R. v. L. P. J. Date:, 2015 BCPC 298

Citation: R. v. L. P. J. Date: 20150817 2015 BCPC 0298 File No: 38075-1-K Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L. P. J. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. K. KEYES BAN ON PUBLICATION s. 486.4(1) C.C.C. Counsel for the Crown: R.L. Ross Counsel for the Defendant: R.D. Lyons Place of Hearing: Vanderhoof , B.C. Date of Hearing: August 17, 2015 Date of Judgment: August 17, 2015

[ 1 ] THE COURT: This matter is before the court today for sentencing. [ 2 ] On January 14, 2015, I found Mr. J. guilty of sexual assault, s. 271, and sexual intercourse, s. 151 , of the Criminal Code . These convictions resulted from Mr. J. having sexual intercourse with D. P., specifically on or about March 23, 2013, although Mr. J. did admit to the police in his statement which was admitted into evidence that he also had sex twice with Ms. P. five months earlier, which would have been in October 2012. [ 3 ] Ms. P. was born December 1997, so she would have turned 15 years old on December 2012.

Thus, the October 2012 instances of sexual activity, at that time, she would have been 14 years old and in March 2013 she would have been 15 years old. [ 4 ] At all pertinent times, Mr. J. was 24 years old. [ 5 ] Because she was under the age of 16, and because of the age difference between them, Ms. P. was incapable of consenting to sexual activity with Mr. J. Circumstances [ 6 ] The incident that gave rise to the police investigation began on the evening of March 22, 2013. Ms. P., aged 15, came over to the home of V. J. who had been her friend for over three years.

She was drunk when she arrived, and possibly under the influence of other substances. L. J. arrived home about 7, and his friend S. T. came over to eat and play videogames. They all consumed alcohol - beer and vodka - although Mr. J. told the police he was not drunk that night. [ 7 ] Mr. J., his friend S., V. J., and D. P. spent the evening primarily in Mr. J.'s bedroom where they played videogames. The party consumed some beer and vodka. Later, another friend of Mr. J.’s, N., came over, but around midnight, Mrs. G. J. asked them all to leave, and V., S., and N. left. According to them, Ms.

P. remained behind with Mr. J. in his room. [ 8 ] At approximately 4 a.m. the following morning, police were called to the home of Ms. P. where she resided with her grandmother. Constable Pittman said Ms. P. was upset and had been crying and was clearly under the influence of alcohol with slurred speech and was unstable on her feet. She smelled of liquor. She made the complaint which brought this matter to court, and asked to go to the hospital. [ 9 ] There were various fresh scratches and bruises on her body. In her testimony, Ms. P. explained that she must have fallen when returning from Mr.

J.'s house to her own home in the snow without any shoes, causing those injuries. She said she forgot her running shoes at his house when she left. Those shoes were found by the police at Mr. J.'s home on the morning of his arrest. [ 10 ] Mr. J. said in his statement to the police the following day that he had intercourse with Ms. P. the evening before. He said that Ms. P. "came on to him" twice that night.

Once was about 30 seconds in his room while the others were present, in which he said she "pulls me down and gets on top of me and starts riding me, clothes on," which he said he laughed about because she was "weird and wasted." His sister told Ms. P. to stop, and she did. [ 11 ] According to V. J., Ms. P. did nothing else flirtatious. [ 12 ] The other occasion, according to Mr.

J., occurred in the living room where he said she came on to him more aggressively and he "wasn't willing to resist at the time," so they "walked over to the room together and got naked and had sex over the freezer." He told the police that occurred about 10:30 in the evening when his friend S. and his sister V. were there, and he admitted in cross-examination in his testimony that it happened around 2 a.m., which would have been long after Mrs. J. had asked his friends to leave and hours after they did leave, according to V. and S., was untrue. [ 13 ] Contrary to Ms. P.'s evidence, Mr.

J. asserted that he did not have intercourse with Ms. P. in his bedroom later that night, but he admitted that he might not remember due to his drinking, and the evidence of his sister V. was that she heard Ms. P. laughing in Mr. J.'s bedroom later in the evening when she was going to bed. [ 14 ] Ms. P. testified that she wanted to have sex with Mr. J. on the night in question and that she came on to him. She said she had intercourse with him in his bedroom. I find that Mr. J. had intercourse with Ms. P. on two occasions that evening: once on the freezer earlier in the evening and again in his bedroom. [ 15 ] Ms.

P. confirmed that she was drinking that night and said she had been drinking alcohol since she was 14. S. T., Mr. J.'s friend who was present, described her as "blacked-out drunk" and explained "when they are blacked-out drunk, they don't know what they're doing." [ 16 ] V. J., D.’s friend and Mr. J.'s sister, said D. was really drunk and acting weird, at one point in the evening talking to the ceiling: "She was yelling at God about taking her baby or something like 'you ain't gonna take my baby, not this time.'" [ 17 ] All of the witnesses described Ms.

P.'s behaviour as weird and crazy and annoying and obnoxious. However, what was annoying and obnoxious about her behaviour was that she appeared to be trying to get Mr. J. to pay attention to her, as a result of which, they all tried to get her to leave. [ 18 ] All witnesses agree that D. P. was extremely intoxicated that night. That evidence is consistent with that of Constable Pittman, who found Ms. P. still in an intoxicated state when he attended at her home after 4 a.m. the following morning. However, Mr.

J. testified in chief that he had sex with her despite this behaviour. [ 19 ] I find that it was obvious to every person there, including Mr. J., that Ms. P. was so intoxicated that she did not know what she was doing. The evidence of Mr. J. and the others is that she was acting crazy. The evidence was that Ms. P. was intoxicated when she arrived but Mr. J. and the others nevertheless gave her liquor to drink despite her age. She was obviously in an extremely vulnerable

position as a result of her intoxication and her mental state. It is in this context that I must weigh Mr. J.'s moral culpability for this offence. [ 20 ] Mr. J.'s mother, G. J. , gave evidence that she had known Ms. P. about six years since she started befriending her children and coming around the house. Thus Mrs. J., and presumably her children V. and Mr. J., had known D. P. since she was about eight or nine years old. V. J. said she had been close friends with Ms. P. for about three years, at which point Ms. P. would have been 11 or 12 years old, and she knew at trial that Ms.

P. was 16 years old at the time of the trial in September 2014. Thus V. was aware of Ms. P.'s true age. [ 21 ] I find it extremely unlikely that Mr. J. would not have had actual knowledge of the age, generally, of a girl who had been a friend of the family for that long. Mr. J. told police he believed Ms. P. was 16 in March 2013, but he admitted that she had told him in roughly December that she was 15 and that he had not ever asked her age.

He contradicted that evidence at trial and said he thought she was 19 but later admitted that was not true. [ 22 ] He told the police he knew what he was doing with her was wrong due to her age and that it scared him "because it was bound to come down this road." I found from those remarks that he was scared he would be charged with having sex with an underage girl, which is, of course, precisely what happened. I found that Mr. J. either knew she was underage or knew she might be underage and chose not to inquire about that, as the law requires. On that basis, I found him guilty as charged.

Presentence report [ 23 ] I have had the benefit of a presentence report (the "PSR") prepared by Vanessa Epton, senior probation officer, dated April 30, 2015. Ms. Epton advised that Mr. J. is an aboriginal person who has lived all his life on the S. R., also called the S. C. R., near Vanderhoof, B.C. [ 24 ] Mr. J. attended N. V. S. S. school, achieving his graduation from grade 12, and he attended one year of university at the University of Northern British Columbia in Prince George. While still in high school, he worked part-time at the C. - P. sawmill near Vanderhoof.

After his first year of university, the Band withdrew his funding, so he went to work full-time at the P. P. plant in Vanderhoof where he hopes to obtain an apprenticeship to be a millwright, although he has not given up on his dream to return to university to become a teacher. [ 25 ] Mr. J. is the eldest of four siblings. His father, C. J., is 64 years old and works with Mr. J. at the P. P. plant. Mr. J. Senior and his wife, G. J., gave up drinking when Mr. J. was about eight years old, and their home has been sober since then. Mr.

J. recalls fighting and yelling before they stopped drinking, but after that, things were much better. His sister V. recalls white people coming to the home when she was small in an effort to remove the children, but they were not permanently removed because her parents stopped partying immediately thereafter. [ 26 ] According to the presentence report, Mr. J. has had three other intimate relationships, all of which were longer term and with age-appropriate females. Mr.

J. says, and his family agrees, that he does not abuse alcohol or do drugs, though he admits to being intoxicated on March 22, 2013. [ 27 ] With respect to Ms. Epton's account of Mr. J.'s attitude towards the offence, she says the following: The subject's understanding is that he and the victim were embarking on a new relationship. He says he feels "shocked" that he is in this situation and pointedly discussed that there was a video taken on a cell phone prior to the offence declaring they were dating. His sister, V.

J., confirms that she took the video, but explained it was an old phone and she has since lost it. He attributes his behaviour to making "stupid decisions" after consuming too much alcohol.

He says he will "ask the age of the girl next time and make decisions soberly." When asked about how he thinks the offence may have impacted the victim's life, he said "I haven't seen her in the community and have no idea how it's affected her life." He advises he does not feel angry or remorseful and asserts that it "will not happen again." In essence, the subject does not express any level of insight with regard to the underlying issues that may have contributed to his behaviour and the matter before the Court.

From his perspective it was "a bad decision made under the influence." In the writer's opinion, the subject does not take specific responsibility for the offence, nor does he convey victim empathy. [ 28 ] She later notes, however, that when asked how he might feel if something similar happened to one of his younger sisters, Mr. J. did say that he would not want it to happen to them. [ 29 ] With respect to Mr. J.'s circumstances as an aboriginal person, Ms. Epton reports that Mr. J. is an aboriginal person who has lived on the S./S. C. R. all his life. His father attended L. R.

S. for two years as a day student but did not reside there. His mother did not attend at a residential school. [ 30 ] Both of his parents speak their traditional Carrier language, but Mr. J. and his siblings do not. He says he does not feel a connection to his aboriginal ancestry. [ 31 ] V. J. reported that there is a lot of violence, alcoholism, and illicit drug use around the reserve which is why, she says, Mr. J. keeps to himself and does not associate with too many people. [ 32 ] Ms. Epton advised that the S. Band councillor, C.

M., confirmed that the community does not have a First Nations justice program, and restorative justice programs are not offered. Victim impact [ 33 ] Ms. Ross, for the Crown, advised me that she had been unable to obtain a victim impact statement from Ms. P. and that she had been a reluctant witness in this matter. I accept that submission. It was obvious from her behaviour during her testimony that she did not want to be there. She feigned a lack of memory during her testimony and minimized the circumstances.

[ 34 ] Ms. Epton spoke to Ms. P.'s adoptive mother, J. T. Ms. T. informed Ms. Epton that Ms. P. left her home on the S. R. shortly after the offence occurred because of harassment she experienced from the subject's family and others. Ms. P. has been in and out of jail at the Youth Detention Centre since the offence occurred. Her mother explained that Ms. P. has been using crystal meth for some time and has been using drugs from a young age. Mrs. G. J. [ 35 ] Mrs. J. is Mr. J.'s mother and spoke up and provided a letter of support on his behalf. She told me that she pities Ms.

P. but that in her view, her son is the victim of a young girl who was very much older than Mr. J. and, indeed, older than Mrs. J. herself. Since it is clear that Ms. P. was only 14 and later 15 at the time she was engaging in sexual intercourse with Mr. J., who was 24 at the time, and Mrs. J. is in her fifties, I take it that by "older," Mrs. J. means to say that Ms. P. was more sexually experienced or more experienced in life in general than Mr. J. and herself. Mrs. J. says that her son does not deserve this. She also denied that her family had engaged in any harassment of Ms. P. Mrs. P. M. [ 36 ] Mrs.

M. is the aboriginal education worker at the community high school. She gave evidence that she is a friend of Mr. J.'s mother and has known Mr. J. since he was born and that she is very proud of him. She says he avoided trouble and studied hard in school and, unlike most of his peers, graduated and went on to a year of university. Additionally, she says that unlike 80 percent of the young men on the reserve who do nothing and stay at home on social assistance and cause trouble, Mr. J. has worked steadily and supports his family.

She says she is aware that he has been in three other sexual relationships and that they were all age-appropriate and that unlike many others in the community, he treated these women well and was not violent with them. [ 37 ] She also testified that aboriginal girls in that community have extraordinary struggles with broken families, alcoholism, and drugs, which they must face at a very young age. She said the girls are sexually abused by their uncles and whoever comes in and out of their homes, and the results are not good.

They drop out of school, get into drugs, and end up selling themselves on the street for drugs. She said it was very common in the aboriginal community for young girls to be involved in inappropriate sexual relationships with older men, and in fact, the girls who do are getting younger and younger. She says girls of 13 and 14 are engaging in such sexual relationships, going to parties, and drinking alcohol. She said she tries to educate them, but there is only so much she can do. Crown's submissions [ 38 ] Ms.

Ross, for the Crown, seeks a sentence of 18 months' incarceration followed by two years of probation as well as ancillary orders. Ms. Ross expresses concern about Mr. J.'s attitude towards the offence, that is, that he is shocked to find himself in this situation. One

interpretation might be, she submits, that he does not appreciate that his behaviour was criminal, but in light of his statement and his admissions during cross-examination, his attitude may be that although he is aware his behaviour is criminal, he is upset that proceedings were initiated. I am of the view that the latter

interpretation is correct. [ 39 ] Ms. Ross points out the following factors for my consideration. [ 40 ] Among the aggravating factors is the fact that Ms. P. was and is a person under the age of 18. Under s. 718.2 of the Criminal Code , where the victim of an offence is under 18 years old, that is an aggravating factor. The fact that the offence involved sexual intercourse as opposed to non-penetrative sexual touching is an aggravating factor because it is more invasive. Further, Ms. P. was intoxicated, and Mr. J. knew that.

She was therefore in a very vulnerable position, which is an aggravating factor. [ 41 ] Ms. Ross says that a mitigating factor is that Mr. J. does not have a criminal record and appears to have complied with his bail conditions since he was charged in March 2013. She also notes that while Mr. J. was approximately 10 years older than Ms. P., he was still a young adult and was not in a position of trust towards Ms. P. [ 42 ] The fact that Mr. J. was found guilty after a trial is neither aggravating nor mitigating but is simply a neutral factor. [ 43 ] Ms.

Ross points out that s. 718.01 of the Criminal Code directs that when imposing a sentence for an offence that involves the abuse of a person under 18 years old, the court must give primary consideration to the objectives of denunciation and deterrence. Defence submissions [ 44 ] Mr. Lyons, on behalf of Mr.

J., submits that while the legislation raising the age of consent to 16 and imposing a mandatory minimum sentence on an offender of one year when, as in this case, the matter proceeds by indictment was intended to protect young children from sexual predators, that legislation, he says, was never intended to result in charges against a person like Mr. J. He points out that before the change in the age of consent, Mr. J.'s actions would not have been criminal. He submits that Mr.

J. was quite unlike members of his community in that he was not, for instance, hanging out at the local high school with the intention of picking up underage girls for sex. He also submits that the circumstances of this case make it clear that Mr. J. did not act in a predatory fashion in that it was Ms. P., not Mr. J., who encouraged Ms. P. to engage in sexual intercourse with Mr. J. [ 45 ] With respect to the special consideration I must give to Mr. J.'s circumstances as an aboriginal offender under s. 718.2 (e) , Mr. Lyons points to the serious social dysfunction on the S. R. and notes that despite that, Mr.

J. is a success story. Mr. Lyons noted anecdotally that when he attended the same high school, he could only recall one aboriginal student even graduating. He points out that for Mr. J. to have graduated and gone to university and manage to get to the age he is without a criminal record is quite remarkable considering where he grew up. [ 46 ] Mr. Lyons' remarks in that regard are supported by the evidence of Ms. M. Kienapple

[47] Mr. J. has been found guilty of both sexual assault under s. 271 of the Criminal Code and sexual interference under s. 151 of theCriminal Code. Pursuant to R. v. Kienapple, I must sentence Mr. J. for one or the other of these offences and enter a conditional stay onthe other. There are various factors which I may consider when making the determination of which of the convictions to enter basedupon which one more accurately captures the nature of the offence and which is the more serious of the two. [48] In this case, the

section of the Code which most accurately captures the delict is s. 151 because that

section provides that anyperson sexually touching a person under the age of 16 years commits an offence. For sexual assault under s. 271, on the other hand, thedelict is proved by a lack of consent. [49] The law does provide that a person under the age of 16 cannot consent at law, so s. 271 captures a wider variety of offences,both those involving non-consent as well as incapacity. [50]

Section 151 addresses specifically the sexual touching of an underage person, so in my view, it is more appropriate to register aconviction under this section. [51] In terms of the relative seriousness of the two offences, the mandatory minimum sentence and the maximum sentence undereach

section where the victim is under 16 is the same, but recent jurisprudence has declared that sexual interference ought to beconsidered the more morally blameworthy of the two as it necessarily involves the abuse of a child. [52] I am satisfied that it is appropriate to register the conviction under s. 151 of the Criminal Code, and I enter a conditional stay onthe 271 count. Sentencing principles [53] I can state the sentencing principles applicable to this case no better than Mr. Justice Pearlman did in the recent case of R. v.E.M.Q. as follows: SENTENCING PRINCIPLES [39] Parliament has codified the principles of sentencing in

Part XXIII of the Criminal Code.

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

a) to denounce unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [40] Under s. 718.1, the fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. A fit sentence must take into account the nature of the offence, the character of the offender, and thecircumstances surrounding the commission of the offence: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 at para. 18.

Although past cases can provide guidance, each sentence depends on the particular circumstances of the specific case and the particularoffender. [41] Here, where the offence of sexual interference involved the abuse of a person under the age of 18 years, Parliament has

mandated, by s. 718.01, that the court must give primary consideration to the objectives of denunciation and deterrence. [42] The court must take into consideration any relevant aggravating or mitigating circumstances relating to the offence or theoffender. Evidence that the offender, in committing the offence, abused a person under the age of 18 years is a statutory aggravatingfactor: (See s. 718.2(a)(ii.1)). [43] I am therefore bound to give primary consideration to the objectives of denunciation and deterrence in sentencing on the sexualinterference count.

I may still give consideration to rehabilitation as a secondary factor. [44] Another statutory aggravating factor, as provided in s. 718.2(a)(iii.1), is evidence that the offence of sexual interference had asignificant impact on the complainant. [45] I also bear in the mind that the sentence I impose should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. [46] Under s. 718.2(e), all available sanctions other than imprisonment that are available in the circumstances should be consideredfor all offenders, with particular attention to the circumstances of an Aboriginal offender.

Sentencing Aboriginal Offenders [47] The principles relating to sentencing Aboriginal offenders discussed in R. v. Gladue [and I will leave out all the citations,Counsel], (SCC), [1999] 1 S.C.R. 688, were affirmed by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 atparas. 56-87. Mr. Justice LeBel summarized the decision in Gladue at para. 59: The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use adifferent method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to payparticular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic orbackground factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types ofsentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particularAboriginal heritage or connection (Gladue, at para. 66).

Judges may take judicial notice of the broad systemic and background factorsaffecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentencereport (Gladue, at paras. 83-84). [48] However, the application of Gladue principles does not mean that Aboriginal offenders will necessarily receive shorter sentences. [49] In cases involving serious offences where there is a pressing need for denunciation and deterrence, such as sexual assaults againstchildren committed by adults in a position of trust, it is now settled law that both Aboriginal and non-Aboriginal offenders will generallyreceive sentences of imprisonment: see R. v.

Wells, 2000 SCC 10 at paras. 34, 39-42, and 44; R. v. Gladue at paras, 33, 54, 74, 78-9, and93; and R. v. Kakekagamick (2006), (ON CA), 211 C.C.C. (3d) 289 at paras. 35-36, 42-3, and 71-74 (Ont. C.A.). [50] In R. v. R.R.M., 2009 BCCA 578, the court provided the following direction on sentencing Aboriginal offenders for sexualoffences at para. 24: The sentencing of Aboriginal offenders for serious sexual assaults, where there is evidence that they have suffered from historical andsystemic abuses, is not an easy task.

This Court has observed that in sentencing Aboriginal offenders, while judges must be "sensitive tothe conditions, needs and understandings of Aboriginal offenders and communities, this does not mean that sentences for such offenderswill necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such as deterrence anddenunciation." See R. v. Morris, 2004 BCCA 305 at para. 55, 186 C.C.C. (3d) 549. Chief Justice Finch further noted at para. 53 that

Gladue made clear that it was not the principles of sentence that varied in sentencing Aboriginal offenders but the application of those principles to a particular case. In Gladue (at para. 80 ), the Court further stated that: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? Sentencing range [ 54 ] As this matter proceeded by indictment, the minimum sentence for this offence is one year.

Crown seeks 18 months. The defence seeks the minimum, one year. Ms. Ross has provided me with various cases to provide assistance as to the appropriate range of sentence and the appropriate sentence in this case. [ 55 ] In the recent case of E.M.Q. , the offender was an aboriginal man from a community northwest of Williams Lake, B.C. He was 21 at the time of the offence, and the victim was 14. The victim had been hired to babysit his baby daughter while he and her friend, the baby's mother, were out.

After they returned, the victim fell asleep on a couch in the living room, and E.M.Q. went there and attempted to touch her breast and vagina, which she resisted. He succeeded in touching her on her clothing above her pelvic area. [ 56 ] Like Mr. J., E.M.Q. also graduated from high school and had worked for a short time in a log building business. He had a minor criminal record for breaches of bail and probation, and he consumed alcohol heavily.

As a child, he had witnessed his father physically abusing his mother and siblings and had been the victim of physical abuse himself. [ 57 ] In that case, the court imposed a sentence of 13 months' imprisonment followed by two years' probation. [ 58 ] By comparison to the case at bar, in E.M.Q. , the sexual touching was far less serious and did not involve any touching of the skin or penetration of any kind. In my view, it is considerably less serious than the case at bar. [ 59 ] In R. v. Louie , [2014] B.C.J.

No. 561 , the offender was a 32-year-old aboriginal man who had sexual intercourse on three occasions with a 14-year-old girl. They drank alcohol on each occasion before intercourse occurred. Mr. Louie had a prior criminal conviction for sexual assault. He received a sentence of 18 months plus three years' probation. [ 60 ] In my view, this case is similar to the case at bar in that there was intercourse on three occasions and alcohol was involved, but the offender warranted a more severe sentence than Mr.

J. because he had a prior criminal record and the age difference between him and his victim was greater than in the case at bar. [ 61 ] In P.D.W. , [2015] B.C.J. No. 803 (B.C.S.C.) , the court imposed a sentence of 15 months on a 52-year-old offender who digitally penetrated the 14-year-old victim who was visiting his daughter for a sleepover. The aggravating factors included that prior to the offence he had engaged her in explicit conversations via the Internet, and on the evening in question, he knew she was intoxicated. [ 62 ] In R. v.

R.S. , 2014 BCPC 227 , the 39-year-old offender performed fellatio on the 14-year-old male complainant on four separate occasions. The offender was of aboriginal heritage, although he had no knowledge of it. He suffered from Fetal Alcohol Spectrum Disorder and was of very low intelligence. A sentence of one year plus three years' probation was imposed. [ 63 ] In my view, the circumstances of that case are less serious than the case at bar because it did not involve penetration and the victim was not intoxicated. [ 64 ] In R. v. William , [2014] B.C.J.

No. 2328 (B.C.S.C.) , the offender was an aboriginal man with no criminal record who sexually assaulted a 15-year-old girl who was intoxicated by alcohol. The offence involved forced digital penetration and forced intercourse.

The court imposed a sentence of one year in jail and three years' probation which, on the face of it, would seem to be remarkably low. [ 65 ] The mitigating circumstances included that the offender had a very sad family history and had taken a residential treatment program to address his addiction problems, was remorseful, and had taken responsibility for what he had done. [ 66 ] I also note that the events took place before the law required a mandatory minimum one-year sentence. [ 67 ] I have also considered the following additional cases: R. v.

Quash , 2014 BCSC 198 , in which an aboriginal offender received a sentence of 22 months plus three years' probation. At the time of the offence, he was 23 and the victim was 12, also a member of the aboriginal community. She went to his home to visit him, and he had sexual intercourse with her. He had two prior convictions for assault.

The court in that case had the following to say: [53] I have also reflected on the fact that his aboriginal heritage does not reduce his moral blameworthiness for sexual assaulting a young girl. [54] I wish to observe that just as this court is aware of and ought to take into account the abuse inflicted on aboriginal families by the imposition of the residential school system, this court does not condescend to assume all aboriginal people are criminally dysfunctional because of this legacy.

This court recognizes that many aboriginal communities have either not lost or have reclaimed a cultural identity of which they can be proud. While it is important to take into account the sad reality of the over-representation of aboriginal people in our jails, doing so is not intended in any way to diminish the many valuable contributions and accomplishments of aboriginal persons in this province. [55] It is to be noted that the victim of Mr. Quash's behaviour was also of aboriginal heritage.

It needs to be borne in mind that aboriginal communities denounce sexual assault of children as much as non-aboriginal communities; and the need for deterrence and a separation of the offender from the community to protect the community can be just as great in an aboriginal community as in a non-

aboriginal community. [68] I also note that in R. v. D.B., 2013 ONCA 691, the Ontario Court of Appeal overturned an eight-month sentence and imposed asentence of three years on a 40-year-old offender who initiated a sexual relationship with a 14-year-old girl who was a friend of hisdaughter. He digitally penetrated her on a number of occasions and had sexual intercourse with her once.

The Court of Appeal foundthat the eight-month sentence imposed by the trial judge was unfit for the following reasons: [13] While the sentencing judge did correctly state the Gladue principles, he failed to "tie them in some way" to the offender and theoffence and in so doing, underemphasized the respondent's moral culpability for this offence. While an Aboriginal offender need notestablish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offenderand the offence (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 83. See also R. v.

Gladue, (SCC), [1999] 1S.C.R. 688). The rationale for Gladue is that many Aboriginal offenders come from situations of social and economic deprivation withfew opportunities for positive development and these circumstances may diminish their moral culpability (R. v. Ipeelee, at para. 73). [14] In this case the respondent's circumstances did not diminish his moral culpability. As the Gladue report indicated, therespondent's knowledge of, and participation in, his Aboriginal culture was limited. He grew up off-reserve and was raised by parentswho have been married for over 45 years and who ran a successful business.

There was no suggestion of any residential school historywithin his mother's family of origin. The respondent never attended a residential school and there is no evidence he experienced anysexual abuse, discrimination, or forced displacement. [69] While the behaviour of the offender in that case was arguably more serious in that it involved grooming of the victim, on theother hand, there was only one instance of intercourse, whereas in the case at bar, there were multiple instances. [70] In my view, this decision has additional relevance to the case at bar because although Mr.

J. is undoubtedly of aboriginalheritage, it appears that the tragic personal histories that have been found to reduce the moral culpability of many aboriginal offenders inthese cases have little applicability to Mr. J. Neither of his parents attended residential school and he does not suffer from any lack ofemployment or education, nor has he been the victim of any abuse. [71] I also take note of the case of R. v.

Courtney, (NL PC), a decision of the Honourable Judge Gorman, inwhich a sentence of three years was imposed on a 19-year-old man who had a history of criminal behaviour who had intercourse on twooccasions with a 14-year-old girl. The girl suffered ostracism by members of her community, and she felt that people were blaming herfor the offence. She was hospitalized for self-harm and for overdosing due to the treatment she received after the event became knownin her community. Judge Gorman had the following to say: [32] In R. v. Branton, 2013 NLCA 61, the Court of Appeal indicated that the "effect then of

section 718.01 is to direct a court to giveprimary consideration to denunciation and deterrence when weighing and balancing the objectives of sentencing." The Court of Appealheld that "offenders who criminally abuse young people are particularly deserving of society's denunciation" (at paragraph 19): By enacting

section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call for specialattention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their personsbecause of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, asthey are still "finding themselves" in these formative years.

For this reason offenders who criminally abuse young people are particularlydeserving of society's denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. Thisdenunciation also affords some reparation to young victims, who need reassurance that they are not to be blamed for what has happenedto them so that they can move on with their lives.

Offenders and like-minded others who abuse young people must also be deterred fromrepeating or engaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct are going to betreated seriously by the justice system. [72] The following remarks in that case are particularly apposite in view of the submissions of Mr. Lyons that the conduct of Mr. J.is not the sort intended to be caught by s. 151: [62] In R. v. Young, [2010] N.J. No. 373 (P.C.), the offender was convicted of an offence contrary to

section 151 of the CriminalCode. The offence involved the offender, who was twenty years of age, engaging in one act of sexual intercourse with a thirteen yearold girl.

I imposed a period of fourteen months imprisonment, but noted that if "the Crown had proceeded by way of indictment, I wouldhave imposed a period of imprisonment consistent with J.R., E.W., Mahoney and Rivet [3 years imprisonment]." [63] In Young, I wrote "that any sentence imposed here must send a clear message to adults: sexual relations with children arecompletely unacceptable and will result in lengthy periods of incarceration being imposed": Finally, I have considered that any sentence imposed here must send a clear message to adults: sexual relations with children arecompletely unacceptable and will result in lengthy periods of incarceration being imposed.

Adults must understand that if they havesexual intercourse with a child, arguing that the child consented or initiated the sexual contact will be of little assistance to them whensentence is imposed. As Ms. Simms pointed out, it is the adult who must accept responsibility for ensuring that sexual intercourse with achild does not occur, not the other way around.

Similarly, the Scottish Law Commission in its Report on Rape and Other SexualOffences (December, 2009), noted at page 70, that what "the law is seeking to prevent is the exploitation of the child's vulnerability togive consent without fully appreciating what is involved. The second aim of the law is to make a symbolic statement about childprotection. The Home Office Review Group noted that one of the key issues to emerge from its consultation was 'the need for the law to

establish beyond any doubt that adults should not have sex with children.'" [73] I find the Courtney case to be somewhat similar to the case at bar in that Ms. P. has reportedly left the community due toharassment as a result of this offence. In parentheses, I note, whether at the hands of Mr. J.'s family or others in the community, it is stillrelevant to victim impact. [74] The actual circumstances of the event were somewhat less serious in the Courtney case as there were only two occasions ofintercourse and the offender was only 19. However, the offender in that case, unlike Mr. J., had a criminal record.

The offender in theCourtney case was not aboriginal. [75] Finally, I find valuable guidance in the following case from the Ontario Court of Appeal relevant to the attitude of Mr. J. towardthis offence, in particular that he appears not to accept responsibility for this offence on the basis that other people his age had "dated"Ms. P. also and in view of Mrs. M.'s evidence about how widespread this sort of offence is within the S. community. [76] In R. v.

H.E., 2015 ONCA 531 [and I will provide the citation to counsel; it looks like I have left it out here], the Ontario Courtof Appeal overturned an 18-month sentence imposed by the trial judge on Mr. H.E. for the serial rape of his wife and imposed a sentenceof four years. This behaviour had gone on during their marriage in Iran and continued in Canada. The matter came to the attention ofthe police because her son confided in a teacher at school.

She would not have thought to go to the police because in her country oforigin no one would help her because the respondent's conduct was considered normal. [77] The court had the following to say about cultural norms where they differ from our law: [30] Second, and more importantly, cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not beconsidered a mitigating factor on sentencing. [31] The Alberta Court of Appeal commented on this issue in R. v. Teclesenbet, 2009 ABCA 389, 469 A.R. 193.

In that case, theoffender had immigrated to Canada five days before slapping his wife and beating her with a shoe. The wife was hospitalized, and theoffender was convicted of assault causing bodily harm. The sentencing judge accepted as a mitigating factor the offender's claim that, inhis home country of Sudan, his behaviour was commonplace. The offender received a conditional discharge and 12 months' probation.The Crown's appeal was allowed. McDonald J.A. wrote for the court, at para. 9: The law of Canada applies equally to all who are in Canada regardless of the length of time they have resided here.

To suggest that itmight be acceptable to beat one's wife with a stick elsewhere does not mitigate the seriousness of the offence and is contrary to thepurpose of domestic violence laws. [32] Earlier, in R. v.

Brown (1992), 1992 ABCA 132 , 125 A.R. 150 (C.A.), the same court wrote, at para. 29: Even if there were before the court a more articulated submission based on social attitudes within a particular ethnic or religiouscommunity to which the accused belongs, the courts of this province and of this country should be alert to the risk of moderatingsentencing policy in such a case where to do so would mean that some women in Canadian society would be afforded less protection thanothers. [33] A cultural practice that is criminal in Canada does not mitigate the perpetrator's conduct for sentencing purposes.

Culturaldifferences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under thelaw, a crucial Charter value. It would also create a second class of person in our society – those who fall victim to offenders who importsuch practices. This is of particular significance in the context of domestic violence. All women in Canada are entitled to the same levelof protection from abusers.

The need to strongly denounce domestic violence is in no way diminished when that conduct is the productof cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factorenhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain thoseviews at the time of sentencing. Analysis [78] Mr. Lyons submitted that the circumstances of this case warrant the minimum sentence because Mr. J.'s actions were not"predatory" and Ms. P. was the instigator or aggressor in the sexual encounter.

Dealing with the second reason first, I am unaware of anyjurisprudence that holds that the consent of the victim under s. 151 is a mitigating factor. It seems to me that such an

interpretationwould turn the

section and the intent of Parliament on its head. Just because a child may have been groomed by the offender or by otheroffenders before him to initiate sexual contact, that does not in any way mitigate the moral blameworthiness of the adult who takesadvantage of that willingness. [79] Mr. J. acknowledged that he knew it was illegal for a person his age to have sex with a person under 16. He told ConstablePittman he had thoughts about that but commented "I wouldn't be the only person she's dated my age" and repeated that comment in histestimony; yet he told Ms.

Epton that he was shocked to be in this situation, that is, to be charged and convicted of a criminal offence forhaving sex with an underage girl. [80] I agree with the Crown that Mr. J. appears to be shocked that he has been charged, tried, and convicted of this criminal offencedespite his awareness of the law. [81] Mr. J. seems to be of the view that having sex with an underage girl almost a decade his junior was perfectly all right, albeitillegal, if they were "in a relationship." He clearly considered it to be all right even though that young girl was severely intoxicated by

alcohol. He also considered that having sex with her on a freezer and then, because she wanted his attention and was drunk, attempted with the others to get her to leave (as opposed to, say, caring enough for her well-being to take her home) that is what Mr. J. calls a relationship. [ 82 ] While I realize that different people may well have different views on what constitutes a relationship, what seems obvious about this one is that it was exploitative. Mr. J. obtained sexual gratification and then had no further interest in Ms.

P. and returned to playing videogames. [ 83 ] I also note that DNA evidence was presented to me which indicated the presence of male DNA of other men in her clothing. That leads to the inference that other men may have had sex with Ms. P. Presumably, that possibility is under investigation by the police. However, the possibility that other men may also have offended against Ms. P. does not reduce Mr. J.'s moral culpability. [ 84 ] Mr. J.'s attitude and conduct would appear to be well within community norms, according to Mrs. M.

As she pointed out her in testimony, it was very common in the aboriginal community for young girls to be involved in inappropriate sexual relationships with older men, and in fact, the girls who do are getting younger and younger. She said girls of 13 and 14 are engaging in such sexual relationships, going to parties, and drinking alcohol. [ 85 ] She also pointed out that the young girls in that community go through life very young and are subjected to sexual abuse by their uncles and everyone else who comes in or out of the house. According to Mrs.

M., the result of that treatment of young girls by adult men in the community is that those girls become addicted to alcohol and drugs and end up selling themselves on the street. [ 86 ] From the information provided by Ms. P.'s mother, it would appear that Ms. P. has followed that path described by Mrs. M. Indeed, Mrs. J., Mr. J.'s mother, told me that she pities Ms. P., and it was submitted to me on Mr. J.'s behalf that Ms. P. was very troubled and had a hard childhood which, it was submitted, explained her behaviour on the evening of March 22 and 23, 2013. I note, parenthetically, that it does not explain Mr.

J.'s behaviour. However, despite her pity for Ms. P., Mrs. J. told me that her son was the victim of this young girl. [ 87 ] As I see it, there are several inferences to be drawn from the evidence of Mrs. M. One is that aboriginal girls in the S. Reserve are subjected to sexual abuse by adult men so often in that community that such behaviour is commonplace. That evidence is consistent with Mr. J.'s evidence. Another is that this sexual abuse often occurs in the context of parties where they are provided with alcohol or drugs. That context was present in the case at bar as well.

Another is that harm done to these young girls by premature drinking and sexual activity is well known in the community despite efforts made by persons like Mrs. M. to help these girls. That element is also present with respect to Ms. P. in particular, who is reportedly addicted to crystal methamphetamine and regularly in jail. [ 88 ] I also note the testimony that she was, on the night in question, railing at God for someone taking away her baby, and she was of the tender age of 15 at the time. [ 89 ] It is obvious that prematurely engaging young girls in sex is harmful to them.

They do not have the maturity to understand the consequences of having sex, including the possibility of pregnancy. Because they are so young, they can be easily taken advantage of by older more experienced persons. That is the reason that the Parliament of this country enacted s. 151 of the Criminal Code , to protect children from being sexually preyed upon by adults. [ 90 ] In the case of the aboriginal girls in this community, it appears that adult men in this community regularly prey upon the young girls for sex.

The sex and the alcohol and drug consumption that goes along with it has had a dreadful consequence for many young girls. From the testimony of Mrs. M., it appears that the adverse consequences for the girls of this community is manifest. Many of them end up drug-addicted and selling their bodies on the street. Of all communities that should be aware that premature sexual activity harms girls, this community ought to be. [ 91 ] Given these facts, I must ask how it could be that such widespread sexual abuse which is manifestly so harmful to the young girls of the community could carry on as it apparently does.

It seems to me that can only be the result of a community attitude that ranks the fleeting sexual gratification of adult men higher than the lives and well-being of young girls. In other words, this community must condone the sexual abuse of young girls by adult men. [ 92 ] In this case, Mr. J. is clearly shocked that he should suffer any consequence for breaking the law simply because other people have broken it too, I note by dating Ms. P. He is supported in that attitude by his mother, who holds him blameless for his behaviour and blames the consequences to him on the young girl who is the victim of it.

Perhaps the widespread sexual abuse of girls in this community is the result of attitudes like those expressed by Mr. J. and his mother. Gladue [ 93 ] Mr. J. is an aboriginal offender, and pursuant to s. 718.2, I must take that into account in imposing sentence upon him. The evidence before me is that the S. Reserve where Mr. J. grew up suffers from similar complaints that many aboriginal communities do. Unemployment, lower educational achievement, violence, and drug and alcohol abuse are reportedly widespread in the community. [ 94 ] Mr. J.'s father attended L. R. S. l but as a day student. Mr.

J.'s mother did not attend residential school. Both of Mr. J.'s parents speak their traditional language, but Mr. J. does not himself feel any connection to his aboriginal ancestry. [ 95 ] Mr. J. himself seems to have avoided or perhaps risen above the problems that plague his community. Although his parents abused alcohol when he was a child, they quit drinking when he was small and the home he was raised in was happy and healthy. He was never subjected to any abuse. Mr.

J., unlike many of his peers, graduated from high school and went to university for a year and has been fully employed ever since high school. [ 96 ] As a result, although Mr. J. is of aboriginal heritage, there is very little connection between that heritage and his particular circumstances which might reduce his moral blameworthiness. It has not been suggested to me that the reported prevalence of sexual

abuse of young girls by men in his community has anything to do with aboriginal cultural heritage. To the extent that the community condones this behaviour, that is to be deplored. Mr. J. apparently harbours attitudes that condone it. That is to be deplored. Mr. J. is supported by his mother who frankly and openly places all blame for this offence on the victim, and that is to be deplored. Aggravating and mitigating factors [ 97 ] The mitigating factors are that Mr.

J. appears to have been an outstanding member of his community who did not otherwise cause trouble, who had no criminal record, and who was of previously good character, having been well-educated and gainfully employed. Mr. J. seemed to be of the view that since he was drinking at the time of the March 22/23, 2013, offence, that is a mitigating factor, but in my view, voluntary intoxication is not a mitigating circumstance, and it must be remembered that Mr. J. chose to share his alcohol with a 15-year-old girl. [ 98 ] In view of Mr.

J.'s particular circumstances, it appears to me the Gladue factors have less of a mitigating effect than might otherwise be the case. None of the limitations that affect other aboriginal offenders, such as family violence or drug and alcohol abuse, lack of education or employment opportunities, or the residential school experience have touched Mr. J. That said, the sentence I have chosen to impose is well within the range of sentences imposed on aboriginal offenders for similar offences. [ 99 ] In my view, the aggravating factors applicable to this case are that Mr.

J. had intercourse on two separate occasions with the victim, twice when she was 14 and again on March 22 and 23, 2013, when she was 15. The fact that she was grossly intoxicated on the latter occasion is an aggravating factor. Mr. J.'s attitude towards the offence, in that he appears not to accept that his behaviour was problematic and places responsibility for the offence on Ms. P., is an aggravating factor. [ 100 ] The fact that the community appears to condone such behaviour and that Mr. J. continues to maintain that community attitude is an aggravating factor.

To paraphrase the remarks just quoted from the case of R. v. H.E. , all girls in Canada are entitled to the same level of protection from abusers. The need to strongly denounce sexual offending against children is in no way diminished when that conduct is the product of community beliefs that render female children acceptable targets of the sexual impulses of adult males.

If anything, community beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing. [ 101 ] To be perfectly clear, this case is a classic example of why s. 718.01 requires me to give primary consideration to the principles of denunciation and deterrence. The fundamental purpose of the criminal law in Canada is to protect the public and to protect the public equally without regard to sex or race or religion or culture.

The law must protect children from premature sexual involvement with adults, and that is just as true in aboriginal communities as it is anywhere else. If community norms and offenders' attitudes disagree, it is their attitudes that must change. The only tool available to the court in any case where the offender's attitude condones the offence is to use the power of punishment to change his attitude. That is what I must do. [ 102 ] Given the foregoing, I find that Mr. J. is not entitled to the minimum sentence sought on his behalf. He is not the best offender in the best circumstances.

Although he is of previous good character and is an upstanding member of his community in the sense that he graduated from high school, went to university, and is steadily employed, he holds repugnant attitudes towards the offence. [ 103 ] The circumstances are not "the best" either in that there were multiple instances of sexual contact beginning when Ms. P. was 14, and the sexual contact was intercourse, which is as invasive as it gets. Further, Ms. P. was grossly intoxicated on the last occasion to the knowledge of Mr. J. I have no information as to whether she or Mr.

J. were under the influence of alcohol on the previous occasions. [ 104 ] In view of all of the foregoing considerations, in my view, a proper sentence for Mr. J. is 16 months' jail followed by two years of probation. [ 105 ] The probation terms will be as follows. [ 106 ] 100P, Madam Clerk. You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 107 ] 102P. Within 72 hours after completing your jail sentence, you shall report in person to the probation office located at 2440 Butte Avenue, Vanderhoof, B.C., or the probation office located nearest to the place of your release from custody, and after that you shall report as and when directed by your probation officer. [ 108 ] 116P. You shall have no contact or communication, directly or indirectly, with D.

P. [ 109 ] 121. You shall not attend at or be within 50 metres of any place which you know to be the residence, school, or workplace of D. P. [ 110 ] 123. You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 111 ] 142P. You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer.

Without limiting the general nature of this condition, such assessment, counselling, or program may include and relate to sexual offence prevention, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [ 112 ] I will also order, under

section -- and this is not part of the probation order, Madam Clerk -- under s. 743.21 of the Criminal Code , that you will have no communication, directly or indirectly, with D. P. during the term of your incarceration. [ 113 ] Next, this is a primary designated offence under the Criminal Code with respect to taking DNA samples, and I will make a DNA order as follows. It is under 161, Madam Clerk.

[ 114 ] THE CLERK: Thank you. [ 115 ] THE COURT: Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA databank from L. P. J. by September 1, 2015. [ 116 ] Next, I will impose the SOIRA order, that is, the order under the Sex Offender Information Registration Act .

For this offence, the reporting requirements last for 20 years. [ 117 ] I will hand that back down, Madam Clerk. Mr. J. will need to sign it. [ 118 ] THE CLERK: Thank you. [ 119 ] THE COURT: Lastly, there will be an order under s. 109 of the Criminal Code . It is a mandatory firearms prohibition. Pick list number 164, Madam Clerk. [ 120 ] THE CLERK: Thank you. [ 121 ] THE COURT: Mr.

J., you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. (REASONS CONCLUDED)