☼ R. v. D.W., 2023 BCPC 64

Citation: ☼ R. v. D.W. 2023 BCPC 64 Date: ☼ 20230411 File No: 30847-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. D.W. PUBLICATION BAN PURSUANT TO s. 486.4(2) of the CANADIAN CRIMINAL CODE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: T. Barnett Counsel for the Defendant: G. Grewal Place of Hearing: Prince Rupert , B.C. Date of Hearing: February 15, 2023 Date of Judgment: April 11, 2023

[ 1 ] On August 3, 2022, the now 22-year-old D.W. pled guilty to counts 1 and 3 of Prince Rupert Court Information 30847-1. The B.C. Prosecution Service proceeded by way of

summary conviction. A full plea inquiry was conducted by Judge Sangha before she allowed D.W. to enter his guilty pleas. Counts 1 and 3 read as follows: Count 1 D.W. between March 1, 2020 – February 28, 2021, 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 L.W., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . Count 3 D.W. between January 1, 2021 – March 1, 2021, 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 R.A., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . [ 2 ] The prosecution of D.W. was by no means going to be a simple case for the Crown concerning L.W. She did not wish for D.W. to be charged. She did not want to testify in court and has not provided a Victim Impact Statement , though she did provide a statement to the police . [ 3 ] Though D.W. does not recall the sexual interference involving R.A., he accepts what she has said as accurate. D.W.'s acceptance of R.A.'s version of events resolved issues concerning R.A. and created certainty regarding the allegations.

The Crown expected R.A. to testify and had no inclination that she would not. [ 4 ] After the guilty pleas were recorded, the court ordered the preparation of Pre-Sentence, Gladue and Psychological/Psychiatric reports . T he sentencing was adjourned to February 15, 2023, to allow for the preparation of the reports . I heard counsel submissions on February 15, 2023, after which I adjourned the matter for reflection and to provide comprehensive Reasons for Sentence. I.

JOINT SUBMISSION [ 5 ] The BC Prosecution Service and D.W. have come before the court with a "joint submission on sentence." [ 6 ] The parties have asked the court to impose a conditional sentence order of two years less a day, without electronic monitoring, followed by two years of probation. The BC Prosecution Service also seeks several ancillary orders, including a s. 161 Criminal Code prohibition order, the mandatory s. 487.051

(1) Criminal Code DNA order, and a twenty-year s. 490.012 Criminal Code order to comply with the Sex Offender Information Registration Act ("SOIRA"). [ 7 ] Unlike traditional joint submissions -- where the Crown and defence reach an agreement as to sentence prior to guilty pleas being entered -- I was told that D.W. entered his guilty pleas to counts 1 and 3 before a joint submission as to sentence was negotiated, in exchange for the BC Prosecution Service agreeing to not proceed against D.W. on counts 2 and 4.

For that reason, the Supreme Court of Canada’s decision in R. v Anthony-Cook , 2016 SCC 43 , universally regarded as the leading case instructing trial judges on how to adjudicate joint submissions, although of some assistance, is not directly on point. [ 8 ] Apparently the Crown initially opposed a conditional sentence order for D.W. however, the positive and enlightening Pre- Sentence, Gladue, and Psychological/Psychiatric reports caused the BC Prosecution Service to change its sentence position. [ 9 ] Our Court of Appeal has guided sentencing judges on approaching joint submissions.

Justice Dickson instructed in paragraph 22 of R. v. Cheema , 2019 BCCA 268 : Given the foregoing, a judge presented with a joint submission must approach the sentencing task differently than on a conventional sentence hearing. Under the conventional approach, the judge focuses on the circumstances of the offender and the offence, and the applicable sentencing principles.

However, when assessing a joint submission, the judge must consider factors beyond the typical sentencing principles and should not "reverse engineer" a joint submission by determining the sentence that would have been imposed after a trial and comparing it to the jointly proposed sentence. Rather, the analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice, and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system: Anthony-Cook at paras. 32, 42, 44, 48 ; R. v.

Belakziz , 2018 ABCA 370 at para. 18 . This approach enables a full appreciation of the basis and justification of the jointly proposed sentence: R. v. McInnis , 2019 PECA 3 at para. 78 Basis For The Joint Submission [ 10 ] D.W. is an Indigenous man with many identifiable Gladue factors. As set out by the Ontario Court of Appeal in R. v. Sharma , 2020 ONCA 478 , reversed on other grounds, 2022 SCC 39 : [70] Aboriginal offenders start from a place of substantive inequality in the criminal justice system.

The overincarceration 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 overincarceration…

[11] D.W. has no criminal history. [12] D.W. suffers from significant cognitive difficulties and is very immature for his age. [13] There has been a definite change from the alcohol use that D.W. was engaging in before and during the time of the offences. Hislife has stabilized, minimizing the risk that he poses to reoffending. Taking away D.W.'s stability and incarcerating him in jail wouldresult in losing his home and job. Incarceration would be detrimental to his general rehabilitation prospects and the risk that he poses toreoffending.

Benefits Of The Joint Submission To The Administration Of Justice [14] Based upon what counsel submitted, it appears that the benefits to the administration of justice offered by the joint submission inthe present case include the following: 1. The matter was initially set for a four-day trial after the arraignment hearing on April 22, 2022. After a Pre-Trial Conference, theBC Prosecution Service and D.W. agreed to that D.W. would plead guilty to counts 1 and 3, reports would be ordered, and then therewould be a contested sentencing.

There was the possibility prior to the joint submission being agreed to that the prosecution would havehad to lead evidence during the sentencing, what is often referred to as a Gardiner Hearing. Accordingly, D.W.'s guilty pleas avoided amultiday trial, saving the justice system precious time, resources, and expenses. The subsequently agreed to joint submission saved thecourt having to engage in a Gardiner Hearing, with one or both of L.W. and R.A. having to testify. 2. Not having to testify at a Gardiner Hearing spared L.W. and R.A. the emotional and potentially traumatic testifying experience. 3.

Given the unique facts in the present case, there was a distinct possibility that the now 16-year-old L.W. would not have been acooperating witness for the BC Prosecution Service. L.W. not cooperating may have lessened the strength of the BC ProsecutionService's case. 4. Allowing D.W. to serve his sentence by way of a conditional sentence order followed by probation enables the court to put intoaction the teachings of the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 SCR 688 (SCC) and R. v.Ipeelee, 2012 SCC 13.

The Public Interest Or Repute Of The Justice System [15] In looking holistically at the joint submission, I have asked myself: Is there something apart from the length of the proposedsentence that engages the public interest or reputation of the justice system? The short answer is "no." [16] For reasons I will set out in due course – and in keeping with the teachings of the Supreme Court of Canada in R. v.

Friesen, 2020SCC 9 – the joint submission presented to the court in the present case holds D.W. accountable for his offences and the harm done, andaddresses general deterrence in a manner that will help protect children from illegal exploitation. [17] It is in the public interest to incarcerate fewer Indigenous people, especially in situations where alternatives to incarceration leadto the same result: a safer community. [18] Our children are our most precious resource, and they are priceless.

Some cases are worth the cost of a trial or a contestedsentencing hearing, and the government must be prepared to spend the money to see justice done. When protecting our children, the costof running a trial and perhaps a contested sentencing is irrelevant. Nevertheless, the joint submission presented to the court in the presentcase will not disrepute the administration of justice, nor is it contrary to the public interest. II.

FACTS [19] In February 2021, D.W. and 14-year-old L.W. had been in a sexual relationship of approximately one year. [20] On February 18, 2021, 14-year-old R.A., L.W. and D.W. were hanging out at R.A.'s house. D.W.'s father, who is also L.W.'sstepfather, stopped by R.A.'s house and picked L.W. up. [21] Later the same night, unrelated to D.W. police officers attended R.A.'s house to check on her well-being. While police were atR.A.'s home, D.W. hid from the police officers.

When the police officers left R.A.'s house, an intoxicated D.W. had sexual intercoursewith R.A., which R.A. described to the police as "a one-night stand." After R.A. and D.W. had sexual intercourse, D.W. left her homefrom R.A.'s bedroom window. [22] On March 16, 2021, Darryl Feilen with the Ministry of Children and Family Development reported to police that R.A. believedshe was pregnant and that the father was possibly 20-year-old D.W. .R.A. provided a statement disclosing that she had met D.W. throughher friend, L.W., who was in a long-standing relationship with D.W.

R.A. told authorities that she believed D.W. was aware of her agebecause of his relationship with L.W. [23] Police took a statement from L.W., who confirmed that she was in a sexual relationship with D.W. and that the relationship hadbeen for over a year. L.W. confirmed that she hung out with R.A. extensively through January and February 2021, but denied being

together with R.A. and D.W. at R.A.'s house on February 18, 2021. L.W. told the police that she did not allow R.A. to hang out with her and D.W. because R.A. gave off a vibe that she wanted to "get with D.W." L.W. also acknowledged that she and D.W. knew the relationship was illegal due to their age gap. [ 24 ] On April 10, 2021, police arrested D.W. .He was read his Charter rights and cautioned, which he advised that he understood. D.W. gave an in-custody statement to the police during which he stated: i. He had had a sexual relationship with L.W.; ii. He had met R.A. through L.W.; iii.

He had hung out with R.A., but as he had gotten high, he did not recall having sex with R.A. He continued, "I'm not saying it didn't happen, but I do not recall that at all." iv. The sexual relationship with L.W. had ended recently because of their age gap. [ 25 ] The Ministry of Children and Family Development has confirmed that neither L.W. nor R.A. has had children. III.

DISCUSSION Aggravating Factors: [ 26 ] There are statutory aggravating factors: 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. ….. 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. [ 27 ] Both R.A. and L.W. were and remain vulnerable because of their age. [ 28 ] Both R.A. and L.W. are Indigenous and female. [ 29 ] D.W. knew the age gap between himself, L.W. and R.A.

It makes no difference if L.W. or R.A. thought of the sex as consensual. Mitigating Factors: [ 30 ] D.W.'s guilty pleas. [ 31 ] D.W. admits and takes responsibility for his offences. He is remorseful. Concerning R.A., while D.W. does not recall the sexual interference, he has not denied it and has accepted R.A.'s version of events. [ 32 ] The victims did not have to testify. [ 33 ] The many Gladue factors present in D.W.'s life. He is a citizen of the Haida Nation on his mother's side, with ties to the Tsmishian people on his father's side.

Before he was six months old, D.W. experienced his first of many sudden moves when his parents separated and relocated from Prince Rupert to the Lax Kw'alaams reserve. Throughout much of the rest of his life, he has experienced disruption and emotional distress due to sudden moves between communities (at ages 6, 7, 8, 11, and 12).

As a child and youth, D.W. experienced instability, separation from his mother at age 12, diagnosis of Fetal Alcohol Spectrum Disorder and Attention-Deficit Hyperactivity Disorder, and his high school's unsuccessful attempt to stream him away from graduating. [ 34 ] D.W.’s moves between communities disconnected him from his Indigenous nations' history, traditions, and culture. In addition to Lax Kw'alaams and Prince Rupert, he experienced two significant stays in Haida Gwaii. He is a descendant of at least two Indian Residential School survivors, several Day School survivors, and two '60s Scoop survivors.

As a child, his impressions of Indigenous peoples were based on his experiences of people surviving historical trauma and practicing cultural traditions. [ 35 ] D.W. had no previous criminal history. Victim Impact Statements [ 36 ] Victim Impact Statements assist the court in assessing the gravity of the harm arising from the offences and give victims of crime a voice in the criminal justice system. They allow victims to explain to the court and the offender, in their own words, how the crime has affected them.

If a victim wants to read their Victim Impact Statement aloud at the sentencing hearing, the court must allow it. [ 37 ] In the present case, I am told that L.W. and R.A. have elected not to provide Victim Impact Statements . [ 38 ]

Section 722 of the Criminal Code sets out the rules for Victim Impact Statements . The first three subsections are particularly applicable: Victim impact statement

(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under

section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this

section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. Inquiry by court

(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1). Adjournment

(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice. [ 39 ] In British Columbia, the practice of the B.C. Prosecution Service appears to be to mail out packages to victims of crime, alerting them to their opportunity to provide a Victim Impact Statement and, in appropriate cases, seek restitution from the offender.

Accordingly, it does not appear that the B.C. Prosecution Service actively seeks out Victim Impact Statements from victims of crime. I will leave it for another day to comment further on the B.C. Prosecution Service's compliance with its obligations under s. 722 . DECISION [ 40 ] D.W. has lived with his uncle for just over a year. He works in the kitchen at a local Bar and Grill. He has not been abusing alcohol since the brief time he and his cousin drank heavily together during the period of the offences.

He is reconnecting with his Haida heritage. [ 41 ] In reviewing the basis for the joint submission, including the important benefits to the administration of justice, I cannot find that the joint submission is contrary to the public interest or will harm the justice system's reputation. Accordingly, I will accede to the joint submission. Sentence Imposed [ 42 ] Concerning count 1, there will be a 364-day conditional sentence order. I will come to the conditions of the conditional sentence order. There will also be the mandatory s. 487.051(1) Criminal Code DNA order.

You must attend at the Prince Rupert Royal Canadian Mounted Police Detachment, 100 West 6 th Avenue, Prince Rupert, British Columbia, by no later than 4 p.m. on May 30, 2023, and submit to the taking of the samples. This order is valid until executed. [ 43 ] Concerning count 3, there will be a 365-day conditional sentence order, consecutive to the conditional sentence order I have imposed on count 1. There will also be 24 months of probation, a five-year s. 161 Criminal Code prohibition order and the mandatory s. 487.051(1) Criminal Code DNA order.

I will come to the conditions of the conditional sentence order, probation order and s. 161 Criminal Code prohibition order shortly. You must attend at the Prince Rupert Royal Canadian Mounted Police Detachment, 100 West 6 th Avenue, Prince Rupert, British Columbia, by no later than 4 p.m. on May 30, 2023, and submit to the taking of the samples.

This order is valid until executed. [ 44 ] There will be a twenty-year s. 490.012 Criminal Code order to comply with the Sex Offender Information Registration Act ("SOIRA"). [ 45 ] The conditions for the two conditional sentence orders will be identical, with the exception that conditions 3209-1, 3209-2, 3209- 3 and 3209-4 will only be in the condition sentence order for count 1. The conditions are: 3001 - You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. 3101 – Concerning count 1, you must report in person to a conditional sentence supervisor at the Prince Rupert Community Corrections Office, 132 1st Ave.

W , Prince Rupert, British Columbia, telephone (250) 624-7435 or 1(877) 602-2288, by 3:00 PM tomorrow, April 12, 2023, and after that, you must report as directed by your conditional sentence supervisor. Concerning count 3, you must report in person to a conditional sentence supervisor at the Prince Rupert Community Corrections Office, 132 1st Ave. W , Prince Rupert, British Columbia, telephone (250) 624-7435 or 1(877) 602-2288, within two business days after completing your conditional sentence order in relation to count 1.

After that, you must report as directed by your conditional sentence supervisor. 3002 - You must have no contact or communication, directly or indirectly, with R.A. or L.W. 3005 - You must not go to or be within 100 metres of any place where R.A. or L.W., work, attend school, worship, or happen to be. If you see one or both of them, you must leave their presence immediately without any words or gestures. 3201 - When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without the prior written permission from your conditional sentence supervisor.

3209-1 – From April 11, 2023, until April 1, 2024, you must obey a curfew by being inside the place where you live and regularly sleep between 9 PM and 6 AM daily. The exceptions are: a. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes. b.

You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. (You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.) 3209-2 - You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. 3209-3 - If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. 3209-4 - If a peace officer finds you outside the place where you are living during the curfew or house arrest hours and requests to see the permission, you must show it to the officer. 3303-1 - You must not go to any public park, public swimming area, daycare centre, school ground, playground, community centre or theatre where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present. 3304 - You must not have any contact or communication, directly or indirectly, with anyone under 16.

You are not to be in the presence of anyone under 16. The exceptions are: a. With a court order made by a master, judge or judicial justice who has reviewed this order. b. With the prior written permission of your conditional sentence supervisor and in the immediate presence of an adult who is sober and who your conditional sentence supervisor has informed about this order and your criminal record. 3401 - You must not possess or consume alcohol, illegal drugs, intoxicating substances, marijuana, or prescription medication.

The exceptions are as follows: unless you have a valid medical prescription from a medical doctor who is a member in good standing of the College of Physicians and Surgeons of British Columbia, allowing you to consume or possess the alcohol, marijuana, or prescription medication that you have consumed or are possessing. 3501 - You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor.

At the discretion of your conditional sentence supervisor, the counselling may include mental health issues, substance abuse, and healthy sexual relationships. 3502 - You must attend, participate in and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your conditional sentence supervisor. This may include programming or treatment for: a. Alcohol or substance use. b. Psychiatric and psychological health. c.

Sexual offending and healthy sexual relationships. 3503 - You must attend a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your conditional sentence supervisor. [ 46 ] The conditions for the probation order in relation to count 3 are: 2001 - You must keep the peace and be of good behaviour.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation. 2104 - You must report in person to a probation officer at the Prince Rupert Community Corrections Office, 132 1st Ave.

W , Prince Rupert, British Columbia, telephone (250) 624-7435 or 1(877) 602-2288 within two business days after the completion of your conditional sentence, unless you have obtained before completion of your conditional sentence the written permission of a probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer. 2002 – You must have no direct or indirect contact with R.A. or L.W. 2005-1 - You must not go to or be within 100 metres of any place where R.A. or L.W. live, work, attend school, worship, or happen to be.

If you see one or both of them, you must leave their presence immediately without any words or gestures. 2201 - When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without the prior written permission from your probation officer. 2303-1 - You must not go to any public park, public swimming area, daycare centre, school ground, playground, community centre or theatre where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present. The exceptions are: a. With the prior written permission of your probation officer and in the immediate presence of an adult who is sober and who your probation officer has informed about this order and your criminal record.

2304 - You must not have any contact or communication, directly or indirectly, with anyone under 16. You are not to be in the presence of anyone under 16. The exceptions are: a. With a court order made by a master, judge or judicial justice who has reviewed this order. b.

With the prior written permission of your probation officer and in the immediate presence of an adult who is sober and who your probation officer has informed about this order and your criminal record. 2501 - You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

At the discretion of your probation officer, the counselling may include mental health issues, substance abuse, and healthy sexual relationships. [ 47 ] As mentioned earlier, in relation to count 3, pursuant to s 161 of the Criminal Code , you are prohibited for five years commencing today from: a. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; b. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or c. having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate. [ 48 ] You must pay a victim surcharge in the amount of $100 for count 1 and $100 for count 3.

That is a total of $200, payable to the clerk of the court. Both victim surcharges must be paid by no later than December 31, 2023. If you require further time to pay some or all of the victim surcharges, you must apply in writing at the Court Registry to ask the court for an extension. [ 49 ] I am not waiving the requirement that a Justice of the Peace read the conditional sentence orders, the probation orders, the D.N.A. orders or the s. 161 Criminal Code order to D.W.

And I am not waiving the requirement that D.W. sign the various orders. [ 50 ] All of which is ordered this 11 th day of April, 2023. ________________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia