R. v. C.A.S. Date:, 2015 BCPC 241

Citation: R. v. C.A.S. Date: 20150909 2015 BCPC 0241 File No: 3407-C-3 Registry: McBride IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C. A. S. REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL BAN ON PUBLICATION

SECTION 486.4 C.C.C. Counsel for the Crown: G. MacDonald Counsel for the Defendant: J. LeBlond

Place of Hearing: McBride , B.C. Dates of Hearing: July 11, October 14 and 31, 2014; April 22, 2015 Date of Judgment: September 9, 2015 INTRODUCTION [ 1 ] C. A. S., the Defendant, entered guilty pleas on October 31, 2014 and May 10, 2013, respectively to the two Counts on Information No. 3407-C-3 namely:

a) Count 1: C. A. S., between the first day of January 1993 to the 21 st day of March 2000, inclusive, at or near [omitted], in the Province of British Columbia, did, for a sexual purpose, touch directly or indirectly, with a part of his body, the bodies of C.S. and S.P., persons under the age of 14 years, contrary to

section 151 of the Criminal Code ; and

b) Count 2: C. A. S., from the 15 th day of July 1971 to the 31 st day of December 1980, inclusive, at or near [omitted], in the Province of British Columbia, did commit the act (or acts) of gross indecency with H.R., H.L. and J.K., contrary to

section 157 of the Criminal Code . [ 2 ] The Defendant was between the ages of 29 and 38 when he committed the offences described in Count 2 and between the ages of 51 and 58 when he committed the offences described in Count 1. [ 3 ] He committed these offences when the Complainants were as young as six and as old as 14. Some were victimized only once, some were victimized on a few occasions and some were victimized on numerous occasions. They were the Defendant’s own children or adopted children in Count 2, and foster children in Count 1.

In each case the Defendant abused a person under the age of 18 years and abused a position of trust or authority in relation to them. [ 4 ] The Crown submits that the range of global sentences for all the offences is between 18 months and 3 1/2 years’ incarceration but requests a sentence of two years in a federal penitentiary followed by three years of probation with strict terms. The Crown also seeks a firearms prohibition under

section 109 of the Code , an area prohibition order under

section 161 of the Code , a mandatory DNA order under

section 487.04 of the Code and an order under

section 490.012 for registration under the Sex Offender Information Registration Act ( SOIRA ) for a period of 15 years. [ 5 ] Defence counsel submits that the appropriate sentence for the Defendant would be a Conditional Sentence Order (CSO) of between 18 and 24 months followed by a two year term of probation with some restrictions.

Defence counsel made no submissions on the ancillary orders sought by the Crown except to agree with the proposed SOIRA order. [ 6 ] After three days of submissions by counsel on July 11, October 15, and October 31, 2014, the Court determined that it required a psychiatric and psychological report with a risk assessment on the issue of the Defendant’s risk to sexually reoffend in order to properly consider and determine a just and appropriate sentence.

Further submissions on that report were made on April 22, 2015 and sentencing was reserved to a date that would permit the Court to provide its Reasons for Sentence in M., near where the Defendant lives, a circuit location infrequently attended by the Court. DEFENDANT’S PERSONAL HISTORY Criminal History [ 7 ] The Defendant has no criminal record. Since his arrest and release on these matters he has been fully compliant with the terms of his recognizance. Family History [ 8 ] The Defendant was born on [omitted) in [omitted]. He was one of two siblings raised in a loving family environment.

He was never abused physically or sexually. [ 9 ] In 1962 he married his first wife, J.S., and they lived in [omitted] for several years. During that time they had five natural and adopted children including J.K. born in 1965, H.R. born in 1966, and H.L. born in 1969. [ 10 ] The family moved to Canada in 1971 and eventually homesteaded near [omitted], near M. in 1972.

As time passed many of the Defendant’s extended family came to reside in the M. area. [ 11 ] Initially the family lived in a bus but a small home was constructed on their property in 1973 and an addition was added in 1979. [ 12 ] The Defendant and J.S. adopted three more children in the early 1980’s. [ 13 ] In 1985 the Defendant commenced an affair with C.M. and soon after separated from J.S. The Defendant commenced a

common-law relationship with C.M. later in 1985. He was divorced from J.S. in 1988. He married C.M. in 2005 and they remain together. [ 14 ] In 1993, after a review by the Ministry of Children and Family Development (MCFD) the Defendant and C.M. became foster parents to C.S., N.P. and S.P. They were part of the family for several years until C.S. left. The others remained until 2000 when they moved back to their First Nation community.

During that period of time the Defendant and C.M. also fostered three other children for various periods of time. [ 15 ] On July 25, 2001, the Defendant and C.M. became parents to fraternal twins, T.S. and L. S. who are now 14. They all lived together as a family on the homestead until March 2012 when the Information was sworn, the Defendant was arrested and released on bail. Since then the Defendant has remained living on the homestead while C.M., T.S. and L.S. reside in [omitted] where C.M. works in the local general store.

Education and Employment [ 16 ] The Defendant left school in Grade 11 but subsequently obtained his Grade 12 as an adult. For a while he worked in the family business as a pipe organ technician.

He has also worked in a variety of occupations over the years, primarily as a labourer, in such places as a machine shop and a manufacturing facility, and in industries like railway, forestry, tree planting and firefighting. [ 17 ] In his later years the Defendant has maintained himself through a variety of government pensions, “living off the land”, and through C.M.’s employment, from which the family also obtains groceries, fuel and animal feed. Health [ 18 ] The Defendant is now 73 and is generally in good health.

He does have some health issues including arthritis, high blood pressure and a vulnerable respiratory system arising from exposure to smoke and industrial chemicals. [ 19 ] For the past 40 years the Defendant has maintained a strict and somewhat unconventional diet. He eats a variety of plants harvested from nature and fruits, vegetables, eggs and meat that he raises or obtains from other reliable sources.

When he was briefly incarcerated at the time of his arrest in 2012, the Defendant refused to eat the food provided at the correctional centre referring to it as a “cancer diet”. [ 20 ] The Defendant’s counsel submitted that the Defendant is now suffering from memory issues which leave him with little, if any, recollection of some of the allegations made against him in the Information, but that he does generally accept that the allegations did occur. [ 21 ] The Defendant used alcohol throughout his adult life but has reportedly ceased using that substance in the autumn of 2012.

Both his former and present wife described his alcohol use over the years as regular and occasionally excessive and one of the reported reasons for him ceasing its use in 2012 was because of the disapproval of C.M. [ 22 ] The Defendant was a marijuana user on practically a daily basis since the 1970’s consuming it at all hours of the day and evening. His former wife reported that despite this regular use of marijuana, the Defendant did not seem to suffer from any memory diminishment.

Defence counsel submitted that the Defendant has now ceased marijuana use. [ 23 ] There is no indication that the Defendant has suffered, or is suffering, from any ongoing psychotic or debilitating mental illness or disorder but he has accessed mental health resources occasionally during his adult life. Lifestyle [ 24 ] The Defendant’s former wife reported certain actions and behaviours of the Defendant which concerned her over the years.

In the early years of their relationship they lived in a very small home which required them to engage in lovemaking in the same room where they and the children slept. [ 25 ] She also noted that it was not unusual for the Defendant to stretch out naked on the floor in the presence of the children from the time they were very young to wash his hair. [ 26 ] As the children grew older they began to express to J.S. that they wished more privacy than the small home could provide.

The Defendant and J.S. had numerous disagreements over the housing situation until the Defendant agreed to build an addition onto the home to allow everyone more space and privacy. THE COMPLAINANTS AND THE OFFENCES [ 27 ] Based on the submissions of counsel, the details of the offences committed by the Defendant are set out below. Count 2 - Gross Indecency 1971 -1980 [ 28 ] J.K. was interfered with on one occasion when she was between the age of nine and eleven.

She was in bed and the Defendant rubbed her abdomen and pubic area and pushed his penis against her body but nothing further occurred. [ 29 ] H.L. was interfered with on one occasion when she was between the ages of ten and eleven when the Defendant rubbed her arms and vagina and pushed his penis against her vagina while asking her "does it feel good" but neither penetrated her or ejaculated. [ 30 ] H.R. was interfered with on six separate occasions when she was between the ages of six and thirteen.

These incidents included rubbing her arms and breasts, licking her vagina on several occasions, simulating sex while clothed, fondling her vagina, and attempting intercourse. The Defendant stopped any further interference with her when she confronted him and told him to leave her alone.

Count 1 - Sexual Interference 1993 - 2000 [ 31 ] S.P. was interfered with on several occasions when she was between the ages of nine and twelve when the Defendant would rub her breasts and legs over her clothing and under her clothing. That behaviour ceased when she and some of the other children left the Defendant's home in 2000. [ 32 ] C.S. was interfered with on numerous occasions when she was between the ages of twelve and fourteen when the Defendant would rub her bare breasts and vagina. The incidents ceased when C.S. firmly pushed the Defendant away after an incident and told him to stop.

She left the Defendant's home before the 2000 disclosure by S.P. THE VICTIM IMPACT STATEMENTS [ 33 ] Four of the five Complainants provided Victim Impact Statements. S.P. could not be located. [ 34 ] Some of the Victim Impact Statements contained impermissible comments by the authors pertaining to such things as the appropriate sentence to be imposed, criticism of the Defendant and assertions of fact concerning the offences.

As several of the cases provided by counsel point out the Court must disregard those portions of the Victim Impact Statements and focus on the harm done or loss suffered by the Complainants. [ 35 ] J.K. described how she had repressed the memory of the Defendant's sexual interference of her until some of the other Complainants came forward.

She described feelings of anger, guilt, shame, distrust and disbelief over the Defendant's assaults on her and the others and that she might have been able to prevent subsequent victimization of them had she spoken up earlier. [ 36 ] She has suffered from sleep disorders, which physically and mentally exhaust her, depression, hypervigilance, dwindling patience and frustration. [ 37 ] She has had to explain to her own children why their grandfather, the Defendant, cannot be a part of their family and there have also been detrimental effects on her relationship with her extended family, particularly her mother. [ 38 ] She has found strength in her long-term relationship with her partner and her role as a mother to her children. [ 39 ] H.L. described her shock and disbelief at the time the Defendant interfered with her.

As a child she thought that it was somehow her fault and that if she said anything it would destroy the family. [ 40 ] She described retreating inside herself becoming detached from friends and family and mourned the loss of her innocence and despite trying to repress the memories they were always there. [ 41 ] Once the other Complainants came forward with their allegations the memories flooded back and she felt anger, regret, and guilt because had she said something at the time it might have prevented others being abused.

She found it particularly difficult to tell her husband, her children, her mother and her siblings. [ 42 ] She felt obligated to support other family members dealing with their feelings and finds that emotionally exhausting. The reaction of her children when they were told about the Defendant's crimes was heart-breaking to her. [ 43 ] H.R. described herself as a strong person able to overcome adversity but that she felt fear, disgust, anger and frustration with a system that would permit the Defendant to take more children into his care.

She has found strength in her role as a mother to her children, being protective of them and all children. [ 44 ] She expressed pity for her mother who she described as guarded and who spent years being secretive and acting like they were a normal family. [ 45 ] C.S. described the effects of the Defendant's assaults as leaving her exhausted, empty and with a deep disgust of living to the point of serious suicidal ideation.

She had been molested by two other father figures before the Defendant. [ 46 ] She also recounted the effects of the Defendant's actions on her sister, S.P., and how she had become an angry, self-destructive and hurtful person to the point where their relationship has been torn asunder. C.S. feels additional guilt for not being able to protect her younger sister from the Defendant. INVESTIGATIONS OF THE DEFENDANT [ 47 ] In 2000, after she had left the Defendant's home, S.P. complained to the authorities about the Defendant's sexual offending against her. An investigation by MCFD and the RCMP ensued.

At that time C.S. denied any offending by the Defendant against her. [ 48 ] As part of the investigation, H.R., H.L. and J.K. were spoken to and acknowledged that they too had been offended against but refused to cooperate further with the RCMP. [ 49 ] The Defendant spoke to the RCMP as part of that investigation and admitted to some inappropriate behaviour in a limited way involving the touching of breasts, thighs and maybe vaginas, but that he stopped when pushed away and he had pushed the memories out of his mind.

No charges were laid against the Defendant at that time. [ 50 ] In 2010, C.S. went to the RCMP and filed a complaint about the Defendant's sexual offending against her. Soon after that H.R., H. L., and J.K. also came forward with their own allegations. S.P. could not be located at that time. The RCMP and the Crown relied on her 2000 statements in support of the laying of the Information. [ 51 ] During the 2010 investigation the Defendant was cooperative and accepted some limited responsibility for the alleged

offending behaviour in his dealings with the RCMP. [ 52 ] The children, T.S. and L.S., were also interviewed by MCFD and the RCMP but denied any inappropriate behaviour by the Defendant towards them. COMMUNITY REFERENCES [ 53 ] Defence counsel provided letters of support for the Defendant authored by members of the [omitted] community.

All of those letters were written after the Information was sworn but initially none of them acknowledged being aware of the charges the Defendant was facing and his guilty plea to those charges. [ 54 ] Subsequently, the authors added an acknowledgment of being aware of the charges but many did not change their views of the Defendant while others refused to believe the validity of the charges. [ 55 ] In the letters the various authors describe the Defendant in the following terms:

a) he is patient, caring and loving, and an excellent parent to all of his children;

b) he is an excellent teacher to his and other children;

c) he is knowledgeable in many areas including forestry, mechanics, conservation, farming and music;

d) he is well-known and well-respected in the Robson Valley and committed to his community,

e) he is an idealist, thoughtful, gentle, intelligent, respectful, honest, honourable and is known for being upstanding and of good character.

PRESENTENCE REPORT [ 56 ] Much of the content of the Presentence Report dated November 7, 2013, prepared by Probation Officer Paul Weisbrodt (the PSR) as it pertains to the Defendant’s personal history and related topics have already been addressed in this decision. [ 57 ] The Defendant was cooperative with the Probation Officer during the preparation of the PSR and advised the author that he could and would comply with any conditions imposed by the Court. [ 58 ] The Defendant was able to provide the Probation Officer with a very detailed written account of his personal family history.

However, when meeting with the PSR author the Defendant professed not to recall committing most of the offences before the Court but that he accepted responsibility for them. He advised the author that he had initially apologized to the victims when matters first arose in 2000 and that they should have been dealt with at the time. [ 59 ] The Defendant noted that he initially did not believe the victims were harmed because he was only touching them and there was no penile penetration. He was unable to recall when the victimization commenced describing it as starting “spontaneously”.

It was not until much later, when he had been confronted by the victims, that he realized he had caused them psychological damage which he regretted. [ 60 ] In discussions with the PSR author the Defendant attributed his offending behaviour to a combination of “having lots of testosterone” and the lack of memory due in part to working long, demanding hours on his land and then drinking alcohol and consuming marijuana in the evening.

Since then the Defendant reported that his testosterone levels have subsided and he has abstained from alcohol and marijuana. [ 61 ] The PSR author expressed concern that the Defendant's assertions concerning his inability to recall and describe the offences against the Complainants was an attempt to minimize that behaviour and avoid full accountability for his actions PSYCHIATRIC AND PSYCHOLOGICAL REPORTS [ 62 ] Soon after the initial investigation of the allegations against the Defendant in 2000 he and C.M. had three counselling sessions with Dr. Tim Paré, a Chartered Psychologist, in Jasper.

In a December 15, 2000 report, Dr. Paré noted that the Defendant and C.M. were suffering from severe symptoms of depression and general lack of motivation. At that time the Defendant acknowledged that he had been involved in some sexually abusive behaviour 25 years before but denied any other sexual abuse since then. [ 63 ] Based on those three sessions and the Defendant's assertions, Dr.

Paré stated "It is my belief that C. is not currently a risk as a perpetrator…" [ 64 ] After the first three days of submissions by counsel and at the request of the Court, a Psychiatric Risk Assessment Report (the Assessment) dated January 19, 2015 was prepared by Dr. David Morgan, Consulting Forensic Psychiatrist with the Forensic Psychiatric Services Commission. [ 65 ] Dr. Morgan noted following information he received during his meeting with the Defendant:

a) the Defendant provided detailed recollection of his life history;

b) the Defendant maintained an active sex life with C.M. on a daily or alternate daily basis when the present charges came to light in 2012;

c) the Defendant acknowledged that some of the allegations made by the Complainants were accurate but claimed he had little or no memory of the events, that with one Complainant it only happened once and with some of the Complainants there was some fabrication but he did not specify what the fabrications were;

d) the Defendant described the offences in the 1990’s as a occurring when he was "extremely horny" and that the offences were "not hurting anyone";

e) the Defendant denied any events of penetrative intercourse;

f) although the Defendant doesn't consider himself to be a risk to reoffend he would be prepared to attend the Sex Offender Treatment Program to get "back on track". [ 66 ] In the Assessment under the heading of Mental State Examination of the Defendant, Dr. Morgan said in part "The presentation of Mr. S. between his describing his history and when he was probed for details of the offences was marked.

Whereas he was loquacious and had very good recollection of his early life, he recalled very little of the offences and volunteered little information apart from when specifically probed." [ 67 ] In reporting on his Clinical Impressions, Dr. Morgan noted that the Defendant fulfilled the DSM V diagnostic criteria for Cannabis Use Disorder and Alcohol Use Disorder. Based on the information provided to him concerning the Defendant’s sexual offending against the Complainants, Dr.

Morgan determined that it was consistent with a DSM V diagnosis of Paedophilic Disorder, nonexclusive type, sexually attracted to females, limited to incest. [ 68 ] Dr. Morgan also performed a risk assessment for sexual violence on the Defendant based on the Static 99R instrument and the Risk for Sexual Violence Protocol (RSVP). Based on these tests he described several potential risk scenarios. [ 69 ] Under the heading Opinion and Suggestions for Management Dr. Morgan included the following comments:

a) Based on the risk assessments, the available collateral information in my interview with Mr. S., I would estimate that he is at moderate risk of committing further sexual offences relative to other adult male sex offenders.

b) Although Mr. S. has never before been charged with a sexual offence, this appears to be as a result of his living in isolated (sic) location and his being able to deceive others about his offending behaviour (including social workers who evaluated him as suitable to foster traumatized children, and his two wives). He has a female child who lives in the same isolated location as he would reside, in the event he were to receive a conditional sentence. Given the identified risk factors and the isolated location where Mr.

S. and his daughter would be living, supervising him in the community would likely be fraught with difficulty, particularly during the winter months. The primary prohibition of access to his daughter would therefore be the responsibility of Mr. S.’s wife; I note that Mr. S. and his current wife were together during the time he abused some of the victims.

c) There does not appear to be a risk of future sexual violence resulting in victims sustaining serious or life-threatening physical injury, but psychological harm could be very significant. From the information available to me it appears that there would be an imminent risk of further sexual offending against his daughter, were Mr. S. to return home to [omitted]. There is no evidence that Mr. S. poses a risk of general violence or criminality. Enhanced case prioritization would be required to prevent Mr.

S. from committing future acts of sexual violence. [ 70 ] While awaiting sentencing the Defendant attended some counselling sessions with Kelly Williams, M.Sc, CCC, of the [omitted]. In an October 6, 2014 report Mr. Williams noted that the Defendant had attended eight counselling sessions to reduce and cope with anxiety he was feeling and that he was proactive in his mental health well-being and was receptive to behavioural therapies. [ 71 ] However, Mr. Williams did not specify how the Defendant was being proactive with regard to his mental health or what behavioural therapies, if any, had been undertaken.

SUPERVISED VISITS REPORT [ 72 ] As a term of his bail the Defendant is only permitted to have contact with his children, T.S. and L.S., while under supervision. This supervision is conducted under the auspices of the [omitted]. [ 73 ] In a report on those supervised visits dated October 9, 2014, visit supervisor, Cathy Pittman, noted the following:

a) the visits occurred weekly for between 1 1/2 and two hours and the Defendant always arrived punctually;

b) at the beginning and end of each visit the Defendant and the children exchanged a hug, a kiss and terms of endearment;

c) throughout each visit the Defendant dominated the conversation and if either of the children brought up a subject he was often dismissive and steered the conversation back to himself and his observations;

d) the Defendant made a number of culturally insensitive comments to the children about race and the sexual orientation of others. THE LAW The Criminal Code

[ 74 ] The following portions of sections of the Code have application in this case. In the case of the substantive offence sections they reflect the wording in force when the offences occurred.

a) s. 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on

summary conviction.

b) s. 157 Every one who commits

an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

c) s. 161 When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

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

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

d) s. 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph ( a ), ( c ), ( c.1 ), ( d ), ( d.1 ) or (

e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013.

e) s. 490.013(1) An order made under

section 490.012 begins on the day on which it is made.

(2) An order made under subsection 490.012(1) or (2) (

a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years; (

b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years;

f) s. 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

g) s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. h) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (

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

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

i) s. 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court

may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in thecommunity, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and wouldbe consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; Case Law [75] The Crown relied on the circumstances and decisions in the following cases in support of their submissions:

a) R. v. Sharpe 2007 BCCA 191

b) R. v G.J.S. 2014 BCSC 1105

c) HMTQ v. K.L. 2004 BCSC 797

d) R. v. Dewar 2002 BCPC 588

e) R. v. Warren 2010 ABCA 133 [76] In addition, the Crown relied on some of Defence counsel’s cases in support of its position and distinguished the other casesreferred to by Defence counsel from the case at bar. [77] Defence counsel relied on the circumstances and decisions in the following cases in support of his submissions:

a) R. v. L.F.W. 2000 SCC 6

b) R. v. Bremner 2000 BCCA 345

c) R .v. R.L.H. 2000 BCCA 148

d) R. v. Ralph 2014 BCSC 467

e) R. v. DeBonis 2006 BCSC 2119

f) R. v. H.A. 2005 YKSC 52

g) R. v. K.L. BCSC 2014 797

h) R. v. H.A.H. 2001 BCSC 446

i) R. v. R.A.P. [1998] B.C.J. No. 1452

j) R. v. L.V. 2002 BCPC 610 , 2002 BCPC 0610

k) R. v. C.M. 2000 BCPC 64 , 2000 BCPC 0064 [78] Defence counsel did not rely on any of the Crown’s cases in his submissions but he did seek to distinguish them from thepresent case. SUBMISSIONS Crown [79] The Crown submissions can be summarized as follows:

a) the Defendant abused his position of trust and authority over the Complainants, all of whom were under 18 years of age whenthey were victimized;

b) the sentencing principles of denunciation, general deterrence and safety of the public cannot be adequately addressed by only acommunity-based sentence. A moderate period of incarceration followed by a lengthy time of community supervision is both necessaryand appropriate;

c) as described in the PSR, the Defendant has shown little understanding of the severity of his offences and has minimized both hisresponsibility for them and the impact they have had on the Complainants;

d) the Defendant’s cases are readily distinguishable from this case both with regard to the circumstances of the offences and thecircumstances of the offenders including steps taken to rehabilitate themselves which has not been done by the Defendant;

e) the Court should give particular consideration to Dr. Morgan’s opinions in the Assessment as it pertains to the Defendant'slikelihood to sexually reoffend particularly as it pertains to the safety of his daughter, L.S.;

f) the Court should impose consecutive sentences with regard to the offences against each of the Complainants in each count butthen apply the totality principle to ensure a just and appropriate sentence in the terms submitted. Defence [80] Defence Counsel’s submissions can be summarized as follows:

a) a detailed review of the cases provided on behalf of the Defendant indicate similarities in the offences and the circumstances tothis case and substantiate why a Conditional Sentence Order should be granted;

b) the Assessment is complex and does discuss important factors but if restrictions similar to the present bail order are placed on theDefendant those terms would serve to mitigate his risk of reoffending;

c) the Defendant's guilty plea is a significant mitigating factor in this case because it alleviated the need for the Complainants totestify and there were other trial issues;

d) there has been no suggestion that the Defendant has offended in any way since 2000 and no indication that he has offendedagainst his present minor children both of which bode well for his future compliance with Court's directions;

e) the Defendant has health issues that could be exacerbated by incarceration and he has lived a specific holistic lifestyle for the past40 years that would be interfered with if he was incarcerated;

f) the Defendant has always acknowledged to the investigating authorities some bad behaviour against all of the Complainants buthe no longer has a clear memory of all of the events. That is due in part to him trying to push the memories out of his mind and in partdue to memory loss associated with aging. For the most part he is content to accept Complainants’ version of events;

g) the Defendant agrees with the Crown’s description of the offences against S.P., J.K., H.L. and H.R., but disputes the frequency ofhis offending against C.S. as alleged by the Crown. He contends that the incidents occurred as a gradual process increasing to numerousoccasions over several months but not on a daily or near daily basis;

h) as a result of reading the Victim Impact Statements the Defendant has a clear understanding of the hurt that he caused and he isembarrassed and ashamed of his offences against the Complainants. The Defendant [81] In his statement to the Court the Defendant said that he was terribly sorry for what he had done and that he had hurt peoplealong the way. He noted that his arrest and the court process was a humiliating and stressful time in his life. He apologized to everyoneincluding his wife and his children. DISCUSSION [82] The sentencing of any offender must be a specific and unique process.

Although there may be many similarities between theparticular case before the Court and other cases provided by counsel concerning such things as the type and nature of the offences, thecircumstances of the offender, the number of victims, expert reports and opinions, the provisions of the Criminal Code and the assistanceof previously decided cases, particularly from appellate courts, at the end of the analysis a Judge must impose what he or she concludesis a just and appropriate sentence. [83] As Lamer, CJC said in R. v.

M. (C.A.) (SCC), [1996] 1 SCR 500: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence while at all times taking into account the needsand current conditions of and in the community. [84] To arrive at an appropriate sentence in this case, I must carefully consider the circumstances of the Defendant, thecircumstances of the offences, the Defendant’s comments to the Court, the letters of support on his behalf, the PSR and the Assessment,the Victim Impact Statements, the applicable Criminal Code sections, the extensive case law provided and the submissions of counsel. [85] Sentencing is a complicated task in every case and even more so in an emotionally charged case involving sexual interferencewith children by someone they trust and who has a duty to care for them. [86] When a child is the victim of a sexual offence the primary considerations in sentencing must be to denounce and deter suchconduct and in most cases protect the public by separating the offender from society.

This principle was recently confirmed by theBritish Columbia Court of Appeal in R. v. Allen 2012 BCCA 377. In a similar vein, the Court reiterated in R. v. RMD 2014 BCCA 56that when imposing a sentence involving sexual abuse of a child by a parent, the offender should expect to receive a significant prisonsentence.

[87] In the case of R. v. TAD (1995) 68 B.C.A.C. 236 the Court determined that where there was prolonged and continued sexualabuse of a child by a parent, a sentence of three years was inadequate to address the need for denunciation and that continuation ofoffences over a period of years would require a sentence in the range of three to nine years’ incarceration. [88] In support of that contention, in R. v. DD (2002) (ON CA), 58 O.R. (3d) 788 Ont. C.A, where Moldaver,J.A. says in part at paragraphs 34, 35 and 44: 34. The overall message however, is meant to be clear.

Adult sexual predators who would put the lives of innocent children at risk tosatisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances,the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b), and (

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

People like the appellant know this only too well andthey exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. 44. To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexual abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single digits to low double digits penitentiary terms will generally be appropriate. [89] Although there was no actual sexual intercourse with any of the Complainants in this case there were attempts made by theDefendant with both H.L. and H.R. In R. v. Stuckless (1998) (ON CA), 127 C.C.C. (3d) 225 Ont. C.A, Abella, J.A.(as she was then) said at paragraph 42: 42.

The absence of penetration does not automatically relegate the sexual abuse of children to the “lower range” of sexual offences. There is no question that additional force, collateral crimes and penetration are aggravating factors. But their absence does not therebytransform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, thenumber of victims, the frequency of the assaults and the devastating impact on the lives of the victims.

These offences were,individually and collectively, unconscionable. [90] The above noted cases must be contrasted with most of the cases presented by Defence counsel which indicate that in certainexceptional circumstances, a prison sentence, should not to be applied and a Conditional Sentence Order should be considered andimposed. [91] This concept was discussed in some detail in Bremner. That case in turn relied on R. v. Gallacher [1991] B.C.J. No. 762 whichsets out 11 factors that might contribute to the finding of exceptional circumstances.

The list is not exhaustive and not all the factorsneed be present for exceptional circumstances to be found. [92] A consideration of the 11 factors addresses the aggravating and mitigating factors in this case and provides the followingresults: 1. the offences occurred at various times and in various locations with a number of different victims but offending behaviour endedapproximately a decade and a half ago; 2. there is no evidence of any repeat offences since 2000 but there were two distinct periods of offending in the past.

There were nofemale children in the Defendant’s home of similar age to those offended against from 2000 until approximately 2007; 3. there is an indication in the Assessment that the Defendant is a paedophile; 4. there were no offences that involved physical violence or threats of violence; 5. the Defendant has no criminal record; 6. the Defendant is married and has numerous children including some of the Complainants. He also now has a teenage son anddaughter.

His wife is supportive of him; 7. the Defendant has an excellent work record both before, during and after the offences occurred; 8. there are many letters of support from friends, family and other community members; 9. the Assessment indicates that the Defendant is at moderate risk to reoffend. The Defendant was both young and more maturewhen the two periods of offending behaviour occurred; 10. there is a need to address protection of the public, particularly the Defendant's teenage daughter.

The Defendant has notparticipated in any sex offender treatment or rehabilitation and there are concerns about specific deterrence in light of the Assessment;and

11. there is a need to address general deterrence lest other men living in isolated, rural locations like the Defendant come to theconclusion that sexual offending against children they care for is less likely to be discovered and acted upon in such environments. Fromthe letters of reference it appears that the Defendant will suffer little, if any, stigma or shame in his community arising from theseoffences. [93] I accept that the Defendant has some ongoing health challenges.

However, there was no evidence presented to suggest that theyare so serious or chronic that there is not acceptable treatment available in either the Provincial or Federal prison systems. [94] As such, I am unable to conclude that the Defendant's health circumstances amount to a mitigating factor in determining theappropriate sentence to be imposed. [95] In that regard, I adopt the words of Ryan, J. A. in R. v. Crimeni 2005 BCCA 431 where she said at paragraph 16: 16. ….. institutions must deal with patients who suffer from all types of diseases from HIV, AIDS, and Cancer to heart problems.

Theyhave a duty to inform themselves of their patients’ health and to properly care for them.

To ensure his good care, the appellantshould also take it upon himself to provide the institution with letters from his physician setting out all of his legitimate requirements… [96] The various support letters provided on the Defendant's behalf by members of the community provide limited assistance in thismatter because there is no clear confirmation that any of the authors fully considered the nature of his offending when composing theirletters. [97] The damage to the Complainants is detailed in their Victim Impact Statements and was expanded upon in the Crown’ssubmissions.

These women have been seriously affected, both physically and emotionally, the seriousness and duration of which maynever be known and may well require the assistance of counselling or therapy and the understanding and support of friends and family. [98] I do not accept Defence counsel's submission that the Defendant's risk to sexually reoffend is mitigated due to a greatly reducedlibido. Those submissions contrast with the Defendant’s admission to Dr.

Morgan on that point. [99] I am also unable to accept the Defendant's statements and his counsel's submissions about his inability to recall the detail of hisoffences due to past substance abuse, putting the memories out of his mind and aging. Both the PSR and the Assessment set out theDefendant's ability to recall, in great detail, all other aspects of his past and present situation and both comment sceptically on hisprofessed memory lapses regarding the issues before the Court.

I share that scepticism. [100] The Defendant, through his statements in the PSR, the Assessment and in Court, has clearly demonstrated that he does not fullyunderstand or accept that he, and he alone, was responsible for his offending behaviour against the children he was supposed to benurturing and protecting.

Even if the Defendant had the initial misconception that his offending was neither harmful nor unwelcome bythe Complainants, he would have been made well aware that such behaviour was unwanted and unacceptable when he was forciblyconfronted and rejected by H.R. [101] Instead of completely stopping his offending after being confronted by H.R., the Defendant waited until S.P. and C.S. weremoved into his home a decade and a half later to recommence his criminal behaviour.

He was well aware, from his dealings with theMCFD social workers that these children came from a traumatized background and as such were particularly vulnerable. [102] There also remains the issue of whether there should be concurrent or consecutive sentences for each of the two Counts on theInformation. [103] Whether or not sentences on different counts on an Information should be served concurrently or consecutively is determined bywhat is often described as the "transaction concept". When offences are part of the same event or transaction they most often attractconcurrent sentences.

However, where offences are discrete in time, nature, victim or frequency then consecutive sentences may be bothappropriate and required. [104] The counter point to that is that in general, each count in an Information is considered to apply to a single transaction if there issome continuity between the events in the sense of them forming part of ongoing transaction.

There are exceptions to the singletransaction concept with regard to individual counts on an Information that arise when other principles intervene such as describedimmediately above. [105] The Court must also take care to ensure that the global effect of consecutive sentences does not produce excessive punishmentby invoking the totality principle as described in

section 718.2(c). [106] I do not accept the submissions of Defence counsel that any sentence imposed should be concurrent. I agree with the Crown thatin the circumstances of this case consecutive sentences must be considered. [107] In these circumstances, I adopt the analysis of my brother Judge Higinbotham, PCJ, in R .v. P. H. 2003 BCPC 54 , 2003BCPC 0054 where, in sentencing on a sexual assault case involving two complainants, he said at paragraphs 48 – 52 (in part): 48.

Ultimately the questions facing the Court in this case are first, what sentences will have a deterrent and denunciatory impact, andsecond, should those sentences be concurrent or consecutive? 49. If consecutive sentences are to be imposed, they must in their totality not be unduly long or harsh. On the other hand, ifconsecutive sentences are to be imposed, each sentence must properly reflect the seriousness of the offender’s conduct towards that

particular victim. 50. …. In this case we have only two counts, each of which is of roughly equal gravity. 51. In this case I think it more appropriate to determine first whether consecutive sentences are warranted, and if so, to then determinewhether the combined term offends the principle that the overall sentence must not be unduly long or harsh. If the latter question isanswered in the affirmative, then in my view the proper course is to reduce the combined total sentence to one that is not unduly long orharsh. 52. I have determined in this case that each sentence to be consecutive.

Each count refers to separate sexual assaults on two differentvictims. The fact that each victim was part of the same household, and that in some instances they were assaulted together, is notsufficient to justify concurrency. Both victims were enlisted separately and at different times into the acts complained of, and P.H., didso in a rather careful and systematic manner. His acts of sexual assault against each victim are very much at the serious end of the scale,given the maximum punishment of ten years imprisonment.

Each sentence must therefore reflect not only the separateness of the timeand way in which each victim was drawn in to the offender’s conduct, but must also reflect the fact that separate and long-lastingconsequences have befallen each victim.

In my opinion, to grant concurrent sentences would be to minimize the conduct of this offender,and to effectively grant him a sentencing discount for having ruined two young lives instead of one. [108] Given the nature of the Defendant's offences against each of the Complainants, I conclude that such offences should attractconsecutive sentences even though the Complainants are grouped together based on the time periods they were attacked. [109] Defence counsel made extensive and detailed submissions as to why the Defendant should be granted a conditional sentence. Ihave read Lamer, CJC’s decision in R. v.

Proulx 2000 SCC 5 , [2000] SCJ 6 and in applying the sentencing methodology set outin that decision I am unable to come to the conclusion that a Conditional Sentence Order is available in this case for the followingreasons:

a) such a sentence is not capable of sufficiently reducing the risk of the Defendant’s endangering the safety of the community;

b) such a sentence is not consistent with the relevant fundamental purposes and principles of sentencing; and

c) the range of total appropriate sentences for all of the offences committed against the Complainants fall outside the maximumallowable for a Conditional Sentence Order. [110] I conclude that based on all the factors that I have delineated above and given there was only one incident against J.K., theappropriate sentence would be three (3) months incarceration. [111] The offence against H.L. was also only one occasion but the circumstances were more serious because it involved attemptedintercourse and as such the appropriate sentence would be twelve (12) months incarceration to be served consecutively. [112] The offences against H.R. were more frequent, longer in duration and very serious, and as such, an appropriate sentence for thoseoffences would be 21 months incarceration to be served consecutively. [113] The offences against S.P. occurred on several occasions but were less serious than the offences against H.R. and as such anappropriate sentence for those offences would be nine (9) months incarceration to be served consecutively. [114] The offences against C.S. occurred on numerous occasions but in many respects were less serious than the offences against H.R.and an appropriate sentence for those offences would be 15 months incarceration to be served consecutively. [115] Those sentences would total 60 months or 5 years. [116] That being said, I must also consider the provisions of s. 718.2 (

c) to ensure that the combined sentences are not unduly long orharsh. In that regard I take particular note of the Defendant's lack of any further offending since 2000, his age, the brief time he hasalready spent in custody and the fact that the offences against the Complainants were grouped into two Counts when more properly theoffending against each Complainant should have been a separate Count. It is not one of the principals or purposes of sentencing toremove any hope of an offender being able to return to society.

DECISION Ancillary Orders [117] In light of the offences the Defendant has pleaded guilty to, I will exercise my discretion as described in s. 161 of the CriminalCode. [118] The nature of the Defendant’s offences against H.L., J.K., H.R., C.S., and S.P., indicate to me that other young women,particularly L.S., could be endangered by his actions, particularly if he reverts to the use of marijuana or alcohol. [119] For a period of seven years, the Defendant will be prohibited from:

a) Attending a public park or public swimming area where persons under the age of 16 are present and can reasonably be expectedto be present or daycare centre, school ground, playground or community centre;

b) Seeking or obtaining or continuing in the employment whether or not the employment is remunerative or becoming or being a volunteer in a capacity that involves being in position of trust or authority towards persons under the 16 of years; [ 120 ] The Defendant will be at liberty to apply to vary these prohibitions or seek exemptions from them three years from when the prohibition begins. [ 121 ] There will be a SOIRA Order as requested by the Crown. Given the nature of the offences to which the Defendant has pleaded guilty that order is required unless he can convince the Court otherwise.

Defence counsel did not address reasons why such an order should not be granted. [ 122 ] Counsel jointly submitted that the SOIRA order should be for 15 years but that option is not available under the applicable sections of the Criminal Code . [ 123 ] Therefore, I make an order in Form 52 requiring C. A. S. to comply with the Sex Offender Information Registry Act for a period of twenty (20) years and to sign any necessary documentation required by that Act. [ 124 ] Both Counts on the Information are primary designated DNA offences.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from C. A. S. by October 31, 2015. [ 125 ] Count 1 also attracts a mandatory firearms prohibition pursuant to s. 109 of the Code . C. A. S. is prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Sentence [ 126 ] Having reviewed and analysed all of the applicable purposes and principles of sentencing and despite the case law presented by Defence counsel I am unable to accept even the Crown’s submission of a global penalty of two years imprisonment followed by probation.

In my view, such a sentence does not adequately address the necessary specific primary considerations of denunciation and deterrence, the serious breach of trust visited by the Defendant upon the Complainants, or the current need for public protection particularly as it might apply to L.S. [ 127 ] Therefore, C. A. S., I sentence you to the following sentences to be served consecutively in a federal penitentiary: A. With regard to Count 2, the offences against H.R., H.L. and J.K., a total of 25 months’ imprisonment, new time. B.

With regard to Count 1, the offences against C.S. and S.P., a total of 17 months’ imprisonment, new time. [ 128 ] Given the dates of the offences and the nature of the sentence I will waive the Victim Fine Surcharge. ___________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC