187

Citation: R. v. B.L.M. 2022 BCPC 187 Date: 20220906 File No: 30314-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.L.M. Restriction on publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: K. Schille Counsel for the Defendant: E.

Murphy Place of Hearing: Prince Rupert , B.C. Dates of Hearing: June 21, 22, July 14, 21, 2021; June 2, 2022 Date of Judgment: September 6, 2022 A Corrigendum was released by the Court on September 14, 2022. The corrections have been made to the text and the

Corrigendum is appended to this document. [ 1 ] These are my Reasons for Sentence. [ 2 ] The circumstances of the sexual violence offences and my factual findings are set out in detail in my Reasons for Judgment available under neutral citation R. v. B.L.M. , 2021 BCPC 183 . For reasons I still do not understand, counsel adjourned the sentencing in this matter on several occasions, meaning that it has now been over a year since I convicted B.L.M. at trial on July 21, 2021. [ 3 ] While the sexual violence offences occurred in 2001 and 2003, it was many years later when they were reported to the police.

Both sexual violence offences involved the same young male victim. In 2001, at the time of the sexual interference offence, the victim was 13 years of age and B.L.M. was 38 years of age. In 2003, at the time of the sexual assault, the victim was 15 years of age and B.L.M. was 40 years of age. Both the victim and B.L.M. are Indigenous persons. [ 4 ] The BC Prosecution Service has sought a jail sentence of 18 months to two years less a day, followed by three years of probation.

The defendant has submitted that a conditional sentence order of 18 months, followed by three years of probation, is the appropriate sentence. [ 5 ] In light of the sentencing positions presented to the court, the issue for me to decide is this: If I decide against imposing a penitentiary term of imprisonment, should the now 59-year-old B.L.M. serve his sentence behind bars in a correctional centre or in the community by way of a conditional sentence order? [ 6 ] For the reasons set out below, I have concluded that a period of incarceration for B.L.M. is required, but that this is one of the rare cases where exceptional circumstances exist.

In the unique circumstances of the present case, the appropriate sentence for B.L.M. is a conditional sentence order of two years less one day, followed by three years of probation. I. BACKGROUND [ 7 ] I adopt the words of Judge Giardini as set out at paragraph 5 in R. v. M.R.R., 2021 BCPC 207 : [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. [ 8 ] As pointed out by Justice Marchand, as he then was, in R. v.

C.C.C., 2021 BCSC 599 , a case involving the sexual victimization of a pre-teen girl by an Indigenous man: [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.

I am of the opinion that the same holds true in the case of the sexual victimization of a teenage Indigenous boy by an Indigenous man, especially when the Indigenous man was himself sexually victimized as a 12-year-old boy. [ 9 ] I note that the term “Aboriginal,” for many years perhaps the least contentious and most inclusive general term used in Canada, is used in much of the case law that I will be referring to in these Reasons for Sentence. However, unless I am quoting from case law or another source, I will be using the term “Indigenous”.

I appreciate that terminology is a complex and sometimes-contentious issue and that

definitions have legal implications; nevertheless, I believe in Canada that the word Indigenous has supplanted the term Aboriginal. [ 10 ] Furthermore, I will be using the term “First Nations” when referring the most populous of the three distinct groups of Indigenous peoples in Canada.

I do so regardless of whether or not the person is considered “status” or “non-status” by the Government of Canada under the Indian Act , lives on reserve or off reserve, and whether or not they have a close connection to their First Nations’ culture. [ 11 ] The other two distinct Indigenous peoples in Canada are the Inuit and the Métis. [ 12 ] The BC Prosecution Service proceeded in this matter by way of Indictment.

As indicated above, on July 21, 2021, I convicted B.L.M. of two counts: Count 1: B.L.M., from the 1 st day of January, 1999 to the 3 rd day of July 2002, inclusive, at or near Prince Rupert, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K.A., a person under the age of fourteen years, contrary to

Section 151 of the Criminal Code . Count 2: B.L.M., from the 1 st day of January, 1999 to the 31 st day of December 2004, inclusive, at or near Prince Rupert, in the Province of British Columbia, did sexually assault K.A., contrary to

Section 271 of the Criminal Code . [ 13 ] Before adjourning the matter on July 21, 2021, for submissions on sentence, I inquired of counsel if reports were going to be ordered. I specifically asked counsel if a Gladue Report was being requested from the BC First Nations Justice Council (BCFNJC). Ms.

Murphy, counsel for B.L.M., advised the court that her preference was for the local Prince Rupert Community Corrections Office to interview B.L.M. and prepare a Pre-Sentence Report with a Gladue component, as in her experience, the Prince Rupert Community Corrections Office writers were knowledgeable about local First Nations and prepared excellent reports. A standalone Gladue Report prepared by the BCFNJC was not ordered. I did direct counsel that I wanted to know about B.L.M.’s childhood and life experience.

As a First Nations man, B.L.M. is entitled to have the court fully aware of his life experience and how the various Gladue factors have played a role in bringing him before the courts. I was also concerned about B.L.M.’s disclosure during his evidence that he had been a victim of sexual violence as a young man in his home community. [ 14 ] Counsel filed several reports and documents as exhibits during the course of the sentencing. B.L.M.’s daughter also gave evidence. I have reviewed and considered all of the exhibits and the evidence provided by B.L.M.’s daughter. The filed exhibits included: 1.

A Pre-Sentence Report (with Gladue component) prepared by Duong Nguyen, Probation Officer, of the Prince Rupert Community Corrections Office, dated September 13, 2021. 2. A Psychiatric Pre-Sentence Report prepared by Dr. Dina Lee-Ann Ballance, BSc, MSc, MD, FRCPC, of the Forensic Psychiatric Services Commission, dated September 13, 2021. 3. The Victim Impact Statement of the victim. [ 15 ] Counsel provided the court with a number of judicial decisions. I have read and considered each of the decisions: R. v. L.S.N., 2020 BCCA 109 R. v. D.R.P., 2021 BCSC 1563 R. v. Padda, 2019 BCCA 351 R. v.

Scofield, 2019 BCCA 3 R. v. D.M., 2021 BCSC 379 R. v. Friesen, 2020 SCC 9 R. v. Horswill, 2019 BCCA 2 . II. POSITION OF THE PARTIES [ 16 ] The BC Prosecution Service sought a jail sentence of 18 months to two years less a day, followed by three years of probation. [ 17 ] The defendant submitted that a conditional sentence order of 18 months, followed by three years of probation, was the appropriate sentence. [ 18 ] In determining the applicable sentencing punishments in the context of historical sexual offences, Justice Martin, writing for the Majority in R. v.

Poulin, 2019 SCC 47 , clarified the law surrounding s. 11(

i) of the Canadian Charter of Rights and Freedoms (the Charter ) as follows: [3] I conclude that, properly interpreted, s. 11(

i) confers a binary right, not a global one.

Section 11(

i) entitles an offender to the lesser of (1) the punishment under the laws in force when the offender committed the offence, and (2) the punishment under the laws in force when the offender is sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk the offender took by offending. That punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment that society considers just at the precise moment the court is called upon to pass a sentence.

It provides the contours for a sentence that reflects society’s most up-to-date view of the gravity of the offence and the degree of responsibility of the offender. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to have the constitutional right to receive the lesser of the punishments at these two points in time. [ 19 ] In 2001, at the time of the first offence, the victim was 13 years of age. The maximum punishment for sexual interference was a term of imprisonment not exceeding ten years.

A conditional sentence order was available to a sentencing judge per s. 742.1 of the Criminal Code . [ 20 ] In 2003, at the time of the second offence, the victim was 15 years of age. The maximum punishment for sexual assault was a term of imprisonment not exceeding ten years.

A conditional sentence order was available to a sentencing judge per s. 742.1 of the Criminal Code . [ 21 ] As of today’s date, the penalty in the Criminal Code for sexual interference when the Crown proceeds by Indictment allows for a maximum punishment of imprisonment of 14 years and to a minimum punishment of imprisonment for a term of one year. However, the mandatory minimum of one-year jail was previously struck down by Justice Harris in Scofield , allowing for the imposition of a conditional sentence order despite s. 742.1 (

b) of the Criminal Code , if the offence pre-dates the 2015 amendments to the Criminal Code that raised the maximum punishment from 10 years to 14 years. In R. v. Chen , 2021 BCSC 882 , Justice Schultes declared that s. 742.1 (

c) of the Criminal Code is of no force and effect, meaning that a conditional sentence order cannot be prohibited by operation of s. 742.1 (

c) of the Criminal Code . Accordingly, a conditional sentence order is now once again an available sentencing tool in relation to sexual interference offences. [ 22 ] As of today’s date, in cases such as the present where the prosecution proceeds by Indictment, the maximum punishment for

sexual assault is a term of imprisonment of 14 years and pursuant to s. 742.1 (f)(iii) of the Criminal Code , a conditional sentence order is specifically prohibited. Justice Nakatsuru in Ontario struck down s. 742.1 (f)(iii) as unconstitutional in R. v. R.S. , 2021 ONSC 2263 . Justice Duncan considered R.S. and subsequent Ontario decisions that have held s. 742.1 (f)(iii) unconstitutional in R. v. Ramzan , 2022 BCSC 222 , but decided that a conditional sentence was not appropriate for Mr. Ramzan and therefore she did not opine on the constitutionality of s. 742.1 (f)(iii). Likewise, in R. v.

Jajja , 2022 BCSC 467 , having determined that a conditional sentence order was not appropriate in Mr. Jajja’s case, Justice Warren declined addressing the constitutionality of s. 742.1 (f)(iii).

Accordingly, s. 742.1(f)(iii) remains the law in British Columbia and, as such, a conditional sentence order is not available in cases of sexual assault where the offence date is on or after November 20, 2012. [ 23 ] In the present case, having found that the two sexual violence offences occurred before November 20, 2012, a conditional sentence order is an available sentencing tool for the court in relation to both counts 1 and 2. I rely upon the Supreme Court of Canada decision in Poulin , as well as s. 11(

i) of the Charter and the relevant Criminal Code provisions in force in 2001 and 2003, as authority for my determination. III. FACTUAL FINDINGS AT TRIAL [ 24 ] Based upon the findings of fact I made at trial, I had no hesitation in finding that in relation to the first offence, as a 13-year-old boy, the victim did not and was unable to consent to 38-year-old B.L.M. placing his mouth on the victim’s penis. Furthermore, when B.L.M. instructed the victim to place his mouth on B.L.M.’s penis, what occurred after was not a consensual act.

Both acts were sexual violence, plain and simple. [ 25 ] In relation to the second offence, as the age of consent was 14 at the time, the Crown proved beyond a reasonable doubt that there was no voluntary agreement by the 15-year-old victim to engage in the sexual violence or activity with the then 40-year-old B.L.M.. Both acts were un-consensual sexual violence, plain and simple. IV.

THE GITXAALA FIRST NATION AND RESIDENTIAL SCHOOLS [ 26 ] According to the 2016 Statistics Canada Census of Population, as of 2016, there were 1,673,785 Indigenous people in Canada, accounting for 4.9% of the total Canadian population. This was up from 3.8% in 2006 and 2.8% in 1996. Since 2006, the Indigenous population has grown by 42.5% -- more than four times the growth rate of the non-Indigenous population over the same period. [ 27 ] Canada’s First Nations population grew by 39.3% from 2006 to 2016, reaching a population of 977,230 people.

In 2016, Canada’s First Nations population was concentrated in the western provinces, with more than half of First Nations people living in western Canada: British Columbia (17.7%), Alberta (14.0%), Manitoba (13.4%) and Saskatchewan (11.7%). By comparison, in 2016, 30.3% of Canada’s non-Indigenous population lived in the four western provinces. [ 28 ] First Nations people possess a rich cultural heritage of diverse languages, histories, and homelands.

In Canada, there are more than 600 unique First Nations Governments and more than 70 Indigenous languages, many of which are further diversified into distinct dialects. [ 29 ] Probation Officer Nguyen has prepared a thorough and thought provoking Pre-Sentence Report in the present case. In particular, he has done an excellent job of setting out B.L.M.’s personal history plus the history of the Gitxaala First Nation.

As such, I quote from pages 5, 6 and 7 of the Pre-Sentence Report to set out the history of the Gitxaala First Nation and Residential Schools, in order to give context to B.L.M.’s life: B.L.M. is a member of the Gitxaala (people of the open sea; people of the saltwater) First Nation through his mother. The village of Kitkatla is a member of the seven

(7) Tsimshian village communities which also include Kitasoo, Lax Kw'alaams, Gitga'ata, Kitselas, Kitsumkalum, and Metlatkatla. The Tsimshian societal structure is based on a matrilineal kinship system and is divided into four (4) clans: Ganhada (Raven), Gispwudwada (Killer Whale), Laxsgiik (Eagle), and Laxgibuu (Wolf). Altogether, the Tsimshian Nation comprises of approximately 10,000 members, one of the largest groups of First Nations people in Northwest British Columbia. The population of the village of Kitkatla consists of approximately 500 Tsimshian Nation members.

The Gitxaala people have suffered a legacy of violence, alcoholism, and suicide. The Residential School experience was a significant contributor to the systemic issues that continue to plague the community to this day. First Nations children of the Gitxaala were exposed to cultural, physical, emotional, and sexual abuse while attending the Residential Schools. The schools were influential in the breakdown of family and cultural knowledge, including the fundamental skill of parenting.

Compounding these issues is the lack of opportunities, and along with trans-generational trauma the dysfunction has manifested itself through maladaptive coping strategies which has further deteriorated social bonds. Much of the widespread social and economic dysfunction in the Gitxaala's history can be attributed to the Residential School system. Mr. B.'s mother reportedly went to Miller Bay Indian Day School and Alert Bay (St. Michael's Indian Residential School), and he believes she received $10 000 as part of her reconciliation package. Mr.

B. 's mother suffered from tuberculosis and recalls her experience there as life changing. Mrs. L. recalls her grandmother's stories of the school, and of the fear of being sent to the operating room as there was a high rate of children dying. Mrs. L.'s grandmother believed that the children were being experimented on and that it was a death sentence to be chosen for surgery. Mr. B.'s mother returned home at the age of seventeen (17). Mr.

Joe Spencer, Kitkatla Bylaw Officer, points to the physical, emotional, sexual, and cultural abuse experienced by many members of his community at Residential Schools as the primary contributor to the dysfunction in families in his village. The greatest impact of the schools was the loss of a great deal of traditional knowledge. Children had returned home and, having lost their language, were not able to communicate with their family or community. This resulted in the inability for guidance from parents or village elders.

The social disconnect contributed to personal and community dysfunction, as well as feelings of failure for both children and parents. Family breakdown was commonplace, and today the Gitxaala continues to work on healing their people and passing on their traditional knowledge onto the next generation. According to Ms. Kee Werner, former counsellor for the Kitkatla Health Unit, Residential Schools had and continues to have a profound impact on the population of Kitkatla. In addition to the transgenerational trauma, the impacts of those experiences have also negatively

altered the genetic expression of the Gitxaala people. Ms. Werner explains that the community has a high incidence of diabetes, Fetal Alcohol Syndrome, lupus, and other auto-immune diseases which she believes is highly correlated with the Residential School experience. She explains that these physical ailments plaguing the community are made exponentially worse when considering the unresolved trans-generational effects of psychological trauma. Moreover, intra-clan unions among young people remain a contentious issue despite disapproval from older community members.

This is in part due to socio-economic constraints that limit opportunity for the younger generation to leave Kitkatla and pursue independence. Altogether, the limited genetic diversity, increased prevalence of disorders, and trans-generational trauma have contributed to a focused and adverse expression of personal and social dysfunction in the community. Ms. Werner further expands on the effects of Residential Schools and advises that there were higher incidences of rape when men returned from the schools.

Rape was common enough that the girls and women at the time were discouraged from leaving their residence out of fear for their safety. The frequency of rape consequently produced feelings of shame for both the men and women. Confronted with sexual, physical, and emotional abuse both at school and then at home, alcohol and other substance addictions became a primary coping mechanism for the people to numb and bury their trauma and shame. Furthermore, the women were unknowingly affecting their unborn babies with alcohol use while pregnant, ignorant of its effects.

This failing of motherhood caused even more shame for matriarchs as it was "another thing" they did wrong. She informs that the older generation in Kitkatla has a very high incidence of alcoholism. Additionally, sexual abuse remains a problem in Kitkatla, with much of it going unreported. Ms. Werner states that there is a "culture of silence" in the community, with family members often advising victims to remain quiet about incidents of sexual assault in order to avoid "hurting" the family. These abuses can often become normalized within family groups and may contribute to unreported assaults.

Racism and rejection are also sentiments that are felt by the Gitxaala. Ms. Werner advises that Kitkatla lacks community resources, such as adequate health care and police presence, which makes change a slow process in Kitkatla. In addition, Kitkatla continues to have a problem with bootleg alcohol and drugs entering the village, despite being a dry community and having a zero-tolerance policy towards illegal substances. The lack of opportunities, substance misuse, "silence" of sexual abuse, and limited resources all cultivate feelings of frustration in the community.

The 1600’s saw the first European-missionary operated schools, however recruitment and retention were major obstacles as parents were unwilling to send their children away, and many children that did enroll ran away to return home. After the War of 1812, the "Indian Problem" became a priority when military and trade needs became unnecessary with First Nations communities.

The Government of Canada gradually adopted policies focused on assimilating First Nations people, and by 1920 it became mandatory for children between the ages of seven (7) and fifteen (15) to attend Residential Schools, which were purposefully placed far away from communities to deny any chance of interaction with their traditions and family. Parents who refused to send their children were prosecuted under the “Truancy Provisions of the Indian Act.” Parents would surrender their children to authorities, not knowing if they would ever see their children again.

They would suffer with feelings of shame and guilt, and of failing their children. Survivors of the Residential Schools recount stories of sexual assault, torture, medical experimentation, violence, poisoning, starvation, and freezing. St' Anne's Catholic Residential School (operational from 1904 to 1973) had an electric chair in the basement. Furthermore, many schools were underfunded and relied on student labour to remain functional. Students would spend half of their time cooking, cleaning, tending to livestock, and general labour; things they could learn at home with their family. In 1907, Dr.

Peter Bryce, Medical Inspector for the Department of Indian Affairs, investigated thirty five (35) western Canadian Residential Schools. Dr. Bryce released his findings, which emphasized extremely unsanitary and unsafe conditions in the schools. He projected a survival rate as low as 58% for First Nations children attending Residential Schools, and found schools that were in operation for longer periods of time also saw an increase in student mortality. In other words, out of one-hundred (100) students that would attend some schools, only fifty-eight (58) would return home to see their families again.

The Department of Indian Affairs would ultimately ignore Dr. Bryce's report. Over the course of one-hundred and twenty-five (125) years, one-hundred and fifty thousand (150 000) children were removed from their families and sent to Residential Schools. It is estimated between thirty-two thousand (3200) and six thousand (6000) children died at Residential Schools. This uncertainty in deaths can be attributed to a common practice of unmarked graves and poor record keeping, and in some cases, intentionally hiding grave sites.

Residential School survivors had returned home not knowing how to communicate with their parents or elders. A major aspect of learning in First Nations traditions is through storytelling, where lessons and knowledge are passed from village elders to the next generation. There is little to no written record keeping, and the passing of knowledge is primarily done orally.

With no way to communicate effectively killed the children's link to their heritage and way of life, essentially leaving numbers of children that are both rejected and discriminated against by European Canada, and having no connection with their home, family, or culture. This loss of identity, connection, and time during crucial developmental stages of youth would leave many young people lost and unconnected, and in the absence of meaningful social bonds they would then often adopt self-destructive and anti-social behaviours.

Instead of nurturing and affectionate relationships of their community and family, many survivors knew only the cold and uncaring reality of Residential Schools. They would enter adult life not knowing how to express affection to their own children, and often instead expressed themselves through the authority, neglect, abuse, control, and force that they were familiar with. V. B.L.M.’S PERSONAL CIRCUMSTANCES [ 30 ] B.L.M. is 59 years of age.

Like many members of the Gitxaala First Nation, he was born in Prince Rupert, British Columbia, but raised in the isolated First Nation communities of Kitkatla and Metlatkatla. His father passed away in a boating accident, along with his father's brother, when B.L.M. was very young and he has no memory of his father. He has two younger half-brothers: age 56 and 54. [ 31 ] B.L.M. has only known W. R. as his father, a man his mother met when he was about twelve (12) years old. Growing up, B.L.M. was very close to his family and has very fond memories of his childhood. He told Dr.

Ballance that his great grandparents were very religious and that the children were “well disciplined.” [ 32 ] B.L.M.’s parents remained together until their passing earlier in 2021 from Covid-19 complications. Both of his parents were living with him until they were hospitalized and quarantined apart from each other until their passing. B.L.M. had a close relationship to his mother and step-father, though his relationship with both of his brothers is currently described as “complicated.” As set out above by Mr. Nguyen, B.L.M.’s mother was a Residential School survivor.

[ 33 ] Like many First Nations children in the Pacific North-West part of British Columbia, B.L.M. dropped out of school as a teenager. As an 18 year old, B.L.M. left Kitkatla to live in Prince Rupert with his mother. B.L.M. quickly found employment at a fish cannery. B.L.M. has worked in the cannery industry for most of his life. Since 2017, he has also been working for a contracting security firm. He is now working in a Kitimat camp in a janitorial position. [ 34 ] B.L.M. met his first and only wife, D.M., while they were both at school in Kitkatla around 1983.

Their relationship lasted for about five years and they had three children: D. (deceased)), A, (37), and S. (35). After the separation from his wife, B.L.M. had full custody of all of the children. B.L.M. provided his children with a lot of structure in the family home and he was involved in their lives. He kept his children busy with extracurricular activities, often travelling hundreds of kilometres at a time to other villages, towns and cities to watch his children play sports. B.L.M.’s eldest son, D., passed away in 2005 in a roofing electrical accident.

B.L.M. has seven grandchildren between his son and daughter, now ages 7 to 18. [ 35 ] Many years ago, B.L.M. was in what he described as “a complicated emotional relationship” with a male friend with whom he drank alcohol with. Every once in a while, B.L.M. and his friend would get together to consume alcohol and became physically close. He told Mr. Nguyen that while they never had sexual intercourse, they did kiss, cuddle, and fondle each other. He went on to tell Mr.

Nguyen that the relationship gave him emotional comfort, but that their friendship became distanced when he stopped drinking. [ 36 ] B.L.M. also told the author of the Pre-Sentence Report that he has an interest in both homosexual and heterosexual pornography, with participants in the range of twenty to thirty years of age. Importantly, he denies having any sexual interest in younger people or bestiality. [ 37 ] Regrettably, when B.L.M. was about twelve years of age, an uncle committed sexual violence on him. The uncle grabbed and pulled upon B.L.M.’s penis. The sexual violence occurred twice. B.L.M. told Mr.

Nguyen that when he was about twenty-two years old, he was drinking with his abuser and confronted his abuser concerning the sexual violence. An argument ensued and B.L.M. beat up his abuser. Thereafter, B.L.M. considered the matter settled. [ 38 ] According to B.L.M. , until he testified during the present trial, he had never told anyone about his having suffered sexual violence as a twelve year old.

Although B.L.M. may no longer recall telling the then 13 year old victim in the present case, or he has, in one way or another, disabused his mind of the fact, I found as a fact in convicting B.L.M. that he did tell the then 13 year old victim that when he was the victim’s age, somebody had committed sexual violence on him. [ 39 ] B.L.M. had an alcohol drinking problem from when he was about twenty years old until he quit drinking alcohol altogether in 2010. He told Mr. Nguyen that alcohol use may have made his life unhappy.

He quit or significantly curtailed his alcohol consumption after his son’s death in 2005, realizing alcohol use was contributing to his unhappiness in life. [ 40 ] B.L.M. has steadfastly maintained his innocence in this matter. According to Dr. Ballance, while B.L.M. was being interviewed for the Psychiatric Pre-Sentence Report, he told her that, One of the witnesses in court stated that he told her that he molested his own son. Even though he was in the court room, he didn't hear the testimony at the time or he would have raised more objections.

He spoke to his son about it and states that his son asked "where are they getting these people?" because that never happened. Medical History [ 41 ] B.L.M. has a variety of ongoing medical issues, as related in the Pre-Sentence Report and the Psychiatric Pre-Sentence Report. He is currently on seven different medications for his diabetes and heart. [ 42 ] He suffers from short term memory loss, in that he will forget where he placed objects and he gave Dr.

Ballance the example of "looking for my key when it was just hanging on my neck.” He also sometimes forgets the names of people he met a long time ago. [ 43 ] B.L.M. has very poor hearing despite wearing two hearing aids. He suffered significant hearing loss as a teenager because of "loud noises" and he has been wearing hearing aids ever since his teen years. Currently, even with two hearing aids, he still has difficulties hearing everything. His Alcohol Use Disorder has been in sustained remission for 15 years.

He has received a diagnosis of diabetes, hypertension, possibly a stroke or transient ischemic attack (TIA) in 2013, right hand ligament and tendon injury with surgical treatment in childhood, and psoriasis. [ 44 ] According to Dr. Ballance, B.L.M. has Mild Neurocognitive Disorder due to Vascular Disease (Provisional). The specifier "provisional" is used when there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough information is available to make a firm diagnosis.

In B.L.M’s case, there is evidence of Cerebral Vascular Disease, as well as overall shrinkage of the brain, but no clear evidence of cognitive decline either from a knowledgeable informant or neuropsychology testing. [ 45 ] B.L.M. had a CT head scan in 2017 which showed patchy chronic small vessel ischemic changes but no definite lacunar infarcts and no definite cortical infarcts. He had a previous CT head scan in 2014 that showed patchy chronic small ischemic changes. His carotid ultrasound was normal. [ 46 ] B.L.M. was seen by Dr. Laura Wilson, a neurologist, on June 21st of 2017.

She reported that an acute TIA or stroke was unlikely the cause of his numbness but that he did have significant risk factors for stroke. She felt that the findings of chronic small vessel disease on the CT head scan were related to his diabetes and hypertension. [ 47 ] An MRI of his brain and brain stem on October 25, 2017, identified hyperintensities that were suggestive, but not diagnostic, of demyelinating disease such as multiple sclerosis.

In addition, mild to moderate global cerebral volume loss was greater than expected for B.L.M.’s age. [ 48 ] A further CT head scan on July 7, 2019, showed a distal left M1 occlusion of the Middle Cerebral Artery of indeterminate age.

[ 49 ] On May 10th, 2021, B.L.M. was assessed for increase anxiety and depression. The recent loss of his parents and the present criminal charges were identified as the cause. His doctor started him on sertraline (an antidepressant), a short course of Ativan and he was referred to counselling. VI. VICTIM IMPACT STATEMENT [ 50 ] The victim’s Victim Impact Statement confirms that B.L.M.’s acts of sexual violence have had a profound and lasting effect on the victim’s life. The sexual violence has impacted the victim’s marriage, sobriety, mental health, social well-being and financial dealings.

The victim’s childhood innocence was stolen. VII. THE PURPOSE AND PRINCIPLES OF SENTENCING [ 51 ] The current relevant sections of the Criminal Code related to the purposes and principles of sentencing when the victim is a child or young person are as follows: Purpose 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Objectives – offences against children 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 give primary consideration to the objectives of denunciation and deterrence of such conduct.

Objectives – offence against vulnerable person 718.04 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. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (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, ….. (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. R. v. Gladue [ 52 ] In 1996, amendments to the Criminal Code were made which resulted in a recognition of the role of restorative justice in

sentencing. In particular, as set out above, the new s. 718.2(

e) provided that “all available sanctions, other than imprisonment, that arereasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders.” [53] The decision of the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 (SCC) confirmedthat s. 718.2(

e) did not represent a mere tinkering with the sentencing framework, but rather was a fundamental shift in the sentencingparadigm. Furthermore, the Court’s decision in Gladue teaches that for the purpose of s. 718.2(e), anyone with Indigenous ancestryshould be considered an “Aboriginal offender” whether or not they had been impacted by systemic discrimination. The Court also notedat paragraph 91 that “Section 718.2(

e) applies to all aboriginal offenders wherever they reside, whether on- or off-reserve, in a large cityor a rural area.” [54] We are taught at paragraph 27 that the

interpretation of s. 718.2(

e) must begin by considering its words in context. Although theappeal in Gladue was ultimately concerned only with the meaning of the phrase “with particular attention to the circumstances ofaboriginal offenders”, the Court noted that the phrase takes on meaning from the other words of s. 718.2(e), from the purpose andprinciples of sentencing set out in ss. 718, 718.1 & 718.2, and from the overall scheme of

Part XXIII of the Criminal Code. [55] At paragraph 33, the Court concluded that, “…s. 718.2(

e) is more than simply a re-affirmation of existing sentencing principles.

The remedial component of the provision consistsnot only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertakethe process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particularcase. [56] In the latter half of paragraph 37, the Court instructed sentencing judges that they, “…should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and differentfrom those of non-aboriginal offenders.

The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular,dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which mayspecifically make imprisonment a less appropriate or less useful sanction.” [57] The Court also made it clear at paragraphs 58 to 64 that the purpose of s. 718.2(

e) was to reduce the over-incarceration ofIndigenous offenders in Canadian jails. [58] Midway through paragraph 71 the Court noted that, “…In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things areinterrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist.

Theappropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.The focus is on the human beings closely affected by the crime.” [59] Continuing at paragraphs 72 & 73, the Court said: [72] The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a morelenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focussed on restorativejustice is not necessarily a “lighter” punishment.

Some proponents of restorative justice argue that when it is combined with probationaryconditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. [73] In describing in general terms some of the basic tenets of traditional aboriginal sentencing approaches, we do not wish to imply thatall aboriginal offenders, victims, and communities share an identical understanding of appropriate sentences for particular offences andoffenders. Aboriginal communities stretch from coast to coast and from the border with the United States to the far north.

Their customsand traditions and their concept of sentencing vary widely. What is important to recognize is that, for many if not most aboriginaloffenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, andperspectives of aboriginal people or aboriginal communities. R. v. Ipeelee [60] Thirteen years later, in the R. v.

Ipeelee, 2012 SCC 13, decision, Justice LeBel confirmed that the law requires that a sentencingjudge engage a different process for arriving at a fit sentence where the offender is Indigenous, but not necessarily impose a differentsentence. At paragraph 71, Justice LeBel noted that in Gladue, the Supreme Court of Canada “…rejected Ms. Gladue’s argumentthat 718.2(

e) was an affirmative action provision or, as the Crown described it, an invitation to engage in “reverse discrimination.” [61] Accordingly, s. 718.2(

e) of the Criminal Code does not require an automatic reduction of a sentence or warranted period ofincarceration simply because the offender is Indigenous. Rather, as set at paragraph 60 of Ipeelee, courts must take judicial notice ofsuch matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Indigenous peoples.

These matters, on their own, do not necessarily justify a different sentence for Indigenousoffenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information related to theperson being sentenced. R. v. Parranto [62] In the recent case of R. v. Parranto, 2021 SCC 46, Justices Brown and Martin for the majority clarified the basics of sentencingin Canada at paragraphs 9 to 12. The goal in every case is a fair, fit and principled sentence. Furthermore, the Supreme Court of Canadaat paragraph 36 emphasized that sentencing is an individualized process and that,

…Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender,harming this victim, in this community” (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)).There is no longer space to interpret starting points (or ranges) as binding in any sense. R. v. L.S.N. [63] Our Court of Appeal’s decision in L.S.N. provides a good reminder that all sentences must be proportionate to the gravity of theoffence and the degree of responsibility of the offender.

L.S.N. also assists sentencing judges in understanding the application ofexceptional circumstances to the assessment of an offender’s moral culpability. At paragraph 72, Justice Fitch confirmed that, “…A judge can impose a sentence outside the usually applicable range, including in response to exceptional circumstances, so long asthe sentence gives effect to the proportionality principle and is in accordance with the other principles and objectives of sentencingapplicable to the case: Nasogaluak at para. 44. “ VIII.

ANALYSIS [64] Because both the victim and B.L.M. are Indigenous, I must consider and apply the issues identified by the Supreme Court ofCanada in Gladue and Ipeelee. As noted in Friesen: [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexualviolence against children (see Ipeelee, at paras. 84-86).

The systemic and background factors that have played a role in bringing theIndigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternativesanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [65] The recent decision of Justice Jenkins in R. v. Josephson, 2021 BCSC 1947, is very similar in terms of facts to the present case,although I note that the 49-year-old Mr. Josephson was not Indigenous and he was not himself a victim of sexual abuse as a child.

Indeciding against imposing a penitentiary term of imprisonment, Justice Jenkins considered the leading decision Friesen and stated thefollowing: [31] In coming to my decision, I have considered the words of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9.

In Friesen,the Supreme Court of Canada emphasized the additional harm caused to children by sexual offences, including emotional andpsychological harm, especially in circumstances where the offender is in a position of trust with the child. [32] Friesen was largely based upon the increase to maximum sentences set out in amendments to the Criminal Code and applies tocases where the offence occurred after the amendments were passed in Parliament.

However, in cases following Friesen, including R. v.Plehanov, 2020 BCCA 249, the principles of sentencing in Friesen apply to historical cases: i.e. cases where the offences werecommitted prior to the amendments based upon the increased understanding of the harmfulness of sexual crimes against children. Incircumstances where the offender continues to deny commission of the offences, such denial is not to be considered as an aggravatingfactor. [66] Justice Devlin set out a concise overview of Friesen at paragraphs 45 to 55 in R. v.

Vaux, 2021 BCSC 1773, noting that theSupreme Court of Canada told sentencing judges to impose sentences that fully reflect and give effect to the profound wrongfulness andharmfulness of sexual offences against children. At paragraph 45 of Vaux, Justice Devlin highlighted paragraph 5 of Friesen as settingout the overarching message: [45] In April 2020, the Supreme Court of Canada released new guidance on “how to impose sentences that fully reflect and giveeffect to the profound wrongfulness and harmfulness of sexual offences against children”: Friesen at para. 1.

The overarching messageof Friesen for sentencing judges is set out at para. 5: [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. Justice Devlin went on at paragraphs 52 and 53 to describe the factors our Court of Appeal in R. v.

Williams, 2020 BCCA 286 identifiedfor sentencing judges to be aware of: [52] Beginning at para. 121, the Court in Friesen provides guidance on the factors relevant to sentencing for sexual offences againstchildren. While not an exhaustive list of factors to consider when determining a fit sentence for sexual offences against children, they areaimed at promoting “the uniform application of the law of sentencing”: Friesen at para. 121; Williams at para. 20. In Williams, our Courtof Appeal stated that the Friesen factors include:

a) the offender’s likelihood to reoffend;

b) the offender’s abuse of a position of trust or authority;

c) the duration and frequency of sexual violence;

d) the age of the victim; and

e) the degree of physical interference.

[53] A sixth factor not listed in Williams that was also considered in Friesen was the participation of the victim: Friesen at paras. 148-154 . [ 67 ] In Scofield , our Court of Appeal confirmed the striking down of the one-year minimum punishment for sexual interference when the Crown proceeds by Indictment.

In doing so, and in substituting a conditional sentence order, Justice Harris stated: [70] I acknowledge that conditional sentences will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved: see R. v. Safaee , 2009 BCCA 367 . But as Swaby demonstrates, there are situations in which a CSO can satisfy those principles. Given the findings of the sentencing judge, I accept that this is a rare case in which a CSO can satisfy the principles of sentencing.

Indeed as this Court has reiterated in R. v. A.E.S ., 2018 BCCA 478 at para. 66 : This Court has said a number of times that a CSO is not usually a fit sentence for an offender who has sexually abused children, particularly as here, by a parent or person in trust or authority. See R. v. Safaee , 2009 BCCA 367 at para. 26 . On the other hand, this Court has upheld CSOs in such cases, including in R. v. Chen , 2017 BCCA 426 . Indeed, in R. v. L.F.W ., 2000 SCC 6 at paras. 20-21 , a companion case to R. v.

Proulx , 2000 SCC 5 , the Supreme Court upheld a CSO for an indecent assault involving forced masturbation and fellatio with a child who was then between the ages of 6 and 12 years old, stating that a CSO was within the acceptable range and could provide sufficient denunciation and deterrence. (That case involved a 4-4 split on the issue, as Cory J. did not participate. Thus, the appeal was dismissed, upholding the sentence.) [ 68 ] The teachings of the Ontario Court of Appeal in R. v. Sharma , 2020 ONCA 478 , are especially helpful and applicable to the present case. In declaring that ss. 742.1 (

c) and 742.1 (e)(ii) of the Criminal Code unjustifiably infringe ss. 7 and 15 of the Charter and are, therefore, of no force or effect, Justice Feldman, for the Majority in Sharma , stated: [70] Aboriginal offenders start from a place of substantive inequality in the criminal justice system.

The over incarceration of Aboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-based conditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, when determining an appropriate punishment for Aboriginal offenders. The conditional sentence is one means of redressing the substantive inequality of Aboriginal people in sentencing. It is certainly the case that conditional sentences are available to all offenders, not just Aboriginal offenders.

However, the legislative history and jurisprudence demonstrate that conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic over incarceration. By removing that remedial sentencing option, the impact of the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal offenders based on race. Dr. Ballance’s Opinion [ 69 ] Dr.

Ballance’s opinion of B.L.M. is that no sexual deviance was identified, no psychopathic personality disorder was identified, but it is likely that B.L.M. is having some cognitive issues as evidenced by the amount of cerebral vascular disease and the shrinkage of the brain. She opined that B.L.M. does not have violent or suicidal ideation. [ 70 ] Due to the lack of identifiable risk factors, Dr. Ballance was unable to formulate a comprehensive risk assessment of B.L.M’s risk for future sexual violence.

She did note, however, that the offences occurred prior to his cessation of alcohol, so it is possible that alcohol intoxication is a risk factor. [ 71 ] Finally, her opinion is that while it is likely that B.L.M. is suffering from some cognitive decline as a result of vascular changes and shrinkage in his brain, this would have been a slow decline over many years and has become more pronounced as he ages. As the index offences occurred between 1999 and 2004, it is unlikely that B.L.M. had much cognitive decline so early on.

Collateral Consequences and COVID-19 [ 72 ] The potential effect of the COVID-19 pandemic on B.L.M. is not, in my opinion, a “mitigating factor” warranting a sentence outside the pre-COVID-19 pandemic range. Mitigating factors generally relate to the character of the offender, the nature of the offence and the circumstances surrounding its commission. Furthermore, the COVID-19 pandemic is also not an “exceptional circumstance” as contemplated in R. v. Voong , 2015 BCCA 285 , as it is irrelevant to the rehabilitation of the accused.

In my view, the potential risk posed by the COVID-19 pandemic is best characterized as a “collateral consequence” as contemplated in R. v. Pham , 2013 SCC 15 . [ 73 ] In assessing collateral consequence of COVID-19 as it relates to B.L.M., I have considered the potential impact of COVID-19 on him.

I have done so keeping in mind that I must not over compensate to the point of allowing B.L.M. to receive a sentence that is disproportionate to the offences and his degree of moral responsibility. [ 74 ] As set out in the middle of paragraph 11 in Pham : “…the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender.

However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity.” [ 75 ] And at paragraph 12 of Pham: However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not

punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . . The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear.

Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.] ( The Law of Sentencing (2001), at pp. 136-37) IX.

CONCLUSION [ 76 ] I find that B.L.M’s on-going health issues, in light of the on-going COVID-19 pandemic, are a collateral consequence that I must consider in sentencing B.L.M. given his age and current medical conditions. The reason is that a jail sentence may become disproportionately punitive to B.L.M. if he has difficulties hearing other incarcerated persons or correctional staff members, or if he contracts COVID-19 while in custody, despite incarceration otherwise being a fit sentence. Restorative Justice [ 77 ] Restorative justice processes take various forms.

In the sentencing context, restorative justice is often understood to be a non- adversarial and non-retributive approach to justice that focuses on addressing the harm caused by crime while holding the offender responsible for their actions. In theory, restorative justice provides an opportunity for the parties directly affected by the crime – victims, offenders and communities – to identify and address their needs in the aftermath of a crime. [ 78 ] Restorative justice is based on an understanding that crime is a violation of people and relationships.

The principles of restorative justice are based on respect, compassion and inclusivity. Restorative justice encourages meaningful engagement and accountability and provides an opportunity for healing, reparation and reintegration. [ 79 ] With respect to Indigenous communities, restorative justice means ensuring that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future.

It also means addressing local issues by engaging with the local community. [ 80 ] While I am not sitting in an Indigenous Court for purposes of B.L.M.’s sentencing, I have nevertheless kept in mind and applied, albeit in a modified form, the principles of restorative justice in rendering my judgment.

Specifically, I have addressed the harm caused by B.L.M.’s offences and I am holding B.L.M. responsible for his crimes that took place two decades ago. [ 81 ] I have kept in mind that in considering the sentence that I am imposing, I am not writing a post-graduate paper into the lasting consequences of colonialism, residential schools and the resulting disproportionate incidence of addictions, crimes including sexual violence, poverty, and children being separated from their parents and home communities in First Nation communities.

Nevertheless, I cannot ignore the reality of how the Eurocentric worldview that favours it over non-Western civilisations has affected British Columbia’s isolated First Nations communities and left generations of First Nations peoples struggling to find their place in the world. [ 82 ] At pages 39-40 of their scholarly

article Sexual Abuse in Canadian Aboriginal Communities: A Broad Review of Conflicting Evidence , the authors noted the following about Child Sexual Abuse (“CSA”) among Canada’s Indigenous peoples: Traditionally, in Aboriginal cultures, sexual abuse was viewed as an illness requiring community participation and healing of both abuser and victim to restore community balance and harmony (Bopp and Bopp, 1997). The dominant culture’s way of dealing with CSA is through the legal justice system, which separates the abuser from the victim and isolates the abuser in prison for a period of time.

Suspicion about the justice system may discourage Aboriginal people from seeing it as an option (Green, 1996). The legal system of the dominant society may be perceived as not addressing the root causes of the imbalances that allowed CSA to occur in the first place. Aboriginal communities may not have yet developed effective policies, models, and procedures for dealing with abuse in their communities. As well, community-based programs in Aboriginal communities may not have adequate resources to deal with the magnitude of the problem.

As a result, many victims, abusers, family members, and other individuals who are affected by the problem do not get the help they need. External factors affecting Aboriginal communities with a direct impact on the way sexual abuse is handled include a lack of culturally appropriate programs and service. In some instances, sexual abusers may be important and respected members of the community such as Elders, medicine people (healers), community leaders, service providers, religious authorities, teachers, or law enforcement officers (Green, 1996).

Living on a reserve may place victims in situations of powerlessness and fearfulness, producing a strong fear of speaking up. They may be afraid of the consequences for themselves and their families (e.g., limited access to services and programs). Collin-Vézina, Delphine & Dion, Jacinthe & Trocmé, Nico. (2009). Sexual Abuse in Canadian Aboriginal Communities: A Broad Review of Conflicting Evidence. Pimatisiwin: A Journal of Aboriginal and Indigenous Community Health , 7, 27-47. [ 83 ] Seven years ago, the Truth and Reconciliation Commission of Canada concluded its momentous volume of work.

In order to redress the legacy of residential schools and advance the process of Canadian reconciliation, the Truth and Reconciliation Commission made 94 Calls to Action in Truth and Reconciliation Commission of Canada: Calls to Actions, Truth and Reconciliation Commission, 2015, Winnipeg.

Call to Action number 36 specifically recognized and called out the prevalence of offenders having been sexually abused themselves, We call upon the federal, provincial, and territorial governments to work with Aboriginal communities to provide culturally relevant services to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.

[ 84 ] I would be remiss not to reference that “there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour” as set out at pages 6 and 7 in Honouring the Truth, Reconciling for the Future –

Summary of the Final Report of the Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada, 2015, Winnipeg. [ 85 ] In R. v. Testawitch, 2022 BCPC 39 , in addressing the directive of the Supreme Court of Canada to reduce the over incarceration of Indigenous offenders in Canadian jails and thus fulfil the purpose of s. 718.2 (

e) of the Criminal Code , I noted the following: [33] One might ask: Why is the judge giving all this information out during the course of Mr. Testawitch's sentencing? The reason is simple. As a judge who sits in Northern British Columbia, I view the overrepresentation of Indigenous people in our prisons as outrageous.

On page 61 of the 2017-2018 Annual Report of the Office of Correctional Investigator published by the Government of Canada Research and Statistical Division, it states that: In the ten-year period between March 2009 and March 2018, the Indigenous inmate population increased by 42.8% compared to a less than 1% overall growth during the same period. As of March 31, 2018, Indigenous inmates represented 28% of the total federal in- custody population while comprising just 4.3% of the Canadian population. The situation continues to worsen for Indigenous women.

Over the last ten years, the number of Indigenous federally sentenced women increased by 60%, growing from 168 in March 2009 to 270 in March 2018. At the end of the reporting period, 40% of incarcerated women in Canada were of Indigenous ancestry. These numbers are distressing. [34] Since June 29, 2018, as published by the Government of Canada, Department of Justice, the incarceration rates for both Indigenous and non-Indigenous men have changed. For non-Indigenous offenders, it has gone down. For Indigenous male offenders, it has increased.

To adopt the terminology of Ivan Zinger, J.D., Ph.D., Correctional Investigator, in the 2017-2018 Annual Report of the Office of Correctional Investigator , it is very distressing. [35] The Adult and youth correctional statistics in Canada, 2018/2019 report authored by Jamil Malakieh and published by Statistics Canada on December 20, 2020, page 5, also confirms that 31 percent of admissions to provincial or territorial custodial institutions are Indigenous persons, either First Nations, Métis, or Inuit: In 2018/2019, Indigenous adults accounted for 31% of admissions to provincial/territorial custody and 29% of admissions to federal custody, while representing approximately 4.5% of the Canadian adult population.

These proportions were virtually unchanged from the previous year. Unsettling when one considers that it has been over 22 years since the Supreme Court of Canada’s teachings in Gladue that we need to specifically address the problem. [ 86 ] Unfortunately, the same small First Nations communities that B.L.M. grew up in have been and continue to be plagued with sexual violence crimes as noted by my predecessor resident judge here in Prince Rupert in his Oral Reasons for Sentence, in R. v.

Rennie Casper Lewis , Prince Rupert Court Files 27896-1; 27897-2-C; and 28047-1, Provincial Court of British Columbia, June 18, 2014, Seidemann III, J., unreported: [19] Mr. Lewis is an example of a problem that is a serious problem in First Nations communities. It is a problem everywhere, but it is a more serious problem in First Nations communities, and it is for many of the reasons that I referred to at the outset in describing Mr. Lewis's background, and that is that people who are abused go on to become abusers. Somehow we have to break that cycle. [20] The Pre-Sentence Report , in describing Mr.

Lewis's community, points out that a description by the acting chief councillor says that the community of Gitxaala continues to struggle with colonization and the effects of the residential school system. As such, most members of the community are reluctant to become involved in criminal matters that are personal harm offences, regardless of age, fearing that their own unresolved issues will be brought to the surface. [21] The problem is that, until and unless the community begins to deal with these issues, it is just going to continue to happen.

An example of that is that T.L., in addition to being abused by the defendant, was abused by her own father, who has spent time in jail as a result of that. [22] Although the defendant said to T.L. that this was normal and others did it, and that is certainly true in that community, it cannot continue to be true. It must change.

The community must come to acknowledge that it is occurring and that something needs to be done, and that can only be accomplished when the community admits that it is occurring and makes the decision to deal with it. [23] I make those comments because part of the concern that is expressed, both in the Pre-Sentence Report and in the Psychological Report that I had, was what is described as the minimization of his conduct by the defendant and the support which is extended to him by members of his family and by his community, and a reluctance to acknowledge that the fault here is that of the defendant and not of the victims.

This is something that Mr. Lewis did, not his victims. To acknowledge that is not to deny that Mr. Lewis has done any number of very good things and has been, through most of his life, a good person.

That needs to be acknowledged, but to fail to acknowledge the wrongness of his conduct now does no one any service. ….. [51] This is not the first case of this nature that I have seen from Kitkatla and I am sure it will not be the last, but if we are going to reduce this, the result of any sentencing procedure, the end result that we must hope to achieve is to end offending behaviour, not only by this accused, but by others.

Unless and until the community of Kitkatla finds some way to deal within the community, to acknowledge the problems and to deal with those problems, to heal the community, I am going to continue to see these things. [ 87 ] In R. v. B.C.W., 2021 BCPC 299 , another case involving a defendant from the same small First Nations community that B.L.M. grew up in, an innocent eight-year-old girl was the victim of sexual violence,

[16] …B.C.W. took I.W. into the abandoned house, leaving her two children unaccompanied at the park, and B.C.W. told I.W. to lie on the ground. B.C.W. got on top of I.W. and began licking her stomach. B.C.W. told I.W. that she wanted I.W.'s “titty” in her mouth right now and proceeded to pinch I.W.’s breasts. B.C.W. also kissed I.W. on the mouth and bit I.W.’s tongue. I.W. told B.C.W. "only one lick" as she wanted to go home. B.C.W. pulled down I.W.'s pants and started licking I.W.’s labia. [17] I.W. tried to scream and run, but B.C.W. held her down, covered her mouth, and told her to be quiet.

B.C.W. stuck her finger inside I.W.'s vagina. I.W. managed to get loose and run away, but during the altercation, her pants ripped. I.W. noted that as she attempted to get away from B.C.W., B.C.W. hit her on the front of her crotch and said, "If you F me, I will F you," in addition to threatening to kill I.W.'s parents and family.

Recognizing the realities of B.C.W.'s life, including issues which not only B.C.W., but also other members of the various First Nations in the Pacific North-West part of British Columbia face on a daily basis, such as the inadequacies and the failures of i. public health, ii. the Ministry of Family and Child Development, and iii. government policy to assist First Nations people like B.C.W., the BC Prosecution Service agreed to a joint submission at sentencing of time served plus a three-year period of probation.

Furthermore, unlike with B.L.M., B.C.W. was sentenced for a number of other criminal offences in addition to sexual touching. [ 88 ] Regina v. P.R.J., 2021 BCSC 2537 , is a sentencing after trial case wherein P.R.J. was convicted of two sexual violence offences: (

i) sexual interference, after P.R.J. digitally inserting a finger into her daughter’s vagina and kissed her daughter’s vagina; and (ii) invitation to sexual touching, after P.R.J. caused her daughter to touch P.R.J.’s own vagina. P.R.J.’s daughter was seven or eight years old at the time of the offences. There are many parallels to B.L.M.’s case.

Justice Davies, in imposing sentence, noted at paragraphs 9 to 24 that a conditional sentence order would not only appropriately address the necessary sentencing objectives of general and specific denunciation and deterrence but, more likely than would P.R.J.’s imprisonment, also aid in achieving another important sentencing objective by promoting the rehabilitation of the P.R.J..

In particular, at paragraphs 22 to 24, Justice Davies noted: [22] Without ignoring in any way that this was an offence committed upon a child by a person in trust and authority and was committed in P.’s home, I have concluded that a sentence of incarceration is not necessary to meet the objectives of sentencing for P.R.J.’s offending in this case. [23] For the following reasons I find that a conditional sentence order will not only appropriately address the necessary sentencing objectives of general and specific denunciation and deterrence but, more likely than would her imprisonment, also aid in achieving another important sentencing objective by promoting the rehabilitation of the P.R.J.: 1) P. was adamant that the offending occurred once when her mother was, in P’s own words “not normal.” 2) After that aberrant behaviour, P.R.J. and P. lived together for at least another five months after the offences were committed with no suggestion of similar behaviour. 3) P.R.J.’s behaviour that eventually led to the removal of P. from her care was also alcohol and substance abuse-driven. 4) Given her history and given also the particular circumstances of her offending as well as her performance while on bail for the last three years I am not satisfied that that P.R.J. poses a risk to the community if she is not incarcerated. 5) P.R.J.’s conduct has deservedly been denounced and will continue to be denounced at least in part by reason of the total removal of her only child from her life.

While that removal is necessary to protect P. there is a punitive aspect to it. 6) The pre-sentence report filed as an exhibit on this sentencing proceeding convinces me that there is a better likelihood of P.R.J. dealing with her underlying substance abuse issues and psychiatric issues in the community than there would be if she were to be incarcerated. [24] In result, on Counts 1 and 2 of the indictment (with the sentence on each to be served concurrently) I sentence P.R.J. to a conditional sentence order of 23 months to be served in the community.

That conditional sentence will be followed by a probation order of a further two years. [ 89 ] Unlike with P.R.J.’s daughter, in the present case, we do know the consequences of the sexual violence B.L.M. committed against his now 33-year-old victim. K.A. has suffered two decades of angst and personal misery directly or indirectly resulting from the sexual violence perpetrated on him by B.L.M., as set out in the Victim Impact Statement.

Which takes us right back to Justice Marchand’s comments in C.C.C. as noted above, with these type of judgments being “…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.” Mitigating Factors to be Considered [ 90 ] The mitigating factors in B.L.M.’s case include: 1. B.L.M. is a First Nations man and he has many Gladue factors present in his life, including: a. his personal struggles with alcoholism, b. his mother being a residential school survivor,

c. raising his children as a single father after his wife left the family in 1988, d. dropping out of high school in Kitkatla, BC in grade 10, e. difficulties finding adequate housing, f. financial stress, and g. no memory of his biological father. 2. In the Spring of 2021, both Mr. R., the man who has been B.L.M.’s father since the age of 12, and B.L.M.’s mother, contracted Covid-19 and died in isolation in hospital within days of each other. 3. B.L.M. has no criminal record. 4. B.L.M. was the victim of sexual violence as a 12-year-old boy. 5.

B.L.M. is in poor health, with a number of medical issues, including: short term memory loss, diabetes, significant hearing loss, Alcohol Use Disorder (in remission since 2010), Mild Neurocognitive Disorder due to Vascular Disease, Cerebravascular Disease, hypertension, psoriasis and the overall shrinkage of his brain. Aggravating Factors to be Considered [ 91 ] The aggravating factors in B.L.M.’s case include: 1. The impact of the two sexual violence offences on the victim’s life have been and continue to be significant. 2.

Although B.L.M. and his children did not reside with the victim and the victim’s family, B.L.M. was dating the victim’s mother and in many was a father-type figure to the victim. 3. Sexual violence crimes against children are horrific. They are among the most serious of crimes known. Communities and society as a whole are harmed when children are violated, especially when the violators are in parental and leadership roles.

Failure by B.L.M. to Responsibility [ 92 ] It is important to note that I do not consider B.L.M.’s lack of remorse or his refusal to abandon his claim of innocence in this matter to be aggravating factors. Nonetheless, by continuing to deny his guilt, B.L.M. has deprived himself of two important mitigating factors on sentencing in this matter: i. taking responsibility for the emotional and psychological consequences on the victim that his actions have resulted in, and ii. apologizing to the victim and society for the harm done.

Decision [ 93 ] In considering any unique systemic or background factors that may have played a

part in bringing B.L.M. before the court, I have looked deeper into the realities of B.L.M.’s life experience. He comes within the group of peoples entitled to the benefit of the s. 718.2 (e)’s “with particular attention to the circumstances of aboriginal offenders.” He is entitled to the benefit of the Supreme Court of Canada’s direction to sentencing judges to undertake the process of sentencing Indigenous offenders differently.

He is entitled to the law as it stood at the time of the offences per Poulin . [ 94 ] In looking at B.L.M.’s personal circumstances, including the manner in which he committed the sexual violence offences against the victim, I conclude that exceptional circumstances exists such that B.L.M.’s moral blameworthiness is lessened due to a number of factors, including: i. his family history, ii. his upbringing in the small First Nations communities of Kitkatla and Metlatkatla, iii. the personal demons he has had to deal with in life, having been the victim of sexual abuse himself as a 12 year old boy, iv. the offences happened at a time in B.L.M.’s life when he was suffering from Alcohol Use Disorder, v. changes he has made in his personal life since the death of his son in 2005, including the abstaining from alcohol since 2010 or earlier, vi. his ongoing health issues, and vii. the systemic factors that we in the legal world often refer to as Gladue factors.

As stated by Justice Punnett at paragraphs 89 and 90 in D.R.P. , 89. Moral blameworthiness, the foundational principle upon which a fit sentence is based, cannot be determined without considering

the offender's family, his background, and his community. Understanding is not about excusing. It is however about fairly sentencing in this case an aboriginal offender. 90. The British Columbia Court of Appeal in R. v. R.R.M. , 2009 BCCA 578 provides guidance for applying the Gladue principles in sentencing aboriginal offenders for sexual offences: [24] The sentencing of Aboriginal offenders for serious sexual assaults, where there is evidence that they have suffered from historical and systemic abuses, is not an easy task.

This Court has observed that in sentencing Aboriginal offenders, while judges must be "sensitive to the conditions, needs and understandings of Aboriginal offenders and communities, this does not mean that sentences for such offenders will necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such as deterrence and denunciation." ... Chief Justice Finch further noted at para. 53 that Gladue made clear that it was not the principles of sentence that varied in sentencing Aboriginal offenders but the application of those principles to a particular case. ...

In Gladue (at para. 80 ), the Court further stated that: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or caseby-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code

[…]