R. v. I. C. Date:, 2017 BCPC 2

Citation: R. v. I. C. Date: 20170109 2017 BCPC 2 File No: 33701-1 Registry: 100 Mile House IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. I. C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. T. DOULIS BAN ON PUBLICATION Pursuant to s. 486.4 of the Criminal Code , R.S., c. C-34 Counsel for the Crown: Chris Los Counsel for the Defendant: Ken Sommerfeld Place of Hearing: 100 Mile House , B.C. Dates of Hearing: July 12, August 3, and November 29, 2016 Date of Judgment: January 9, 2017

I. INTRODUCTION [ 1 ] On January 12, 2016, I.C. entered a guilty plea to Counts 2, 3 and 4 on Information 33701-1, charging him with the following offences: Count 2: Sexual interference of J.P., sometime between January 1, 1999 and December 31, 2000, at (omitted), B.C., contrary to

Section 151 of the Criminal Code . Count 3: Sexual interference of V.A. between January 1, 1994 and December 31, 1996, at (omitted), B.C., contrary to

Section 151 of the Criminal Code . Count 4: Sexual exploitation of V.A. between January 1, 1996 and December 1997, at (omitted), B.C., contrary to Section 153(1) (

b) of the Criminal Code . [ 2 ] The matter came before me for sentencing on July 12, 2016, in 100 Mile House, B.C. On August 3, 2016, I ordered the Forensic Psychiatric Services Commission provide a psychiatric pre-sentence assessment report of I.C. I received a copy of Dr. Joneja’s psychiatric assessment report on November 28, 2016. On November 29, 2016, I heard additional submissions from counsel and a further continuation date was scheduled for January 9, 2017. On January 4, 2017, I received the Crown’s supplemental written submissions.

Today, I invited and received from Defence counsel further oral submissions. This is my decision on sentencing Mr. C. II. ISSUES [ 3 ] This is a case of historical sexual assaults. The principle issue in this sentencing proceeding is whether a conditional sentence is appropriate for these offences committed by this offender in the circumstances of these offences. If a conditional sentence is not appropriate, then what is a fit sentence? III. CIRCUMSTANCES OF THE OFFENCES Offences Against J.P. [ 4 ] The victim of Count 2 is I.C.’s daughter, J.P., born [omitted].

At the time of the offence, J. was 13 years old; at the time of sentencing she was 29. Her mother is A.P.O., who was present in court at the sentencing hearing on July 12, 2016. [ 5 ] J.P. first complained of the sexual assault to the 100 Mile House RCMP Detachment on April 24, 2014. She says when she was 13, she was staying at Mr. C.’s residence at (omitted) together with her 11 year old sister, A., and nine year old brother, L. They were watching movies, having an overnight visit with their father. It was the summer of 2000. [ 6 ] J. put on her pyjamas and went to bed at the same time as her siblings.

The children all slept in the same bed, which was ordinarily where Mr. C. slept. Mr. C. did not go to bed at the same time as the children. [ 7 ] In the past, when they had stayed at their father’s house, the children and their father all slept in the same bed. Mr. C. slept on one edge of the bed. On the evening of the offence, Mr. C. wedged himself between J. and her brother L. J. thought this strange because Mr. C. had never done this before. [ 8 ] J. fell asleep. She awoke in the middle of the night to find her father on top of her.

She told the police, “I guess he was on top of me, so I don’t think I was raped necessarily, but he was on top of me. He was humping my leg... he was on top of me, but not directly on top of me, but I could feel him grinding his penis against the inside of my thigh.” J. said she slowly tried to get out from underneath her father. He wouldn’t stop his thrusting even when she started moving. She had to pull herself from underneath him before he stopped. Her hands had been pinned at her side, all she could do was wiggle to try and get away. During this incident both J. and Mr.

C. remained clothed. [ 9 ] Neither of J.’s siblings woke up during the incident. J. told her brother and sister what had happened. They became angry at J. They did not know the incident occurred and did not want to believe it happened. Shortly thereafter, J.’s mother refused the children any further overnight visits with their father. Offences Against V.A. [ 10 ] By Counts 3 and 4, Mr. C. is charged with sexual interference and sexual exploitation of his niece, V.A. The charge of sexual interference relates to the period between January 1, 1994 and December 31, 1996, when V.A. was under the age of 14.

She is now 32 years old. The sexual exploitation occurred after Ms. A. turned 14, and continued between January 1, 1996 and December 1997. [ 11 ] Ms. A. complained to the police on May 14, 2014, that she had been sexually assaulted by I.C. and that he was the person to whom she lost her virginity. She said she was 11 years old when Mr. C. started grooming her and her family. This grooming carried on until, and after, V. turned 14. At the time, V. lived in (omitted) with her mother, J.F. Mr. C. gained Ms. F.’s trust by accompanying her to bingo. Initially, Mr. C. came to the F. residence and he and Ms.

F. left together and went to bingo. Gradually, Mr. C. made excuses to remain at the F. residence with V. while Ms. F. went to bingo without him. [ 12 ] When the sexual activity began, V. was 11 and Mr. C. was 29. V. says it started when she and Mr. C. were playing. V. fell face down; Mr. C. jumped on top of her and rubbed his erect penis against her bum. [ 13 ] Mr. C. began wooing V. and eventually, she came to consider him her boyfriend. V. started sneaking out and making excuses to go to Mr. C.’s residence. Mr. C. bought her gifts, necklaces, alcohol and drugs. He gave her money.

They would end up in bed together, fondling and kissing. This activity started when V. was 11 and continued until, and after, she was13.

[14] When she was 14, V. and her friend were at Mr. C.’s residence listening to music. The friend eventually left and went homewhile V. stayed. Mr. C. changed into only pyjama bottoms. V. was still wearing her clothes. They went into Mr. C.’s bedroom and layon his bed. Mr. C. began to tickle V. [15] Mr. C. got on top of V. and began kissing and fondling her. This activity culminated in sexual intercourse. V. was nervous andscared and started to feel “gross and disgusting.” After Mr. C. was finished, V. got up and went to the bathroom and wiped off hissemen which was all over her legs.

V. wished the intercourse never happened and began to distance herself from Mr. C. Eventually sheran away to a different town. [16] In her statement to the police, Ms. A. said that Mr. C. still walked by her and said things to her to try and dissuade her fromtalking to the police. One of the things he said was, “I know you are still in love with me.” [17] Mr. C.’s attitude towards the offences against V. is described by Probation Officer Shannon McPherson on page 4 of her April28, 2016 Pre-Sentence Report: Mr. C. states that V.A. is an extended family member, their parents are cousins. Mr.

C. explains he was friends with V.A.’s mother. Mr.C. informs he spent time at V.A.’s mother’s house and V.A. would come over to his house. He states they made love. He believed theywere in a relationship. He explains they had sexual intercourse because he was lonely and had feelings for her. He informs he was“helping” her. He further explained that he was keeping her company. If she was hanging out with him then she would not be hangingout with negative peers, who were using drugs. Mr. C. states he did not want V.A. to be using drugs. Mr.

C. acknowledges that becauseof the age of V.A. the sexual relationship was inappropriate and it was wrong. IV IMPACT ON THE VICTIMS AND THE COMMUNITY [18]

Section 722 of the Criminal Code directs a sentencing judge consider a victim impact statement for “the purpose of determiningthe sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 , the Court of Appeal held that sentencing judges must be alive towhat should be included in a victim impact statement and its intended use.

The Court writes in part: [12] Victim impact statements play an important role in the sentencing process... [13] Section 722(2) requires a sentencing judge to consider a victim impact statement “for the purpose of sentencing.” The content ofthe statement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of theoffence.” Section 722(3) also allows a sentencing judge to consider “any other evidence concerning any victim of the offence for thepurpose of determining the sentence to be imposed on the offender.” … [17] ... [V]ictim impact statements should not contain material which appears to be an appeal to the sentencing judge to place a valueon the life of the victim, or to compensate grief through the imposition of a harsh sentence. [19] J.P. and V.A. and their mothers, A.P.O. and J.F., provided victim impact statements.

These statements have been markedExhibits 2, 3, 4 and 5 in the sentencing hearing. [20] In her victim impact statement, V.A. talks about the impact of the sexual assault. She says she has lost her trust of people andshe does not enjoy sexual relations, even with her own husband. She hates it when people try to hug her. Although she loves herchildren, she cannot do all the “close stuff” that she should probably do with them. She never wants to see Mr. C. again. [21] J.F. is V.’s mother. She read her victim impact statement at the sentencing hearing.

She describes watching her daughterstruggle with addictions and intimate relationships. Ms. F. says, “The impact of what I. has done to V. has affected her husband, herchildren, her brother and her nephew... I pray at night that [V.] will make it through the night because of her addictions. Every morningI wake up and pray she is alive.” [22] J.P. says she is affected by the sexual abuse almost daily. She has lived with anxiety, which includes panic attacks andhyperventilation. She has a fear of trusting others and consequently, socially withdrawn.

She struggles with depression, anorexia,paranoia, shame, chronic urticarial, self-harm and low self-esteem. Ms. P. also feels that as a result of the offence against her, she losther paternal family. [23] A.P.O. is J.P.’s mother. She says she feels she failed as a mother because she failed to protect her daughter. Her number onegoal as a mother was to make sure her children didn’t suffer sexual abuse or assault by anyone. Ms. P.O. says she needs to continue toprotect J. who is still vulnerable and needs to heal. V. CIRCUMSTANCES OF THE OFFENDER [24] Mr.

C.’s personal circumstances are set out in Probation Officer McPherson`s Pre-Sentence Report dated April 28, 2016 andDr. N. Joneja`s Psychiatric Assessment Report dated November 27, 2016. [25] Mr. C. is 51 years old from (omitted), also called (omitted), and a member of the (omitted) First Nations. He was raised in(omitted) with his five siblings. He was in a spousal relationship with A.P.O. for 10 to 15 years. Their relationship began in 1984, whenMs. P.O. was approximately 14 years old. It ended in 1998. They have three biological children, J., A. and L. Mr.

C., A. and L.continue to live in (omitted), which is a small reserve community 30 kilometres east of (omitted). [26] Mr. C. has post-secondary education, and is currently enrolled in (omitted). Mr. C. worked at the (omitted) Band Office from2000 to 2010 as a custodian. He was not working at the time of the Pre-Sentence Report and survived on social assistance.

[ 27 ] Although Mr. C. says that he had suffered physical and sexual abuse in his past, he has been sober since 2002. Dr. Joneja states that alcohol use is not a predisposing or precipitating factor to Mr. C.’s sexual offending behaviour: Psychiatric Assessment, paras. 43 and 49. [ 28 ] Mr. C. has been reporting to Community Corrections in 100 Mile House since June of 2015.

He has reported consistently as directed, however Community Corrections have received reports from the community that he has not been following the conditions of his recognizance. [ 29 ] The Pre-Sentence Report and Psychiatric Assessment indicate that Mr. C. has suffered from cultural displacement and family dysfunction. Mr. C.’s parents attended the [omitted] Residential School in [omitted]. Violence and alcoholism was prolific in Mr. C.’s home and community. In her report, Dr. Joneja interviewed Mr. C.’s sister, W.B., who described a gang culture prevalent in (omitted) when they were growing up. [ 30 ] Ms.

B. described how young men travelled in packs and stalked potential victims. Their victims included elders, who they physically assaulted; young women, and sometimes young men, who they sexually assaulted. Ms. B. said there existed a “code of silence” wherein the family members of offenders targeted victims who spoke out: Psychiatric Assessment, p. 6-7, para. 24. Psychological Risk Assessment [ 31 ] Dr. Joneja, a psychiatrist of the Forensic Psychiatric Services Commission, in the Kamloops Regional Clinic, prepared a psychological pre-sentence assessment of Mr.

C. dated November 27, 2016. [ 32 ] In discussing his offences against J., Mr. C. explained to Dr. Joneja the offence occurred while “sleepwalking” when he happened to “roll on her.” Dr. Joneja states, at para. 50: Attempts to minimise or abnegate responsibility for his offending behaviour may suggest attitudes and cognitions that condone the use of sexual violence as well as limited empathy and remorse regarding the sexual assault of his daughter. [ 33 ] Dr. Joneja states (at para. 51) that Mr. C. “presents with sexual offending behaviour that is chronic, opportunistic and predatory in nature.

He creates opportunities for sexual violence by exploiting the vulnerabilities of children and other members of the community.” At paragraph 64, Dr. Joneja states, “Mr. C. poses a continued risk to children... Restricted access to children will be imperative while residing in the community.” [ 34 ] Dr. Joneja assesses Mr. C. at a high risk of sexual violence recidivism without the necessary safeguards in place (para. 62).

She cites the factors that contribute to his sexual reoffending include, without limitation: ... problems with self-awareness, chronicity of sexual violence and sexual deviance; psychological and physical coercion in the perpetration of sexual violence; problems resulting from child abuse; attitudes that condone sexual violence and sexual deviance; possible difficulties with stress or coping; possible difficulties with intimate and non-intimate relationships; suicidal ideation; problems with employment; and recent supervision violations. VI.

CROWN AND THE DEFENCE POSITION ON SENTENCE [ 35 ] The Crown and Defence have proposed a global sentence consisting of (

a) a 20 month Conditional Sentence Order; (

b) three years’ probation; (

c) a lifetime order to comply with the Sex Offender Information Registration Act pursuant to s. 490.011(1) of the Criminal Code ); (

d) a compulsory DNA order pursuant to s. 487.051(1) of the Criminal Code ; and (

e) a ten year firearm prohibition pursuant to s. 109 of the Criminal Code . The terms proposed for the Conditional Sentence and Probation are similar. Both require counselling and restrict contact with the victims, minors, and places where minors are likely to be found. Neither order includes a term of house arrest or curfew. The Court’s Response to the Joint Submission [ 36 ] On July 12, 2016, I asked counsel to provide me with authorities on the appropriateness of the proposed sentence. On August 3, 2016, I ordered a forensic psychiatric assessment report on Mr. C.’s risk to the community.

On November 29, 2016, having received and reviewed the Forensic Psychiatric Assessment, I advised counsel that I was not satisfied with the proposed sentence and invited further submissions on the following issues: a. Does the Supreme Court of Canada decision in R. v. Anthony-Cook , 2016 SCC 43 , precludes me from deviating from the joint submission? b. Can further safeguards be included within the structure of a Conditional Sentence Order to mitigate Mr. C.’s risk to the community? And c.

If a sentence of “real jail” is necessary, what should that be? [ 37 ] On January 4, 2017, the Crown provided the submissions addressing these issues. I invited Defence counsel’s oral submissions on January 9, 2017. Application of R. v. Anthony-Cook , 2016 SCC 43 [ 38 ] In R. v.

Anthony-Cook , 2016 SCC 43 , the Supreme Court of Canada held the proper legal test a judge should apply in deciding to depart from a joint submission on sentence is the “public interest test.” Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. Mr. Justice Moldaver summarized the test as follows:

[34] … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance wouldlead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty inresolution discussions, to believe that the proper functioning of the justice system had broken down. [39] The Supreme Court provided guidance to judges on the approach to take when they have concerns about a joint submission: a. First, judges should approach the joint submission on an “as-is” basis.

With the exception of a mandatory order, if the partieshave not asked for a particular order, the judge must assume that it was considered and purposely excluded from the submission. (para.51) b. Second, the judge should apply the public interest test whether “jumping” or “undercutting” a joint submission, althoughdifferent considerations may factor into the public interest analysis in each context. (para. 52) c.

Third, when faced with contentious joint submissions, judges should consider the circumstances that led to the joint submissionand pay particular attention to any benefits obtained by the Crown or concessions made by the accused. “The greater the benefitsobtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the jointsubmission, even though it may appear to be unduly lenient.” (para. 53) d.

Fourth, where the judge is not satisfied with the proposed sentence, the judge should notify counsel and invite furthersubmissions on the points of concern, including the possibility of allowing the accused to withdraw his or her guilty plea. (para. 58) e. Fifth, where the judge remains unsatisfied by the counsel’s submission, the judge may allow the accused to apply to withdraw hisor her guilty plea. (para. 59) f.

Sixth, if the judge remains unsatisfied after further submissions, the judge must provide “clear and cogent reasons” for departingfrom the joint submission. (para. 60) [40] The Crown submits that Anthony-Cook does apply to this case and the Court ought to accept the joint sentencing submissions orallow Mr. C. to withdraw his guilty plea. Anthony-Cook represents a change in the law favourable to the accused and thus appliesretrospectively: s. 11(

i) of the Charter of Rights and Freedoms. First: The Joint Submission on “as is” [41] A conditional sentence is often considered “jail in the community.” It is designed to “permit the accused to avoidimprisonment but not to avoid punishment”: R. v. Proulx, 2000 SCC 5 , at para. 35. It is for this reason that conditionalsentences typically include terms of house arrest or strict curfews: Proulx, para. 36. The conditional sentence counsel proposes for Mr.C. includes no such punitive restrictions on his liberty.

In its supplemental submissions, the Crown argues the proposed sentenceachieves the restorative objectives of sentencing and is “particularly suited to a first-time aboriginal offender ... having entered a guiltyplea at the earliest opportunity.” [42] The Crown also submits it is open to the Court to consider imposing strict house arrest, curfew, and electronic monitoringwithin the conditional sentence to address the Court’s concern regarding the risk Mr. C. poses to the community. To impose theseconditions, however, would still represent a significant departure from the joint submission.

Second: The Public Interest Test [43] A determination of whether the proposed sentence satisfies the public interest test requires a careful review of the legislated andcommon law principles of sentencing persons convicted of child sexual offences. The courts recognize that sentencing is a highlyindividualized process; however, the ultimate sentence must nevertheless be proportional to the seriousness of the offences of which Mr.C. has been convicted and his degree of responsibility.

My analysis of the authorities set out later in this decision leads me to concludethe sentence proposed by counsel does not satisfy the public interest test. Third: The Circumstances that led to The Joint Submission [44] In its supplemental submissions, the Crown provided the following additional information as to the benefits obtained by theCrown and the concession of the accused in the proposed sentence: a. Mr. C.’s very early guilty plea allowed the Crown to forego the time, expense, and effort of a preliminary inquiry and trial. Nostate resources will be expended in bringing the matter to trial; b.

The Crown’s case was entirely dependent on the evidence of the complainants; c. The Crown’s sentencing position was “taken with full consideration of the strength of the Crown’s case, including the anticipatedcredibility of the complainants”; d. The Crown acknowledges it does have some evidentiary issues and that witness credibility may have been a central issue at trial. The Crown will not need to prove the case beyond a reasonable doubt and will not have to address these difficulties within a contestedtrial; and e. No victim will need to testify. [45] There is no doubt that Mr.

C.’s very early guilty plea is a significant benefit to the Crown, the victims and the community. There is no doubt Mr. C. conceded his right to a trial to compel the Crown to try to prove its case beyond a reasonable doubt. Nevertheless, there is no suggestion Mr. C.’s guilty plea was a product of any significant or prolonged plea negotiations between theCrown and Defence. Mr. C. was intent on pleading guilty from the outset. In his submission on July 12, 2016, Mr. Sommerfeld advised

the Court that he became involved in this matter on November 10, 2015. He reviewed the Crown disclosure with Mr. C., which includedthe identity of the victims and what they said happened. Mr. C. clearly understood the offences for which he had been charged. On thatday, he told Mr. Sommerfeld, “he would not fight these victims and he knew they were telling the truth.” Mr. Sommerfeld advisedCrown counsel (Ms. Dufour) of his instructions. There was no plea bargaining with Crown counsel for the guilty plea. After conveyingto Crown counsel Mr. C.’s intention to plead guilty, Mr.

Sommerfeld left it to the Crown to formulate a sentencing position. On January4, 2016, Mr. C. attended at Court for the second time and on that date he entered his guilty plea. Sentencing was adjourned to facilitatethe preparation of a Pre-Sentence Report and a Gladue Report. No psychiatric risk assessment was requested at that time. [46] Mr. Sommerfeld advised the Court that Mr. C. was very clear in his instructions. He said: [Mr. C.] wanted to face this because he committed the crimes and he felt very, very badly... I.

C. did not say, “tell me what I am going toget first before I plead guilty.” This is what he did absolutely from the beginning... The first morning we had a couple of hours to talkand we walked around the block and he looked me in the eyes and said I am pleading guilty, whatever happens. [47] On November 29, 2016, Mr. Sommerfeld again confirmed Mr. C. made the decision to plead guilty and admit liabilityimmediately. This is evidenced by the fact Mr. C. entered the guilty plea at his second Court appearance in January 2016. Mr.Sommerfeld commented that it is ironic Mr.

C. has been unable to move forward with his sentencing because of the Crown proposing aconditional sentence order. [48] Although the Crown rightly emphasizes the strong mitigating factor of his early guilty plea in its submissions, I conclude thatMr. C.’s guilty plea was not the product of a plea bargain. It was an initial sentencing position proposed by the Crown which Mr. C.supported. Fourth: Notification of Counsel [49] At the commencement of the sentencing hearing on July 12, 2016, counsel advocated for a sentence which was virtuallyindistinguishable from a suspended sentence with probation.

The sentence, as original crafted, would permit a convicted and untreatedchild sex offender to return to his small home community without the benefit of a psychiatric risk assessment. Upon reviewing Dr.Joneja’s psychiatric assessment, I advised counsel in Court on November 29, 2016, I was not prepared to accept the proposed sentenceand invited further submissions to address my concerns. I received those submissions, both orally and in writing, all of which I have fullyconsidered. Fifth: Withdrawal of Guilty Plea [50] I have also considered whether Mr.

C. ought to be afforded an opportunity to withdraw his guilty plea, although he has notasked to do so. In my view, he should not. After consulting with seasoned legal counsel, he decided to plead guilty to some of theoffences absent any plea negotiations as to sentence. This decision was not the product of any quid pro quo between the Crown and theDefence. It was a decision made at the beginning of this process; it was a decision made with the benefit of legal counsel; and it was adecision made voluntarily, unequivocally without any Crown inducement.

Sixth: My Reasons for Departing from the Proposed Sentence [51] My decision to depart from the proposed sentence followed an in depth consideration of the authorities as they apply to thecircumstances of the offences and the circumstances of Mr. C. VII. APPLICABLE AUTHORITIES Sections 151 and 153 of the Criminal Code [52] Between 1986 and 2000, an offence of sexual interference charged under s. 151 of the Criminal Code attracted a maximum termof imprisonment of 10 years where the Crown has proceeded by indictment.

Between 1996 and 1997, an offence of sexual exploitationcharged under s. 153 of the Criminal Code attracted a maximum sentence of five years where the Crown has proceeded by indictment. Neither offence during the material time attracted a minimum jail sentence. Purpose and Principles of Sentencing [53]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: a. denunciation; b. deterrence; c. protection of the public; d. rehabilitation of the offender; e. reparation to victims; and f. promotion of a sense of responsibility in the offender. [54]

Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 , para.39; R. v. Mercier,2004 BCCA 663 , para. 14.

[55] Today, s. 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing forany offence involving abuse of a person under 18. This

section came into force in 2005 with

An Act to amend the Criminal Code(protection of children and other vulnerable persons) and the Canada Evidence Act, SC 2005 c 32. [56] In R. v. D.G., 2014 BCCA 84, the B.C. Court of Appeal held that although s.718.01 applies prospectively, offences against achild has always been aggravating and often called for denunciation and deterrence. In R. v. Stuckless, (ON CA),Justice Abella, as she then was, stated: I am unable to find a single reported appellate decision in recent years which does not view the sexual abuse of children as extremelyserious, whether or not there is penetration… Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. [57] Justice Abella cited with approval the comments of Justice Moldaver, as he then was, in R. v. McF., April 27, 1992, (Ont.

Gen.Div.) unreported, released April 27, 1992: I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats ofphysical harm or the infliction of limited and measured amounts of force. … I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced asa factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have acrippling effect upon the psychological and emotional well-being of the victim.

Conduct which brutalizes the mind can be far moredevastating, painful and long-lasting than conduct which causes injury to the body. [58]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. In R. v. Safarzadeh-Markhali, 2016 SCC 14 states, inpart at paras 70: Proportionality in the sense articulated at s 718.1 of the Code — that a sentence be proportionate to the gravity of an offence and anoffender’s degree of responsibility — is a fundamental principle of sentencing… proportionality is “the sine qua non of a just sanction”.

It is grounded in elemental notions of justice and fairness, and is indispensable to the public’s confidence in the justice system. [59] The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to thevictim; and (

b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 , at para. 130. In R. v. Jennings,2016 BCCA 127 , aff’d 2016 BCCA 127 , Judge Marchand stated at para. 92: [92] … Over the last thirty or so years, an increasingly bright light has been shone on the prevalence and consequences of sexualabuse against children. It has come to be generally accepted that sexual abuse of a child in any form is harmful. The degree of injury andpain can be mitigated and will vary from child to child but some form of pain or injury almost always follows. [60] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Today, the Criminal Codelegislates the following factors as aggravating: (

a) section 718.2(a)(ii.1) the young age of the victims; (

b) section 718.2(a)(iii) theoffender was in a position of trust or authority in relation to the victim; and (

c) section 718.2(a)(iii.1) the offence had a significant impacton the victim. [61] Sections 718.2(a)(ii.1) and (iii) also came into force in 2005 with the

An Act to amend the Criminal Code (protection ofchildren and other vulnerable persons) and the Canada Evidence Act, SC 2005 c

Section 718.2(a)(iii.1) came into force when BillC-36,

An Act to Amend the Criminal Code (Elder Abuse), received Royal Assent on December 14, 2012. [62] As set out above, offences against children have long attracted judicial and social opprobrium. In R. v. S.B.T. 2010 BCCA 145, Madam Justice Bennett considered this point in a case of historical sexual assaults by an uncle against his young nieces. Shestates at para. 16: [16] The offence was a breach of trust. It was committed by a family member against a young child in her father’s home.

These areaggravating factors at common law, and, as of November 1, 2005 (after these offences were committed), have been codified as such. Sees. 718.01 and s. 718.2(ii.1) of the Criminal Code, R.S. 1985, c. C-46. The codification simply confirms what has been the law for manyyears. The offence against L.O. was a serious one. [63] Denunciation and deterrence are the primary considerations for sexual offences against children, including historical sexualoffences: R. v. R.J.B., 2016 BCCA 428 , at para. 29.

Similarly, taking into account the impact of the offence upon the victimhas always been a part of the principles of sentencing. [64]

Section 718.2(

b) codifies the parity principle which holds sentences should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. [65]

Section 728.2(

c) codifies the totality principle which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend thetotality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or itseffect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R.500. [66] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if less

restrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2(e). Sentencing Aboriginal Offenders [67] R. v. Gladue, (SCC), and R. v. Ipeelee, 2012 SCC 13, are the leading cases with respect to how s.718.2(e)should be applied, and the framework for sentencing aboriginal offenders. The judge has a statutory duty imposed by s. 718.2(

e) toconsider: (

a) the unique systemic and background factors which may have played a

part in bringing the particular offender before thecourt; and, (

b) the types of sentencing procedures and sanctions which may be appropriate because of the offender’s particular aboriginalheritage or connection in every case involving an aboriginal offender, including serious and violent offences. The offender is notrequired to establish a causal link between background factors and the commission of the offence before being entitled to have thosefactors considered by the sentence judge.

Judges may take judicial notice of the broad systemic and background factors affectingaboriginal people generally and case-specific information from the offender and the pre-sentence reports. [68] Mr. C. is a member of the (omitted) First Nations and therefore the principles relating to sentencing aboriginal offenders as setout in s. 718.2 as interpreted in Gladue, and affirmed in Ipeelee apply. [69] In R. v. E.M.Q., 2015 BCSC 201 , Mr. Justice Pearlman noted the application of Gladue principles does not mean thataboriginal offenders will necessarily receive shorter sentences.

He states, at paras. 49 - 50: [49] In cases involving serious offences where there is a pressing need for denunciation and deterrence, such as sexual assaults againstchildren committed by adults in a position of trust, it is now settled law that both Aboriginal and non-Aboriginal offenders will generallyreceive sentences of imprisonment… [citations omitted] [50] In R. v.

R.R.M., 2009 BCCA 578 , the court provided the following direction on sentencing Aboriginal offenders forsexual offences at para. 24: The sentencing of Aboriginal offenders for serious sexual assaults, where there is evidence that they have suffered from historical andsystemic abuses, is not an easy task.

This Court has observed that in sentencing Aboriginal offenders, while judges must be "sensitive tothe conditions, needs and understandings of Aboriginal offenders and communities, this does not mean that sentences for such offenderswill necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such as deterrence anddenunciation."… Chief Justice Finch further noted at para. 53 that Gladue made clear that it was not the principles of sentence thatvaried in sentencing Aboriginal offenders but the application of those principles to a particular case.

In Gladue (at para. 80), the Courtfurther stated that: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? [Citation Omitted] [70] Mr. C. chose not to participate in the creation of a dedicated Gladue Report; however, both the Pre-Sentence Report and thePsychiatric Assessment provided information on his circumstances, past, and present.

I can and do take judicial notice of the historicalbackground of Canada’s aboriginal peoples such as colonialism, displacement, and residential schools, and how it continues to translateinto all manner of societal, educational, and economic impoverishment and higher rates of substance abuse, suicide, and incarceration. From the information contained in the Pre-Sentence Report and Psychiatric Assessment, I accept the systemic and historicaldisadvantages experienced by aboriginal people in general were present in Mr.

C.’s life, including the intergenerational impact ofresidential schools, alcohol abuse, sexual abuse, physical abuse, and domestic violence. Accordingly, I am satisfied that those factors,both systemic within society and specific to Mr. C., may have played a role in his criminal behaviour.

Conditional Sentences in Cases Involving Sexual Offences Against Children [71] The governing authority on conditional sentences is the Supreme Court of Canada's decision in Proulx, which sets out fourcriteria a sentencing judge must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of anoffence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than twoyears; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) aconditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [72] In R. v.

Safaee, 2009 BCCA 367 , Bennett J.A. stated: [11] In Proulx, at para. 119, the Court held that neither party has the onus of establishing that the offender should or should notreceive a conditional sentence. However, the Court did say, at para. 122, that “in practice, it will generally be the offender who is bestsituated to convince the judge that a conditional sentence is indeed appropriate.” The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment. [73] At the time Mr.

C. committed the offences, sexual interference (s. 151) and sexual exploitation (s. 153), were not punishable bya mandatory term of imprisonment. The court must impose a term of imprisonment of less than two years [74] In D.G., the B.C. Court of Appeal discussed the range of sentence in a historical sexual assault case. Madam Justice Bennettnoted the range of sentence is in part an expression of the parity principle codified in s. 718.2(

b) of the Criminal Code. Sentencingranges are not hard and fast rules, but rather guidelines to assist trial judges in crafting a fit and just sentence. She states in para. 37:

[37] There is no question that the sexual assault of a child would often draw a serious penitentiary term. This Court has often said thatchildren are “priceless assets”, and it is extremely important to denounce conduct that takes advantage of their vulnerability. This is notthe only consideration. [38] A sentencing judge must be cognizant of the usual sentencing range, but that range is not determined in a vacuum.

It dependsentirely on the circumstances of the offence and the offender before the court. [75] In determining whether a term of imprisonment of less than two years is appropriate, I have reviewed a number of authoritiesreferred to below as they relate to Mr. C. and the circumstances of these offences. The safety of the community would not be endangered by the offender serving the sentence in the community [76] In assessing whether a conditional sentence is appropriate, I must determine if the community would be endangered by Mr. C.serving his sentence in the community.

In Proulx, the Supreme Court held this question involves the assessment of two factors: (

a) therisk of Mr. C. reoffending; and (

b) the gravity of the damage that would be incurred if he did reoffend. [77] Mr. C. has no criminal record, so therefore I cannot say there is a significant risk of his reoffending. I am cognizant however,that even a low risk of re-offending can be dangerous to the community if the damage is grave: Proulx at para. 69. The impact of sexualassault on children is so traumatic and so enduring the danger to the community is still noteworthy. [78] The Psychiatric Assessment references uncharged and unproven allegations of child sexual abuse. Mr.

C. is being sentencedtoday only in relation to those offences to which he pled guilty. Unproven allegations in Dr. Joneja’s risk assessment cannot beconsidered as aggravating factors in this sentencing hearing. Still, in R. v. Wesley, 2014 BCCA 321 at para. 17, the Court ofAppeal held that a sentencing judge can refer to statements recorded in pre-sentence reports concerning uncharged offences and use thosestatements to determine the offender’s character and risk of re-offending. In Wesley, Madam Justice Saunders cites Justice Charron’sdecision in R. v.

Angelillo, 2006 SCC 55 at para. 32: [32] … Finally, the court must draw a distinction between considering facts establishing the commission of an uncharged offence forthe purpose of punishing the accused for that other offence, and considering them to establish the offender’s character and reputation orrisk of re-offending for the purpose of determining the appropriate sentence for the offence of which he or she has been convicted.

In myexample, the sentence imposed on a violent offender may well be more restrictive than the sentence imposed on an offender who hascommitted an isolated act, but this is in no way contrary to the presumption of innocence. [79] I accept Dr. Joneja’s assessment that without the appropriate safeguards in place, Mr. C. is a high risk to reoffend. Counsel forthe Crown and the Defence argue their proposed sentence imposes appropriate safeguards in the form of conditions restricting Mr. C.’sassociation and interaction with the victims and minors.

In their supplemental submissions, Crown counsel submits the court might allayits safety concerns by including additional conditions such as house arrest, curfew, and electronic monitoring. In its January 4, 2017submissions, the Crown provided further information on how these restrictions could be enforced in a timely and consistent manner. The (omitted) community is served by a local Aboriginal Justice Worker, Ken Tassell, who works under contract for the [omitted]Probation Office. Mr. Tassell is in (omitted) four days per week and supervises its community members bound by court conditions.

Also, the RCMP detachment in 100 Mile House has a community policing office in (omitted) which is staffed one to two days per week. [80] The Crown also points out that in a small community such as (omitted), community members themselves are informalsupervisors. Undoubtedly, Mr. C. is well-known to his neighbours who would be aware he was bound by court-imposed conditions. Unfortunately, this community oversight is undermined by what Ms.

B. described as a community code of silence. [81] I am not persuaded a conditional sentence, even if reinforced with a term of house arrest or curfew, adequately safeguards thecommunity. As the Supreme Court of Canada noted in R. v. Profit, (SCC), 1993 3 SCR 637, sexual offences againstchildren are usually perpetuated in private. As we see in this case, children often remain silent about sexual abuse, sometimes for years,sometimes for life. Their silence only exacerbates their trauma and suffering.

A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 [82] In R. v. F.E.H. 2015, BCSC 175, Justice Abrioux considers the applicable sentencing principles in a historical child sexualassault case. He notes that sentencing is an individualized process (at para. 40) and although the court must consider all the principles ofsentencing in the Criminal Code, in sexual offences against children the principles of denunciation and deterrence are paramount: R. v.T.D.F., 2016 BCSC 984 , citing R. v. G.M., 2015 BCCA 165 at paras. 17-19. [83] R. v.

Lacasse, 2015 SCC 64 , at paras 3-6, [2015] 3 SCR 1089, reaffirms the importance of fitness of sentence: The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders.

Asentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system inlight of its objectives. … [I]n all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options otherthan imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. Aggravating and Mitigating Circumstances [84] In R. v. C.G.D., 2009 BCSC 404 , Griffin J. at paras. 38-53 canvassed the jurisprudence in sentencing child sexualoffences.

She noted the wide range of sentences imposed in such cases depended upon the circumstances of the offence, including theseverity, type, frequency and duration of the assaults, and the circumstances of the offender, including past criminal behaviour, whetherthere are any mitigating circumstances such as the offender pleading guilty or seeking treatment, or aggravating circumstances such asthe offender being in a position of trust. Justice Griffin summarized those authorities at para. 51:

[51] While there is a range of sentences imposed for sexual assault, certain common themes are clear from the case law, namely, thatthe sentencing goals of deterrence and denunciation must be foremost in these cases absent special circumstances. It is now wellunderstood that sexual assault has short-term and frequently long-term effects on the child. The immediate harmful effects are to rob thechild of his or her innocence by violating the child’s physical being and emotional trust in the safety of the world.

But it is also now wellunderstood that often a sexual assault on a child will have a profound long-lasting effect on the child’s development, negativelyimpacting the victim’s future relationships and psychological health as an adult. Society condemns sexual assault of children even moreso when the child was violated by a parent, the one person in the world who is supposed to be devoted to protecting and keeping thechild safe. [85] In R. v. M.(E.), 2010 BCPC 146 , Judge Ball, as he then was, summarized at para. 8 the factors to be taken into accountin sentencing perpetrators of child sexual abuse: ...

Those factors include the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, theeffect on the victim and the presence or absence of collateral violence, threats and grooming of the victim, an early guilty plea sparing achild from testifying, or an expression of remorse. [86] There are a number of aggravating circumstances in this case which include: a. the age of the victims, who were between 11-14 years old; b. the offence against J. occurred when she was sleeping in a bed with her siblings; c. with respect to V., Mr.

C. engaged in grooming behaviour over a number of years: see D.L.W.; d. Mr. C. used gifts of jewellery, money, alcohol and drugs to groom V.: see R. v. Dupuis, 2016 BCPC 163 ; e. Mr. C.’s offences against V. included sexual intercourse; f. the offences involving V. occurred on multiple occasions over a period of three to four years; g. Mr. C. was J.’s father and V.’s uncle and a trusted family friend. He was in a position of trust and authority with respect to bothvictims.

This position of trust and authority facilitated the commission of the offences; h. there were two victims; and i. offences had a significant adverse impact on both victims and their mothers. [87] There is also the absence of aggravating factors such as collateral violence. As noted in Stuckless violence is inherent in allsexual assaults on children. However, there is no evidence in this case that Mr.

C. used additional threats and violence to satisfy hissexual deviance. [88] The fact the sexual assault on V. involved sexual intercourse is aggravating does not mean the absence of penetration withrespect to J. is mitigating. As Abella, J.A. (as she then was) said in the oft-cited case of Stuckless (at para. 42): The absence of penetration does not automatically relegate the sexual abuse of children to the “lower range” of sexual offences. There isno question that additional force, collateral crimes and penetration are aggravating factors.

But their absence does not thereby transformthem into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number ofvictims, the frequency of the assaults and the devastating impact on the lives of the victims. These offences were, individually andcollectively, unconscionable. [89] There are mitigating factors, which include: a. an early guilty plea; b. an expression of remorse and acceptance of responsibility for his behaviour; c. absence of a related criminal record; and d. Mr. C. is an aboriginal offender who was raised in troubled circumstances.

I accept systemic and individual factors may haveplayed a

part in Mr. C.’s criminal conduct. [90] The most significant mitigating factor which militates towards a conditional sentence is that Mr. C. admitted to the offences atthe outset and pleaded guilty. He did so voluntarily, unequivocally, and without inducement. He spared the victims the trauma ofhaving to testify in court against him. Historical sexual assaults are notoriously difficult to prosecute. They give rise to a range ofcomplex legal and evidentiary issues. Invariably, sexual assaults against children are perpetuated in secret.

The passage of timeinevitably means the loss of evidence: witnesses, memory, forensic, and medical. Rarely are there eye witnesses who were present orcan be located and recall the events. Generally, there are no recorded injuries or DNA or other confirming evidence. In this case, theprosecution is entirely dependent on the evidence of Ms. J.P. and Ms. V.A. They would have to testify about events which occurredwhen they were children. They will likely find it difficult to remember precise details, yet their credibility will be the crucial issue attrial. By pleading guilty to the offence, Mr.

C. has forfeited his right to have the Crown prove the offence beyond a reasonable doubt. The victims and the community do not have to live with the uncertainty attendant upon a trial. (See: Madam Justice Griffin commentsin: C.G.D., at para. 32.) Availability of a Conditional Sentence

[91] There are a number of authorities in which the court imposed a conditional sentence for sexual offences against a child. Thecourt found it capable of providing denunciation and general deterrence, particularly where onerous conditions such as house arrest areimposed. Recently, in R. v. Ralph, 2014 BCSC 467, Mr. Justice Romilly imposed a conditional sentence of two years less a day wherethe accused, a female teacher, had sexually assaulted a male student on four to five occasions between 1998 and 2000 when he was 11and 13 years old.

In Ralph, Justice Romilly canvassed the authorities in which a conditional sentence order was made in cases involvinghistorical sexual assaults. He reiterated (at para. 52) his comments made earlier in R. v.

D.L.W., 2014 BCSC 43 at para. 67: A long line of authority has held and continues to hold that conditional sentences are ‘rarely’ appropriate in cases involving sexualassault and sexual interference against children, especially when committed by adults in positions of trust, due to the pressing need toemphasize denunciation and deterrence in such cases. [92] This passage from D.L.W. was recently cited by the B.C. Court of Appeal in R. v.

Swope, 2015 BCCA 167 , whereinthe appellate court upheld the sentencing judge’s decision to impose a 39 month term of imprisonment on a frail and elderly manconvicted of six counts of indecent assault which occurred between 1980 and 1981 on two six grade students he was teaching. Theassaults consisted of rubbing the girls over and under their underwear. [93] Recently, R. v. K., 2016 BCSC 1637, Justice Voith rejected a conditional sentence for an offender convicted after a jury trial ofsexual assault and sexual interference of the young daughter of his common law spouse.

The offences occurred between 2000 and 2005. Justice Voith rejected the Defence submissions because: (

a) he did not consider a sentence of less than two years would be appropriate;(

b) he relied on those cases which held a conditional sentence will be “extremely rare” in cases involving the sexual abuse of a child by aperson in a position of trust; (

c) the offender had not taken responsibility for the offence and shown remorse; and (

d) the forensic reportindicated the offender was a continued risk to engage in sexual offending behaviours. Instead, Justice Voith imposed a 30 month jailsentence. Crown Authorities [94] In this case the Crown relies on the following authorities: R. v. Bremner, 2000 BCCA 345 ; R. v. Edwards, 2003BCCA 214; R. v. L.F.W., 2000 SCC 6 ; R. v. M.H., 2002 BCCA 248 ; R. v. Birch, 2003 BCSC 760 ; R. v.C(DW), 2000 Carswell Man 105 (CA); R. v. Y.(MO), 2005 BCSC 1467; R. v. Haugo, 2006 BCPC 319. All of these authorities havediscussed these cases below.

R. v Bremner, 2000 BCCA 345 [95] In Bremner, the offender was convicted of four counts of indecent assault that had occurred 27 to 30 years prior to the trial. Atthe time of the offence, Mr. Bremner was a young officer in Sea Cadets. The four victims were teenage cadets ages 13 to 16 and Mr.Bremner was 23 and 26. The assaults involved the offender grabbing their genitals and masturbating in the presence of, or with, a boy. The trial judge described the events as impulsive with little, if any, premeditation. At the time of trial Mr. Bremner was in his 50s,married, with two grown sons.

He had stable employment and no other criminal record. There was no evidence in the 30 years since theoffences of any similar type of conduct. He had an impressive personal history and record of community service in the many years sincethe offences. The victims suffered psychological harm but no physical injuries. A psychologist rated Mr. Bremner as a low risk for anysexual recidivism and did not consider him a danger to society. Although he was without remorse, Mr. Bremner was not a paedophileand did not require rehabilitation.

The sentencing judge rejected a conditional sentence and ordered 18 months incarceration. Mr.Bremner appealed. [96] The Court of Appeal noted that in rejecting a conditional sentence, the sentencing judge did not have the benefit of Proulx,which the Supreme Court of Canada handed down after the sentencing decision.

The Court of Appeal held the sentencing judge had notproperly considered whether a conditional sentence order would have been appropriate and varied the sentence by imposing aconditional sentence in place of institutional custody. [97] There are some similarities between Bremner and the case at bar and some important differences. Both offenders are middleaged men charged with historical sexual offences against children. Neither had a criminal record. Mr. C.’s case is distinguishable fromBremner by the following circumstances: a. The victims in this case were younger than those in the Bremner; b.

The victims in this case were children over whom Mr. C. had a greater position of trust than Mr. Bremner; c. The sexual acts with respect to V. included sexual intercourse, which is a highly intrusive act involving a significant violation ofher physical integrity; d. With respect to V., Mr. C. engaged in a process of grooming, which is an aggravating factor in sentencing; e. The forensic psychologist finds that without the appropriate safeguards, Mr. C. is a high risk for reoffending; and g. Mr. C. is an aboriginal offender and the principles espoused in Gladue and Ipeelee are applicable. R. v.

Edwards, 2003 BCCA 214 [98] In R. v. Edwards, 2003 BCCA 214, a 27-year-old male dance instructor was convicted of sexual exploitation of 14-year-olddance student. He had intercourse with her over a period of four or five months. He was convicted of one count of sexual exploitation ofa young person and sentenced to nine months incarceration followed by two years of probation. The Court of Appeal held the sentencingjudge erred by failing to indicate why only prison could provide the necessary degree of denunciation and specific deterrence andsubstituted a 12 month conditional sentence.

[99] Edwards is distinguishable from this case as follows: a. in this case J. and V., were younger than the victim in Edwards; b. in this case there are two victims; c. in this case, Mr. C. had a more “sacred” position of trust vis-à-vis his victims than Mr. Edwards, who was a dance instructor; and d. without appropriate safeguards in place, Mr. C. is considered a high risk to reoffend. R. v. W(LF), 2000 SCC 6 , [2000] 1 SCR 132 [100] In R. v. W. (LF), a 55-year-old first time offender convicted of indecent assault and gross indecency.

When he was 22 to 28years old, he victimized his cousin who was between the ages of 6 and 12. He forced her to perform acts of masturbation and oral sex onhim. The offence involved 12 to 15 acts of sexual assault between 1967 and 1973. The offender went on to live an exemplary life. Mercer J. of the Newfoundland Supreme Court was satisfied by the evidence at trial, the information contained in a pre-sentence report,and various letters of reference that there was no appreciable risk of criminal conduct by the offender if he served his sentence in thecommunity.

Although he showed no remorse, the offender went on to live a productive life. By the trial, 25 years later, there was noevidence of the offender having perpetrated any related criminal activity. Mercer J. imposed a 21 month conditional sentence. Hedetermined despite the absence of expressed remorse, incarceration was unnecessary for specific deterrence and a conditional sentencecould serve the purposes of denunciation and general deterrence with meaningful conditions imposed and enforced. He also made acommunity service order. The Newfoundland Court of Appeal upheld the Crown appeal sentence.

The eight member panel of theSupreme Court of Canada divided equally on whether the sentence was fit with the result it was upheld. R. v. H(M), 2002 BCCA 248 [101] In R. v. H(M), 2002 BCCA 248, a 51 year old first time offender pleaded guilty to one count of sexual assault and one count ofmaking child pornography. The victim was his 13 year old step-daughter. Between August 1998 and January 1999, the offender madetwo hours of surreptitious videotapes of the victim when she was sleeping or using the bathroom. On one occasion in December 1998,he fondled her breasts under her clothing.

The assault had a severe emotional impact on the victim. He was sentenced in ProvincialCourt to nine months imprisonment and two years’ probation. The Court of Appeal set aside the sentence and replaced it with a ninemonth conditional sentence and two years of probation. The appellate court doubted (at para. 20) the effectiveness of a prison sentencein meeting the goals of denunciation and deterrence would be significantly greater than that resulting from a conditional sentence. [102] M. H. was considered in R. v.

P.A.S., 2009 BCCA 360 , in which the first time offender appealed a one year sentence ofimprisonment imposed by the sentencing judge. The offender argued that a conditional sentence ought to have been imposed followinghis guilty plea to one count of sexual assault perpetrated against his 14 year old step-daughter. The offence occurred in November 2004,and reported to the authorities in 2007. The offender pled guilty and was remorseful. He had no criminal record and there was nosuggestion that he is a paedophile or sexual deviant. The offender did have a drinking problem which he had not yet overcome.

Consequently, the sentencing judge found the offender presented a real risk to reoffend and if that were to happen, the consequenceswould be significant to any victim. The sentencing judge was not satisfied a conditional sentence would not endanger the safety of thecommunity. The Court of Appeal refused the appeal finding the sentence was clearly within the range of available sentences and notdemonstrably unfit. R. v. C(DW), 2000 Carswell Man 105 (CA) [103] In R. v.

C(DW), 2000 Carswell Man 105 (CA), the 41 year-old first offender pleaded guilty to two counts of sexual touchingagainst two different victims, both children who were members of his wife’s extended family. The abuse of one victim, who wasbetween the ages of 12 and 14, occurred between October 20, 1996 and January 21, 1998, while the offender was babysitting. Theoffence involved kissing the victim on her lips, rubbing her legs and neck, and, on one occasion, placing her on her bed and lying on topof her and kissing her.

The sexual assault of the 11 year old victim also occurred in 1996 while the offender was babysitting. It involveda single incident in which the offender began rubbing both the victim’s calves while she was watching television in her nightie andshorts. He refused to stop when she asked him to and she retreated to the bathroom to escape his advances. The sentencing judgeimposed a three month conditional sentence which the Crown appealed. The Manitoba Court of Appeal agreed the sentence was unfit.

In determining what would be a fit sentence, Philip J.A., for the unanimous court, imposed a nine-month conditional sentence followedby 18 months’ probation. R. v. Y(MO), 2005 BCSC 1467 [104] In R. v. Y(MO), 2005 BCSC 1467, the 47 year old offender with a significant record pleaded guilty to one count of sexualinterference. The sentencing judge accepted the Crown and Defence’s joint submission for a 12-month conditional sentence and 12months of probation.

The relevant circumstances in Y(MO) were as follows: a. the offender was married to the victim’s grandmother; b. the victim was six years old at the time of this offence; c. on one occasion when the victim was staying overnight with her grandmother, the offender touched her for a sexual purpose. This touching occurred in the living room and consisted of rubbing her genital area, over top of her clothing, for several minutes; and d. there were no other incidents or further contact between the victim and offender. R. v. Birch, 2003 BCSC 760

[105] In R. v. Birch, 2003 BCSC 760, the 42-year-old accused was convicted after a trial of sexually assaulting the victim when shewas between 7 and 10 years old. He was a family friend and therefore in a position of trust and authority over victim. The assaultsinvolved kissing and sexual touching. The sentencing judge describes them as non-violent. The offender had no criminal record, butshowed little remorse. Justice Rogers found Mr. Birch was not a significant risk to the community and imposed an 18-month CSO and24 months of probation. R. v. Haugo, 2006 BCPC 319 [106] In R. v.

Haugo, 2006 BCSC 319, a 69-year-old male pleaded guilty to two counts of sexual interference, one count of sexualassault, and one count of indecent assault. One incident occurred in 1967 and the others occurred in 2004-2005. Mr. Haugo was thetrack and field coach of the four female victims. The sexual assaults involved touching their breasts and genitals and digital penetration. Mr. Haugo perpetrated these offences under the pretext he was assisting the victims with stretching exercises or taking bodily fluids foranalysis. Mr. Haugo had no criminal record.

He suffered public condemnation for the offences and was profoundly remorseful andanxious to expiate the harm he caused. For years he had worked in the community as a psychiatric nurse dealing with patients withoutincident; he had supportive family and friends. Mr. Haugo’s behaviour was more opportunistic than predatory. Still, it was more thanlow level touching. Two psychiatric assessment indicated Mr. Haugo was at an extremely low risk to reoffend and an excellentcandidate for treatment. The aggravating factors included: (

a) breach of trust; (

b) the offences were repetitive and involved a degree ofplanning; (

c) the harm done to the victims and the sporting community; and (

d) the intrusive nature of the offences including digitalpenetration. Judge DeVitt imposed a conditional sentence order of two years less one day followed by a three-year probation order. Recent Authorities [107] Recent sentencing decisions on historical sexual assaults indicate a trend away from conditional sentence orders in historicalsexual assaults where they may still be available. This is apparent notwithstanding the B.C.

Court of Appeal rejected the argument thenow extant mandatory minimum penalty have created an inflationary floor with respect to the appropriate range of sentence for sexualinterference of a child: R. v. Veinotte, 2016 BCCA 21 . [108] In R. v. K.R.J., 2014 BCCA 382 , var’d 2016 SCC 31 , but not on this issue, the B.C. Court of Appeal signalleda preparedness to accept more severe sentences for sexual abuse of children than may have been imposed in the past. Groberman J.A.,who wrote a dissent, but not on this issue, referred to the R. v.

Allen, 2012 BCCA 377 , in which the Court of Appeal reviewedcases from 2001 to 2012, and concluded: [57] While a range may not be detectable from these cases they do reveal the escalation in recent years in severity of sentencesimposed where children are the victims of sex offences. [109] In R. v. Rich, 2014 BCCA 24 , the offender was convicted of sexual exploitation of his daughter in 1998 when she was14 years old. The sexual activity involved removing her underwear and touching her vaginal area with his fingers and digital penetration. The trial judge sentenced Mr.

Rich to two-and-a-half years imprisonment, which he appealed. Groberman J.A., for the unanimous courtstated, at para. 18: [18] I also agree with the Crown’s observation that “as society becomes more aware of the impact of sexual abuse on children, therehas been an escalation in the severity of sentences imposed where children are the victims of sexual offences”. [110] R. v. G.J.S., 2014 BCSC 1105 , is a sentencing decision of an offender convicted of sexually assaulting his step-daughter between 1993 and 1999, beginning when she was about five years of age.

The offence involved sexual touching, almost daily,with at least three instances of complete or partial penetration. G.J.S. had no criminal record. Madam Justice Holmes imposed asentence of three-and-one half years’ imprisonment. [111] In R. v. F.E.H. 2015 BCSC 175, Justice Abrioux held a conditional sentence, if available, was not fit for historical sexualoffences against two children (paras 61-62). At para. 66, Justice Abrioux cited the following passage from Justice Romilly in R. v.B.S.B., 2008 BCSC 1526 stated: [66] In R. v. B.S.B., 2008 BCSC 1526 , Mr.

Justice Romilly, paraphrasing the views of the Supreme Court of Canada in R. v.Stone, (SCC), [1999] 2 S.C. R. 290, stated at para. 30: [30] In fashioning the appropriate sentence in each case, judges must be conscious of prevailing social values and seek to bringsentences into harmony with them.

This is particularly so when the principle of denunciation comes to the fore. [112] Justice Abrioux reviewed a number of authorities of sexual assaults against children and concluded the principles of deterrenceand denunciation would not be achieved by a conditional sentence and imposed a jail sentence of 20 months jail for one victim and 18 forthe second victim, for a total of 38 months. [113] In R. v.

J.K., 2015 BCPC 246 , Judge Callan sentenced the offender after a guilty plea to one count of sexualexploitation (s. 153 of the Criminal Code), for sexual touching of the twelve year old victim between 1989 and 1991. The first timeoffender was the victim’s pastor. Judge Callan imposed a 12 month jail sentence followed by two years’ probation, stating at para. 31: [31] Parents have to feel confident that in leaving their children in the charge of another adult, be it teachers, pastors or babysitters,their children will be safe and will not be sexually assaulted.

In the case of an offender who is in a position of trust, and uses thatposition to perpetrate the sexual exploitation of a young person, denunciation will be achieved through a jail sentence unless there areexceptional circumstances which militate towards a Conditional Sentence Order. [114] R. v. D.G.J., 2016 BCPC 99 , Judge Field also rejected a conditional sentence for a first time offender charged withsexual interference contrary to s. 151 of the Criminal Code of his step-granddaughter which occurred from 1997 to 2003, when she wasunder the age of 14. Judge Field relied on Justice Goepel’s decision in R. v.

J.L.C., 2012 BCSC 623 . Notwithstanding his early

guilty plea, advanced age, genuine remorse, and his lack of criminal record, Judge Field found a conditional sentence order would not beconsistent with the fundamental principles of sentencing in s. 718 to 718.2 of the Criminal Code. He imposed sentence of one yearimprisonment followed by two years’ probation. [115] T.D.F. is a sentencing decision of Mr. Justice Abrioux of an offender after a late guilty plea to sexual interference of the daughterof his common law spouse which occurred between January 1, 2007 and January 1, 2013, near Fort St. James, B.C.

At this time, thechild was between the ages of 9 and 15 and involved the offender touching the victim’s vagina and directing her to touch his penis. Justice Abrioux refers to a number of decisions in which the court imposed a custodial sentence of three-and-a-half years to five yearsfor sexual abuse of a child involving an abuse of trust. These decisions included: R. v. G.J.S., 2014 BCSC 1105 ; R. v. D.R.W.,2012 BCCA 454 ; R. v. J.G.B., 2008 BCSC 1069 and R. v. R.E.L., 2010 BCCA 493 .

Justice Abriouxsentenced T.D.F. to 30 months imprisonment. [116] Society’s growing understanding of the devastating impact of sexual abuse on children is apparent from the plain language of s.718.01, enacted in November 2005. In R. v.

O., 2012 BCCA 129 , when discussing the parliamentary intent of s. 718.01,Madam Justice Bennett, for the appellate court stated, in part: [75] … Parliament, making a clear statement addressed to the relative power positions of adults and children, the dependency ofchildren, and the obligations of adults towards children, has assigned primary consideration to the objectives of denunciation anddeterrence [117] In R. v.

Worthington, 2012 BCCA 454, the offender appealed a sentence of four years’ incarceration imposed by a ProvincialCourt Judge, on one count of sexual assault over 18 months between March 2007 and October 2008, against his step-daughter when shewas 14 and 15 years old. In dismissing the appeal, Saunders J.A., for the court, described the effect s. 718.01 an “attempt by Parliamentto re-set the approach of the criminal justice system to offences against children”: (para. 32).

Upon referencing the recent spate oflegislative action to protect young people from sexual abuse, Justice Saunders states at para. 34: [34] With these observations, I would say that the range of sentences drawn from a former era may not reflect the appropriate balanceof principles now required by the Criminal Code. [118] The appellate court in Worthington cites R. v.

R.E.L., 2010 BCCA 493 as “the most useful recent case in this jurisdictionpointing to the serious consideration that must be given to cases of abusive, trust-breaking sexual offences against children.” In R.E.L.,the court imposed a five year prison sentence for the sexual assault of a step-daughter, for about six years, commencing when she wassix years old. The assaults included fondling, oral sex, and attempted intercourse. The accused pleaded guilty, had no prior record,expressed remorse, and sought treatment. [119] In R. v.

Wesley, 2014 BCCA 321 concerned three incidents of sexual assault on the niece of the offender’s girlfriendand involved fondling and directing the child to touch the offender. The Court of Appeal upheld a sentence of five years after a guiltyplea. [120] Finally, on December 14, 2016, the Court of Appeal allowed a Crown appeal in R. v. Vautour, 2016 BCCA 497 from aconditional sentence order imposed on an offender who pleaded guilty to sexual interference committed against the daughter of hisformer partner. The child was around five when the abuse started and it continued for four-and-a-half years.

The offences took placeover twenty years ago. The aggravating factors included the breach of trust, the impact of the victim, the length and frequency of theabuse.

The mitigating factors included the offender’s guilty plea, the expression of remorse both before and after his arrest, the fact thathe has been “a positive and contributing crime-free member of society for a very long time since the offence and has the full support ofhis family and community”. [121] Madam Justice Kirkpatrick for the unanimous court concluded a sentence of two years less a day was demonstrably unfit inview of the seriousness of the offence and the culpability of the offender.

She found the sentence imposed by the trial judge wasinsufficiently denunciatory and failed to respect the fundamental principle of proportionality. [122] Justice Kirkpatrick considered the Defence authorities where the court imposed a sentence of less than two years, and stated: [52] … As can be seen, these cases, while they do represent sentences of less than two years, are dated. In my view, they do notreflect society’s current awareness of the impact of sexual abuse on children and the concomitant escalation in the severity of sentencesimposed: see R. v. Allan, 2012 BCCA 377 and R. v.

Rich, 2014 BCCA 24 . [53] In my opinion, regardless of whether a CSO was an available sentence in this case, a sentence of two years less a day isdemonstrably unfit in view of the seriousness of the offence and the culpability of the offender. The sentence is insufficientlydenunciatory and fails to respect the fundamental principle of proportionality. [54] In recent years, this Court has acknowledged that for too long crimes such as this, involving children and inflicted by persons in aposition of trust, have attracted unwarranted leniency.

The Court of Appeal vacated the CSO, and substituted a 30 month jail sentence. Is a CSO an appropriate sentence in this case? [123] With respect to the Proulx criteria, I concluded a conditional sentence was not an appropriate sentence in this case for thefollowing reasons: a. Firstly, a term of imprisonment of less than two years is not an appropriate sentence for these offences. The offences against V.alone attract a sentence of at least two years. The sentence for the offences against J. and V. ought not to be concurrent as they are not“part of a linked series of acts within a single endeavour”: R. v.

Li, 2009 BCCA 85 at para. 42.

In R. v. D.N., 2015 BCSC 288 , Justice Ball considered whether the sentences for offences against the same victim ought to beconcurrent. Judge Ball states at para. 75: The factors necessary to consider when determining whether to impose concurrent or consecutive sentences include the nature andquality of the criminal acts, the temporal or special dimensions of the offences, the nature of harm caused to the community or to thevictim, the manner in which the criminal acts were perpetrated, and the offender's role in the crimes: R. v. Li, 2009 BCCA 85 ;R. v. Potts, 2011 BCCA 9 at para. 89.

In this case, the offences against J. and V. are factually different in significant ways. The offences occurred in different years; involvedifferent victims and different acts of sexual abuse. In my view, a fit consecutive sentence for the offences against J. and V. wouldexceed two or more years and therefore preclude a conditional sentence. b. Secondly, I cannot say the safety of the community would not be endangered by the Mr. C. serving the sentence in thecommunity. Dr. Joneja’s psychological assessment indicates Mr. C. is high risk of sexual violence recidivism without the necessarysafeguards in place. Mr.

C. is an untreated sex offender against young girls. In my view, the safeguards proposed by the Crown andDefence are insufficient to ensure the safety of the community. c. Thirdly, recent authorities indicate denunciation and deterrence are paramount in sentences for sexual offences against childrenand a conditional sentence order would not be consistent with those principles: R. v. S.B.T., 2010 BCCA 145 .

CONCLUSION [124] I have taken into consideration the circumstances of the offender and of the offences, submissions made by counsel, statementsof the accused, the Pre-Sentence Report, Forensic Psychiatric Assessment, the applicable provisions of the Criminal Code, case law Ihave read, and both aggravating and mitigating factors. I have considered Mr. C.’s aboriginal heritage and the systemic factors withinsociety itself and the background factors unique to Mr. C., which likely played a role in his criminal behaviour. In considering Mr.

C.’sculpability in these offences, I have not lost sight of the victims, who were young Aboriginal girls at the time and the adverse impact ofthese offences on their lives. I am also cognizant of the time it has taken to complete the sentencing process. Finally, I have consideredDefence’s submissions made today that Mr. C. accepts a custodial sentence is appropriate. [125] I have concluded that a 20 month conditional sentence is not in the public interest and would bring the administration of justiceinto disrepute.

Although the sexual interference of J.P. involved one incident which did not include penetration, she was Mr. C.’sdaughter and the offence has had a lasting impact on her life. Moreover, the prolonged sexual interference and sexual exploitation ofV.A., which included sexual intercourse and a breach of trust, requires a denunciatory sentence which a conditional sentence order doesnot satisfy. APPROPRIATE SENTENCE [126] The Crown submits if this Court were to reject a conditional sentence, then an appropriate custodial sentence ought to be at thelower end of the range of one to two years. [127] But for Mr.

C.’s submissions today, I considered an appropriate sentence with respect to the offences against J.P. as set out inCount 2 to be a one year jail sentence. I considered an appropriate sentence with respect to the offences against V.A. as set out in Counts3 and 4 to be a two year jail sentence for each offence to be served concurrently

[…]