R. v. T.M.D., 2020 BCPC 187

Citation: R. v. T.M.D. 2020 BCPC 187 Date: 20200910 File No: 34706-1, 35569-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.M.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Crown: J. Dufour Counsel for the Defendant: B. Herdy Place of Hearing: Williams Lake , B.C. Date of Hearing: September 10, 2020 Date of Judgment: September 10, 2020 [ 1 ] This is on File Number 35569-1 which is a sentencing of T.M.D. on three counts set out in that Information. T.M.D. was found guilty by me on all three counts after a trial that was heard on March 5th and 6th of this year and I rendered a decision on March the 30th

of this year. That decision has not yet been published on the court's database, but will be published once I provide my sentencing reasons in this matter. [ 2 ] T.M.D.'s personal circumstances are described in the Presentence Report and, to some extent, the Psychiatric Risk Assessment report that have been provided to the Court. The Presentence Report will be marked as Exhibit 1 on the sentencing proceeding and the Psychiatric Risk Assessment report will be marked as Exhibit 2 on the sentencing proceeding. [ 3 ] T.M.D. was raised in the community of [omitted for publication].

His mother died when he was quite young and he was raised by his grandparents, B.D. and C.D. He did not know his father until he was a late teen and met his father for the first time when he was 23. Unlike many Indigenous people who grow up in tragic circumstances, T.M.D. relates that his personal circumstances growing up were “pretty good.” He was actively engaged in sports, he had a lot of friends, and he describes his childhood as being loving and that, of course, is as a result of his grandparents' hard work to raise him and his siblings in an appropriate fashion.

That might have been difficult for his grandparents having come from a community where they were subjected to having to attend residential school as young people. [ 4 ] T.M.D. has had a couple of adult intimate relationships and he has a child named T.R. who is three years old from a relationship he had with one S.R.

They have maintained a close relationship even though they are not a couple and, according to the Presentence Report, there are some discussions that T.M.D. may be able to resume his relationship with S.R. once he demonstrates to her that he is on the straight and narrow. [ 5 ] T.M.D.'s education ended when he was in grade 10, but he has been taking courses while he has been incarcerated with regard to this matter and a previous conviction.

He has learned a number of skills while in jail and has taken a number of programs that will assist him upon his release. [ 6 ] T.M.D. has had a struggle with alcohol and drugs throughout his teenage and adult life. He did seek some treatment at the Round Lake Treatment Centre back in late 2018 and he is open to the idea of re-attending a full-time attendance program to address his substance abuse issues upon his release. [ 7 ] T.M.D. has only one previous conviction, but that previous conviction was for a serious matter.

It involved a sexual assault of a young person in circumstances where T.M.D. and the young person had been engaging in alcohol consumption. He was on remand with regard to that matter until he pled guilty, but by that time, he had already been arrested for the events that are before the Court today and has remained on remand with regard to that matter until today. [ 8 ] Effectively, in real time, T.M.D. has been in custody for 697 days.

He has had a lot of time to think about the circumstances of this offence and the previous offence and, when offered the opportunity to speak to the Court, he told the Court, first of all, that he is apologetic for his behaviour on the day in question and he has had a lot of time to think during the long time that he has been in jail and that he wants to get out of jail and make progress for the benefit of his family.

He did not say specifically who he meant by his family, but I take it to be both his son, his potential partner, S.R., and certainly his grandparents to whom he owes a large debt of gratitude. [ 9 ] The circumstances of the event are set forth in my written decision filed on March 30th and I do not intend to review them in detail, but rather to provide a

summary. On October 15, 2018, T.M.D. was out socializing with friends. They got into a discussion about wanting to obtain some marihuana. One of the friends said that he knew where marihuana might be able to be obtained and the friends, according to T.M.D., put him up to going to that residence to obtain marihuana. [ 10 ] The residence where he went to was occupied by the Complainant, her children, and her mother. T.M.D. entered the residence at about three o'clock in the morning and went, at some point after entering the residence, into the bedroom of the Complainant.

She was asleep in her bed and was dressed in sleeping attire. He touched her for a sexual purpose by grabbing at the waistband of her night clothing and, when she felt the sensation of that occurring, she awoke, turned over, saw T.M.D., was able to identify him, and told him to get out of her residence. There was some back and forth between them and eventually the Complainant grabbed a baseball bat and turned on some lights and, at that point after being asked again on more than one occasion to leave, T.M.D. left the residence.

The Complainant then called the chief of the community and then 911 and the RCMP came and arrested T.M.D. when they arrived in the community approximately an hour later. At the time T.M.D. was arrested, the RCMP members noted that he was highly intoxicated and gave a variety of explanations as to why he was in the general area of the Complainant's residence. [ 11 ] There are aggravating factors that the Court has to consider in this matter.

Those aggravating factors include the following: that T.M.D. had, within a year before this event, committed another sexual offence; that he entered the residence of the Complainant uninvited and went into her bedroom and touched her in a sexual fashion while she was asleep.

By virtue of that event, of course, the offence occurred in the sanctity of the Complainant's residence and in the sanctity of her bedroom, a place where T.M.D. was never invited to be, and because she was asleep, there was no opportunity for her to deny or consent to any advances by T.M.D. before he touched her. [ 12 ] I also consider to be an aggravating factor that, in the evidence before the Court at trial, T.M.D. took the position that he did not like and, in fact, hated the Complainant as a result of some interfamily squabbling between the Complainant and himself because he was involved with S.R. and the Complainant was in a relationship with S.R.'s father. [ 13 ] There are, however, also mitigating factors in favour of T.M.D.

He is still a relatively youthful individual. He has utilized his time in jail very effectively by turning to programming to assist him with dealing with his lifestyle when he gets out of jail and to enable him to find employment and other positive activities to engage in. He has also expressed an interest in receiving further counselling and treatment including being prepared to attend a program in his home community at [omitted for publication].

He has some experience in receiving counselling and full-time attendance therapy having been to Round Lake and so he knows what he would be getting into if he went into such a program. [ 14 ] I also have to consider the effect that this event has had on the victim. She gave, in my view, very powerful evidence during the course of the trial about how she felt not only about the events of being touched sexually when she had no opportunity to engage T.M.D. and indicate her non-wishes to him, but from her perspective, the fact that it occurred in her own home when her family members were

present has caused her continuing distress. Having said that, the Complainant also expressed, in my view, a very mature attitude towards the events and how she was going to move forward in spite of them in her home community. [ 15 ] I now know, based on what counsel have said in the submissions on sentence, that T.M.D. and the Complainant are going to reside in the same community which is a small First Nations community [omitted for publication] Williams Lake.

As a result, as part of T.M.D.'s sentence, he is going to be ordered to stay away from her and her residence, and any place that she might be from time to time. [ 16 ] In any case involving sexual assault, the foundation on which a sentence must be crafted is to denounce the behaviour of the accused and to attempt to dissuade him and others from committing similar offences, commonly referred to as deterrence. I am hopeful that the sentence I impose on T.M.D. will deter him from further offending.

I do not hold out much hope that anybody else wishing to commit sexual offences will necessarily take note of the decision I make here today, nor would they be deterred if they are intoxicated and intent on committing a sexual assault. [ 17 ] There are a number of factors required under s. 718 of the Criminal Code that I must consider in designing the fit and appropriate sentence. They include the following. I must denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct. I must try to deter the offender and other persons from committing offences.

I must separate offenders from society where necessary. I must assist in rehabilitating the offenders. I must provide reparations for harm done to victims or to the communities and to promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim or the community. [ 18 ] I also have to keep in mind the provisions of s. 718.2 of the Criminal Code , particularly as they apply to Indigenous offenders. T.M.D. is an Indigenous offender and I must give the appropriate consideration to the cases of R. v. Gladue and R. v.

Ipeelee which specifically direct sentencing courts to take into account the systemic discrimination that Indigenous people have endured for the last couple of hundred years during the time of their interaction with the non-Indigenous community. [ 19 ] I also have to give consideration to what an appropriate range of sentence should be. Given the nature of this sexual assault which, although quite unsettling to the Complainant and quite disturbing because it occurred in her residence, is, when examining it within the rainbow of sexual offences, less serious than many others.

A range of sentence is specifically that. It is a guide to a sentencing court with regard to what other courts have done in similar circumstances, but the reality is that no two cases are identical; no two set of circumstances are identical; no two offenders have identical records or identical personal backgrounds. [ 20 ] In the face of all that, the Crown and Defence come before the Court suggesting as a joint submission a sentence of time served plus two years of probation.

They point out that T.M.D.'s previous probation order has not yet started to be served because he has been in custody since it was imposed awaiting the outcome of this case. T.M.D. has been in custody specifically with regard to this matter for 290 days which would give him credit of 435 days or 14.4 months.

On a previous matter for which he was convicted, he spent a total of 407 days in custody which amounted to a 610 day sentence or a 20-month sentence. [ 21 ] I must note that the sentence being proposed by the Crown and Defence here is less than the previous sentence, but I also note that the circumstances here are less aggravating than the circumstances of T.M.D.'s previous conviction which involved a young person, who I am told was not even capable at law of providing consent, and the set of circumstances far more prolonged than what occurred here. [ 22 ] Having heard the submissions of the Crown and Defence, having considered the case law provided by the Crown in this matter, having reviewed the Presentence Report and the Psychiatric Risk Assessment report, having considered all of the factors I am required to consider, although it would be possible for me to sentence T.M.D. to a further period of incarceration for several months, I do not see that as providing effective further deterrence to him.

As such, I am going to go along with the joint submission, although some of the details of the probation order I will be imposing will be details not addressed by either Crown or the Defence. [ 23 ] So, T.M.D., you are going to be released from custody today. There is going to be a lot of paperwork that has to be done so you are not going to be necessarily getting anywhere today.

You might only get as far as the local shelter and somebody is going to have come and pick you up, perhaps, because it will be several hours until the paperwork is done on all of these matters. [ 24 ] First of all, Madam Clerk, we are going to deal with the s. 109 order. It was a second offence. [ 25 ] So, sir, pursuant to s. 109 (

c) of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for life. [ 26 ] Now, sir, I would say parenthetically, you are a First Nations person and if you decide you want to participate in sustenance hunting, you may make application to the Chief Firearms Officer or the Registrar of Firearms to issue an authorization to allow you to engage in sustenance hunting.

You can take that up with them at some point in time. [ 27 ] THE ACCUSED: All right. [ 28 ] Count Number 2 on Information 35569 is a primary designated offence for DNA purposes. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. You must attend at the Williams Lake RCMP detachment in Williams Lake, British Columbia, on or before September 30, 2020, and submit to the taking of the samples.

This order is valid until it is executed. [ 29 ] Because this is a second conviction for a sexual offence, sir, I am required to impose an order under the Sex Offender Information Registration Act . [ 30 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for life. Now, sir, normally we would have you sign that document now and then I would sign it. That is, obviously, not possible during COVID, but the document will be prepared and presented to you before you are released from custody.

[ 31 ] You will sign it before you are released from custody and then, Ms. Dufour and Madam Clerk, the document can be sent electronically to me and, when I get back from vacation, I will sign it and it can be entered in the SOIRA registry. [ 32 ] Now, Madam Clerk, dealing with the sentence itself. [ 33 ] The appropriate sentence here would have been 435 days in custody. He has credit for 435 days in custody. So that is 435 minus 435 equals time served.

That will be followed by two years of probation, sir. [ 34 ] Oh, I should say before we get to the probation, Madam Clerk, I have only been dealing with Count 2, but I want to deal with Count 1 and Count 3. [ 35 ] So before we get to the probation which will only be on Count 2, Count 1, the mischief, the lesser included offence, in my view, the appropriate sentence there would have been 60 days in custody. He has got 60 days worth of credit. So it is 60 minus 60 equals time served. The breach of his bail is Count Number 3, the appropriate sentence there, in my view, would have been 14 days in custody.

So it is 14 minus 14 equals time served. Just to clear up the other two counts, counsel. [ 36 ] Okay, sir. The terms of your probation are going to be as follows. [ 37 ] 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 38 ] 2002, you must have no contact or communication directly or indirectly with [omitted for publication]. [ 39 ] 2005, you must not go to or be within 50 metres of any place where [omitted for publication] lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures.

The exceptions are as follows - subparagraph (g), Madam Clerk - while in a moving vehicle on your way to some other place. [ 40 ] MS. DUFOUR: I am wondering, Your Honour, if a reconciliation process might involve her should that exception be created? [ 41 ] THE COURT: Well, I could make that an exception, sure, okay. [ 42 ] MS.

DUFOUR: Yes. [ 43 ] THE COURT: Another exception, Madam Clerk, will be as follows. [ 44 ] Such contact as may be necessary between you and [omitted for publication] if some form of community-based restorative justice or reconciliation process occurs. [ 45 ] 2103, you must report by telephone to a probation officer, and the telephone number will be on the document you get today, sir, by 3:00 p.m. tomorrow, September 11, 2020. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report.

After that, you must report as directed by your officer. [ 46 ] 2204, you must live at [omitted for publication], B.C., and provide your probation officer with your phone number. You must not change your address or phone number without prior written permission from your probation officer. [ 47 ] 2204(a), with an addition. If you are evicted, expelled or voluntarily leave from the place where you are living, you must tell your probation officer immediately.

If the office is closed, you must contact your probation officer immediately when the office opens the next business day. [ 48 ] 2205, you must follow all the rules of your residence as long as the rules do not conflict with the terms of this order or the directions of your probation officer. If there is a conflict, you must tell your officer about the conflict immediately. [ 49 ] 2209, with a

preamble. For the first 12 months of your probation order, you must obey a curfew by being inside your residence or on its lot between 10:00 p.m. and 7:00 a.m. every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends or calls to check on you during the curfew. You may be away from your residence during the curfew with the prior written permission of your probation officer. Such permission is to be given only for employment or other compelling reasons.

You must carry the permission with you when you are outside your residence. [ 50 ] 2209-1(a), you may also be away from your residence during the curfew hours: (

a) while at or going directly to or returning directly from a healthcare facility because of a medical emergency; if asked, you must provide your probation officer with proof of your attendance at the facility - and in the immediate presence of B.D. or C.D. [ 51 ] Now, T.M.D., you might note that the lawyers did not talk about this issue. I have imposed a curfew on you, sir, because this event occurred in the middle of the night after you were intoxicated.

If we can keep you at home and hopefully away from being intoxicated, less chance you are going to commit further offences in the middle of the night. [ 52 ] 2301, you must not go to or be within 50 metres of [omitted for publication], B.C., and then the exception, except while in a moving motor vehicle on your way to some other place. [ 53 ] 2401, you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. [ 54 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for, subparagraph (c), alcohol or drug addiction; subparagraph (g), mental health; subparagraph (f), sexual offence prevention.

[ 55 ] Now, Mr. Herdy, I took your submissions to lead me to believe that your client is consenting in court to participating in a full- time attendance program? [ 56 ] MR. HERDY: Oh, yes. [ 57 ] Okay. [ 58 ] 2502, having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your probation officer.

This may include programming or treatment for alcohol or drug addiction. [ 59 ] Take out "psychiatric and psychological help," Madam Clerk, and put in, "mental health" instead, and "sexual offending." [ 60 ] 2503, having consented in court, you must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your probation officer. [ 61 ] I am not going to impose any restorative justice, counsel.

I am going to leave that to the community because I do not have any input as to whether or not the Complainant is participating or wishes to participate or not. [ 62 ] I think those are all the terms you were looking for, Ms. Dufour, unless I have missed something. [ 63 ] So anything further, Ms. Dufour? [ 64 ] MS. DUFOUR: No, thank you, you covered everything. Thank you for your patience with Crown's submissions. [ 65 ] THE COURT: Mr. Herdy, anything further? [ 66 ] MR. HERDY: Nothing, Your Honour, that I can think of. (REASONS FOR SENTENCE CONCLUDED)