R. v. D.T.G. Date:, 2013 BCPC 156

Citation: R. v. D.T.G. Date: 20130625 2013 BCPC 0156 File No: 34946-1 Registry: [removed for posting] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Ban on publication pursuant to s. 486.4(2) of the Criminal Code of Canada REGINA v. D.T. G. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Proteau Counsel for the Defendant: R. Reiffer

Place of Hearing: [removed for posting], B.C. Dates of Hearing: April 23, June 25, 2013 Date of Judgment: June 25, 2013 [ 1 ] Mr. G has entered a plea of guilty to a charge of sexually assaulting a young woman during the period November 24, 1983 to September 25, 1985. In the interest of protecting her privacy, I will refer to her only as “the victim”. It is my task to impose a fit sentence for that offence. [ 2 ] Ms. Proteau, for the Crown, seeks a sentence of 1 – 2 years imprisonment, followed by a period of probation. Mr. Reiffer, for Mr.

G, seeks a conditional sentence, followed by a period of probation. [ 3 ] Mr. G and the victim are second cousins. They are members of [a] First Nation, whose traditional territory is near [removed for posting], B.C. Mr. G’s parents are residential school survivors, who suffered from substance abuse problems. They separated when he was 3 years of age. Mr. G “... does not recall any instances of physical abuse or significant dysfunction in his childhood home”. At age 13 - 14, Mr. G was sexually abused, by a person who was not a family member, for a period of approximately one year.

Later, he was engaged in a sexual relationship, which he describes as consensual, with an aunt who was more than 20 years older than he. [ 4 ] The sexual relationship between Mr. G and the victim began when the victim was 10 years old and Mr. G was 16. On that occasion, Mr. G entered the victim’s bedroom, disrobed, pulled down her pants, placed his erect penis between her legs and moved his hips until he ejaculated. The following summer, when the victim was 11, Mr. G provided her with alcohol at a baseball game. She drank until she passed out.

When she recovered consciousness, she was naked and her vagina “felt different”. About a month later, Mr. G instructed the victim to perform

an act of fellatio upon him. He failed to ejaculate, and became angry. He provided alcohol to the victim, who drank until she passed out. Mr. G then had intercourse with her, using a condom, while she was unconscious. The victim says that, thereafter, Mr. G would frequently provide her with alcohol and have sex with her while she was unconscious. [ 5 ] In her victim impact statement, the victim described the early years of her relationship with Mr. G as “humiliating”. In her words: I was laughed at and called down by everyone. Nobody ever made fun of [Mr. G] at the time. At this age [Mr.

G] fed me a lot of alcohol and this “killed” my pain of not having parents to protect me, name calling received by most people. I was called a “slut”, “No Good” .... I never heard people call him down as he acted so innocent when he was in fact getting me drunk often and having sex with me when I was drunk or passed out. I still suffer the pain of those times. [ 6 ] Mr. G impregnated the victim when she was 13. Their son was born when the victim was 14 years of age and Mr. G was 20 years of age. Mr. G. impregnated the victim on two later occasions over the next few years.

In each case, the victim terminated the pregnancy by abortion. The victim and Mr. G separated shortly after the third pregnancy, and have no present relationship. Mr. G had no meaningful relationship with their son, who is now 26, and has provided no financial support for him. [ 7 ] Mr. G met his current life-partner, Ms. A-G, in 1992. They married in 2005. Ms. A-G describes Mr. G as a dedicated partner and a loving step-father to her children, who are now grown and have children of their own. Mr. G has had steady employment for the past 3 years and is a good provider for his family.

His criminal record comprises two convictions, in 1993 and 2001, both for impaired driving. He is now 47 years old. In her pre-sentence assessment report, Dr. Kreklewetz assessed Mr. G as a “... low to moderate ... risk to re-offend sexually”. [ 8 ] The following passages from Dr. Kreklewetz’s report cause me concern respecting Mr. G’s present insight into his past behaviour: ... Mr. G reported that he has little or no memory of the specific incidents ..., but did acknowledge committing the offence.

He stated that, at the time, he believed his sexual relationship with [the victim] was consensual, but now questions whether she was capable of consenting due to her age. * * * ... Mr. G seemed to express genuine remorse for his actions. However, he did downplay the seriousness of the offence, and he stated that he believed the sexual activity was consensual at the time. He also noted that the victim was unfaithful during their relationship. There should be no doubt in the mind of any adult person that: a.

A 10 year-old child, or a 13 year-old child, is incapable of giving meaningful consent to sexual relations. b. There is no excuse for providing alcohol to a 10 year-old, or a 13 year-old, child. c. The crime of providing alcohol to children of such an age is materially aggravated when the motive is to extract sexual favours from the child, or to have sex with the child while the child is unconscious. d. A person rendered unconscious by alcohol (or any other drug) is incapable of consenting to sex.

e. Infidelity is not an excuse for violence, and, in particular, not an excuse for a sexual assault on an unconscious person. [9] Mr. Reiffer expressed remorse on behalf of Mr. G, and informed me that Mr. G is willing to tender a written apology to thevictim. When I asked Mr. G, at the conclusion of counsel’s submissions, whether he had anything to say, he replied in the negative. Iappreciate that Mr.

G’s response may derive from natural taciturnity, from the intimidating atmosphere of the courtroom, or from hiscultural background, but the information I have does not allow me to assess with confidence the sincerity of the remorse expressed on hisbehalf by Mr. Reiffer. [10] The purposes and principles of sentencing are set out in sections 718ff of the Criminal Code. [11]

Section 718.2(

e) of the Criminal Code provides: ... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [12] I am guided by the following remarks of LeBel, J in R vs Ipeelee 2012 SCC 13 , [2012] 1 SCR 433 @ paragraphs 59 –60 (references omitted): ... s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal peoplein Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing .... It does more thanaffirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence forAboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offendersbecause those circumstances are unique and different from those of non-Aboriginal offenders .... When sentencing an Aboriginaloffender, a judge must consider: (

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

part in bringing the particularAboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in thecircumstances for the offender because of his or her particular Aboriginal heritage or connection .... Judges may take judicial notice ofthe broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have tocome from counsel and from the pre-sentence report .... Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society ....

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, andresidential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment,higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on theirown, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context forunderstanding and evaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualizedinformation before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, itappears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence reporttailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensiveand timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfillinghis duties under s. 718.2(

e) of the Criminal Code. [13] I was provided with no information about the history of the [removed for posting] First Nation, before or after Europeancontact. The only information I was provided about Mr. G and his family is noted in paragraph 3, above. I was provided with nomaterial details beyond those noted. [14] I was troubled by the limited information which I was given about Mr. G’s background and about the [removed for posting]First Nation. For that reason, I sent a memorandum to counsel, a copy of which I attach to these reasons as Appendix “A”. On June 25,2013, Mr.

Reiffer appeared again as counsel for Mr. G and Mr. Merke appeared, on behalf of Ms. Proteau, as Crown counsel. Neitherprovided me with any further information. Mr. Reiffer said that he was content to rely on the submissions made to me on April 23,2013. Mr.

Merke advised that, in the opinion of Crown counsel, it would be inappropriate to consult with the [removed for posting] FirstNation because there is in place an order prohibiting publication of any information which might identify the victim. [15] In Ipeelee, LeBel, J referred to the desirability of restorative approaches to sentencing in cases involving Aboriginal offenders. Iaccept the wisdom of his Lordship’s observations, and would have willingly considered such an approach if one had been offered to me.

I can imagine that there might be restorative justice options which would provide meaningful solace to Mr. G’s victim, and have a chanceof reducing the frequency of similar offences by members of the [removed for posting] First Nation. I think it unlikely that such optionscould be effective without the active participation of the victim and the [removed for posting] First Nation.

In view of the responses tomy memorandum, I am unable to impose a meaningful sentence based on principles of restorative justice. [16] I am left to assess the Gladue factor by reference to my own general understanding of ”... the history of colonialism,displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higherunemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples ...”. [17] The following matters may, I think, be taken to be sufficiently established that judges may take judicial notice of them. a.

Prior to European contact, Aboriginal people lived in structured societies with systems of laws and governance developed by themover many centuries. At least on the British Columbia coast, those systems of governance were closely integrated with extended family

structures. b. Beginning in the colonial period, and continuing at an accelerated pace after the entry of British Columbia into Confederation in1871, the Imperial and Canadian governments took active steps to abolish the indigenous systems of government developed byAboriginal people, and to replace them with new systems of government imposed by the Imperial and Canadian governments. Thosenew systems of government did not respect the role of extended families in the government of First Nations, and tended to erode the roleof extended families as social and governmental institutions among First Nations. c.

Many Aboriginal communities were physically destroyed, and the inhabitants forcibly relocated, at the direction of the Canadiangovernment. In many communities, before European contact, the right to exploit the resources of specific areas of land was vested inparticular extended families. One of many consequences of physical relocation was to erode that traditional system of land tenure, whichtended to further reduce the role of extended families in Aboriginal society. d.

In many parts of Canada, the Imperial and Canadian governments adopted a policy of forcibly removing Aboriginal children (often ata very young age) from their homes and transporting them to residential schools. At those schools, they were discouraged (oftenharshly) from the use of their native languages and from the practice of traditional customs. Many were physically and sexually abused. e. The development of healthy attachments is a critical factor in the emotional and mental health of human beings.

Unless a childreceives consistent and appropriate care from a small circle of well-adjusted adults at the key stages of the child’s development (most ofwhich occur in the very early years), the child will not develop into an emotionally and mentally healthy adult. The evidence does notsupport the suggestion that the care-givers must be the biological parents. In many societies, the necessary attachments are successfullyformed with members of the child’s extended family. f.

A child who is denied the opportunity to form healthy attachments at the key stages of development will often be unable, as anadult, to form healthy attachments with her or his own children. The result is often a multi-generational cycle of attachment disorders. g. Attachment disorders often manifest in violent behaviour and in sexual aggression, particularly among adolescents. h. Aboriginal people in British Columbia did not use alcohol prior to European contact.

As a result, they continue to be particularlyvulnerable to alcohol addiction, which is epidemic among Aboriginal communities on Vancouver Island. [18] With that background in mind, one can discern, in the brief particulars of Mr. G’s history which were provided to me, aplausible explanation for Mr. G’s conduct. However, the existence of such an explanation, without more, is of little assistance indevising a fit sentence for his crime.

Speaking for myself, it would be easy to say tout comprendre c’est tout pardonner, but that wouldfail entirely to address the needs of the victim and of the society in which she and Mr. G live. [19]

Section 718.01of the Criminal Code provides (underlining added): When a court imposes a sentence that involved the abuse of a person under the age of eighteen years, it shall give primary considerationto the principles of denunciation and deterrence of such conduct.

I take that to mean that, whatever priority among sentencing objectives might be suggested or prescribed by other sections of the Code,when sentencing a person for abuse of a child, the objectives of denunciation and deterrence must be given primary weight, and lesserweight must be given to other objectives of sentencing identified in other sections of the Code. [20] Human beings are profoundly social animals, for whom the approbation or condemnation of one’s peers are among the mostpowerful motivating forces. People are unlikely to engage in an activity which is widely and publicly condemned.

Conversely, peopletend to believe that society condones that which it fails to punish with appropriate severity. One of the most important functions ofcriminal sentencing is to give voice to societal condemnation of particular forms of misconduct by imposing punishments proportionateto the antisocial nature of the conduct. By so doing, the court can assist in forming and expressing a societal consensus which can have apowerful effect in changing behaviour.

That is the purpose of denunciation as a principle or objective of sentencing. [21] I have no doubt that the members of the [removed for posting] First Nation share my view that Mr. G’s crime should bedenounced in the strongest possible terms, and that they would wish it to be known that such conduct is infamous and intolerable. Forthat reason, I think that the objective of denunciation is as important in relation to sexual assaults upon young Aboriginal people, or byAboriginal offenders upon young people, as it is in relation to other victims and other offenders.

I would not countenance, and I do notbelieve that the members of the [removed for posting] First Nation would countenance, a suggestion that such assaults should be excusedby reason of the matters referred to in paragraph 17. [22] I have considered whether the passage of more than 20 years since the commission of the offences affects the importance ofdenunciation as a factor in my sentencing decision.

I have concluded that it should not, for the reasons given by the Alberta Court ofAppeal in R vs Spence (1992) 1992 ABCA 352 , 78 CCC (3d) 451. [23] Deterrence may be specific to the individual offender or directed to the public at large, in the hope that a punishment imposedon one offender may deter others from similar future crimes. I do not think that specific deterrence is an issue in the case of Mr. G. There is no indication that he has committed any further sexual offence since he separated from the victim, more than 20 years ago, andhe has been assessed as a low to moderate risk to re-offend.

However, general deterrence may be a significant factor. I accept that acrime of this kind could be committed only by someone in the grip of a serious mental disorder, and that such individuals are not easilydeterred because effective deterrence requires a minimal level of rational thought process on the part of the person to be deterred. However, it is likely that some individuals might be deterred from such crimes by the imposition of a serious penalty on Mr. G. Thechance of saving even one victim from suffering of the kind inflicted by Mr.

G on the victim in this case would justify the imposition ofa very serious penalty. [24] The remaining objectives of sentencing, not yet discussed, are defined by

section 718 of the Criminal Code to be: (

i) to separate

offenders from society in the interest of public safety; (ii) rehabilitation of the offender; (iii) to provide reparations to victims; and (iv) “... to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community “. I do not consider Mr. G to be a present risk to public safety. He appears to have successfully completed his own rehabilitation, for which he is to be commended. Through his counsel, Mr. G offered to pay reparations, in the amount of $500, to his victim. That offer exacerbates my concern that Mr.

G has not yet grasped the enormity of his offence or its impact upon his victim. To state the matter bluntly, he repeated raped an innocent and helpless child over a period of years, impregnated her three times, stood by while she underwent two abortions (having in mind the emotional trauma suffered by any woman who undergoes an abortion for any reason), abandoned her and left her penniless to raise their son. He regards $500 as appropriate reparation for that conduct. I appreciate that Mr.

G is a man of limited means, but such an offer can only be seen as an expression of contempt for his victim. [ 25 ] The fact that Mr. G has fully rehabilitated himself means that a custodial sentence is unnecessary to achieve the important objectives of specific deterrence, protection of the public and rehabilitation of the offender. However, that leaves to be addressed the objectives of general deterrence and denunciation. The question is whether those objectives can be sufficiently attained without the imposition of a custodial sentence.

While that might be so in relation to less serious assaults upon less vulnerable victims, I do not believe that it can be so in relation to assaults of the kind committed by Mr. G upon a victim as vulnerable as the one he chose. A conditional sentence would entirely fail to sufficiently denounce Mr. G’s crime or to sufficiently deter others from similar crimes. [ 26 ]

Section 718.2 (

b) of the Criminal Code provides that “... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ...”. I note that Mr. G is an Aboriginal offender. For the reasons given in paragraphs 19 - 21, I do not consider that to be a factor which would justify a lesser sentence for him than would be imposed on an offender of different ethnicity. [ 27 ] I am obliged to be guided by sentences imposed or approved by the Supreme Court and Court of Appeal of this Province in similar cases.

In R. vs R.R.M. 2009 BCCA 578 @ paragraph 19, the court referred with approval to the judgments in R vs B.S.B. 2008 BCSC 1526 and R vs C.S. 2003 ABCA 325 . In B.S.B. , Romilly, J said that “... the range of sentences for sexual assault where sexual intercourse takes place is two to six years ...”. In C.S. , Ritter, JA said @ paragraph 7: ... the starting point for serious sexual assaults involving children in trust situations is at least four years .... From this starting point a sentencing court is required to consider aggravating and mitigating features, and to arrive at a fit sentence.

When a court starts at a point that is one to two years short of the starting point, the result will almost invariably be an error in principle. The case before me appears to me to fall in a middle ground. The facts that Mr. G was the second cousin of his victim, and 6 years older, do not, taken alone, establish that he was in a position of trust in relation to her. As a result, the remarks of Ritter, JA are not directly applicable in this case. On the other hand, the victim in this case was a child. As a result, a sentence in the higher end of the range stated by Romilly, J would be appropriate.

In my view, the normal range of sentence for a sexual assault, involving intercourse, with a child under the age of 15 would be 4 – 6 years. Sentences outside that range, higher or lower, may be justified by the circumstances of each individual case. [ 28 ] In this case, the aggravating factors are: a. The victim was age 10 at the time of the first assault. Mr. Reiffer submits that this fact is irrelevant, because Mr.

G was charged with, and has entered a guilty plea to, only a charge of sexual assault during the period November 24, 1983 and September 25, 1985, during which period the victim was 12 – 13 years old. Mr. Reiffer submits that Mr. G cannot be punished for actions which occurred before that period. Mr. Reiffer is right to say that Mr. G can be punished only for the offence with which he is charged. However, in assessing an appropriate sentence, one must consider all of the circumstances of the offence. In some cases, including this one, it is necessary to consider preceding events to assess the gravity of the crime.

Mr. G did not deny the assaults which were alleged during the period prior to November, 1983. They are clearly important in assessing the impact of the later assaults upon the victim. Victim impact is an important sentencing consideration. I also observe that a sexual assault on a 12 year-old is not significantly less serious than one upon a 10 year-old. b. Mr. G and the victim were close relatives. c. There were many assaults over a period of years. d. On more than one occasion, Mr. G provided alcohol to a very young child, watched as she drank herself unconscious, then raped her while she was unconscious. e.

Mr. G impregnated the victim three times before her 16 th birthday. She underwent two abortions. He abandoned her and their son and made no contribution to their support. f. Mr. G displays limited insight into the impact of his conduct upon the victim. [ 29 ] The mitigating factors are: a. Mr. G entered an early guilty plea, which spared the victim the trauma of testifying, either at a preliminary enquiry or at a trial. This is an important factor. It would have been very difficult for the victim to testify. b. Mr. G was relatively young (16 years of age) when he first assaulted the victim.

Although this is a factor to be considered, I give it little weight for two reasons: (

i) even a 16 year-old boy should know that sex with a 10 year-old girl is absolutely beyond the bounds of permissible or forgivable behaviour; (ii) Mr. G continued to assault the victim, in the most egregious manner, for a period of more than 4 years, and did not stop until after his 20 th birthday. c. Mr. G has fully rehabilitated himself, and is now a useful member of society.

[30] In my view, the aggravating factors in this case are more significant than the mitigating factors, even taking into account thesignificance of Mr. G’s self-rehabilitation. There can be few cases in which the assaults are as egregious as those committed by Mr. G. For that reason, I could not justify a sentence of less than 4 years, and I impose that sentence. [31] There will also be an order in Form 52 of the Criminal Code, requiring Mr.

G to comply with the Sex Offender InformationRegistration Act for a period of 20 years, an order in Form 5.03 of the Criminal Code, authorizing the taking of a DNA sample from Mr.G, an order prohibiting Mr. G from possessing any of the objects described in section 109(1)(

d) of the Criminal Code for a period of 10years, beginning on the date of his release from prison, and an order, pursuant to

section 743.21 of the Criminal Code, prohibiting Mr. Gfrom having any contact, directly or indirectly, with the victim during the period while he is in custody. June 25, 2013 _________________________ T. Gouge, PCJ APPENDIX “A” Memorandum To: Ms. Proteau Mr.

Reiffer April 30, 2013 From: Judge Gouge R vs D.T.G.#34946-1 ([removed for posting] Registry) In R vs Ipeelee 2012 SCC 13 , [2012] 1 SCR 433 @ paragraph 74, LeBel, J said: The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same valueswhen it comes to sentencing and to recognize that, given those fundamentally different world views, different or alternative sanctionsmay more effectively achieve the objectives of sentencing in a particular community. In this case, Mr. G and the victim attended the sentencing hearing.

It was not apparent to me that any other member of the [removed forposting] First Nation did so. I have received no information about the [removed for posting] First Nation, nor about the effects which mysentencing decision might have, one way or another, on that community.

Depending upon the willingness of the [removed for posting] First Nation to engage in the process, there may exist restorative justiceoptions, or other sentencing options, which might provide more meaningful solace to the victim and the opportunity for better outcomesin the community than the conventional sentencing options addressed in your submissions. I do not think it my place to direct the conduct of the sentencing hearing. I am ready to pass sentence on the basis of the information Ihave been given and the submissions which I have heard.

However, I invite counsel to consider whether the [removed for posting] FirstNation should be offered an opportunity to participate in the process before sentence is pronounced.