R. v. Sauve Date:, 2012 BCPC 188

Citation: R. v. Sauve Date: 20120606 2012 BCPC 0188 File No: 31714-2-C Registry: Prince Geroge IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RODERICK LYLE SAUVE REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M .J. BRECKNELL Counsel for the Crown: S. Keyes Counsel for the Defendant: C. Considine, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: April 10, 2012 Date of Judgment: June 6, 2012 INTRODUCTION

[ 1 ] Roderick Lyle Sauve, the Defendant, has pleaded guilty on Information #31714-2-C to Count 4 which alleges that "from the 1st day of September, 1981 to the 30th day of June, 1985, inclusive, at or near Prince George, in the Province of British Columbia, did commit

an act (or acts) of gross indecency with Sandra Boughey contrary to

section 157 of the Criminal Code ." [ 2 ] Unlike many cases of this kind the complainant, Sandra Boughey, now known as Sandra Stobbe, has not asked, through the Crown, for a publication ban of her name and the Court has honoured that request. [ 3 ] The Crown and Defence counsel relied on an Agreed Statement of Facts and limited case authority in placing before the Court a joint submission that the Defendant be sentenced to a Conditional Sentence Order of 8 to 9 months. AGREED STATEMENT OF FACTS [ 4 ] The Agreed Statement of Facts presented as an exhibit on sentencing and relied on by counsel, states: 1.

The Accused, Roderick Lyle Sauve (Sauve), was employed as a teacher at Duchess Park Secondary School in Prince George, British Columbia, from September 1977 to June 1986. 2. The complainant, Sandra Boughey (Boughey), was a high school student at Duchess Park School from September 1980 to May 1985. 3. As part of his duties at Duchess Park Secondary School, Sauve acted from time to time as a high school basketball coach. Boughey was a player on the basketball team coached by Sauve. 4. In the 1980s, Sauve and Boughey entered into a consensual sexual relationship. 5.

The sexual relationship occurred while Boughey was a student and Sauve was a teacher. 6. Sauve, by reason of his position as a teacher and basketball coach, was in a position of trust and authority in relation to Boughey. 7. The relationship between Sauve and Boughey ended in May 1985 when Boughey moved away from Prince George to attend college in the lower mainland. 8. Sauve's conduct in relation to Boughey constituted a marked departure from the decent conduct expected of an average person in circumstances that existed at the time. 9.

As a result of the sexual relationship between Sauve and Boughey, Boughey has suffered subsequent emotional distress. 10. Sauve has no criminal record. OTHER ADDITIONAL EVIDENCE [ 5 ] Relying on

section 722 the Criminal Code , the Crown requested that Ms. Stobbe be permitted to read aloud her Victim Impact Statement to the Court. That request was granted and Ms. Stobbe read out a two and one half page, 24 paragraphs, detailed and compelling statement of how the Defendant’s actions adversely affected her, both at the time and subsequently throughout the rest of her life. [ 6 ] Defence counsel relied on a number of documents in support of his position and to provide further background information on the Defendant. Those documents included:

a) The Defendant's curriculum vitae;

b) A letter from the Defendant’s doctor outlining both his and his wife’s medical difficulties;

c) A letter from the Defendant’s sister’s doctor outlining her medical difficulties;

d) A letter from the Defendant’s mother's doctor outlining her medical difficulties;

e) A letter to the Defendant’s doctor from a registered psychologist outlining the Defendant’s mental health status;

f) Seven letters from family and friends attesting to the Defendant’s general good moral character, caring and devoted nature, kindness, work ethic, trustworthiness, and integrity;

g) Two reports from the 1980s prepared on the Defendant by principals at the schools where he taught describing his excellence as a teacher including his professionalism and rapport with the students;

h) A Risk Factors Evaluation Report, dated January 20, 2012, which indicates that the Defendant is in a very low risk category for recidivism.

THE LAW [7] Several sections of the Criminal Code have application in these circumstances. They include: a) 157. Every one who commits

an act of gross indecency with another person is guilty of an indictable offence and is liable toimprisonment for five years. b) 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 acknowledgement of the harm done to victims and to the community. c) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. d) 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorismoffence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years ormore or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than twoyears and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose ofsupervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to theoffender’s compliance with the conditions imposed under 742.3. [8] The only case relied on by counsel was R. v.

Ellison 2007 BCPC 30 , 2007 BCPC 0030. [9] In Ellison, the defendant was a teacher who engaged in a variety of sexual activities, some consensual, some not, with anumber of present and former students. These activities occurred over a number of years. [10] Ellison was convicted of one count of common assault, two counts of indecent assault, and two counts of gross indecency.

Inseveral respects, the defendant’s actions in Ellison are similar to the action of the Defendant here and as such the comments of JudgeTakahashi in Ellison have application to this case: [7] The aggravating factors I must consider in these offences are first and foremost, Mr. Ellison abused his position of trust andauthority. He was a teacher. The victims were or had been his students. As a teacher, he was entrusted with the safety of the studentsand he breached this in a most egregious or serious way. Secondly, I considered the number of complainants, which were four, and theduration of the encounters.

The offences in total, included at least 27 sexual encounters, beginning in the summer of 1977 and ending inDecember of 1982. Thirdly, I considered the sexual nature of the offences. Most of the offences were sexual in nature. The harm ofthese offences is that they caused long lasting psychological pain for the victims. [8] The mitigating factors that are present in this case tend to make the sentencing less serious are firstly, Mr. Ellison has no criminalrecord. Secondly, he voluntarily stopped offending.

He stopped offending on his own before the investigations or charges.… [9] … With respect to the gross indecency charges, the gross indecencies were consensual in the legal sense. [11] Judge Takahashi sentenced Mr. Ellison to a Conditional Sentence Order of two years less one day, plus probation for one yearand he was required to provide a sample of his DNA. SUBMISSIONS Crown

[ 12 ] The Crown’s submissions were brief, relying only on the Agreed Statement of Facts with regard to the circumstances of the offence. [ 13 ] The Crown noted that the offence in question was historic in nature and therefore similar to Ellison . [ 14 ] The Crown's position on sentencing was that there should be a Conditional Sentence Order of between eight and nine months with the Defendant reporting to a Conditional Sentence Supervisor in Victoria, maintaining a curfew with certain exceptions for medical emergencies involving himself and family members, abstaining from alcohol and drugs, having no contact with Sandra Stobbe, performing 25 hours of Community Work Service, being subject to a mandatory SOIRA Order and providing a DNA sample as the offence is a primary designated offence.

Defence [ 15 ] Defence counsel provided a Book of Documents referred to earlier in these reasons, brief written submissions and oral submissions at the hearing. [ 16 ] Those submissions can be summarized as follows:

a) The Defendant is now 62, married with two adult children. His wife remains supportive of him despite the nature of these proceedings.

b) The Defendant holds a Bachelor of Education degree and a Masters of Education degree, was a teacher from 1978 until his retirement in the fall of 2011, when the present charges came to light. He had intended to continue to work as a teacher until at least age 65. Work assessments indicate the Defendant was a fine teacher.

c) All the letters of reference submitted indicate that the Defendant has been a kind and loving husband and a support person for seriously ill members of his family. He is also held in high regard within his community.

d) The offence is out of character for the Defendant and was not repeated with any other student. There was broad publicity of the charges and no further complainants have come forward.

e) The Defendant deeply regrets the nature of the relationship that occurred; it was poor judgment on his part to engage in such behaviour with someone over whom he had a position of authority and trust.

f) The Defendant has extreme and significant remorse for what has taken place and the effects it has had on Ms. Stobbe. That Defendant has suffered considerable medical and mental health issues arising from these charges which further demonstrate that remorse.

g) The Defendant has no criminal record and given the Risk Analysis Report it is highly unlikely he will ever be before the courts again for any other matter. [ 17 ] Based on those submissions, Defence counsel joined with the Crown noting that the sentence suggested in these circumstances would be sufficient deterrence to the Defendant, would meet the objectives of sentencing and was consistent with the analysis engaged in Ellison which resulted in a similar although more lengthy sentence than what is suggested here. Mr. Sauve [ 18 ] When given the opportunity to speak to the Court, Mr.

Sauve stated that he was terribly sorry for the mistake he made and for any pain and suffering that had been experienced by Ms. Stobbe. DISCUSSION The Circumstances [ 19 ] In considering the circumstances of this offence there are a number of components that must be considered. [ 20 ] There is no doubt that the Defendant's actions towards Ms. Stobbe harmed her in ways that profoundly affected her physical, mental and emotional well-being. Ms.

Stobbe has had to struggle on a daily basis with the demons that were visited upon her as a result of the Defendant's actions. [ 21 ] The Defendant's actions have harmed others in addition to Ms. Stobbe. His family including his wife, his children, his mother and his siblings, as well as his friends have all had to reconcile the Defendant's daily presentation to them as a kind and caring individual with the fact that he abused his position of authority and trust over young woman in her formative years for his own personal pleasures. [ 22 ] The Defendant has expressed deep remorse for the harm he has cause to Ms.

Stobbe and I accept that such remorse was heartfelt. The Defendant has lived a positive and pro-social lifestyle both before and after the events that are before the Court. In addition, he is now tasked with assisting many members of his family with their health issues. Conditional Sentence Order

[23] In this matter there is no minimum penalty and the Crown is not seeking a sentence of greater than two years. In addition, Ihave concluded that there is no public safety concern if the Defendant’s sentence was to be served in the community. The real issue Imust resolve is whether or not a Conditional Sentence Order is consistent with the purpose and principles of sentencing as enunciated inthe Criminal Code and applied by the Supreme Court of Canada in R. v.

Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61. [24] I am satisfied that in the circumstances of this case a sentence to be served in a provincial jail could be defended as both justand appropriate given the nature and duration of the offences to which the Defendant has admitted. Even though there is only one victimand there is no evidence that the Defendant has committed any other offences a jail sentence could still be an appropriate outcome. [25] But what greater benefit would a jail sentence serve for either the community or the victim. It would not help Ms.

Stobbe withher daily struggles to live with the trauma she has suffered. It would deprive several members of the Defendant's family who rely on himto assist them with their medical challenges of his support and assistance. It might well also exacerbate the Defendant's own medicalissues. [26] After considering the circumstances of this case, the provisions of sections 718 through 718.2 and

section 742 the CriminalCode and the decision in Ellison, I come to the conclusion that it would be appropriate to permit the Defendant to serve his sentence inthe community under a Conditional Sentence Order. Joint Submission [27] Counsel have presented a joint submission on what they conclude is an appropriate sentence. I do not know if the proposedoutcome has been discussed with Ms.

Stobbe or whether she accepts such a result or not. [28] However, both counsel are experienced in this area of the law and have examined all of the evidentiary and legal aspects ofthe case in arriving at a mutually acceptable outcome [29] Even if my own analysis leads me to the conclusion that a different sentence may be appropriate in this case, I must give dueand careful consideration to a joint submission in deciding whether or not to accept it or reject it. [30] The proper consideration to be given by sentencing judges to a joint submission has recently been restated by the BritishColumbia Court Appeal in R. v.

Olson 2011 BCCA 8 where Madam Justice Smith speaking for the Court says at paragraph 19: It is common ground that a joint submission is not binding on a sentencing judge who retains his or her own discretion to impose a fitsentence that may differ from the joint submission. However, a joint submission should not be rejected lightly and the sentencing Judgeshould give reasons for doing so.

While the sentencing judges not required to inform the offender that he or she proposes to depart fromthe joint submission it is preferable for the judge to articulate his or her concerns and provide counsel with an opportunity to makefurther submissions and provide additional material where available to address those concerns... [31] In light of that direction and given the considerations I have already discussed, I have concluded that it is appropriate for meto impose the sentence which has been jointly submitted but the higher end of the range suggested. DECISION [32] Mr.

Sauve, I impose a Conditional Sentence Order on you for a period of nine months. It will include the following terms andconditions: (

a) You shall keep the peace and be of good behaviour. (

b) You shall appear before the court when required to do so by the court. (

c) You shall report in person to a Conditional Sentence Supervisor no later than 4:00 pm on June 6, 2012 at the Probation Office at836 Courtney Street Victoria, B.C., and you shall thereafter report as and when directed by the Supervisor and in the manner directed bythe Supervisor. (

d) You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from thecourt or the Supervisor. (

e) You shall notify the court or the Supervisor in advance of any change of name, or address, and promptly notify the court or theSupervisor of any change of employment or occupation. (

f) When first reporting to the Supervisor you shall inform him/her of your present residential address and phone number, and youshall not change your address or phone number at any time without first providing written notice to your Supervisor. (

g) You shall obey a curfew by being inside of your residence (or on the lot on which your residence is located) between the hours of8:00 p.m. and 7:00 a.m. each day, except as follows:

i) with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family oremployment reasons. ii) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. Youshall provide the Supervisor with written proof of employment; iii) in the event of a medical emergency involving yourself, your wife, your mother, your sister or your aunt, and then only whentraveling directly to or returning directly from a hospital emergency ward.

h) You shall present yourself at the door to your residence when any Peace Officer or Supervisor attends there for the purpose of determining your compliance with the curfew conditions of this Order.

i) You shall respond personally and immediately to the telephone when a Peace Officer or Supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew conditions of this Order.

j) You shall have no contact or communication, directly or indirectly, with Sandra Stobbe.

k) You shall not attend at, or be within 50 meters of any place which you know to be the residence, school or workplace of Sandra Stobbe.

l) You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician.

m) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor license.

n) Under the direction and supervision of the Supervisor you shall successfully complete 25 hours of community work, which shall be performed at a rate of no fewer than five hours per month. [ 33 ] In addition, I order, pursuant to

section 490.013 of the Criminal Code that you comply with the Sex Offender Information Registration Act for a period of 10 years and that you immediately sign all necessary documentation to give effect to that order. [ 34 ] Furthermore, given that the offence you have pleaded guilty to is a primary designated DNA offence I order:

a) Pursuant to s. 487.051(1) of the Criminal Code I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Roderick Lyle Sauve, by June 12, 2012.

b) Pursuant to s. 487.051(4) of the Criminal Code I further make an order in Form 5.041 that you shall attend on or before June 12, 2012 between the hours of 9:00 A. M. and 4:00 P.M. at the Victoria City Police Department, 850 Caledonia Avenue, Victoria B.C., and submit to the taking of the samples. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of BC