R. v. M.E.D., 2017 BCPC 470

Citation: R. v. M.E.D. 2017 BCPC 470 Date: 20171114 File No: 33060-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.E.D. BAN ON PUBLICATION 486.4(2) CCC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Crown: F. Gordon Counsel for the Defendant: C. Hatcher Place of Hearing: Prince George , B.C. Date of Hearing: April 10, September 27, October 3, 2017 Date of Judgment: November 14, 2017

[ 1 ] M.E.D. has pleaded guilty to sexual touching of a person under the age of 16 years contrary to s. 151 of the Criminal Code . This offence carries with it a mandatory minimum sentence of one-year imprisonment when proceeded by indictment as it was in this case. The Crown seeks a sentence of 18 months to two years' imprisonment followed by three years' probation. The defence seeks a sentence of 12 to 14 months plus lengthy probation. It is my job to impose a fit sentence upon M.E.D. for this offence. [ 2 ] The victim was 15 at the time the offence was committed. M.E.D. was 53.

That fact alone makes sexual touching between them contrary to law. There are all sorts of good reasons to prohibit sexual contact between adults and children. The power imbalance, between adults and children, means that children are not able to make a choice whether to engage in sexual activity and they are too young to understand the consequences of such activity. The circumstances in this case go well beyond the minimum age difference required for a conviction for this offence. [ 3 ] M.E.D. was the victim's grade nine [omitted for publication] teacher.

She had turned 15 only a few months before these events occurred. He befriended her. She was a child who had been abandoned by both of her parents as a result of their drug use. She was living with relatives. He communicated with her on Facebook and talked about the breakdown of his romantic relationship. After school ended for the summer, he carried on communicating with her on Facebook.

He offered to meet her outside of school and bring her an iced-capp, but she declined. [ 4 ] However, in early July 2015, she was house-sitting for her grandparents and was alone and not under the supervision of her aunt and uncle with whom she lived. She received a call from her sister who lived in a different town. Her sister was threatening suicide. The victim was very upset and sought help from her friends. She reached out to M.E.D. He again offered to meet her in a local park and bring her an iced-capp. This time she said yes. [ 5 ] They talked in the park and he listened to her concerns. She was very upset.

They continued talking in his vehicle. He suggested they carry on talking at his home. It was late at night. She went with him to his home. He put his hand on her back. She thought he was being comforting, her trusted friend and teacher from school. Then he kissed her. She was confused and did not really know what to do. They had sexual intercourse on his couch and, later, he took her back to her grandparents' house. [ 6 ] The victim was troubled by what happened and thought it was wrong.

She wanted to send him a text to end it, but she thought she should do it in person because M.E.D. had explained that he had “flipped his lid” when his last girlfriend broke up with him by text. So she went to see him in person and he dissuaded her from ending the sexual contact. He told her he really cared about her and that they would move to Vancouver when she was 18 and he would make a new life for her. [ 7 ] He had full sexual intercourse with her on several occasions. M.E.D. did not use a condom and she was not on birth control. The sexual intercourse took place at his home and on his desk at school.

They communicated constantly by electronic means. The texts included explicit sexual content. They also included a comment from M.E.D. to the effect that he hoped she was deleting his texts. [ 8 ] After about a week, her family noticed that the victim's tablet was always pinging and they looked into it. When they found the texts, the victim's aunt called M.E.D. and asked to meet him. The victim's aunt and other relatives confronted the victim and took away her tablet and phone. Her family was crushed. They felt betrayed by M.E.D. and by the victim.

The victim was ashamed and felt she had betrayed the trust of her family. [ 9 ] M.E.D. continued trying to communicate with the victim including texting another student from school repeatedly trying to get him to pass messages to the victim. After the victim's aunt and other relatives repeatedly attended at his house demanding to meet, M.E.D. eventually met with them just before the start of school for the new school year in September. They demanded that he resign as a teacher and leave town which he did. They took a video of him admitting to sleeping with a minor.

M.E.D. says that this admission was the product of coercion and physical violence by the victim's relatives. [ 10 ] I have the benefit of a presentence report and a psychological report. In the presentence report, M.E.D. acknowledged having feelings for the victim within a few months of her starting in his class and suggested that he thought the victim was 16. I find those remarks, particularly the latter, concerning. It is unlikely that a teacher would genuinely believe that a student in grade 9 was 16.

This remark strikes me as prevarication. [ 11 ] M.E.D. has left his teaching career and is working for an elevator business in the Lower Mainland where he worked while suspended for an allegation similar to this one earlier in his career. M.E.D. explained to the preparer of the presentence report that the suspension resulted from a 15-year-old neighbourhood girl who had a crush on him. [ 12 ] Prior to this offence, he had been in a romantic relationship with another teacher that did not work out well for M.E.D. and he was lonely and stressed as a result.

The psychological report placed M.E.D. at a moderate risk to reoffend and such offending, if it occurred, would likely to be in circumstances similar to those at bar when he is feeling low after the break-up of a romantic relationship. MITIGATING FACTORS [ 13 ] M.E.D. pleaded guilty, sparing the victim the humiliation and distress of testifying. However, given the explicit nature of the text communications between them discovered by the police, the Crown's case was overwhelming. In such cases, a guilty plea is often regarded simply as an acceptance of the inevitable.

Loss of Employment [ 14 ] M.E.D. has certainly lost his lifelong career as a result of this offence coming to light. Other offenders committing such an offence might not lose their livelihoods. On the other hand, it was M.E.D.'s position as a teacher that gave him access to the victim. Having been suspended from teaching before because of an allegation involving a 15-year-old girl, he could not have been in any doubt about what would happen to him if he engaged in such a relationship.

It is not as if it could ever have been in any doubt that his behaviour was both illegal and contrary to all ethical standards as a teacher.

Remorse [ 15 ] M.E.D. has expressed his remorse and I accept that he has now come to realize the harm that he inflicted on the victim and that he has accepted responsibility for it. I note that M.E.D. does not have a criminal record. AGGRAVATING FACTORS Age of the Victim [ 16 ] The fact that the victim is under the age of 18 would be a statutorily aggravating factor if this offence did not already include a requirement that the victim be under the age of 16. Nevertheless, the victim in this case was a child of 15 years, not 16 or 17. She was therefore well under the age of 18.

Position of Trust [ 17 ] M.E.D. was the victim's teacher. His behaviour would have been a criminal offence even if the victim had been 16 or 17 because M.E.D. was in that very special class of persons in whom is placed the trust of parents and children. It was his job to teach children and to be a role model for them. The fact that he took advantage of that trusted relationship to befriend the victim and to have unprotected sexual intercourse with a 15-year-old is an aggravating factor. Vulnerable Victim [ 18 ] M.E.D. argues that there was nothing particularly vulnerable about this victim, but I disagree.

M.E.D. knew a lot about the victim. He knew about her family situation. The night that he initiated sexual contact between them, he knew that she reached out to him for guidance as a friend and an adult and a trusted teacher when she was distraught over her sister's threat of suicide. [ 19 ] His behaviour that night would have been reprehensible even if she had been a distraught adult in the same situation. To take advantage of a child reaching out for help is despicable.

When he dissuaded her from breaking it off with him by suggesting that he could make a rosy future for her, he was manipulating her vulnerability as a child, particularly as a child whose family life has been full of abandonment who would naturally crave the idea of being taken care of in that way. Nature of the Physical Contact [ 20 ] M.E.D. engaged in full sexual intercourse with the victim. That behaviour is as intrusive as it is possible to get. He did not make use of any birth control. He exposed her to the risk of pregnancy and disease.

Victim Impact [ 21 ] The victim has suffered punishment by her family and the breakdown of her relationship with her family as a result of the offence by M.E.D. She had to move away. As so often happens in sexual offences, the victim blames herself and so does everyone around her. That is one of the insidious things that make an offence of this sort so egregious. The victim has lost trust in her teachers and has felt scared and alone for a long time.

SENTENCING RANGE AND PRINCIPLES [ 22 ] In cases involving sexual offences by adults against children, the primary sentencing objectives are denunciation and deterrence. While rehabilitation is always a factor, it is of less importance in a case like this one. [ 23 ] Counsel have provided me with many case authorities as to the range of sentence available for this offence.

Many, if not all, of the authorities provided to me by M.E.D. were cases that predated the amendments to the Criminal Code enacting the current mandatory minimum sentences or they were cases in which the Crown proceeded summarily or for very different offenders and involving offences of less intrusiveness. As such, they are of limited assistance to me. [ 24 ] With respect to denunciation, I must impose a sentence that demonstrates society's disapproval of those who sexually offend against children from positions of trust. This offence by M.E.D. undermined the very foundations of our trust in the education system.

How can parents entrust their children to the school and expect their children to obey their teachers and learn from them if a teacher behaves like M.E.D.? Street Justice [ 25 ] M.E.D. draws to my attention that he was bullied and attacked by the victim's family when he met with them after they discovered the offence. He did comply with their demands that he resign his position in return for their agreement not to inform the police which ultimately they did anyway. I am unable to find anything mitigating about this.

Sometimes people take things into their hands because they are unsure that the law will deal adequately with an offender. That is one of the reasons that a sentence must meet the sentencing principle of denunciation. People must have faith that the law will properly reflect society's abhorrence of the offending behaviour. Otherwise, they will take the law into their own hands and mayhem will result. [ 26 ] M.E.D. suggests that he has been deterred from committing such an offence again, but I am not so sure about that.

M.E.D. has lost daily access to children as a result of losing his employment and it is true that he will never be a teacher again. However, he knew all of those consequences awaited him when he committed this offence and he did it anyway. Thus, those consequences did not deter him in the past and I am not confident that they will do so in the future. [ 27 ] I must also consider the principle of general deterrence. I must impose a sentence that will deter others of like mind from committing such offences.

That is, other teachers who have in mind to sexually offend against students must know that they face a substantial jail sentence in addition to the loss of their careers if they breach the trust of children and their parents.

[ 28 ] Sentencing is a very individualized process. No two offenders or sets of circumstances are exactly alike. Having considered the authorities provided and the submissions of counsel and the aggravating and mitigating factors, I am of the view that M.E.D. is nowhere near the least culpable offender in the least serious of circumstances for whom a sentence at the bottom of the range would be appropriate.

If M.E.D. had not been a teacher, but simply a neighbour when he committed this offence, the minimum sentence of one year would not have been appropriate because of the age difference between him and the victim. In such a circumstance, the sentence would have been higher than one year. [ 29 ] The fact that the sexual contact involved intercourse on repeated occasions makes this case more serious than that. The fact that M.E.D. took no care to avoid making the child pregnant makes this case more serious than that.

The fact that M.E.D. was in a position of trust as the victim's teacher makes these circumstances far more serious than any that I have described earlier. I view M.E.D.'s offence as egregious as it gets, short of physical violence. But for the position taken by the Crown, I would have imposed a much higher sentence than what was sought. [ 30 ] M.E.D., could you please stand up. [ 31 ] I sentence you to two-years-less-one-day imprisonment followed by probation for two years. [ 32 ] The probation terms will be as follows. [ 33 ] 2001: 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 the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 34 ] 2104: You must report in person to a probation officer at the probation office nearest to your release from custody within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 35 ] 2203: You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer. [ 36 ] I am imposing a no-contact condition and for purposes of the enforcement of these provisions, the name of the victim must be mentioned.

However, there is a publication ban in place and any copy of the probation order that is made available must have the name of the victim excised. [ 37 ] So, 2002: You must have no contact or communication directly or indirectly with S., T., C., D., or any member of S.'s immediate family. [ 38 ] 2005: You must not go to or be within 100 metres of any residence, school, or workplace of S. [ 39 ] 2005: You must not be within the boundaries of the City of [omitted for publication], British Columbia, except while passing through in a moving motor vehicle en route to somewhere else. [ 40 ] 2304: You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know or who reasonably appears to be under the age of 18 years. [ 41 ] 2303: You must not go to any public park, public swimming area, or community centre where persons under the age of 18 years are present or can reasonably be expected to be present, or a daycare centre, school ground, or playground. [ 42 ] 2305: You must not engage in activities, volunteer work, or employment that could bring you in contact with persons under the age of 18 years. [ 43 ] You shall not access any electronic social networking or social media sites including, but not limited to, Facebook, Snapchat, Instagram, Twitter, Reddit, or any other site where anyone under the age of 18 years is reasonably expected to electronically network. [ 44 ] 2501: You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by your probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to sexual offence prevention and alcohol or drug abuse. [ 45 ] 2503: You must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling, or treatment program through Forensic Psychiatric Services. [ 46 ] That is it for the probation terms. [ 47 ] There will be ancillary orders. [ 48 ] Under s. 743.21, there will be an order M.E.D., that you have no contact directly or indirectly with S., T., C., or D. during the entire period of your incarceration. [ 49 ] With respect to DNA, this is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of these samples. [ 50 ] Now, sex offender registry, Ms. Gordon, I do not have the form here in front of me to sign, but it needs to be signed by both me and by M.E.D. I will impose it, but I do not have the form.

[ 51 ] So, M.E.D., pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registration Act for 20 years, and there will be a form of that order which will be provided to you in due course. [ 52 ] I will make a firearms prohibition order. It is mandatory in this case.

Under s. 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. ____________________________ S. K. Keyes, PCJ Provincial Court of British Columbia