R. v. R.V.C. Date:, 2012 BCPC 502

Citation: R. v. R.V.C. Date: 20121122 2012 BCPC 0502 File No: 30596-2-A, 30597 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.V.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. BULLER BENNETT Counsel for the Crown: P. Konger Counsel for the Defendant: K. Sommerfeld Place of Hearing: Lower Post , B.C. Date of Judgment: November 22, 2012 [ 1 ] THE COURT: After trials earlier this year, I convicted R.V.C. of sexually assaulting J.E. That is Information 30597-1. I also

[ 1 ] THE COURT: After trials earlier this year, I convicted R.V.C. of sexually assaulting J.E. That is Information 30597-1. I also convicted him of breach of an undertaking by failing to abstain from the consumption of alcohol. The offence dates are the same on both offences, and that offence date was January 24, 2011. [ 2 ] On that particular day, there was a party at the home of R.V.C. and his common-law partner, C.M., in Lower Post, British Columbia. There were several people at the party, including, of course, R.V.C., C.M., and the complainant, J.E., but also several other young people.

I should point out for the record that many of the young people were related to each other, and they have all known each other for a long time. All of the people were drinking. [ 3 ] As the party wound down, several of the young people fell asleep or passed out. [ 4 ] At about 3 to about 4 o'clock in the morning on January 24, J.E. was in bed at the residence of R.V.C. and C.M. In fact, she was in the same bed as R.V.C. and C.M. J.E. was fully clothed, lying on her side and asleep. She woke up with the sensation of R.V.C.'s hand in her pants and his fingers in her vulva. He was lying on his side behind her.

She said words to the effect of "What are you doing?" and told him to stop, and R.V.C. did. Later on that day, R.V.C. phoned J.E. to apologize, and he did.

Although, I point out that in one of those conversations, he said that he thought she might "get into it" with him, in other words, enjoy what he was doing. [ 5 ] J.E. was quite upset by the incident at the time, and it was abundantly clear at trial she was still upset by the incident. [ 6 ] I have the benefit of a pre-sentence report that was filed as an exhibit. [ 7 ] The whole incident, she writes, made her feel like an emotional wreck and she has suffered since. She was unable to sleep and to cope with daily life. She felt isolated in the community where she felt everyone was looking at her.

She had to miss time from work because of the aftermath of the incident and had to miss work because of coming to court. [ 8 ] She wrote: The process of calling the police and knowing I would have to go through the process of court and having to relive the assault over again and in front of others made me physically ill, but I knew I had to do it.

She also wrote: Even reliving the events in my mind to write this is making my stomach sick now. [ 9 ] So, this incident has had a lasting effect on J.E. [ 10 ] Turning now to the offender, R.V.C. [ 11 ] I have had the submissions of both counsel as well as what is commonly called a Gladue report and a forensic psychiatric report. From all of that, I understand that R.V.C. is 29 years old now. He was 27 years old at the time of the offences. He is the youngest of five children. He has three older sisters and one older brother. [ 12 ] He is a status Indian, as the term is commonly used.

In other words, he is registered under the Indian Act . He is a member of the Liard First Nation, which is also called Lower Post. There are about 80 homes in Lower Post. [ 13 ] R.V.C.'s parents divorced when he was about 10 years old. He did not see his father until 2010. They have a distant relationship. I suppose that is the best way to describe it. R.V.C. certainly did not have the benefit of a father-figure as he was entering his teens and as a teenager. [ 14 ] The reports describe the relationship between R.V.C.'s parents as being abusive and violent.

R.V.C.'s father went to jail for a period of time but came home more violent and even more abusive. R.V.C.'s mother raised the children. That was difficult for her because not only did she have the five children at home, she had to work three jobs to make ends meet. She struggled with her own alcohol issues over many years but has been sober for quite some time now. [ 15 ] Because of her own upbringing and because of her circumstances at the time, R.V.C.'s mother was not able to discipline him. She certainly was not in a position to explain to him the rules of sexual relationships.

She simply did not know how. [ 16 ] R.V.C.'s mother, father, and grandparents are all survivors of the residential school system. They have all had their own issues to deal with as a result of their stay at the residential schools. [ 17 ] R.V.C. started drinking when he was about 13 years old. He has been in a common-law relationship with C.M. for about the past eight years. Theirs is what I would describe as an on-and-off-again relationship. They have a three-year-old daughter. Her name is A.V.

R.V.C. is a very active father to A.V., and it is a role that he has come to treasure and to really understand. [ 18 ] R.V.C. completed grade 11 and part of grade 12. He is described as a good worker. He has had jobs in carpentry and mining. He has a variety of work-related certificates. R.V.C. hopes to obtain all of the qualifications to become a heavy-duty equipment operator.

He likes that type of work and will be able to support his family. [ 19 ] R.V.C. also is in the position of having to look after his mother and her three foster children because of his mother's surgery. [ 20 ] R.V.C. has been living in Watson Lake. He is not particularly welcome at Lower Post. He intends to write the Chief and

Council to have permission to return to the reserve. [ 21 ] R.V.C. does not have a criminal record as an adult. He does have a conviction for a sexual assault as a youth. He has been convicted of another sexual assault, and he is awaiting sentencing by my colleague Judge Dyer on that matter. It is noteworthy, however, that on January 24, 2011, the date of the offences before me, R.V.C. was on bail for the prior sexual assault for which he will be sentenced by Judge Dyer. [ 22 ] Much to his credit, R.V.C. has been sober since January 2011. He has done this on his own. He has also taken counselling on his own.

I note since his release on the charges before me, there have been no further breaches of bail and, as I understand it, no other substantive offences. [ 23 ] R.V.C. now enjoys the support and love of his family. I understand it took them a while to come to accept him again. [ 24 ] It is important to understand the community that R.V.C. grew up in. Many of the people in Lower Post, of certain generations anyway, attended residential schools. In fact, the court sits in Lower Post in the building that used to be the residential school.

The community, as a whole, has been absolutely shattered by the residential school system. Many, but not all, of the community members have to deal with their own issues arising out of their attendance at residential school. Many, but not all, have grown up in homes where alcoholism, drug abuse, and domestic violence are the norm. [ 25 ] This is a poverty-stricken community. There is a shortage of housing that is even more dire as a result of the flood earlier this year. [ 26 ] People here, again not all but most, did not know how to parent.

The parenting they received at residential schools was not what anyone would consider as appropriate nurturing parenting. [ 27 ] Over the years, the courts have sent several community members to jail, including R.V.C.'s father, but that does not seem to have made any difference to the state of the community as a whole and the state of many of the individuals here. [ 28 ] It is also important to note that we are just south of the B.C./Yukon border.

The court sits here on a circuit, and it can take as many as 10 days in transit for an offender to reach the nearest Correctional centre in Prince George. [ 29 ] The community's relationship with their own traditional practices, their language, and their own culture also has been shattered by the residential school experience. Many of the people here are totally lost and totally disoriented as a result. [ 30 ] Of course, the domestic violence, the substance abuse, has been passed on from generation to generation. The lack of parenting skills has been passed on from generation to generation.

What is of particular concern to me is that time and time again, I see violence inflicted on aboriginal women by their male partners. [ 31 ] There are several aggravating circumstances in this case. This is a sexual assault. In and of itself, that is a serious offence. Without going into the particulars, R.V.C., I think you can understand from your own experience how serious sexual assault is. You sexually assaulted a good friend. J.E. is going to live with the effects of what you did to her for a long time.

I think, based on your own experience, you understand how those assaults can come back to haunt you later on in life. [ 32 ] All of the people at the party were friends and relatives, people who should be able to trust each other whether they are drinking or not, and as your lawyer said, drunk men have to obey the laws too. [ 33 ] Technically, this is your second offence, but it is the first one for which you are sentenced. You were on bail at the time that you committed this offence. [ 34 ] I have read the forensic psychiatric report.

Although it was not prepared specifically for this sentencing, I am concerned about your risk to re-offend, as was the psychologist. The psychologist wrote that you were a low to moderate risk to re-offend. I think that that is a conservative conclusion or opinion to draw. Your risk to re-offend certainly is made worse by drinking alcohol. [ 35 ] There are factors in your favour, often called mitigating circumstances. You come before me without an adult criminal record. You have remained sober since the offences before me on your own initiative, and you have taken counselling on your own initiative.

You have employment. You are what I would call a family man now who understands his responsibilities to his family. You have some insight now into not only how you grew up but also where the lines are drawn [indiscernible/background noise]. I agree with what your counsel said, that you had to go through the trials to understand what you did was wrong. I know that you are sorry for what you did and you understand the seriousness of what you did do.

From what I have read and from what I have heard from the lawyers and from what I have heard from you, you take responsibility for your own actions and what you did against J.E. [ 36 ] Crown makes a very persuasive argument that there be a real jail sentence of 90 days with probation to follow. Sexual assault is a serious offence and people should go to jail. It is pretty logical. I am sure as a father, if something along the lines of a sexual offence happened to your daughter someday, and I hope it does not, you, as a father, would say to a judge, "Your Honour, lock him up and throw away the keys.

He violated my daughter." [ 37 ] On the other hand, defence counsel, your lawyer, has suggested a jail sentence but one that can be served in the community, called a conditional sentence order, primarily because you have started your own rehabilitation by counselling and staying sober, you now have an understanding of what you did and why it was wrong, and also because you are a father and fathers need their daughters and daughters need their fathers.

This raises the compelling question then: For the sexual assault, what is the appropriate sentence given that this was a very serious offence but given your circumstances as an offender? [ 38 ] I have to impose a sentence that will stop you and other people from committing these sorts of offences, so I have to bear in mind your risk to re-offend. I also have to impose a sentence that will make other members of the community understand that this is

absolutely unacceptable behaviour. Also, the sentence has to make it clear that violence, especially forms of sexual violence against aboriginal women, is unacceptable. [ 39 ] I note, however, there has been a certain element of denunciation happening already in the community. R.V.C., I know you have lost some friends. I know the community has been somewhat divided by what you did do. I know you are not particularly welcome here. [ 40 ] I have to impose a sentence that will address your rehabilitation and your reintegration into the community.

I also have to consider protection of the people here in Lower Post and elsewhere. I have to protect the victim, J.E., and members of the community. Most of all, I have to recognize that your risk to re-offend has an awful lot to do with your consumption of alcohol. [ 41 ] In my view, a jail sentence is appropriate, certainly less than two years. Crown suggests a jail sentence, a real jail sentence of 90 days, as I have stated. Your lawyer is asking me for a conditional sentence order.

The first question is whether a conditional sentence order would properly protect not only the victim, J.E., but the community as a whole. [ 42 ] In my view, a conditional sentence order could protect the community and J.E. only if you remain sober and only if you have counselling. Would a conditional sentence order properly address the principles of sentencing? My own answer to that question is yes.

With proper conditions, the sentence can and should deter you and others, R.V.C., from committing these sorts of offences, denounce what you did, and provide the opportunities for rehabilitation that will guarantee protection of the people who need to be protected. [ 43 ] You are going to be under the control of the courts for a long time, sir, because of the seriousness of the offences that you committed and because of the great deal of work you have to do regarding your own rehabilitation. [ 44 ] There will be a six-month conditional sentence order.

These are the conditions. [ 45 ] You have to keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 46 ] You will report to a conditional sentence supervisor by 4 p.m. today in Lower Post, British Columbia, and thereafter when required by the supervisor and in the manner directed by your supervisor. [ 47 ] You will remain in the Province of British Columbia unless you obtain written permission of the court or your supervisor to leave the province, and you will notify the court or your supervisor in advance of any change of your name or address and promptly notify the court or a supervisor of any change of your employment or occupation. [ 48 ] You may reside in the Yukon Territory, and you may leave the Province of British Columbia to travel and be in the Yukon Territory. [ 49 ] You will have no contact of any type with J.E. and members of her immediate family unless you have written permission from your supervisor that is specific to a date, location, and purpose. [ 50 ] You will abstain absolutely from the possession and consumption of alcohol. [ 51 ] You are bound by a curfew.

You will not be outside of your residence between the hours of 9 p.m. and 6 a.m. daily unless you have written permission from your supervisor to be outside of your residence, in which case you must carry that written permission with you when you are outside of your residence. [ 52 ] You will not possess any weapons as defined by the Criminal Code , including knives except for the immediate preparation and consumption of food, except for the purpose of employment while at your place of employment, and except for subsistence hunting during lawful hunting times on a First Nation's territory [ 53 ] Under the direction of and to the satisfaction of your supervisor, you will write a letter of apology to J.E., and that letter will be completed and delivered no later than December 31, 2012. [ 54 ] Under the direction of and to the satisfaction of your supervisor, you will take counselling, which may include but is not limited to sex offender treatment, residential treatment, and counselling offered through Many Rivers Counselling and Support Services. [ 55 ] Those are the terms on your conditional sentence order.

As I have said, it is a jail sentence I am allowing you to serve in the community. If you do not follow the terms, and to the absolute letter, R.V.C., there will be a warrant for your arrest. You will be held in custody. I cannot guarantee you will get out of custody. There will be hearing in front of me, and I will determine whether you can return to the community for the balance of your sentence or whether you have to go to a real jail for the balance of your sentence.

So this is not like probation. [ 56 ] I meant to add, regarding the curfew, you will present yourself promptly at the door of your residence upon demand of a police officer or supervisor or their delegate to ensure compliance with this curfew. [ 57 ] Now, following all this, you are bound by a probation order for 18 months. During that time, you have to keep the peace and be of good behaviour. Within 72 hours of the completion of your conditional sentence order, you will report to a probation officer and report thereafter as directed by your probation officer.

You will give your probation officer your home address, and you won't change that address unless you have prior permission of your probation officer. [ 58 ] Under the direction of and to the satisfaction of your probation officer, you will take counselling which may include but is not limited to sex offender treatment, residential treatment, substance abuse counselling, and counselling offered through the Many Rivers Counselling and Support Services. [ 59 ] You will have no contact, directly or indirectly, with J.E. or any member of her immediate family except with written

permission from your probation officer specifically setting out the date, location, and purpose of that contact. [ 60 ] You will abstain absolutely from the possession and consumption of alcohol, and you will not possess any weapons defined by the Criminal Code , including knives, except for the immediate preparation and consumption of food, except for the purpose of employment at your place of employment, and except for subsistence hunting during a lawful hunt on a First Nation's territory. [ 61 ] Those are the terms on the probation. [ 62 ] Now, regarding the breach, while you were on bail you were drinking, you were not supposed to, and you committed a sexual offence.

In my view, the appropriate sentence is the fine of $100, and we will come to time to pay in a moment. [ 63 ] I am waiving any surcharges that may apply. [ 64 ] Time to pay, please? [ 65 ] MR. SOMMERFELD: Thirty days. [ 66 ] THE COURT: Okay. You have 30 days to pay that fine. [ 67 ] I think that deals with all of the required orders. [ 68 ] MR. SOMMERFELD: Is Your Honour going to direct a transcript of the decision be prepared? [ 69 ] THE COURT: Yes, I already have. Ask the clerk. [ 70 ] And just so you are aware, R.V.C., I have not ordered that you cannot come to Lower Post.

In my view, that is up to the Chief and Council. [ 71 ] THE ACCUSED: So I'm allowed down here? [ 72 ] THE COURT: Only if the Chief and Council say you are. [ 73 ] THE ACCUSED: Oh. So I still have to get the letter. [ 74 ] THE COURT: That is their job. (REASONS CONCLUDED)