R. v. W.S. Date:, 2012 BCPC 310

Citation: R. v. W.S. Date: 20120904 2012 BCPC 0310 File No: 3337-C2; 3343-C2; 3422-1T Registry: Valemount IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W. S. REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL PUBLICATION BAN S. 486.4(1) Counsel for the Crown: G. McDonald Counsel for the Defendant: S. Buckley Places of Hearing: Valemount and McBride , B.C.

Dates of Hearing: July 5 and 6, 2012 Date of Judgment: September 4, 2012 INTRODUCTION [ 1 ] The Defendant, W. S. is before the Court to be sentenced with regard to the following offences on the following Information's: a) 3422-1T - Count 1: between September 1, 2008 and March 15, 2010, he committed numerous sexual assaults on H. T. in various locations in Saskatchewan contrary to

Section 271 of the Criminal Code of Canada (the Code ) (the Saskatchewan Information); b) 3337-C2 - Count 1: between March 15, 2010 and June 15, 2010, at or near Sooke in the Province of British Columbia he did, for a sexual purpose, touch directly or indirectly a part of his body or with an object the body of H. T., a person under the age of 16 years, contrary to

Section 151 of the Code ; c) 3337-C2 - Count 4: between March 15, 2010 and June 15, 2010, at or near Sooke in the Province of British Columbia he did, for a sexual purpose invite, counsel or incite H. T., a person under the age of 16 years to touch, directly or indirectly, a part of his body or with an object the body of H. T., contrary to

Section 152 of the Code ; d) 3337-C2 - Count 5: between June 15, 2010 and July 15, 2010, at or near Sooke and the Province of British Columbia, he did wilfully attempt to obstruct, pervert or defeat the course of justice contrary Section 139(2) of the Code ; e) 3343-C2 – Count 1: between August 19, 2010 and August 26, 2010, at or near Valemount in the Province of British Columbia, he did wilfully attempt to obstruct, pervert or defeat the course of justice contrary to Section 139(2) of the Code , f) 3343-C2 - Count 4: on or about August 22, 2010, at or near Valemount in the Province of British Columbia, while being at large on a recognizance, he did fail without lawful excuse to comply with a condition or direction to have no contact or communication directly or indirectly with T.

T., contrary to Section 143(3) of the Code ; g) 3343-C2 - Count 5: on or about August 25, 2010, at or near Valemount in the Province of British Columbia, while being at large on a recognizance, he did fail without lawful excuse to comply with a condition or direction to have no contact or communication directly or indirectly with T.

T., contrary to Section 143(3) of the Code . [ 2 ] The Crown submits that the Defendant should receive a global sentence of between five and seven years for the sexual offences, a consecutive sentence of 9 months for the obstruction of justice offences and shorter concurrent sentences for the breach of recognizance offences all to be served in a federal penitentiary. [ 3 ] In the alternative, the Crown submits the Defendant should receive a global sentence of two years in a federal penitentiary followed by three years of probation for all of the offences. [ 4 ] The Crown opposes any Pre-Sentence credit for the Defendant greater than 1 for 1 as described in Section 719(3) of the Code . [ 5 ] The Crown also seeks the following ancillary orders against the Defendant arising from the offences:

a) a DNA order pursuant to

Section 487.051(1) (

a) of the Code ;

b) a registration order under the Sex Offender Information Registration Act (SOIRA) for 20 years pursuant to

Section 490.013(2) (

b) of the Code ;

c) a firearms prohibition for 10 years pursuant to

Section 109 of the Code ;

d) an order prohibiting certain activities, for at least 15 years to life, pursuant to Section 161(1) (

b) and (

c) of the Code . [ 6 ] Defence counsel seeks relief pursuant the Sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) arising from a claimed unreasonable delay in his sentencing on these matters in the following terms:

a) credit of two days for every day of dead time for all or most of the dead time served by the Defendant and/or;

b) an absolute discharge and/or;

c) a sentence of time served. [ 7 ] In the alternative, Defence counsel seeks pre-sentence custody credit of up to 1.5 to 1 for the time the Defendant has been held in custody pursuant to Section 719(3.1) of the Code .

[ 8 ] Defence counsel acknowledges that the Defendant should receive a period of probation upon his release if an absolute discharge is not granted. [ 9 ] Defence counsel did not contest the ancillary orders sought by the Crown. EVIDENCE AT SENTENCING Circumstances of the Offences [ 10 ] In 2004, the Defendant met T.T. through an Internet dating service. They spoke by phone and corresponded for four months then met and married a few months later. T.T. brought her daughter, H.T., then eight years old, into the relationship. [ 11 ] In 2005 the family moved to Saskatchewan.

Commencing on September 1, 2008, the Defendant began sexually assaulting H.T., then 11 years old. Those sexual assaults occurred throughout the time the family lived in Saskatchewan, until March 15, 2010 and continued, when the family moved to British Columbia, until June 15, 2010 when H.T., then 13 years old, disclosed the assaults to her mother and the authorities. [ 12 ] The assaults began as fondling, proceeded to include oral sex and eventually sexual intercourse.

The assaults occurred frequently and did not cease until H.T.'s disclosure. [ 13 ] The Defendant used a number of strategies to groom H.T. for and to avoid detection of the sexual offences including:

a) the threat of and application of physical discipline;

b) offering gifts such as a horse, an ATV and a cell phone in exchange for sex;

c) teaching how to lie in a specific manner if their activities were ever questioned;

d) stating that the Bible said that girls should get married when they are 11 to 13 year old and because they were not relatives sexual relations were permissible;

e) providing occasions for T.T. to be out of the house for the day so that the sexual assaults could occur;

f) threatening that if the sexual assaults were disclosed he would tell H.T.’s family that she enjoyed their sexual encounters and that the family would think she was a "whore". [ 14 ] After the Defendant’s sexual assaults against H.T. had come to light, but before she had given any statements incriminating him, W.S., through telephone calls and e-mail texts, attempted on numerous occasions to encourage H.T. to lie to the Royal Canadian Mounted Police (RCMP), thereby obstructing justice, including telling her:

a) tell them nothing, they'll believe you. If you don't we’re dead;

b) lie detectors are easy to pass;

c) erase the text messages I have sent you;

d) we had sex and you were a minor but is more common than you think, you look like you're 16;

e) you enjoyed it and orgasmed. If you tell I'll tell them how you sounded when you orgasmed;

f) I'll get raped and beaten up in prison;

g) what can I buy for you; name it and it's yours;

h) if you tell anyone I'll kill you. The devil tried to destroy us. [ 15 ] The Defendant was arrested on August 5, 2010. He was released on bail on August 17, 2010, with various bail conditions including not having contact with T.T. or H.T. [ 16 ] Commencing on August 19, 2010, and continuing on an almost daily basis until August 26, 2010, the Defendant telephoned and e-mailed T.T. on a variety of issues including:

a) seeking money from her and communicating about their financial situation;

b) asking her not to talk to the authorities in Saskatchewan regarding the offences committed in that province;

c) telling her that his lawyer said the charges may be reduced;

d) suggesting they may be able to get back together;

e) telling her that the judge and his then defence counsel got along well, making fun of the prosecutor and advising that his then defence counsel was looking for an easy judge before disposing of the matter;

f) saying he was afraid of jail. [ 17 ] The Defendant was rearrested on September 2, 2010 and has been in custody ever since. Since the original sentencing date of November 16, 2010, there have been numerous appearances by counsel on this matter but there has been neither an application by the Defendant for new bail nor any application by the Crown to revoke the previous bail. Charter Issue Chronology [ 18 ] In order to put into context the submissions of Defence counsel that the Defendant’s Charter rights were breached, it is necessary to set out the chronology of events as described in various Affidavits and the submissions of counsel which can be summarized as follows:

a) between September 1, 2008 and June 15, 2010, the Defendant committed numerous sexual assaults and other related sexual offences against H.T.;

b) on June 2 and June 27, 2010, T.T. gave statements to the RCMP;

c) between June 15, 2010 and July 15, 2010, the Defendant committed the first offence of obstructing justice;

d) on July 2,7 and 25, 2010, H.T. gave statements to the RCMP;

e) on August 5, 2010, the Defendant was arrested in Regina, Saskatchewan and returned to British Columbia;

f) on August 17, 2010, the Defendant was released on bail with numerous conditions including to have no contact with T.T. or H.T.;

g) it is uncertain what disclosure was given to the Defendant’s previous counsel but both the Crown and the Defendant’s previous counsel relied on details from H.T.’s July 25, 2010 statement at the bail hearing;

h) between August 19, 2010 and August 26, 2010, the Defendant had contact with T.T. by telephone and e-mail, thereby committing the second offence of obstructing justice and the offences of breach of recognizance;

i) on August 23, 2010, Information 3337-C2 was sworn. On September 1, 2010, Information 3343-C2 was sworn;

j) on September 2, 2010 the Defendant was rearrested and has remained in custody since then;

k) on September 22, 2010, the Defendant entered guilty pleas to Counts 1, 4 and 5 on Informations 3337-C2 and 3343-C2 and a Pre- Sentence Report and Psychological Assessment were ordered;

l) sentencing was scheduled for November 16, 2010, but it did not occur and soon after the Defendant ceased being represented by his then counsel;

m) on February 1, 2011, Information 3422-T1 was sworn in Saskatchewan;

n) in February 2011, the Defendant retained his present Defence counsel. Soon after being retained, Defence counsel noted that the file contained only the July 2, 2010 statement of H.T. which did not disclose any offences by the Defendant;

o) on March 10, 2011, Defence counsel wrote to the Crown requesting the July 7, 2010 statement of H.T., which was eventually provided to him near the end of March 2011. After further review, Defence counsel remained concerned that there were other possible statements made by H.T.;

p) in March, 2011 the Saskatchewan and British Columbia Crowns advised Defence counsel that they were prepared to deal with all matters but in Saskatchewan where the majority of the offences occurred,

q) on May 11, 2011, Defence counsel received the Saskatchewan Information from the Saskatchewan Crown alleging sexual assaults by the Defendant on H.T. between September 13, 2007 and March 15, 2010. Although acknowledging that sexual assaults had occurred, the Defendant indicated to Defence counsel that the offences did not commence until 2008;

r) on July 15, 2011, Defence counsel again wrote to the British Columbia Crown indicating that he was concerned that H.T. may have given other statements to the RCMP. In response to that letter, H.T.’s July 25, 2010 statement was disclosed by the Crown near the end of July 2011;

s) the Defendant instructed his counsel to seek an amendment to the Saskatchewan Information and to have that Information waived to British Columbia so that all the matters could be dealt with at once; in part because they were a continuous series of offences and in part because the Defendant could not afford to retain counsel for two separate sentencing proceedings;

t) on June 17, 2011, Defence counsel requested of the Saskatchewan Crown that the Saskatchewan Information be amended to reflect the correct dates but such amendment was not agreed to until January 3, 2012. ;

u) Defence counsel was advised by Saskatchewan Crown that they did not have copies of H.T.’s statements and so on October 20, 2011 Defence counsel forwarded those statements to Saskatchewan Crown;

v) beginning in early 2012, Defence counsel attempted to make arrangements to fix a sentencing date for all of the Informations in British Columbia. The British Columbia Crown submitted that the arrangement was agreed to as a professional courtesy to Defence

counsel;

w) on February 20, 2012, Defence counsel arranged a conference call with Saskatchewan Crown and British Columbia Crown to reach an agreement on the best way to proceed with the disposition of all of the Informations;

x) on April 23, 2012, the sentencing date of July 5, 2012 in Valemount was fixed by the Judicial Case Manager;

y) on July 5 and 6, 2012 in Valemount and McBride, sentencing submissions were made by counsel and sentencing was adjourned to September 4, 2012 in Prince George. [ 19 ] Neither Defence counsel nor the Crown provided any indication to the Court of the number of times they appeared before the Court with respect to this matter nor were any transcripts of those court appearances provided. Circumstances of Incarceration [ 20 ] The Defendant has been in custody for a total of 747 days or approximately 24 1/2 months. In his Affidavit filed in the sentencing proceedings, the Defendant stated that his time in custody has been extremely harsh for the following reasons:

a) when he initially was sent to the Prince George Regional Correctional Center ("PGRCC") his clean-cut appearance raised suspicion among the other inmates that he may be a police officer or a “rat”;

b) approximately a month after his incarceration he was threatened with physical violence by some inmates;

c) in December 2010 when other inmates found out that he was incarcerated for sexual assault of a minor he was threatened with being stabbed or having hot melted butter thrown on him as it is part of the prison culture that a "skinner" could expect to be injured;

d) in an attempt to get along while incarcerated, the Defendant was polite and engaging with both other inmates and correctional staff;

e) as a result of his actions before and during incarceration he was threatened, threatened with assault and sexual assault, assaulted and sexually assaulted on several occasions by other inmates, all of which caused him stress and injuries which on one occasion required medical attention;

f) on that occasion he was seen by a doctor and as a result of certain symptoms and other diagnostic tests he underwent surgery for suspected cancer which surgery required 140 stitches. No cancer was found;

g) not long after the surgery he was assaulted again and now requires further medical intervention;

h) as a result of the stress of the threats and assaults he suffered anxiety attacks and depression and for a period of time stopped eating;

i) in the summer of 2011, for his own protection, he was transferred to the protective custody unit which is on lock down 22 -23 hours per day. However, he continued to be threatened and assaulted by inmates in that unit and in January 2012 he was transferred to super protective custody;

j) he has spent over a year in protective and super protective custody and his access to programming (which he was active in before) was virtually eliminated and he was no longer permitted to attend church;

k) since being placed in super protective custody his only inmate contact has been with his cellmate, an alleged serial killer, who has threatened him;

l) he has been told by senior correctional officials that his super protective custody status will continue post sentencing and he will be isolated and unable to take programming. Circumstances of the Defendant [ 21 ] The Defendant’s personal circumstances were described in the Pre-sentence Report and Defence counsel submissions. [ 22 ] He was born on July 18, 1970, making him 42 years old.

He is of Metis heritage but there is no indication he had been exposed to or was involved in that culture during his upbringing or in adulthood. [ 23 ] The Defendant’s parents separated when he was very young and he and his sister remained with his mother. His father had little contact with the Defendant after the separation and later no contact with him until the Defendant was 22 years old. [ 24 ] After his parents’ separation, his mother fell into alcohol and drug abuse and began associating with unsavoury people.

During this time, the Defendant reports that both he and his sister were sexually abused by a babysitter and one of his mother's friends. The Defendant also reports that his mother would often lock him and his sister in a closet and on one occasion they were left for several days without food or water. They were placed in the care of the Ministry of Children and Family Development for a period of time. [ 25 ] The Defendant's mother remarried and his stepfather brought two sons into the relationship and subsequently another daughter was born. The family became involved in church activities.

The Defendant had a strained relationship with his stepfather and eventually left home at age 17 to move in with a girlfriend.

[ 26 ] The Defendant married his girlfriend and they had three children. The marriage ended after four years. The Defendant's three children are now 23, 20 and 18. He has maintained some contact with those children. He was required to pay child support for his children but is over $40,000 in arrears of those payments. [ 27 ] The Defendant left school in Grade 12. Subsequent to his incarceration, the Defendant took numerous high school courses and received his Adult Dogwood Program Certificate.

While on remand he also took a variety of other educational and personal development programs until he was moved to protective custody. [ 28 ] The Defendant's employment history included various jobs in the transportation industry most recently as an instructor of Class 1 commercial transport drivers. Prior to his arrest he was fully employed. [ 29 ] In his early adult years, the Defendant experimented with a variety of drugs and by the age of 27 he was heavily addicted to cocaine. The Defendant attended a Christian residential rehabilitation facility for one year and graduated from that program.

He went on to work for the facility as an intake coordinator for a period of time. T.T. stated that the Defendant returned to cocaine use in the spring of 2010. [ 30 ] The Defendant is in good physical health and does not report any history of mental illness. He has experienced some anxiety attacks since being incarcerated and has received medical attention and a prescription for that disorder but it persists. [ 31 ] The Defendant has a very limited criminal record for an alcohol related driving offence and failing to attend court in 2003.

Reports to the Court [ 32 ] Two reports were prepared for the Court in anticipation of the Defendant’s sentencing in November 2010. A Pre-Sentence Report dated October 20, 2010 was authored by Probation Officer Samantha Richards. A Psychological Assessment dated November 8, 2010 was authored by Dr. Julia Hui, Registered Psychologist. [ 33 ] Some of the information in both of those reports has become stale dated given the passage of time.

Furthermore, Defence counsel was critical of the lack of collateral persons contacted for the preparation of the Pre-Sentence Report noting that the Defendant’s father who he had had very limited contact with throughout his life was the only collateral person contacted on his behalf. [ 34 ] However, some of the content of the Pre-Sentence Report is worthy of consideration.

Under the heading “Attitude and Understanding Regarding Offence” the author relates that the Defendant described to her that H.T. was sexually aggressive, that there was no consent because she was too young to consent, but that there was consent and she would offer him sexual favours in exchange for benefits. [ 35 ] The Defendant told the author that he believed that T.T. saw H.T. as the other woman and that H.T. had actually enjoyed their relationship.

The author commented that the Defendant appeared to understand consent only as a matter of law and not a matter of child protection. [ 36 ] The Defendant described the offences he committed against H.T. in a very similar fashion when he met with Dr. Hui. While on one hand acknowledging that he was responsible for the offences he also described at length that H.T. acted in a continuous sexually aggressive manner towards him causing him to commit the offences over and over again.

The author noted that although the Defendant acknowledged the offences, his responses and description of them reflected minimization and externalization of blame for them onto H.T. [ 37 ] At the request of Dr. Hui the Defendant also participated in a series of psychological tests. Those tests revealed that he had a high average overall intellectual ability and neuropsychological testing indicated he was within the normal range. [ 38 ] Testing for psychopathology was performed using the Personality Assessment Inventory (PAI) Validity scales.

The Defendant responded in a consistent and forthright manner and he was noted to have no significant problems with empathy, antisocial values, anger control or other mental health issues. His responses indicated a friendly interpersonal style, a tendency to avoid controversy, and his profile was associated with a positive prognosis for treatment. [ 39 ] The Defendant also was tested using the Hare Psychopathy Checklist-Screening Version (PCL: SV).

This testing indicated an absence of significant psychopathy with all his scores considered to be low. [ 40 ] The author also noted that the Defendant: “has a marked propensity for impulsive and poorly thought out action, especially when he is experiencing interpersonal stress. His tendency to relinquish control over harmful urges is evident in his presentation (e.g. tendency to blurt out statements that he later retracted), his spending habits, substance abuse and history of fleeting sexual encounters.

It played a role in the violation of his no contact order, and likely in the initiation of his sexual offences.” [ 41 ] Under the heading “Risk Appraisal”, Dr. Hui noted that several factors linked to the sexual recidivism are present in the Defendant’s case including:

a) psychosocial adjustment resulting from a history of neglect, physical abuse and repeated sexual victimization in childhood;

b) the density of his sexual offences and the variety of those offences is associated with a heightened level of risk. In addition, his ambiguity with regard to the responsibility for the offences reflects massive cognitive distortions regarding them;

c) additional predictors of risk include offering drugs to H.T., a history of promiscuity and characterological impulsivity.

[ 42 ] On the other hand, Dr. Hui also noted the following concerning the Defendant:

a) he showed no evidence of psychopathy, major mental illness, impairments to his cognition or serious suicidal ideation;

b) he had been able to retain a reasonably continuous, although unstable, pattern of employment;

c) prior to the offences he had not committed any violent or sexual offences and had a very minor criminal history;

d) there was no evidence of any paraphilias and he did not inflict serious physical harm on H.T. while committing the offences;

e) there was no evidence concerning the escalation in the severity or frequency of the offences over time. [ 43 ] After considering all of the factors, Dr. Hui came to the conclusion that the Defendant’s risk of sexually offending was moderate and that should he commit a sexual offence in the future his most likely victim would be a young pubescent woman with whom he had regular close contact and enjoyed a power differential. Victim Impact Statements [ 44 ] H.T.’s two victim impact statements were read to the Court by the Crown. T.T. read her victim impact statement to the Court. [ 45 ] H.T.’s victim impact statements can be summarized as follows:

a) she felt guilty, dirty, ashamed and hated herself for what happened;

b) she felt that T.T. would hate her if she found out what was happening and she felt humiliated and embarrassed when that occurred. She felt that her family would turn away from her when they found out what had occurred. Her relationship with her relatives has changed since matters have come to light;

c) she felt dead and empty and attempted suicide on several occasions because she felt so overwhelmed by the situation;

d) she wants the Defendant to realize the amount of suffering she has endured and that he should suffer as well since he brought things on himself by his actions. [ 46 ] T.T.’s victim impact statement can be summarized as follows:

a) when she became aware of the Defendant’s offences against H.T., anger, betrayal, sorrow and grief overwhelmed her for several days;

b) she had sacrificed to keep H.T. safe but had failed and H.T. was abused in her own home;

c) she was absolutely guilt ridden for several months because she had not been able to protect H.T. from the Defendant and the Defendant had betrayed his marriage vows to her;

d) the ongoing relationship between H.T. and herself has been severely damaged because of the Defendant’s actions but she and H.T. are working to repair that damage;

e) she wanted a husband and H.T. wanted a father and what they were left with after the Defendant’s offences was nothing. She would never wish this on anyone else. Defendant’s Support Statements [ 47 ] Defence counsel provided to the Court letters from the Defendant’s mother, stepfather, former pastors, friends and a program facilitator at PGRCC.

In addition, the Defendant’s mother also spoke to the Court at the sentencing hearing. [ 48 ] The letters from the Defendant’s parents speak of him being an outgoing and inquisitive child who grew into a hard-working husband and father who enjoyed a good relationship with all of his family including them, his ex-wife and his adult children. [ 49 ] They acknowledged the impact of the Defendant’s offences have had on not only H.T., but on members of her family and theirs. They have spoken to him about the events and they accept that he is deeply remorseful, humiliated and shameful of his behaviour.

Through his and their faith, he has sought forgiveness and they are satisfied with the repentance he has shown. [ 50 ] The letters from his former pastors’ indicate that the Defendant was actively involved in the church community and that he had an outgoing and joyful personality. Some of those pastors have also been in contact with the Defendant since his incarceration and accept his remorse and willingness to take responsibility for his actions.

They also indicate that the Defendant wishes to reunite with his faith family and that he is most unlikely to reoffend in the future. [ 51 ] The letters from of the Defendant’s friends indicate that he was a likable, outgoing and a gentle soul who was hard-working and is capable of rehabilitation.

[ 52 ] The letter from the program facilitator at PGRCC, indicated that the Defendant had exemplary attendance, attitude and performance during his participation in the correctional facilities programs. [ 53 ] In her comments to the Court, that Defendant’s mother acknowledged the pain that H.T., T.T. and their family must feel and described the devastation the Defendant’s offences have had on her family.

She said that she and her family stand by the Defendant and had forgiven him. [ 54 ] She also stated that she was fearful that the Defendant may be murdered or injured in prison and that although he had done some awful things he did not deserve to be in jail with an alleged serial murderer. Defendant’s Statements [ 55 ] The Defendant submitted two letters and spoke to the Court when invited to do so at the sentencing hearing. [ 56 ] In his letters to the Court, the Defendant acknowledged his responsibility for the offences and the damage they have caused to H.T., T.T., their family, his family and friends.

He expressed his deepest apologies, regret, shame and humiliation for the injuries caused to H.T. as a result of his criminal behaviour. He expressed to the Court that he would not commit similar offences in the future and would continue to take whatever programming or counselling was necessary to make himself a better person and a better citizen. [ 57 ] In his statement to the Court, the Defendant apologized to H.T. for all the hurt and shame he caused to her and he hoped that she was healed. He apologized to all of H.T.’s family and his family and friends.

The Defendant acknowledged that during the two years he has been in custody he has received much counselling and assistance and that although he had difficulty accepting full responsibility initially, by the summer of 2011 he finally understood what he had done and accepted that he was fully responsible for the offences. [ 58 ] The Defendant stated that he never wanted similar events to happen again because it ruined so many people’s lives, that he was resolved to be a better person and that he would take whatever counselling is necessary to improve his life. THE LAW The Charter [ 59 ]

Section 11(

b) of the Charter states: 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time; [ 60 ] Section 24(1) of the Charter states: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Criminal Code [ 61 ] Section 139(2) of the Code states: 139.

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [ 62 ] Section 145(3) of the Code states in part: 145(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 151(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, directed or order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; [ 63 ] Sections 151 and 152 of the Code state in part: 151 . Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days;

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; [ 64 ]

Section 161 of the Code states in part: 161.

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from.... (

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) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years. [ 65 ]

Section 271 of the Code states in part: 271.

(1) Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; [ 66 ]

Section 718 , of the Code states: 718. The fundamental purpose of sentencing is 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; (

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 and to the community. [ 67 ] Sections 718.01 and 718.2 of the Code state in part: 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. 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, shall be deemed to be aggravating circumstances;

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

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

e) all available sanctions other then imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [68] Sections 719(3) and (3.1)of the Code state: 719.

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). THE CASE LAW The Crown [69] The Crown relied on the following cases with regard to the matters to be determined by the Court: Section 719 (3.1) Cases

a) R. v. Nilsson 2012 BCSC 320

b) R. v. Preddy 2011 BCCA 324 Quantum of Sentence cases

c) R. v. Jahanrakhshan 2011 BCSC 894

d) R. v. O.M. 2009 BCCA 287

e) R. v. C.G.D. 2009 BCSC 404

f) R. v. K.W.G. 2009 BCPC 336 , 2009 BCPC 0336

g) R. v. W.M. 2008 BCPC 492 , 2008 BCPC 0492

h) R. v. J.L.S. 2006 SKCA 95

i) R. v. R.L.S. 2005 BCPC 217 , 2005 BCPC 0217

j) R. v. H. (P.) 2003 BCPC 54 , 2003 BCPC 0054

k) R. v. D. (D.) (2002) (ON CA), 163 C.C.C. (3d) 471 (OCA)

l) R. v. K. (E.G.) 2001 SKCA 77

m) R. v. Nikal 1999 BCCA 738

n) R. v. R.C. (BCSC)

o) R. v. CAM (SCC), [1996] 1 S.C.R. 500

p) R. v. Chaput (1996) 84 B.C.A.C. 281 The Defence [70] Defence counsel relied on the following cases with regard to the matters to be determined by the Court: Undue Delay Cases

a) R. v. Godin 2009 SCC 26

b) R. v. Mahmood 2011 ONCJ 779

c) R. v. Si 2011 ONCJ 335

d) R. v. D.B. 2011 ONCJ 442

e) R. v. M.A.B. 2011 ABPC 87

f) R. v. MacDougall (SCC), [1998] 3 S.C.R. 45 Section 719 (3.1) Cases

g) R. v. D.W.J. 2012 BCPC 15 , 2012 BCPC 0015

h) R. v. Seymour 2011 BCSC 1682

i) R. v. Billard 2011 NSPC 31

j) R. v. Dann 2011 NSPC 22

k) R. v. Cahoose unreported, March 25, 2011 Kamloops Registry No. 90534-2 (BCSC)

l) R. v. Johnson 2011 ONCJ 77

m) R. v. Campbell 2010 ONCJ 6973 Quantum of Sentence Cases

n) R. v. Fraser 2010 NSSC 194

o) R. v. S.J.T. 2009 BCPC 257

p) R. v. J.O. 2007 QCCQ 716

q) R. v. C.M.D. 2003 BCSC 1129

r) C.H. v. British Columbia 2003 BCSC 1055

s) R. v. Byford [2000] O.J. No. 2134 (OSCJ)

t) R. v. Brown [1999] O.J. No. 5304 (OSCJ)

u) R. v. Winters 1999 NSCA 49 , [1999] N.S.J. No. 49 SUBMISSIONS The Charter Issue Defence [71] Defence counsel submissions in support of the allegation that the Defendant’s

Section 11(

b) Charter rights were violated giventhe time it has taken to resolve this matter can be summarized as follows:

a) there was a lack of full disclosure from the date the initial Information was sworn in August 2010, until approximately July 2011because the statements of H.T. which implicated the Defendant were not provided until then. That delay should be attributed to theCrown;

b) it would not be proper for Defence counsel to proceed to sentencing without full knowledge of the allegations contained in H.T.statements because once full disclosure had been made the variability within those statements may have provided a defence and it wouldbe incumbent upon Defence counsel to provide such advice to the Defendant;

c) from May 2011 until January 2012, Defence counsel was attempting to convince Saskatchewan Crown to amend the SaskatchewanInformation to include the proper offence dates and to agree to waive that Information to British Columbia;

d) if the Court accepts that it was reasonable to seek an amendment to the Saskatchewan Information and to have both matters dealtwith at the same time a further delay from August 2011 to January 2012 should be attributed to the Crown resulting in a total timeattributed to the Crown of 17 months;

e) the time from January 12, 2012 until sentencing in September 2012 should be attributed to inherent delay. [72] In addition to referring to the various lengths of delay set out in the Defendant's cases Defence counsel asked the Court to giveconsideration to the following principles:

a) in Godin, a Stay of Proceedings on charges of sexual assault and unlawful confinement after a 25 month delay was affirmed by the

Supreme Court of Canada. The court stated that delay and prejudice to the defendant are often intertwined and that the longer the delay in a straightforward case the more likely that the inference will be drawn that prejudice exists. The defendant's conditions during the delay may also be prejudicial such as restrictive bail conditions (or in the case at bar virtual solitary confinement);

b) in Mahmood , a Stay of Proceeding on charges of sexual assault and unlawful confinement was granted after a 15.5 month delay. In that case the court noted that there was a delay of almost five months in providing disclosure of important information which required additional court attendances, prejudiced the defendant and undermined the efficiency of the administration of justice;

c) in Si , a Stay of Proceedings on charges of sexual assault was granted after a 11.5 month delay. The defendant had been released on bail but the court commented that the stress and anxiety experienced by the defendant had prejudiced his liberty interests and his security of the person to the point where his Charter rights were violated;

d) In MacDougall , the Supreme Court of Canada confirmed that

Section 11(

b) of the Charter applies to sentencing as well as trial proceedings. With regard to the interests

section 11 (

b) was designed to protect the court noted that:

i) the liberty interest may be particularly affected by a person being held in prison awaiting sentencing with no certainty that that time will be taken into account by the sentencing judge; ii) the security interest may be affected because where there is undue delay the anxiety concerning eventual punishment is suffered for a longer period of time than may be justified.

In addition, it may prevent the convicted person from beginning the process of rebuilding his life whether within a prison or the greater community; iii) the societal interest is also affected by a delay in sentencing because society has a keen interest in ensuring guilty parties receive their sentence promptly. Delay in sentencing may restrict the convicted person from receiving rehabilitative treatment dimming the prospects for rehabilitating them and putting society a greater risk upon release.

It is society's highest interest that an appropriate sentence be imposed as soon as possible. [ 73 ] Defence counsel submitted that there was a clear prejudice to the Defendant based on the difficult circumstances he has experienced while on remand and the lengthy delay in getting this matter concluded. Crown [ 74 ] The Crown disputes Defence counsel’s submissions with regard to how the delay should be attributed. Crown submissions on the issue of whether or not the Defendant’s Charter rights have been infringed can be summarized as follows:

a) the onus is on the Defendant to show that there are underlying facts that satisfy the Court that the delay is not attributable to the Defendant and that such delay has prejudiced him;

b) sentencing did not proceed on November 16, 2010, because the Defendant’s then counsel wanted further psychiatric testing completed;

c) initially the Saskatchewan Crown and British Columbia Crown agreed with Defence counsel that all of the Defendant’s matters should be dealt with at the same time but that it should be dealt with in Saskatchewan where a majority of the sexual offences occurred. Defence counsel was advised of the Crown position in March 2011 but continue to negotiate to have the Saskatchewan file transferred to British Columbia. Saskatchewan Crown did not accede to Defence counsel’s position until January 2012;

d) by July 2011, Defence counsel had been advised that the Saskatchewan Crown and British Columbia Crown were ready to proceed either with all the matters be dealt with in Saskatchewan or through two separate sentencing procedures;

e) it was not absolutely necessary for Defence counsel to convince the Saskatchewan Crown to change the commencement date on the Saskatchewan Information because the Defendant could have entered a guilty plea to that Information and only admitted that offences committed in 2008 leaving the Crown to either accept that admission or seek to have a formal sentencing hearing;

f) on the numerous occasions when the Crown and Defence counsel appeared in Court to adjourn the matter although there were ongoing discussions on various points between counsel the Court was never advised that there were issues surrounding disclosure, harsh incarceration conditions, negotiations with the Saskatchewan Crown or negotiations with the British Columbia Crown concerning sentencing;

g) when an agreement was finally reached between Defence counsel, Saskatchewan Crown and British Columbia Crown in February 2012 to have all matters proceeded with in British Columbia the Crown was ready to deal with sentencing in March 2012 but Defence counsel wished only certain judges to hear the sentencing because of the issue of pre-sentence credit which had recently been commented on in decisions by those judges;

h) of the 22 month delay from the time the Information was sworn until the date of sentencing submissions the Crown submits the delay should be attributed as follows;

i) August 2010 to November 2010 inherent delay; ii) November 2010 to March 2011 Defence delay; iii) March 2011 to July 2011 perhaps Crown delay; iv) July 2011 to July 2012 Defence delay.

i) given that most of the delay is Defence delay and not either Crown or inherent delay, the Defendant’s evidence provides insufficient facts to conclude that his Charter rights have been breached. [ 75 ] The Crown also submitted that despite any other relief that may be granted if the Defendant’s Charter application was successful credit of 2 for1 is no longer available because the Defendant’s charges were laid after the amendments to the Code for pre- sentence custody were passed (see Preddy and Nilsson ).

Presentence Custody Credit Defence [ 76 ] In his submissions Defence counsel pointed to the Defendant's description of his harsh circumstances during his incarceration in his Affidavit specifically relying on the following:

a) this is the first time the Defendant has been incarcerated;

b) the Defendant is a pleaser and will not stand up for himself and his attempts to befriend both other inmates and the correctional staff have caused him difficulties;

c) he has been in protective custody with lock down of 22 - 23 hours per day but despite that gang members have attacked him on two occasions;

d) he is unable to attend programming while in protective or super protective custody including being unable to go to church. This has had a significant impact on the Defendant because the chaplain helped him understand that the sexual offences were entirely his fault;

e) his present living situation of residing with an alleged serial killer is extremely stressful. [ 77 ] Defence counsel related that factual matrix to the cases provided to support the submission that “the circumstances justify” enhanced presentence custody credit by specifically relying on:

a) any delay occasioned by the Court in the sentencing process for such things as the preparation of a Pre-Sentence Report, Gladue Report or reserving judgment for the preparation of reasons ( D.W.J., Cahoose );

b) the harshness of pretrial detention including threats, victimization and the fact that it is a first-time incarceration ( Johnson, D.W.J. );

c) almost constant solitary confinement or constraining protective custody even if it is for the Defendant's protection ( Seymour ). Crown [ 78 ] The Crown acknowledged that pre-sentence custody credit of 1.5 to 1 is available under section 719(3.1) but that there are no circumstances in this case that justify such an order.

In particular, the Crown did not accept that the Defendant had established that his circumstances of incarceration were any harsher than any other prisoner and that any delay in sentencing could result in such a credit as described in some of the cases. [ 79 ] In particular, the Crown relied on the fact that the Defendant had breached his bail and that even though no revocation hearing had been held under

Section 524, the reality was that, on the facts of the case, the Defendant would not have been granted bail in any event. Furthermore, the Crown submitted that not only had the Defendant breached his bail but that he had obstructed justice and that the Court must take note of that fact in determining whether the circumstances justify additional credit for pre-sentence custody. Quantum of Sentence Defence [ 80 ] In support of his submissions on the appropriate sentence for the Defendant on the sexual offences, Defence counsel relied on cases which had the facts and outcomes set out below:

a) S.J.T. - the accused had sexual intercourse with his stepdaughter over a period of 2 1/2 years from the time she was 12 to 15. The number of occasions was in dispute between six times and over 200 times. The accused minimized his actions, displaced responsibility and had a lack of insight, but was considered a low-risk to reoffend. The complainant suffered emotional upheaval, felt guilty and had nightmares. The accused was sentenced to two years in a federal penitentiary;

b) C.M.D. - the accused fondled and sexually assaulted his nine year old niece. He denied liability was found guilty after a trial. The accused was sentenced to 18 months in a provincial prison followed by three years of probation;

c) Fraser - the accused was a teacher who sexually exploited his 15-year-old student for a year and a half. He denied liability but was found guilty after a trial. The accused was sentenced to nine months in a provincial prison followed by one year of probation;

d) Byford - the accused was a teacher who sexually exploited his student for a period of two years. He pleaded guilty. The accused was sentenced to 18 months in a provincial prison followed by 18 months of probation;

e) Brown - the accused was a teacher who sexually exploited his student for a period of two years over two decades earlier. The accused was sentenced to a one-year conditional sentence order;

f) Winters - the accused sexually assaulted a 12-year-old boy who was visiting her son over a period of one month. She was sentenced to a 18 month conditional sentence order;

g) C.H. - C.H. was sexually assaulted by her father for a period of five months. He was convicted of incest and received a conditional sentence order of 23 months followed by 18 months of probation;

h) J.O - the accused sexually assaulted his 12-year-old stepdaughter on several occasions over two years. Threats and psychological restraints were used to compel the complainant. The offences occurred over 20 years ago. The offences had a terrible impact on the complainant.

The accused was sentenced to two years less one day in a provincial prison. [ 81 ] Defence counsel also pointed out that in none of the cases he relied on was the accused held in custody for the length of time and under the harsh conditions experienced by the Defendant. [ 82 ] Defence counsel was also critical of the Crown’s cases noting that they were very dissimilar to the case at bar in many areas and that the accused in the Crown’s cases committed much more serious offences, for longer periods of time, and in several cases on much more vulnerable complainants. [ 83 ] Defence counsel made no submissions with regard to the obstruction of justice or breach of recognizance offences to which the Defendant has pleaded guilty.

Crown [ 84 ] The Crown submissions centred on the position that the British Columbia Court of Appeal as set forth a number of guidelines with regard to the appropriate range of sentence and the predominant factors to be considered in imposing an appropriate sentence for the offences to which the Defendant has pleaded guilty. [ 85 ] In support of those submissions, Crown counsel relied on cases which had the facts and outcomes set out below:

a) C.G.D. - the accused regularly sexually assaulted his stepdaughter over a period of six years and attempted to lure another girl on one occasion. After an extensive review of the statute and case law by the Court, the accused was sentenced to three years in a federal penitentiary;

b) P.H. - the accused regularly sexually assaulted each of two stepdaughters over a period of three years. He was aided and abetted by the children's mother. The accused was sentenced to seven years imprisonment on each of two counts to be served consecutively;

c) J.L.S - the accused regularly sexually assaulted his daughter over four years when she was between eight and twelve. The assaults included numerous sexual activities but not sexual intercourse. On appeal the accused was sentenced to three years imprisonment in a federal penitentiary;

d) K.(E.G.) - the accused sexually assaulted his daughter over two years when she was between eight and ten. The assaults included numerous sexual activities but not sexual intercourse. On appeal, the accused was sentenced to three years imprisonment in a federal penitentiary;

e) K.G.W. - the accused sexually assaulted two family members on numerous occasions for several years. He was sentenced to five years in prison in a federal penitentiary;

f) Nikal - the accused sexually assaulted a number of young people over a period of eight years some 20 years before sentencing. He was sentenced to 12 years imprisonment in a federal penitentiary which was reduced to nine years on appeal;

g) O.M. - the accused sexually assaulted his daughter from the time she was three until she was 15. He had a previous conviction for sexual abuse. He was sentenced to two years less a day imprisonment in a provincial jail which was increased on appeal to five years imprisonment in a federal penitentiary;

h) R.L.S. - the accused sexually assaulted his stepdaughter for a period of three years when she was between two and five years old. He was sentenced to four years imprisonment in a federal penitentiary;

i) R.C. - the accused sexually assaulted several young people including his daughter and stepdaughter over a period of many years.

He was sentenced to seven years imprisonment in a federal penitentiary, [ 86 ] The Crown urged the Court to give particular emphasis to the sentencing principles of denunciation and deterrence and to pay specific attention to the provisions of sections 718.01 and 718.2 (a) (ii.1) which deal with the aggravating factors of offences being committed against a young person or by a person who was in a position of trust over a young person. [ 87 ] In characterizing the reasons for its sentencing position, the Crown relied heavily on the decision of the Ontario Court of Appeal in R.v.

D.(D.) where the court said in paragraphs 34, 35, 36 and 44: [34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances,

the objectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code commonly referred to asdenunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the otherrecognized objectives of sentencing. [35] We as a society owe it to our children to protect them from harm caused by offenders like the appellant. Our children are at onceour most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defendingthemselves against predators like the appellant and as such, they make easy prey.

People like the appellant know this only too well andexploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. [36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that littlewas known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse nolonger holds sway.

The horrific consequences of child sexual abuse are only too well known. [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied with other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single-digit to low double-digit penitentiary terms will generally be appropriate.

Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, stillhigher penalties will be warranted. [88] On the matter of the obstruction of justice convictions, the Crown relied on Jahanrakhshan where the court relied on numerouscases considering the appropriate range of sentence for such offences in a variety of different circumstances. The one most similar to thecase at bar was R.v.

D.A. 2007 MBCA 65 where a grandmother told her granddaughter not to tell anyone of the sexual abuse the childhad endured from her father because if she did he would go to jail. The grandmother was sentenced to a two years less a day conditionalsentence order. DISCUSSION Charter Issue [89] In any request for Charter relief it is incumbent upon the Applicant to satisfy the Court, on the balance of probabilities, thatthere has been a violation of the Applicant’s Charter rights. [90] In this case I am able to find the following:

a) there has been a very lengthy delay of over two years from the date the Information was sworn until the case will be concluded;

b) there was a delay of approximately six months in providing all of the disclosure that Defence counsel believed he needed in order toproperly advise the Defendant;

c) both the Saskatchewan Crown and of the British Columbia Crown were ready to proceed with sentencing either entirely inSaskatchewan or in two separate sentencing proceedings by the spring of 2011, but the Defence counsel continued his negotiations withthe Saskatchewan Crown on a variety of issues for further 10 months;

d) once it was agreed that all matters were to be dealt with in British Columbia, the Crown was ready to proceed to sentencing muchsooner than Defence counsel because Defence counsel wished the matter be placed before certain specific judges. [91] I also accept based on the case law presented, that the matter of delay equally applies to sentencing proceedings as it does totrial matters and that the longer the delay, the more likely the Defendant will experience prejudice. [92] However, given the opposing views of Defence counsel on one hand, and Crown on the other, as to how various time periodsshould be attributed, the Court was not provided with some important evidence that may have assisted in resolving that issue. [93] Specific directions from the Supreme Court of Canada and the British Columbia Court of Appeal, most recently in R. v.

Baldini2012 BCCA 206, make it abundantly clear that a Court cannot properly entertain an application for relief under

section 11(

b) of theCharter without full transcripts of the proceedings under review (see R.v. Allen (SCC), [1997] 3 S.C.R. 700 affirming(1996) (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.). [94] As Frankel J. A. said in paragraphs 61 and 62 of Baldini: 61. ..... Without those transcripts it is not possible to know what dates the court then had available and why particular dates were chosen. 62...... In the absence of such records, information essential to the proper determination of whether there has been a violation of the

constitutional right to a trial within a reasonable time will not be available. [ 95 ] Given the opposing views of counsel as to how the delay should be allocated and in the absence of a complete record, the Court is unable to determine on the evidence before it who may be responsible for the delay and whether the delay amounts to sufficient prejudice to the Defendant to grant the relief he seeks.

As such his application for Charter relief pursuant to section 24(1) must be dismissed. [ 96 ] Therefore, it is not necessary to determine how the delay occasioned in this matter should be allocated, nor is it necessary to determine whether any of the Defendant's requests for relief are sustainable.

Presentence Custody Credit [ 97 ] Crown's contention that the Defendant would have been denied bail after his second arrest and as such the Court should consider him ineligible for enhanced presentence custody credit is not supportable. [ 98 ] Section 719 (3.1) of the Code provides specific instances where enhanced presentence custody credit cannot be considered. None of those enumerated sections apply in this case. [ 99 ] If the Crown had wanted to it could have applied to revoke the Defendant’s bail.

If that had been successful, the Defendant would be precluded from seeking enhanced presentence custody credit. [ 100 ] It is not sufficient for the Crown to assume what outcome may have occurred in such an instance and then asked the Court to decline to even consider the exercise of its discretion as set out in section 719 (3.1) . [ 101 ] The Crown submission that the Defendant finds himself in custody now because he committed the offences of obstruction of justice and breach of bail are worthy of consideration.

However, that consideration is best addressed in arriving at the appropriate sentences to be imposed for those offences rather than with regard to pre sentence custody credit. [ 102 ] In considering the exercise of the discretion provided for in section 719 (3.1), Defence counsel has established that the circumstances justify the granting of enhanced presentence custody credit. [ 103 ] With the exception of 32 days when first detained the Defendant’s time in custody has been spent awaiting various reports ordered by the Court or counsel, appropriate disclosure by the Crown, negotiations between the Crown and Defence counsel and the Court’s decision (see Cahoose and D.W.J .) [ 104 ] The Defendant’s time in custody, particularly since the summer of 2011 when he was placed first in protective custody and then in January 2012 in super protective custody has been, by any objective standard, harsh. [ 105 ] The Defendant, a first-time inmate, has been victimized by other prisoners and has for over half his time in custody resided in circumstances practically amounting to solitary confinement but in a double bunking situation with an alleged serial killer. (see Seymour , D.W.J . and Johnson ) [ 106 ] Enhanced presentence custody credit of close to 1.5 to 1 is appropriate in these circumstances.

The Defendant has been in custody for 747 days and shall receive credit for 1095 days or three years. Quantum of Sentence [ 107 ] In any sentencing proceeding the Court must give due consideration to the applicable statute and case law. In addition, it is incumbent upon the Court to consider any mitigating and aggravating factors surrounding the offences including, the circumstances of the offences, the circumstances of the Defendant, any third party or expert reports, the effects the offences of had on the victims and others and the statements of the Defendant. [ 108 ] The following are mitigating factors:

a) the Defendant entered an early guilty plea and has cooperated both with the RCMP and the judicial process. This has spared H.T. the anguish and stress of testifying;

b) the Defendant has no previous history of similar offences;

c) the Defendant has expressed remorse for his actions, although this must be tempered against some earlier views he expressed to the report authors;

d) the Defendant has support from his family and his religious community;

e) the Defendant has behaved in an exemplary fashion and has actively involved himself in all available programming since being incarcerated;

f) the Defendant has expressed a willingness to take whatever counselling, programming or treatment that may be necessary to ensure that he does not commit further offences. [ 109 ] Although the Defendant is of Métis descent no submissions were made by Defence counsel suggesting that there were any

unique systemic or background factors that may have played a

part in bringing the Defendant before the Court and, as such, it is not appropriate to give consideration to the Defendant's circumstances with reference to

section 718.2 (

e) of the Code . [ 110 ] The following are aggravating factors:

a) the Defendant’s sexual assaults of H.T. were an abuse of a person under the age of 18 years by a person in a position of trust or authority;

b) as a victim of sexual abuse himself, the Defendant would be well aware of the devastating impact such offences could have on a victim;

c) the grooming by the Defendant of H.T. to permit the sexual assaults to continue undiscovered for a lengthy period of time;

d) the Defendant’s planning to get T.T. out of the home so the assaults of H.T. could occur;

e) the frequency and nature of the sexual assaults and the fact that they continued unabated until H.T. disclosed them;

f) the Defendant's communications with H.T. and T.T. in an attempt to save himself from criminal prosecution amounting to an obstruction of justice;

g) the expert assessment that the Defendant is at moderate risk to reoffend and the likely nature of such reoffending behaviour would involve a pubescent girl in close contact with the Defendant;

h) the very serious negative psychological and emotional consequences the Defendant’s offending has had particularly on H.T. but also her family and his family. [ 111 ] Every case is unique in the sense the circumstances and seriousness of the offences, the present circumstances of the offender, the offender’s personal and criminal history and the effect of the offences on the victim although often similar to other cases are never identical. That uniqueness requires careful deliberation and consideration in arriving at a just and fair sentence. [ 112 ] It is crystal clear from the case law that when applying the purpose and principles of sentencing described in

Section 718 of the Code denunciation, deterrence and incarceration should be emphasized over other sentencing objectives. [ 113 ] When these principles are given primary consideration the Defendant’s cowardly, reprehensible and predatory string of sexual assaults of H.T. combined with his calculated and persistent attempt to obstruct justice, not once but twice, require a sentence in the range described in D.(D.) and the several cases from the Court of Appeal presented by the Crown. [ 114 ] With respect, the cases relied on by Defence counsel do not adequately demonstrate similar facts and circumstances in some cases and in others that Sections 718.01 and 718.2 (a)(ii.1) and the directions from the Court of Appeal were given the appropriate consideration. [ 115 ] After considering the relevant statutory and case law, the aggravating and mitigating factors, the circumstances of the offences and the Defendant, the reports presented to the Court and the effects the Defendant's actions have had on H.T., the appropriate sentences on Count 1 of Information 3422-1T and Counts 1 and 4 of Information 3337-C2 are five years imprisonment on each of those Counts concurrent one with the other less presentence custody credit. [ 116 ] Obstruction of justice offences have been described by many courts as striking at the heart of the judicial system and the community's confidence in that system.

That is reflected in the maximum available sentence of 10 years imprisonment for such offences. [ 117 ] Given the nature and persistence of the Defendant's actions towards both H.T. and T.T. and his attempts to have them participate in deflecting suspicion away from him, the Defendant engaged in a course of conduct designed to save him from the consequences of his sexual offending against H.T. [ 118 ] In the circumstances of this case, the appropriate sentence for each of Count 5 of Information 3337-C2 and Count 1 of Information 3343-C2 is one year imprisonment.

The breach of recognizance charges in Counts 4 and 5 of Information 3343-C2 are less serious at law but result from the same activities as Count 1 of the Informations. The appropriate sentence for each of those Counts is one month imprisonment. [ 119 ] The Crown urged the Court to impose sentences for the obstruction of justice and breach recognizance charges which were concurrent to each other but consecutive to the sexual offence Counts. Defence counsel made no submissions on that issue. [ 120 ] The Crowns submissions on this point are compelling.

When considering all of the evidence surrounding the circumstances of the offences, it is clear that the sentences for all of the obstruction of justice and breach of recognizance Counts could properly be concurrent with each other, but consecutive to the sexual offence convictions. The sexual offence convictions are a separate and distinct series of events from the Defendant's actions subsequently. [ 121 ] However, the totality of sentence principle described in

section 718.2 (

c) must also be considered. When it is a total sentence for all of the Counts of five years less pre sentence custody credit is just and appropriate in this case. Additional time would make the sentence unduly long and harsh and would interfere with the rehabilitative aspects of the sentence to be imposed. DECISION Ancillary Orders

[ 122 ] The sexual offence convictions are primary designated offences pursuant to

section 487.04 of the Code . Therefore, pursuant to

Section 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 W. S. by October 31, 2012. [ 123 ] The sexual offence convictions also attract a firearm prohibition pursuant to

section 109 of the Code . As such, W.S. is prohibited from possessing:

a) 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

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 124 ] The sexual offence convictions also require W.S. to register under the Sex Offender Information Registration Act ( SOIRA ). I order, pursuant to

Section 490.013 of the Criminal Code that W.S. comply with the Sex Offender Information Registration Act for a period of 20 years and that he immediately sign all necessary documentation to give effect to that order. [ 125 ] Given the nature of the sexual offence convictions, and the concerns raised in the report of Dr. Hui, an order pursuant to

Section 161 is both appropriate and necessary. I order, pursuant to Section 161(1)(

b) and (c), that W.S. is prohibited for a period of 20 years from 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 using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

Custodial Sentence [ 126 ] Given the appropriate sentences I have determined for the Defendant with regard to all of the offences before the Court and taking into account the presentence custody credit I have granted to him, he shall serve a further period of incarceration calculated as follows:

a) with regard to the sexual offences; on Count 1 of Information 3422-1T and Counts 1 and 4 of Information 3337-C2, the appropriate sentence is five years imprisonment on each of those Counts concurrent one with the other but the Defendant is entitled to presentence custody credit of three years leaving a further sentence of two years imprisonment;

b) with regard to the obstruction of justice offences; on Count 5 of information 3337-C2 and Count 1 of information 3343-C2, the appropriate sentence is one year imprisonment on each of those Counts concurrent one with the other and concurrent to the sentence for the sexual offences;

c) with regard to the breach of recognizance offences; on Counts 4 and 5 of Information 3343-C2, the appropriate sentence is one month imprisonment for each of those Counts concurrent one with the other and concurrent with the other sentences. [ 127 ] The overall result of the sentences for all the offences is a further term of imprisonment of two years which will be served in a federal penitentiary. [ 128 ] In order to provide some rehabilitative assistance to the Defendant the term of imprisonment will be followed by three years of probation on all Counts on all Informations with the following terms and conditions: (

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 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. (

d) Within 24 hours after completing your jail sentence you shall report in person to the Probation Office located nearest to the place of your release from custody, and after that you shall report as and when directed by the Probation Officer. (

e) You shall reside at a residence approved in advance by the Probation Officer and you shall not change your residence at any time without first obtaining the written consent of the Probation Officer. (

f) You shall have no contact or communication, directly or indirectly, with T.T and H.T (

g) You shall not attend at, or be within 1 kilometer of any place which you know to be the residence, school or workplace of T.T and/or H.T., (

h) You shall have no contact or communication directly or indirectly with, nor be in the presence of, any person you know to be, or who reasonably appears to be, of the age of 16 years or less, except as follows:

a) with the advance written consent of the Probation Officer ;

b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the Probation Officer;

(

i) You shall not attend at any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre or recreational centre where persons of the age of 16 years or less are present or might reasonably be expected to be present, except in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the Probation Officer. (

j) You shall attend, participate in and successfully complete any assessment, counseling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to: (

a) alcohol or drug abuse, (

b) sexual offence prevention, (

c) a full-time attendance program for alcohol or drug abuse, (

d) a full-time attendance program for sex offenders. [ 129 ] I will waive the Victim of Crime surcharge on all Counts. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia