R. v. W.J.C. Date:, 2015 BCPC 327

Citation: R. v. W.J.C. Date: 20151013 2015 BCPC 0327 File No: 35963-2-K Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.J.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC RESTRICTED ACCESS Counsel for the Crown: G.K. Merke

Counsel for the Defendant: S.E. Gosh Place of Hearing: Port Alberni , B.C. Date of Hearing: July 21, 2015 and October 13, 2015 Date of Judgment: October 13, 2015 Introduction [ 1 ] THE COURT (Orally): W.J.C. is charged on an indictment with three offences to which he has entered pleas of guilty. [ 2 ] On Count 1, it is an allegation that he: . . . from the 1st of November, 2013 to the 30th day of November, 2013, inclusive, at or near Tofino, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of B.H., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . [ 3 ] Count 3, to which he has also entered a plea of guilty, is an allegation that he: . . . from the 1st day of January, 2014 to the 31st day of January, 2014, inclusive, at or near Tofino, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of B.H., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . [ 4 ] Count 5 alleges that he: . . . from the 1st day of June, 2013, to the 30th day of June, 2013, at or near Tofino, in the Province of British Columbia, did, for a sexual purpose, invite, counsel or incite B.H., a person under the age of sixteen years, to touch, directly or indirectly, with a part of his body, or with an object, the body of B.H., contrary to

Section 152 of the Criminal Code . Again, W.J.C. has entered a plea of guilty to that offence. Facts [ 5 ] The Crown has outlined a number of circumstances relating to these offences. There is some issue taken with respect to the depth in which Crown started to explain some of the context of these offences. For the purposes of my decision, I have relied on what appears to be undisputed facts relating to the three offences to which W.J.C. has entered his guilty pleas. [ 6 ] B.H. (hereinafter referred to as the "Victim") was, at the time of this offence, 13 years of age and was approaching 14 years of age.

She was under the guardianship of the spouse of W.J.C. (hereinafter referred to as the "Accused"). The relationship as between the Victim and the Accused's spouse was that of grandmother and granddaughter. The grandmother had the child placed under her guardianship from approximately the age of five years. During that period of time, the Accused stood in a position of trust with respect to the Victim and was regarded by the Victim as a grandfather.

He certainly performed that function within the household in which the three of them lived. [ 7 ] Count 5 is the allegation of counselling or inciting or inviting contact for a sexual purpose. The circumstances surrounding that particular offence can fairly be described as an offer by the Accused to the Victim to pay her a certain amount of money in order to engage in sexual conduct with the Accused.

The Accused did so in a set of circumstances whereby the Victim declined the uninvited opportunity and felt upset about it; however she did not report that incident to her grandmother. [ 8 ] Subsequent to that event and prior to the offences on Counts 1 and 3 becoming fully apparent to the police, there were reports made by the Victim to persons in authority which were then relayed to the RCMP and to the grandmother.

The reports made by Victim and her statement made to the police contained the suggestions that there had been other uninvited opportunities where the Accused had made offers to the Victim of sex for money. I am mindful that only one of those offences has been admitted to by the Accused in the matters before me. However, as a result of the police investigation of those allegations, it became apparent through statements made by the Accused to the police under a caution and warning that he had engaged in sexual intercourse on at least two occasions with the Victim.

The time periods were not entirely clear from either his admissions or from the further statements given by the Victim to the police. However, by virtue of the guilty pleas, the time frame set out in Counts 1 and 3 are admitted by the Accused. [ 9 ] The circumstances concerning each of those offences are that there was sexual intercourse between the Accused and the Victim. In both instances it occurred in the family home while the grandmother was absent from the family home.

The circumstances surrounding the actual events are in conflict from the statement given by the Accused to the police and also from the Victim's statement given to the police. [ 10 ] In one version provided by the Victim, the Accused forced her into sexual activity on the basis of depriving her from certain social opportunities with friends or from travelling to certain locations. The suggestion made by the Accused in his statement was that the sexual activity had been precipitated by the Victim.

[ 11 ] Based on the whole of the information before me, I am of the view that these suggestions made at various times by the Accused in his statements to various persons in authority and the conflicting accounts contained within those statements would tend to support the notion that the actual sexual activity was precipitated by the Accused and was against the will of the 13-year-old child. [ 12 ] As a result of these offences, there has been a significant shattering of the family home. The Accused has been living outside of the home, while the Victim and the grandmother have continued to reside together.

The residence of both the child victim as well as the victim grandmother is located on a reserve on the west coast of Vancouver Island. That is the same reserve location in which the Accused also resided but in a separate residence following the disclosure of these allegations. [ 13 ] The Crown has submitted victim impact statements which are not in any way disputed by defence. There is an impact statement from the Victim. In it she describes the significant and harmful effect that the events have had on her. She has been suicidal and inclined to self-harming. She has had problems with her health.

She became anaemic, she became antisocial, and she had significant problems residing within the community while knowing that the Accused was still within that community. The Victim has had problems with school. She began to find it hard to focus on what was being taught to her. She had difficulty to the extent that she considered dropping out of school or found herself in a position of skipping classes. [ 14 ] It is clear that the acts of the Accused with respect to the Victim have been profoundly negative and destructive. [ 15 ] The second victim impact statement is provided by the grandmother.

The victim grandmother expresses the tremendous sense of guilt flowing from the fact that she was not there to protect her granddaughter. She feels betrayed by the Accused insofar as he breached the trust and undermined the safe home which she has provided for the child victim. The grandmother has faced significant stress and has had to take time off from work and has thereby lost income because of these events.

She has also felt suicidal when she thinks of the destructive actions of the Accused, a person to whom she was married, against the Victim, a person whom she feels so close to and who she was under a duty to protect. [ 16 ] The grandmother describes in her victim impact statement the negative impact on her in the following words [as read in]: I carry so much pain and hurt in my heart. I felt like I was stabbed there and left a scar. I will never forget this. My heart was shattered to a million pieces. [ 17 ] There was also another aspect of this case which bears mentioning.

This matter has taken an extensive period of time in order for it to come forward for sentencing. One of the significant factors affecting the timing of this was the fact that the Accused, when before the court at an earlier date, recanted his admission of guilt and thereby caused the proceedings to be adjourned.

New legal counsel had to be appointed; the suggestion of innocence advanced by the Accused continued for a period of time and even during a period of time when presentence reports and other types of reports ordered by the court were in the process of being prepared. [ 18 ] The Accused, subsequent to that recanting, once again admitted his guilt and matters were able to proceed. However, the necessary presentence reports and forensic assessments were then subsequently further delayed as a result of a lack of full cooperation by the Accused.

The net effect is that these matters have caused the child victim and the grandmother and their family to make a significant number of appearances before the court, thereby causing all of them, and especially these two victims, increased anxiety, hurt, and a sense of betrayal. [ 19 ] The matter was before me on July 21, 2015, at which point the proceedings commenced for sentencing.

However, it became apparent in the course of those proceedings that there was insufficient information concerning the Accused's aboriginal background in order for the sentencing matter to proceed to completion. [ 20 ] The child victim in this case is not in court today, having made the decision that continuing with her schooling and education is more important than appearing in court and watching the outcome of these proceedings. It is noteworthy that there are a significant number of family members both from the Accused's family as well as from the Victim's family in court today.

Circumstances of the Accused [ 21 ] A significant amount of information about the Accused is contained in a series of reports that are before the court. These include the following: first a presentence report completed February 20, 2015, by Darlene O'Brien, a probation officer with the Port Alberni Community Corrections Office; second, a forensic assessment report completed October 22, 2014, by Kimberly L.

Kreklewetz, PhD, a registered psychologist with the Forensic Assessment Authority. [ 22 ] The third report is the updated presentence report completed on October 13, 2015, by Darlene O'Brien, a probation officer with Community Corrections. The purpose of that report was to provide a greater Gladue component to the first presentence report.

It was deficient in that regard owing to lack of opportunity for the author of the report to have full access to a number of individuals who could provide a better background information and understanding concerning the Accused's aboriginal background and the challenges of his upbringing and what he may have suffered as a result of having attended at a day school at or near his Native community. [ 23 ] The presentence report completed on February 20, 2015, confirms that the Accused is a 59-year-old member of a west coast Band. He has an occupational background in the forestry industry.

He suffered an injury to his lower back in a logging accident in 1991. He has completed a grade 11 education. [ 24 ] He has no criminal record. He is described in the presentence report as having attended a "residential day school," such that a difference is being drawn as between a day school and a full-fledged residential school. However, in the report of February 20, 2015, there is a suggestion that he suffered horrific sexual, physical, and psychological abuse as a young child.

That apparently had gone unreported by him; however, as I understand it, he is in the process of seeking a financial compensation for the abuse that he is alleged to have suffered while attending the residential day school.

[ 25 ] The Forensic Psychiatric Services Commission report prepared by Kimberly L. Kreklewetz makes some reference to attending a residential school between 1961 and 1968. I understand that it is common ground that it was a "residential day school" rather than what I described as the "full-blown residential school".

He reported to the psychologist that while attending that school he was subject to frequent physical abuse such as being whipped with a yardstick or a leather strap for what he described as "for no reason at all." He also alleged that he was sexually assaulted by a male teacher at age six on an ongoing basis, and there is also disclosure of what I understand to be abuse from a female teacher during the same period of time. [ 26 ] The Forensic Psychiatric Services Commission report provides more in-depth details about the Accused's work within the community.

In addition to working in the bush in the logging industry, he also worked with heavy-duty machinery on, what appears to be, a rotation basis such that he was in and out of the woods on a 10-day rotation. [ 27 ] Following the allegations becoming known to his family, the Accused has been living in a variety of locations, including living in what could be described as a shelter in the Port Alberni area.

He does receive some pension as a result of his work in the logging industry and also apparently has financial assistance from the Ministry. [ 28 ] The report prepared by the Forensic Psychiatric Services Commission is complete with the results of various tests that were conducted on the Accused. He self-reported that he has not had any problems with alcohol or drugs, certainly in recent years. Health- wise he reports having type 2 diabetes. He has also had another series of health problems which have again contributed to the delay of the sentencing in this matter.

He apparently also has a pending Workers' Compensation claim which has not yet been adjudicated. [ 29 ] With respect to his mental health history, he has not reported any problems of mental health or psychiatric problems nor has he been prescribed medications for any such conditions nor has he been hospitalized for any of those conditions. [ 30 ] He was assessed as being at low risk for suicide or self-harm at present time. [ 31 ] He spoke to the psychologist about the various offences, and in that regard, he was described by the psychologist as being "evasive when discussing the index offence." [ 32 ] He was assessed for the purposes of determining whether or not he was at risk to sexually reoffend.

As a result of the full range of assessments that were completed upon him, the conclusion was as follows, and I quote from page 9 of the forensic report [as read in]: Overall, at this juncture, [the Accused's] risk for sexual reoffending should be considered to fall within the moderate range. [ 33 ] The report also indicated that the Accused expressed a strong desire to participate in counselling in order to deal with the management of risk or of sexual violence within the community. [ 34 ] In further describing the evasiveness of the Accused, the psychologist summarized it in the following fashion: [The Accused] was evasive when questioned regarding the details of the index offence.

He denied offering the victim money in exchange for sex and denied that sexual intercourse occurred, which was inconsistent to his statements to police as well as the victim's statement. He engaged in minimization, of victim blaming, and claimed that the victim initiated sexual contact with him on at least one occasion.

Over the course of the clinical interview, the writer was left with the impression that [the Accused] was not comfortable discussing the details of the offence and as a result may have withheld important information with regard to the motivation for his behaviour and/or his sexual history and preferences. As such, based on [the Accused's] self-report during the clinical interview and a review of file information, the following DSM-5 diagnosis is proffered: query pedophilic disorder nonexclusive type sexually attracted to females.

He does not appear to meet criteria for any major mental illness (i.e., disorder of mood or thought). Further, with regard to his residential school experience, a diagnosis of posttraumatic stress disorder was considered and ultimately ruled out. The results of a risk assessment (Static-99R, RSVP) indicate that [the Accused] presently poses a low to moderate risk to reoffend sexually. Respectfully, it is the writer's opinion that [the Accused's] overall risk for sexual recidivism is best characterized as moderate at present.

Future offences are most likely to involve females with whom [the Accused] has ongoing contact, had cultivated a relatively close and trusting relationship, and is in a position of relative power (e.g., due to age). [ 35 ] The October 13, 2015, presentence report addendum indicates that attempts made by the writer to contact a number of collateral sources proved to be very challenging. As a result, little was added to the earlier reports by the addendum.

However, what did stand out were two features: one was a conflict in the assertions made by the Accused that he was active in cultural activities within his community and he considered them to be very important.

The collaterals who were contacted refuted this suggestion made by the Accused, and he was characterized by them as not an active participant in his culture whatsoever. [ 36 ] Second, the more telling aspect of the addendum report is that there is a clear feeling among his First Nations community that the Accused is not welcome back within the community as a result of his offending behaviour; there is also a suggestion that steps may be taken by the Band Council in order to prohibit the Accused from rejoining the community. [ 37 ] The report summarizes it in the following fashion [as read in]: Reasons cited for the (TFN) administrative decision included [the Accused's] plea of guilt.

They deem the safety of their community is of paramount concern and they acknowledge that cultural assistance may be afforded to [the Accused] within the traditional territory but outside of the four named communities.

[ 38 ] Those four named communities were, in fact, the various locations which his traditional community occupies on the west coast of Vancouver Island. Position of Crown on sentencing [ 39 ] In

summary the position taken by Crown is that with respect to these offences, that mandatory minimums apply pursuant to ss. 151 and 152 of the Criminal Code . As a result of the nature of these three offences against a young person, and given the Accused was in a position of trust, there should be resulting consecutive sentences that emphasize denunciation and deterrence.

With respect to the first offence, that is first in time under Count 5, being the invitation for sexual touching, that there should be a one-year mandatory minimum sentence. [ 40 ] With respect to the second offence in time, that is under Count 1, for the period between the 1st of November 2013 to the 30th day of November 2013, being the sexual intercourse with the child victim, that there should be a further sentence of two years.

With respect to the third offence in time, that is set out in Count 3, again being sexual intercourse with the child victim between the 1st of January 2014 and the 31st day of January 2014, that there should be a further three-year sentence. Crown suggests that all of these sentences run on a consecutive basis. That would result in a six-year sentence.

However, taking into account the principles of proportionality, Crown suggests that a five-year sentence would be appropriate. [ 41 ] Crown also suggests that given the Accused's aboriginal background, that the court must consider the Gladue factors but that the Gladue factors, on balance, do not mean that there should be a lesser sentence imposed upon the Accused in this case.

Crown also suggests that when looking at the various aggravating and mitigating factors, that the delay in bringing this matter to a conclusion caused by a change in the position of the Accused, asserting his innocence after having entered pleas of guilty, should be a factor that is taken into consideration.

Notwithstanding the fact that the Victim has been spared testifying in this matter, that benefit has to be viewed in the context of the increased adverse results heaped upon the Victim and caused by this matter being delayed for so many months as a result of the change of position or assertion of innocence by the Accused. [ 42 ] Crown is also seeking a number of ancillary orders. Position of Accused on sentencing [ 43 ] It is suggested that the Accused is in need of significant counselling.

In that regard, the best opportunity for counselling is as set out in the various reports and specifically the report completed February 20, 2015. It confirms that the better programming opportunities for this particular offender would be in the federal penitentiary system.

It is being suggested that a sentence of something in the range of between 25 to 30 months globally would meet not only the goals of denunciation and deterrence but also provide the required amount of time for the Accused to receive the type of counselling which is suggested in the reports. [ 44 ] With respect to the Accused himself, it is suggested that he has suffered significantly from his abuse at residential day school. It is suggested that he is a person who has buried that history very deeply and has had difficulty coming to terms with it.

He has put around himself what is referred to as a "hard shell." He has not, up to this point, engaged nor sought counselling to assist him. However, the suggestion is disputed that he shows a lack of insight into his offence, rather it is suggested that he is accepting of the fact that he has committed a significantly serious offence against a very young person. [ 45 ] However, that assertion is, of course, not easily found within the confines or the context of the various reports that are before me.

But, it is offered by defence as an explanation for the suggestion that there has been what could be perceived as a lack of acceptance of responsibility by the Accused and a lack of insight into these offences. In fact, it is suggested by defence that the Accused is now in a position that he wants to "unpack the box" and to deal with the causes of his offending behaviour and at this stage, as is confirmed in the reports, that he is now prepared to undergo counselling.

Hence I am to accept him as being a good candidate for counselling and to impose a sentence that will permit him to receive the type of counselling that he should undergo. Case Authorities relied upon by Crown [ 46 ] Crown has referred the court to a number of authorities which I will summarize as follows: 1. R. v. Wells , 2000 SCC 10 ; 2. R. v. Ladue , 2011 BCCA 101 ; 3. R. v. Revet , 2010 SKCA 71 ; 4. R. v. B.S.B. , 2008 BCSC 1526 ; 5. R. v. R.R.M. , 2009 BCCA 578 ; 6. R. v. B.J.W. , 2012 ONSC 306 ; 7. R. v. Costin , [1993] O.J. No. 3203 ; 8. R. v. Carrignan , [1997] O.J. No. 2626 ; 9. R. v. L.F. , [1999] O.J.

No. 1239 ; 10. R. v. L.W. , 2009 ONCA 123 ; 11. R. v. Williams , 2011 BCCA 194 ;

12. R. v. Rennie, 2013 BCSC 909; 13. R. v. W.M., [2010] B.C.J. No. 1791. [47] I have read each of these cases and I have considered them in coming to a determination of the sentence. I may not necessarilyrefer to each of these cases but the principles outlined in them and the guidance that they provide with respect to a fit sentence in this casehave been taken into account. Analysis [48] In R. v.

B.S.B., Justice Romilly of our Supreme Court established that the range of sentences for sexual assault where sexualintercourse takes place is two to six years (see paragraph 35 and the cases referred to therein). [49] At paragraph 36, Justice Romilly provides a comprehensive review of the aggravating and mitigating circumstances that mustbe taken into account in each individual case which may increase or reduce the offender's sentence for sexual offences. [50] In his analysis, Mr. Justice Romilly relies upon the decision of the Supreme Court of Canada in R. v.

L.M., 2008 SCC 31, andthen cites a significant number of authorities for each of the factors that should be taken into account. Reliance is also placed upon thedecision of R. v. J.-J.L., (QC CA), [1998] R.J.Q. 971, 126 CCC (3d) 235 (C.A.). In

summary, those factors are asfollows: [a] The nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychologicalthreats and manipulation, etc. . . . [b] The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim . . . [c] The disorders underlying the commission of the offences: the offender's psychological difficulties, disorders and deviancy,intoxication, etc. . . . [d] The offender's previous convictions: proximity in time to the offence charged and the nature of the previous offences . . . [e] The offender's behaviour after the commission of the offences: confessions, collaboration in the investigation, immediateinvolvement in a treatment programme, potential for rehabilitation, financial assistance if necessary, compassion and empathy for thevictims (remorse, regret, etc.) . . . [f] The time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender'sbehaviour (the offender's age, social integration and employment, commission of other offences etc.) . . . [g] The victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature andextent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physicalhandicap), abuse of trust or authority, lingering effects etc. . . . [51] In R. v.

Wells, the court at paragraphs 43 and 44 states the following when dealing with the restorative justice scheme insentencing of aboriginal offenders: 43 The appellant submits that in according greater weight to the goals of denunciation and deterrence based on the nature of hisoffence, the sentencing judge did not take into account, as required by s. 718.2(e), the paramount significance of restorative justice withinaboriginal communities.

The appellant also submits that on the same basis, the Court of Appeal was in error when it held that it wouldbe unreasonable to conclude that a fit sentence for a non-aboriginal offender would not also be a fit sentence for an aboriginal offender.

It is important to note, however, that consistent with the reasoning in Gladue, supra, the Court of Appeal was referring to "seriouscrimes", rather than offences in general, as follows (at p. 140): For serious crimes, it would not be reasonable to conclude that a fit sentence for a non-aboriginal person would not also be fit for anaboriginal person, and this point was made by Esson, J.A. speaking for the majority in the British Columbia Court of Appeal decision ofR. v.

Gladue (1997), (BC CA), 119 C.C.C. (3d) 481 at p. 506, who stated, "To put it another way, the particularcircumstances could not reasonably support a conclusion that the sentence, if a fit one for a non-aboriginal person, would not also be fitfor an aboriginal person". [Emphasis added.] 44 Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it doesnot mandate, necessarily, a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose asentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s.718.2(

e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles ofrestorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally bethe case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as oftenas for non-aboriginal offenders (Gladue, at para. 33).

Accordingly, I conclude that it was open to the trial judge to give primacy to theprinciples of denunciation and deterrence in this case on the basis that the crime involved was a serious one. [52] In R. v. Ladue, at paragraph 45, our Court of Appeal stated as follows: [45] The direction from the Supreme Court could not be clearer. The unique circumstances of an Aboriginal offender must be takeninto consideration when passing sentence. The extent to which these circumstances will affect a sentence will depend on each case. The

Court made it clear that there is no automatic Aboriginal discount of the sentence. Furthermore, the more serious the crime, the morereduced a role these circumstances will play in crafting a fit sentence: see R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207. [53] In the case of R. v. R.R.M., our Court of Appeal dealt with an appeal of a two-year imprisonment and three-year probationsentence imposed upon the accused in that case. The accused had pleaded guilty to sexual assault of his 14-year-old stepdaughter. Inthat case, it was full vaginal penetration by the accused's penis.

The victim was left with significant emotional problems. There seemedto be a failure on the part of the accused to appreciate the significance of the offence. The court upheld the two-year imprisonment andthe three years of probation. [54] In R. v. B.J.W., the Ontario Superior Court of Justice dealt with a sexual assault of a young girl with intercourse by a person inloco parentis and where a breach of trust was an issue. Reference was made by the court to a series of cases. In that case, there was nointercourse other than vaginal touching or digital penetration, but there was forced fellatio.

The disposition in that matter, taking intoaccount all the factors, was imposition of a four-year prison sentence with time credited. [55] In the Ontario Court of Appeal case of R. v. Costin, the court reduced a sentence to five years where there was sexual assault bypenetration of a stepdaughter. [56] In R. v. Carrignan, the Ontario Court of Appeal upheld the five-year sentence notwithstanding the fact that two convictions forsexual touching were quashed; but the sentence was found to be a fit sentence again in situations involving sexual offences against ayoung person. [57] In R. v.

L.F., there was an appeal of a conviction for sexual assault and for sexual touching involving a 13-year-old complainantby a person viewed as a stepfather. The accused in that case was sentenced to four years of imprisonment. That was upheld on appeal. [58] In the case of R. v. L.W., the Ontario Court of Appeal upheld a global sentence of 54 months for sexual interference and sexualtouching of two step-granddaughters by the accused. [59] In a recent decision which was pronounced by the Honourable Judge Skilnick in R. v.

J.A.V.C. and D.A.C., 2015 BCPC 218,parents who sexually offended against their 13-year-old child on a repeated basis for an extended period of time were sentenced in thefollowing fashion: the father to six years' imprisonment for the offence of sexual assault and the mother to four years of imprisonmentfor the offence of sexual assault. [60] In another decision, R. v.

C.A.S., a decision of the Honourable Administrative Judge Brecknell cited at 2015 BCPC 241, a seriesof offences against a number of young children between the ages of six and 14 were disposed of by way of consecutive federalpenitentiary time: with respect to one count, being the gross indecency against a series of victims, 25 months' imprisonment, and forsexual touching, 17 months' imprisonment, and that was after time had been credited for time served. [61] In R. v. Williams, our Court of Appeal upheld the decision of the trial judge in a Port Alberni case.

Quoting Madam JusticeNewbury at paragraph 5 as follows: [5] The sentencing judge reviewed Mr. Williams' personal circumstances and the circumstances of the offence in his reasons. Heagreed with the Crown that the main concern in this case was denunciation and deterrence, especially given the victim's age. He thensaid this: [17] Another very important aspect of my decision today is based on me and my personal experience in coming to this communityalmost every month for the last 17 years.

Over that period of time there have been a large number of cases where women had consumedtoo much alcohol, went to bed, fell deeply asleep or passed out, and were then taken advantage of by a male and sexually assaulted in thebed in the home in which they felt safe. For a very long time now I have been treating this very seriously and trying to deter people fromthis behaviour. I have to admit, in the last few years it seems that we have had fewer of these cases.

It probably does not have anything todo with me, but a recognition in the communities that this has been a problem, but it does occur from time to time and in this case it didoccur. It is exactly the same pattern as we have seen a number of times, except that I have to admit in this case, with the victim onlybeing 14 years old, that is a special aggravated factor. [18] I have felt that for years, that when considering the provisions in the Code in regards to aboriginal offenders and the Gladuecase, (SCC), [1999] 1 S.C.R. 688], I also have to consider the aboriginal communities in this area.

I have had verymany aboriginal people, citizens and leaders, speak to me and say that they are equally concerned about some of the things that a veryfew of their members perpetrate against their own people, and they are as concerned about their children as non-aboriginal people, and asone said to me years ago, "It doesn't matter if my child is attacked or abused by an aboriginal offender or by a non-aboriginal offender,my child still suffers." So I feel that in these kinds of sentencings, I need to speak to those aboriginal communities and to the aboriginalparents and say to them, "I will do everything that is in my power to deter people from inflicting themselves in this manner on yourchildren." [62] Madam Justice Newbury agreed with the learned trial judge's decision and upheld the sentence in that case, which was twoyears' imprisonment and three years' probation.

Aggravating factors [63] I accept as aggravating factors those matters outlined by Crown. First of all, there was the trust relationship between the

Accused and the Victim. Secondly, there was the element of coercion that was brought to bear by the Accused against the Victim. Third, there was the significant negative impact on the young Victim and on the family members flowing from the breach of trust that occurred. Fourth relates to the offender's behaviour after the commission of the offences: the fact that there has been a somewhat tepid approach of the Accused to eliminating the necessity of the Victim to testify.

Notwithstanding the fact she has not testified, she has come back to court on several occasions in order to try to bring some closure to this matter. That, of course, flowed from the prior change of admission of guilt by the Accused. Mitigating factors [ 64 ] I do accept that the Accused did eventually enter a guilty plea. I also accept as mitigating that he has in the past had a productive role in society. He has worked. He has contributed to society in an economic sense.

On the whole, I also take into account that he will be isolated from his community owing to the very clear message being given by his own community to him that he is not welcome there as a result of his offending behaviour.

Conclusions [ 65 ] I am of the view that a lengthy custodial sentence is warranted having regard to s 718.01 of the Code which states that the court must give primary consideration to the objectives of denunciation and deterrence in offences against children. [ 66 ] In reaching this sentencing decision I am taking into account all of the factors that I am obliged to consider, and in particular under s. 718 of the Criminal Code which sets out the fundamental purpose of sentencing, namely, that the purpose is to contribute to respect for the law, the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives: (

a) denouncing unlawful conduct; (

b) deterring the Accused and other likeminded persons from committing offences; (

c) separate an offender from society, where necessary; (

d) assisting in rehabilitating offenders; (

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

f) providing a sense of responsibility in the offender and the acknowledgment of the harm that they have done to victims and the community, [ 67 ] I am mindful of the other sentencing principles set out in s. 718.2 including the Accused's aboriginal background. I have taken into account the Gladue factors as they have been interpreted by both our Supreme Court as well as by other courts.

Sentencing [ 68 ] In this case, I am of the view that a global sentence of four years is appropriate. [ 69 ] For the purposes of allocating out the sentence: with respect to Count 5, the invitation to sexual touching, there would be a one- year custodial sentence; with respect to the first offence of the sexual assault on Count 1, there would be a two-year sentence; with respect to the third offence, which is the Count 3, again, that is the sexual assault involving intercourse, there would be a three-year sentence. That would total six years.

However, applying the principles of proportionality, which I am obliged to do (see s. 718.1 of the Code) and taking into account the whole of the circumstances, the sentence that I will impose will be four years. Hence I would reduce the sentence down from a total that I have outlined, of six years, down to a total of four years. That would be served, of course, in a federal penitentiary, and no probation order would be required. [ 70 ] Dealing with the additional ancillary orders, there will be a DNA order. [ 71 ] THE CLERK: Is that on all counts or -- [ 72 ] THE COURT: Yes, please.

There will be an order pursuant to s. 490.012(1) in Form 52 of the Criminal Code . The Accused will be required to comply with the Sex Offender Information Registration Act and that pursuant to s. 490.013(1) (b) , the order shall be for a term of life. [ 73 ] There will be a s. 109 mandatory order. [ 74 ] I am going to pause for a moment.

Is that a 10-year-order that is being sought? (SUBMISSIONS BY COUNSEL) [ 75 ] THE COURT: Well, on that basis, I am going to make it a lifetime s. 109 order. [ 76 ] Then you are seeking a prohibition order under s. 161; is that correct? (SUBMISSIONS BY COUNSEL) [ 77 ] THE COURT: I am mindful of what the risk assessment is for reoffending. This was clearly opportunistic, and it involved a particular individual. W.J.C. is going to be well known within the community, certainly within his own community, which I think offers a measure of protection to society.

I do not anticipate he is going to be the type of individual who is going to relocate from the place

where he has lived for the last 58 or 59 years. [ 78 ] MR. MERKE: Those are all fair comments, Your Honour. I don't -- [ 79 ] THE COURT: So I am not going to impose the s. 161 order on him. I think it will be difficult, and he is going to have difficulty enough finding a home and accommodation. I am not going to accede to that request. [ 80 ] However, I do need to deal with the ban on publication. [ 81 ] MR.

MERKE: Yes, and before we go to that, though, I had asked this morning for a 743.21 order so that he's not calling or Facebooking -- I guess he's not going to be Facebooking from jail, but that there's no communication to the -- to the victims and the family. [ 82 ] THE COURT: Sorry. Again, that is under

section -- [ 83 ] MR. MERKE: 743.21, and it simply suggests that for any period of time that W.J.C. is in custody he have no contact with the Victim or the Victim's grandmother. [ 84 ] THE COURT: Yes. [ 85 ] MR. GOSH: Your Honour, I'm wondering if there could be an addendum or something added. I agree with the no contact directly or indirectly, but I'm suggesting there should be an "except through his psychiatrist" in case part of his treatment is that he has to write a letter of apology. [ 86 ] MR.

MERKE: I think it's clear that they don't want any communication from him, so whether it's beneficial to him, I don't think that it matters to them and I would suggest it's inappropriate regardless if a psychiatrist thinks it's -- thinks it is or not. [ 87 ] THE COURT: All right. I am going to make the order. I will make the no-contact order. So he is not to have any contact with either the Victim, B.H., or the Victim's grandmother. [ 88 ] MR.

GOSH: Yes, Your Honour. [ 89 ] THE COURT: Publication ban? (SUBMISSIONS BY COUNSEL) [ 90 ] THE COURT: So you are seeking an amendment to the publication ban such that it would read that there would be an order directing that the name of the Accused may be published but directing that any information that could identify the complainant -- I am going to make that "or a member of the complainant's immediate" -- or rather I am going to say "or the complainant's grandmother," I am going to make it -- [ 91 ] MR.

MERKE: Yes, I think that would do it, Your Honour. [ 92 ] THE COURT: -- shall not be published in any document or broadcast or transmitted in any way. [ 93 ] MR. MERKE: Yes, that sounds excellent. [ 94 ] THE COURT: All right. Madam Clerk, do we have that? [ 95 ] THE CLERK: No. [ 96 ] THE COURT: All right. So I am amending the publication ban that is presently in place -- [ 97 ] THE CLERK: Which is currently under 486.4(1)? [ 98 ] THE COURT: Yes, and I think also under sub (2), according to the -- [ 99 ] THE CLERK: Okay. So . . . [ 100 ] THE COURT: Sub (2), so it is under -- sub (2) does not apply in this case.

So it is under 486.4(1). [ 101 ] THE CLERK: So amend the current ban to read as follows. [ 102 ] THE COURT: Yes, that the name of the Accused may be published, but there shall be no publication of any information that could identify the complainant or the complainant's grandmother, and that such information shall not be published in any document, broadcast, or transmitted in any way. [ 103 ] MR. MERKE: Yes, thank you. [ 104 ] THE COURT: Anything further? [ 105 ] MR. MERKE: No, just going to direct a stay of proceedings on the remaining counts on that information. [ 106 ] THE COURT: All right.

W.J.C., you have got some work to do in terms of your own rehabilitation. You will more than likely - I am not making a direction to this effect- more than likely be put into the sexual offender treatment program. The people who succeed at that program are the people who make a sincere effort, deal with their issues, deal with the impact that they have had on other people's

lives, and at the end of the day, people who approach the program in a positive fashion seeking to gain as much help and assistance from it are the people that do reintegrate back into the society and in many instances do regain the trust of the society that they have betrayed, in a very significant sense, through their offending actions. [ 107 ] You have some challenges in front of you, but I do wish you the best success in achieving the goals of that program. [ 108 ] THE ACCUSED: Yes, I'll try my best, Your Honour, to make everything the way that it used to be.

It's just that all -- what was going on in my younger days, that's all that'll come to my mind, when I was in childhood, my younger -- younger days in that day school. [ 109 ] THE COURT: Well, this will be an opportunity to deal with those issues. [ 110 ] THE ACCUSED: Yeah. [ 111 ] THE COURT: Thank you. All right. Standing down. (REASONS CONCLUDED)