R. v. R.K.D. Date:, 2013 BCPC 436

Citation: R. v. R.K.D. Date: 20130425 2013 BCPC 436 File No: 3405-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. R.K.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS

Counsel for the Crown: J. Riddle Counsel for the Defendant: A. Wolf Place of Hearing: North Vancouver , B.C. Date of Hearing: April 25, 2013 Date of Judgment: April 25, 2013 [ 1 ] THE COURT: On May 24th, 2012, Mr. D. pled guilty to a charge of sexual assault under s. 271(1) of the Criminal Code , which was alleged to have occurred March 1, 2012, in Mount Currie. The sentencing did not commence until September 13, 2012. It was then adjourned over for reports to be prepared and the sentencing continued January 31st. It was then adjourned again for my decision today. [ 2 ] The victim in the matter was Mr.

D.’s son's girlfriend. She was 15 years of age. She and Mr. D.’s son were living with her family at the time, but visiting at the accused's home on the day in question. Many people in the home had gone out for various reasons that morning, leaving Mr. D. and the victim home alone. Prior to Mr. D.'s wife leaving, there had been arrangements made for the victim to be able to watch television in the master bedroom. As she was lying on the bed watching television, the accused was coming in and out of the room and chatting with her.

At one point, he reached over and began tickling her and also was tickling her legs and she pushed his hand away. [ 3 ] Later he came to the bed, lay down beside her and grabbed a hold of her toe, which he held for a short period of time, then his hand moved up her lower leg and eventually to the knee area and the victim's impression was that he was trying to pull her legs apart. He then moved his hand up under her shirt towards her breasts. She believed there was some contact with one of her breasts under her clothing.

He then slid his hand down under her pants, placing his fingers under her panties near her pubic area. She then pushed him away and said, "Don't," and he said, "Okay." [ 4 ] At some point the accused had asked her why she had stayed home and she took this as suggesting that in his view she had done so to be alone with him. She disclosed that day to her boyfriend, the accused's son, and soon after to a counselor, her mother and then the police. [ 5 ] A Pre-Sentence Report was prepared in this matter and the victim impact information indicates the victim was traumatized by this assault.

She described being very frightened at the time and she reports that she continues to be fearful of the accused. She has suffered nightmares, sleeplessness and anxiety and not surprisingly she harbors great anger towards Mr. D. [ 6 ] Mr. D. has a limited and dated criminal history. He has one conviction in 1990 when he was age 18 for a mischief. He received probation with community work service and restitution. In 1994 he was convicted of spousal assault and received probation for nine months. He is now 41 years of age. He has spent his entire life in the Mount Currie area.

He came from what he describes as an intact family with two siblings. His mother passed away about 12 years ago but his father is still alive. He achieved a Grade 12 education. He has been involved in a common-law relationship for 20 years and there are four children of that relationship: a 19-year- old, a 17-year-old, who was the boyfriend of the victim in this matter, an 11-year-old and a five-year-old. [ 7 ] After graduating from high school he spent many years as a [omitted for publication] in the forests. For the last eight years, he has been a [omitted for publication].

He was laid off for a period of time but commenced work again in the early part of this year. He and his wife are not experiencing any financial difficulties. He has no health, mental health or substance issues, although he does use marihuana regularly. [ 8 ] Prior to the Pre-Sentence Report he had begun attending one-on-one counselling for sex offenders with a counselor who works for Community Corrections in this area. That counselor, Ms. Beveridge, reports that Mr. D. is motivated with respect to his counselling and could benefit from more intense sex offender treatment.

She also recommends that he continue with individual counselling following the Sex Offender Treatment Program. He will be required to travel to Vancouver for the more intensive program and that will be on a once-a-week basis. The Band is able to assist with finances for transporting him there and back. [ 9 ] He is a member of the [omitted for publication] First Nation. He is connected to and active within his band and is involved in various cultural practices.

He reports being very proud of his First Nations heritage. [ 10 ] As the Pre-Sentence Report points out, the entire Nation has been impacted by contact, the reservation system, the residential school system and all of the other factors enumerated in Gladue and Ipeelee . It is of note that in the reports Mr. D. did not mention a very notable factor in his upbringing, which was that his father served a significant sentence in the 1990s for sexual offences. That omission in his history is telling, as there are other issues which Mr. D. is struggling with. [ 11 ] At his hearing, through counsel, Mr.

D. has made clear that he agrees with the circumstances as set out by the Crown and alleged by the victim. However, in the Pre-Sentence Report and psychiatric report he gave a minimized version of the events. Yet, on two occasions he has made clear through counsel that he accepts the facts as I have laid them out. [ 12 ] In the Pre-Sentence Report it says under "Attitude and Understanding Regarding the Offence": Furthermore, Mr. D. claims that the offence was not sexually motivated and he only committed the offence as a way of scaring the victim.

He says he was upset with the victim for the way she was treating his son, M., while he had been living with the victim and her family for the past year. He informed that he hoped his actions would scare the victim into breaking up with M. Mr. D. believes that he did scare the victim, but realizes that his actions were inappropriate. Mr. D. says he is remorseful and regrets his actions.

[ 13 ] The psychiatric report and Pre-Sentence Report also contain references to Mr. D. blaming the victim for reporting the incident, although he has admitted that he assaulted her and in a significant and very damaging way. He then attributed her disclosure to bad feelings about him. In particular, he pointed out that he had had a relationship early in his life with the victim's aunt which produced a child and that Mr. D. has had to financially support that child over its life which has impacted his ability to support his current common- law and four children.

In my view, logically, this is a reason for him to resent the victim and her family, but not a reason for the victim to hold any resentment towards him. [ 14 ] The psychiatric report states as follows under "Impressions": Mr. D. does not appear to have any mental health issues to complicate sentencing. During the interview he was stable and did not exhibit any symptoms of anxiety or depression. However, from a psychological standpoint he appears to be rather unsophisticated and lacks insight. He does not exhibit antisocial personality traits.

To the contrary, he presents as generally prosocial and responsible, matter-of- fact, hardworking and empathetically connected to others. Unfortunately Mr. D. remains in denial. While he admits sexually touching the victim he denies that he acted on a sexual impulse or that he had any sexual thoughts about the victim. He offered the alternative motive of wanting to create distance between his and the victim's families. Such denial does not necessarily equate with a lack of remorse.

He may be too embarrassed or fearful of the judgments of others to admit his attraction to the victim and his attempt to initiate sexual activities with her. In the next paragraph the psychologist notes that Mr. D. represents a relatively low risk for further offending. Under "Recommendations" it states as follows: Given Mr. D.'s denial he is not a particularly good treatment candidate. However, once he is sentenced and in treatment he may feel more comfortable discussing his offence.

The treatment setting may provide him with enough confidentiality and insulation from the Mount Currie community that he can disclose information he may feel too embarrassed to disclose prior to sentencing. Possible individual treatment may create an environment in which he feels even safer than in a group setting. [ 15 ] The mother of the victim has attended court and has spoken on her daughter's behalf by way of victim impact and also on invitation by the court to have some input in the sentencing process. Not surprisingly, she has expressed a concern that Mr.

D. does not appreciate the serious nature of his conduct, nor understand or accept the profoundly negative impact his conduct had on the emotional well-being of the victim. She also spoke to the larger impact on the entire family on both sides. Of course there is the young couple, one in each of the families.

There is also a further family connection from early on in life and both families are resident on the Mount Currie Reserve. [ 16 ] I will pause to comment that some people in the community have voiced what I will describe as an utterly anachronistic and ignorant point of view that somehow the victim is to blame in this sexual assault. The victim was a 15-year-old child. The accused was a sober, mature and responsible adult. On his own version of the events, it is clear and unequivocal that he is solely responsible for his offending behaviour and so it is, not only in fact but in law, in any such circumstance.

No 15-year-old child, male or female, should be seen to be responsible for the morally depraved actions of an adult, in sexualizing them and preying upon their defencelessness and innocence. [ 17 ] Mr. D., I accept, does bear responsibility for his actions and I accept that he is, in his own way, remorseful. He entered a plea within a month of the charges being laid. He has admitted to the facts as alleged by the Crown.

I accept, both as a result of the submissions of counsel and the observations in the psychiatric report, that he is unsophisticated about the emotional and psychological dynamics involved in his offending behaviour. I accept that he lacks insight. It is clear he is ashamed, it is clear he is embarrassed by his conduct and I accept that the psychiatric observations of his likely reasons for denial are apt. [ 18 ] As I have already pointed out, Mr. D. remains in denial about other issues in his life and it is likely that there are historical factors which have impacted him, but which he continues to deny.

It is very important for Mr. D. to engage in counselling, which he has already undertaken, as well as sex offender treatment, to come to an understanding about why he acted out in the fashion he did. [ 19 ] Mr. D. wants the victim to know that it is not her fault and that he is solely responsible and I accept that. He has, through counsel and on his own, sought forgiveness from the victim, her family, the extended family and the community.

He acknowledges that he will need to serve out his punishment and engage in rehabilitative services and reparation to regain the trust and respect of his family and the community. [ 20 ] I find that Mr. D. actually does acknowledge the inherently violent nature of sexual assault. His actions on that day speak to his intent to have sexual contact, even if solely for the purposes of intimidation. I find that what Mr.

D. denies is that he had any seductive or romantic feelings towards the victim at the time. [ 21 ] The Crown in this matter suggests a range of nine months to 18 months, the lower range being a fit or appropriate sentence for an institutional period of incarceration, the upper end being more suitable for a community-based disposition. This is an offence which is aggravated, it is a breach of trust and according to s. 718.01, the primary considerations for the court should be denunciation and deterrence. There is also an aspect of protection of the public, although Mr.

D. remains a low risk to reoffend. [ 22 ] The court must also address the needs of the victim. They both reside in the same small community and it is important that she be able to feel safe in her community. I must also consider the fact that these families are intertwined and that there is a need for healing. I have to consider the collateral effects of any sentence on Mr. D.'s wife and his four children. Although I must give primary consideration to denunciation and deterrence, I must also consider and balance Mr. D.'s prospects for rehabilitation, which are good. I am also taking into account the fact that Mr.

D. has faced the uncertainty as to whether or not he will be sent away to an institution for a lengthy period of time or whether he will be able to remain in the community. This cannot have been an easy period of uncertainty for him and it has now gone on 11 months, despite his very early plea.

[23] During the sentencing proceedings I invited input from the community about ways to facilitate healing for everyone. Mr. D. isa person of otherwise good character. He will remain a person stigmatized as a sex offender, potentially forever, given the small natureof this community. He will be subject to the Sex Offender Information Registration Act for a period of 10 years.

There is also arecognition, not only in this community but others, that sexual offending among First Nations people is connected to the breakdown oftheir culture and families and the residential school system. [24] No cases were cited by counsel in this matter. However, I refreshed myself by referring to a number of recent decisionsinvolving sexual assaults committed by First Nations offenders. So I have once again considered R. v. Ipeelee, 2012 SCC 13 ,[2012] 1 S.C.R. 433. I have also considered R. v. S.D.R., [2012] B.C.J. No. 2446; R. v. R.V.C., [2012] B.C.J. No 2856; R. v. F.R., [2012]N.W.T.J. No. 42; R. v.

R.P.B., [2011] Y.J. No. 12; R. v. Alkenbrack, [2011] B.C.J. No. 2612; and R. v. Alkenbrack, [2011] B.C.J. No.2613; R. v. S.R.S., [2010] Y.J. No. 38; R. v. Williams, [2011] B.C.J. No. 777; R. v. Paulin, [2011] O.J. No. 3920; R. v. F.A.B., [2012]B.C.J. No. 2138; R. v. R.A., [2010] Y.J. No. 108. [25] All of these cases make clear that the range of sentence as proposed by counsel is indeed an appropriate range for this offenderand this offence.

Those cases also make clear that although the primary consideration for the court in sentencings involving violations ofthe sexual integrity of children should be denunciation and deterrence, that all factors in sentence must still be balanced and anappropriate sentence for the offender in the particular circumstances must be determined and crafted. [26] I find in all the circumstances and given there is no minimum penalty and that an appropriate range of sentence is less than twoyears and because I am confident that Mr.

D. can safely serve his sentence in the community, that a conditional sentence order would beconsistent with the fundamental purpose and principles of sentence as set out in s. 718 to 718.2. That conditional sentence must addressthe issues of denunciation and deterrence. It will be a lengthy sentence, it will involve strict terms, including house arrest, a curfew andcommunity work service. I hope in this way, to balance all of the principles of sentence and to allow Mr. D. to continue to be ahardworking person supporting his family, as well as to make reparation to the victim and to the community. [27] Mr.

D., if you will stand. Mr. D., there will be a conditional sentence order of 18 months, to be followed by probation for twoyears. You can be seated again. [28] So, Mr. D., the statutory conditions will be that you keep the peace and be of good behaviour, appear before the court whenrequired to do so by the court. You are to report in person today to a conditional sentence supervisor at 1366 Aster Street in Pemberton,British Columbia, and thereafter as and when directed by the conditional sentence supervisor.

You must remain within the Province ofBritish Columbia unless written permission to go outside the province is obtained from the court or the supervisor. You must notify thesupervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. [29] Now, could I see the bail document just for the no contact, no go. [30] THE CLERK: Yes, Your Honour.

I have an undertaking. [31] THE COURT: So what I have is this and we can have some discussion about this if this is not appropriate. [32] You are to have no contact directly or indirectly with H.P., save and except for participating in any victim-offenderreconciliation program to which she consents to participate in in advance. [33] You are not to be found within 100 yards of any known residence, place of employment or education of H.P. You are not toattend to [omitted for publication] in Mount Currie. You are not to be found within 100 yards of the [omitted for publication] from 7:30a.m. to 6:00 p.m.

Monday to Friday or any other days school is in session, save and except while in transit in a motor vehicle. [34] You will attend for, accept and complete any counselling or assessments, including any sex offender treatment or reporting tothe Forensic Psychiatric Outpatient Clinic as your supervisor requires. [35] You will abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in theControlled Drugs and Substances Act, save and except according to a medical prescription and then only according to the dosageprescribed. [36] You will be bound by a house arrest curfew for the first nine months of your conditional sentence.

You must be inside yourresidence at all times, save and except for attending to medical emergencies for yourself or any member of your immediate family orreporting to your supervisor as your supervisor requires. [37] Your supervisor may give you written permission to be outside your residence for the purpose of going directly to your place ofemployment and working and returning home immediately thereafter; to attend to any counselling, assessments, programming or culturalactivities approved of in advance by your supervisor; attending to your personal errands for three hours twice per week; attending ameeting of any organized religious faith. [38] I will hear from counsel as to whether or not there are any other exceptions to that curfew. [39] For the last nine months of your conditional sentence you will be bound by a curfew of 10:00 p.m. to 6:00 a.m. daily. [40] You must present yourself at the door of your residence immediately upon the demand of any peace officer or your supervisorto determine compliance with the curfew condition of this order. [41] You will perform 200 hours of community work service under the direction and to the satisfaction of your supervisor orcommunity work service officer.

Those community work service hours are to be done for the benefit of the Mount Currie Band. [42] You will participate in any cultural healing practices or ceremonies as directed by your supervisor.

[ 43 ] You are not to be found in possession of any knives, except for the immediate preparation or consumption of food or such knives as are necessary to carry out the duties of your employment at your place of employment. [ 44 ] You are not to be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things and any related authorizations, licences and registration certificates pursuant to the Criminal Code . [ 45 ] Does he have any such items to surrender? [ 46 ] MR.

WOLF: I don't know, Your Honour. He indicates no, Your Honour. [ 47 ] THE COURT: All right. You are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code of Canada . [ 48 ] All right. You will attend the Warriors Against Violence Program and complete same to the satisfaction of your supervisor. I am hopeful that program is going to be offered here. [ 49 ] So let me just pause there. Any other terms or comments about the CSO? [ 50 ] MS. RIDDLE: Just with respect to the curfew.

I do not think there was allowance for community work service, performing his hours. [ 51 ] THE COURT: Thank you. So that will be included. Mr. Wolf, any comments or concerns about the -- [ 52 ] MR. WOLF: No, Your Honour. [ 53 ] THE COURT: The terms of the probation will be that you are to keep the peace and be of good behaviour.

You must report within 72 hours of the conclusion of your conditional sentence in person to a probation officer at 1366 Aster Street in Pemberton, B.C., report thereafter as and when directed. [ 54 ] You are to have no contact, direct or indirect, with H.P., save and except for participating in any victim-offender reconciliation program to which she consents to participate in in advance. [ 55 ] You are not to attend to [omitted for publication] in Mount Currie. You are not to attend any place of residence, employment or education at which you know H.P. to reside, work or attend.

You are not to be found within 100 yards of the [omitted for publication] from 7:30 a.m. to 6:00 p.m., Monday to Friday, or on any other days school is in session, save and except while in transit in a motor vehicle. [ 56 ] You will attend for, accept and complete any counselling or assessments or sex offender treatment as is directed by your probation officer and complete same to the satisfaction of your probation officer. [ 57 ] Are there any other terms Crown wants to see on a probation order? Other than no contact, no-go, counselling? [ 58 ] MS.

RIDDLE: Nothing comes to mind, Your Honour, at this point. [ 59 ] THE COURT: All right. Mr. Wolf, is there anything? [ 60 ] MR. WOLF: No, Your Honour. Thank you. [ 61 ] MS. RIDDLE: Your Honour, I did check with Ms. J. about the conditions of no contact with H. She expresses a concern about grad but I didn't hear her out, so I don't know whether she could -- [ 62 ] THE COURT: Oh, okay. Do you want to come forward, Ms. J., and just -- I know you did have a concern about grad. [ 63 ] MS. J.: Grad is coming up in June and obviously the mom, B., wants R. there. [ 64 ] THE COURT: How does H. feel about that? [ 65 ] MS.

J.: We were already told that he would not be able to attend, but it's, like, hearsay within the families. They said that H. could go to the grad and that he would have to miss out. [ 66 ] THE COURT: That is appropriate in the circumstances. Is she going with M.? Is M. graduating? [ 67 ] MS. J.: Yes, M.'s graduating. [ 68 ] THE COURT: Well, I can certainly include that as a specific term, that he is not to attend the graduation ceremony for the class of, I guess it is the class of 2013.

So as a part of the conditional sentence order I will provide that you are not to attend any graduation ceremonies for the graduating class of 2013 from [omitted for publication]. You simply will not be able to attend those. [ 69 ] Anything else, Ms. J.? Okay. [ 70 ] Now, I am going to order that he provide a sample of his DNA. It is on the primary ground, I believe. And so you have a Sex Offender Information Registry order? [ 71 ] MS. RIDDLE: Apparently now I don't need to have -- apparently it's all done now --

[ 72 ] THE COURT: Oh, okay. [ 73 ] MS. RIDDLE: -- through the registry and it would be -​- [ 74 ] THE COURT: So I will make -- [ 75 ] MS.

RIDDLE: -- a 10, Your Honour. [ 76 ] THE COURT: -- the order that you be subject to the Sex Offender Information Registry Act provisions for a period of 10 years. [ 77 ] Pursuant s. 110 of the Criminal Code for a period of 10 years you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things and any related authorizations, licenses and registration certificates pursuant to the Criminal Code . [ 78 ] MR.

WOLF: I'll explain some of that in a little more detail to make sure that he understands everything. [ 79 ] THE COURT: Yes. [ 80 ] THE CLERK: Is there reporting for the DNA, Your Honour? [ 81 ] MR. WOLF: Perhaps he can -- [ 82 ] THE COURT: I guess he would just go to the Pemberton RCMP. [ 83 ] MR. WOLF: Yes. [ 84 ] MS. RIDDLE: He actually goes to the Mount Currie Tribal Police office -- [ 85 ] THE COURT: Okay. [ 86 ] MS. RIDDLE: -- and -- Monday to Friday during -- [ 87 ] THE COURT: Okay. [ 88 ] MS.

RIDDLE: -- office hours. [ 89 ] THE COURT: So I will just provide that you must attend to provide a sample of your DNA to the Mount Currie Tribal police Monday through Friday, 9:00 to 5:00? [ 90 ] MS. RIDDLE: I would say 4:00. [ 91 ] THE COURT: 9:00 to 4:00. Okay. Between the hours of 9:00 a.m. and 4:00 p.m. by no later than May 3rd. [ 92 ] MR. WOLF: Thank you, Your Honour. [ 93 ] MS. RIDDLE: And I direct a stay of proceedings on Count 1. [ 94 ] THE CLERK: Is there a victim surcharge, Your Honour? [ 95 ] THE COURT: I will waive the victim fine surcharge. [ 96 ] MS. RIDDLE: Thank you. (REASONS CONCLUDED)