R. v. J.K. Date:, 2015 BCPC 246

Citation: R. v. J.K. Date: 20150915 2015 BCPC 0246 File No: 38369-1 Registry: Fraser Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. K. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Crown: D. Payne Counsel for the Defendant: J. Wood Place of Hearing: Vanderhoof , B.C. Dates of Hearing: April 28 and May 12, 2015 Date of Judgment: September 15, 2015

BACKGROUND [ 1 ] Mr. K. has pleaded guilty to one count of sexual exploitation pursuant to

section 153 of the Criminal Code of Canada . This charge relates to Mr. K.’s sexual touching of S. Z. between 1989 and 1991. At the time the commission of these offences began, Ms Z. was twelve years old. [ 2 ] When Mr. K. was 29 years old, he was a Pastor of the [omitted]. He had been given charge of the congregation in [omitted], British Columbia. In addition to his religious duties he was also responsible for teaching at a private school operated by the Church. There were four students in the one room school, including Ms. Z. and her two sisters. [ 3 ] In 1989 Mr.

K. began a course of conduct in which he would take Ms. Z. to his office in the school and place his fingers on her vagina. This began with touching through Ms. Z.’s clothing and later escalated to him touching her vagina directly. On one occasion he had Ms. Z. touch his penis. After Mr. K. married, the sexual activity stopped. [ 4 ] The Crown seeks a sentence of 18 months in jail and argues the Court should consider the following aggravating facts: 1. Mr. K. was in a position of trust and responsibility for Ms. Z., as her Pastor, and teacher. 2. Ms. Z.’s victim impact statement at Exhibit 3 indicates that Mr.

K.’s misconduct continued to affect her emotionally. As an adult Ms. Z. married and later separated from her husband. It was only while undergoing counselling in 2012, that she was able to talk about Mr. K.’s sexual behaviour. This leads to a report to the police and this subsequent proceeding before the Court. 3. Mr. K. planned the opportunities to touch Ms. Z. He gave the other students activities to keep them occupied while he was in the office with Ms. Z. On one occasion he took care of Ms. Z. and her sisters while her parents were out of town. During this weekend, the offences occurred in Mr.

K.’s bedroom. 4. The offence was a continuing one from October of 1989 to 1991. [ 5 ] The Defence argues that a Conditional Sentence Order of between 18 months and two years is the appropriate resolution based on the following mitigation: 1. Mr. K.’s guilty plea has dispensed with the need for a trial. Ms. Z. is spared having to testify as to the sexual interference. 2. There was no violence in the commission of these offences, nor was there sexual intercourse. 3. Since this matter has become public, the [omitted] has cancelled Mr. K.’s credentials as a Pastor of their church. 4. Mr.

K. now lives in [omit], Manitoba where he has a job as a bookkeeper at a local manufacturing plant. 5. Mr. K. is the sole breadwinner of his family. He and his family live on acreage in Manitoba. Due to his spouse’s health, he is responsible for working the property. In addition, Mr. K.’s two adult children, ages 23 and 24, are in Bible College in the United States. They are dependent on their father for the continued financial support of their studies. 6. Mr. K. has no criminal record and has not committed any breaches while on bail. 7. In preparation for the sentencing hearing Mr. K. attended the office of Dr.

Lawrence Ellerby, a psychologist in Winnipeg. During these visits, Mr. K. was with Dr. Ellerby for some five hours of interviews. He also underwent a battery of tests. Dr. Ellerby’s findings are provided to the Court in the report filed at Exhibit 7. 8. I note the report states at page 10 that Mr. K. is remorseful for the harm he has caused Ms. Z. and “indicated his wish for her to heal and his regret for not treating her as he should have.” 9. Concerning risk to reoffend, Dr. Ellerby notes on page 12: “Mr. K. does not meet the diagnostic criteria for Pedophilia.

Rather than demonstrating a sexual preference for pre-pubescent children, his offending behaviour presents as sexually acting out against a pubescent female primarily based on a sexual naivety and emotional needs versus sexual orientation. Based on Mr.

K.’s account of his life history and functioning at the time of his offending it appears that he turned to S. as she represented a safe and accessible means of experiencing sexual contact (an area in which he had limited experience and confidence in) as well as his attempt to meet his longing, for a sense of companionship, connection and caring, of course in a very distorted manner.” On page 13 in the final paragraph Dr. Ellerby opines Mr.

K. presents as “a good candidate for community based treatment.” ISSUE [ 6 ] The question for the Court is whether in these circumstances a Conditional Sentence would meet the principles of sentencing, in particular the principle of deterrence and denunciation. SENTENCING PRINCIPLES [ 7 ] The sentencing provisions of the Criminal Code , ss. 718 to 718.2 , provide for an individualized sentencing process in which

the Court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender (see R. v.Angelillo 2006 SCC 55, at para 22). A sentence must also be similar to other sentences imposed in similar circumstances (see R. v. L.M.2008 SCC 31, at para 17). The principle of proportionality is at the heart of any sentencing (see R. v. Nasogaluak, 2010 SCC 6, at para41).

The Supreme Court of Canada tells us at para. 42 of Nasogaluak that proportionality means a sentence must not exceed what is justand appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. But a sentence is also a “form ofjudicial and social censure”. A proportionate sentence may express, to some extent, society’s shared values and concerns. [8] A judge must weigh the objectives of sentencing that reflect the specific circumstances of the case. It is up to the sentencingjudge to decide which objective or objectives deserve the greatest weight.

The importance given to mitigating or aggravating factorswill move the sentence along the scale of appropriate sentences for similar offences (see Nasogaluak, para 43 and 44). [9]

Section 718 of the Code states: 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. [10]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [11]

Section 718.2 of the Code states in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender; (

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. CONDITIONAL SENTENCE [12] The often cited case concerning a Conditional Sentence Order is R. v. Proulx 2000 SCC 5 , [2000] 1S.C.R. 61. Thejudgment of the court was delivered by Chief Justice Lamer, who wrote: “45. For convenience, I will reproduce here S. 742.1 742.1 Where a person is convicted of an offense, except an offence punishable by a minimum term of imprisonment and the court: (

a) imposes a sentence of imprisonment of less than two years; and (

b) is satisfied with the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in

section 718.1-718.2, the court may, for the purpose of supervising the offender’s behavior in the community order that the offender serve the sentence in thecommunity subject to the offender’s compliance with the conditions imposed under

section 742.3 46. This provision lists four criteria that a Court must consider before deciding to impose a Conditional Sentence Order: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in subsection 718-718.2. 47. In my view the first three criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whetheror not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence isappropriate.

The decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in s. 718 to718.2…” [13] The offence predates the Conditional Sentence provisions of the Criminal Code. In considering whether Mr. K. could besubject of a Conditional Sentence Order, the Court notes the Crown and the Defence rely on R. v. Ralph 2014 BCSC 467, a decision ofMr. Justice Romilly. Ms. Ralph was a school teacher who sexually exploited an eleven year old student between 1998 and 2001. [14] In considering the applicability of a Conditional Sentence Order Mr.

Justice Romilly wrote at para 76: “Section 11 of the Canadian Charter of Rights and Freedoms provides that any “person charged with an offence has the right …(

i) iffound guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time ofsentencing, to the benefit of the lesser punishment. A conditional sentence would have been available for this offence at the time it wascommitted, if the accused had qualified for such a sentence.” [15] In concert with Mr.

Justice Romilly’s comments, I accept that it is open for this Court to consider a Conditional Sentence Orderin this matter. [16] I find that: (1) when the offence was committed there was no mandated minimum sentence; (2) the Crown seeks a sentence of 18 months imprisonment; (3) given the findings of Dr. Ellerby, I find that Mr.

K. would be “a good candidate for community based treatment.” PRINCIPLE OF DENUNCIATION AND DETERRENCE [17] I must now consider whether a Conditional Sentence Order in this case would be consistent with the fundamental purpose andprinciples of sentencing set out in subsection 718-718.2 and, in particular, the principles of denunciation and deterrence. [18] I note that in Mr. K.’s case s. 718.01 is not a consideration as the Court of Appeal noted in R. v. D. G. 2014 BCCA 84 at paras15 and 16: “15. The sentencing judge relied on s.718.01 of the Criminal Code: 718.01.

When the court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shallgive primary consideration to the objectives of denunciation and deterrence of such conduct. 16. This section (718.01) was not in force when the offence occurred. It does not have retrospective application. In R. v. Stone[1999] 2 SCR at para 241 the Court said this: Turning to the present case, I would note that s718.2 (a)( ii) of the Code did not come into force until September 3, 1996, approximatelynine months after sentencing occurred in this case.

Given that the Code cannot be retroactively applied to the disadvantage of theaccused, the sentencing judge’s treatment of the spousal nature of the killing must be assessed in light of the common law treatment ofthis factor prior to the implementation of s. 718.2 (

a) ii. In my opinion there is ample authority for the proposition that courts considereda spousal connection between offender and victim an aggravating factor in sentencing at common law: …” [19] I also note any emphasis regarding the passage of time since this offence occurred does not in any way mitigate the sentencefor the accused: R. v. Spence 1992 ABCA 352 , [1992] A.J. no 1129 (Alta. C.A.) at page three: “The lapse of time does not in any way render inapplicable, the principles of general deterrence and denunciation.

The first of theserequires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The secondrequires a sentence by the imposition of which the court will reflect society’s view of the wrongness of the conduct and persuade thosewho might be confused about right and wrong. The two principles may overlap in their effect on the choice of the sentence.”

[20] Concerning denunciation and deterrence, Chief Justice Lamer wrote in Proulx at (para) 106: “the amount of denunciation provided by conditional sentence will be heavily dependent on the circumstances of the offender, the natureof the conditions imposed in the community in which the sentences to be served. As a general matter, the more serious the offense andthe greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitableway in which to express society’s condemnation of the offender’s conduct.” [21] The Defence presented a number of cases in argument in which the courts concluded a Conditional Sentence Order rather thana jail term for similar offences to the case at bar, met the requirements for deterrence and denunciation. [22] Consider the case of R. v.

Edwards 2003 BCCA 214 where a dance teacher convicted of sexual exploitation of one of hisstudents received a nine month jail sentence and two years’ probation at trial. Mr. Edwards appealed his sentence. In consideration ofthis issue, Ryan J.A. wrote: “11. As I read the reasons for sentence, the sentencing judge carefully and properly listed the factors which militates for a sentencethat reflects the goals of denunciation and specific deterrence, but he did not indicate why the degree of denunciation and specificdeterrence provided by a prison term was necessary to achieve those goals in the case at bar.

In R. v. Proulx (2000)2000 SCC 5, 140 CCC (3d) 449 (SCC)) Lamer CJC at paras 102 and 107: “102 Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a morelenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount ofdenunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extendedbeyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. “ “107 Incarceration which is ordinarily a harsher sanction may provide more deterrence than a conditional sentence. Judges should bewary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: Wismayersupra at p.36.

The empirical evidence suggests that the deterrent effect of incarceration is uncertain… Moreover a conditional sentencecan provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of thesesentences….” 12. For the reasons set out in these paragraphs from the Proulx decision it is my view that the sentencing judge was in error in failingto consider imposing a conditional sentence with significant restrictions in this case”. [23] The appeal in R. v. Breamner 2000 BCCA 345 dealt with a similar issue.

The accused had been convicted of sexual assault offour Sea Cadets under his command and received a jail sentence of 18 months at trial. The offences had been committed thirty yearsbefore, over a period of less than two years. The accused had no record and had not engaged in any similar behaviour during this period. [24] The Court of Appeal substituted a conditional sentence: 46. The trial judge did not appreciate or deal with the point made in Proulx that a conditional sentence of imprisonment is not a“walking away”. A conditional sentence is not a variation of the old suspended sentence.

In saying that in these circumstances, aconditional sentence is appropriate, I am mindful of the trial judge’s finding that the appellant was in a position of trust which constitutesan aggravating factor. However, Proulx makes it clear that such a finding does not preclude imposing a conditional sentence, and in allthe circumstances before the court, a conditional sentence is the proportionate response.” [25] In Ralph supra at paragraph 44 of the decision, Mr. Justice Romilly lists the mitigating criteria in Ms. Ralph’s case. Ms.

Ralphreceived a Conditional Sentence of two years less a day based on the considerations enumerated at paras 102-107. Of particular note inthe criteria listed, Ms. Ralph was ill, suffering from chronic pain sustained in a car accident, and she had “significant caregivingresponsibilities for her elderly parents and her grandchildren”. [26] Mr. Justice Romilly did consider another line of authority concerning deterrence and denunciation and Conditional SentenceOrders at para 52: In R. v.

W. (DL) 2014 BCSC 43 (BCSC) at para 67, I noted that conditional sentences were rarely appropriate for persons convicted ofsexual interference offences. “[67] A long line of authority has held and continues to hold that conditional sentences are “rarely ”appropriate in cases involving sexassault and sexual interference against children, especially when committed by adults in a position of trust, due to the pressing need toemphasize denunciation and deterrence in such cases.”

[27] And continuing at para 55: Parliament has “made it very clear that the protection of children is a basic value of Canadian society which the courts must defend.”: Allen at para 60. …… Sexual assaults on children are serious offences. Rehabilitation of the offender is of secondary importance. (SeeAllen at paras 51-52 and Woodward at para 76)” [28] The application of the principle of deterrence and denunciation is subject of further comment in R. v. Safaee 2009 BCCA 367, 2009 B.C.C.A. 367 at para 24 states: 24.

The appellant’s rehabilitation may be achieved by taking a sex offender treatment program while on a conditional sentence. 25. However the principles of deterrence and denunciation will not be achieved by a conditional sentence. This is an offence of amost serious breach of trust. Parents who deliver their children to the care of other people are entitled to be secure in the knowledge thattheir children will be safe and will not be sexually assaulted by those who are entrusted with their care.

The moral blameworthiness ofthe appellant is high. [29] Other cases were presented to this Court involving persons in authority who used their position to sexually exploit the youngpeople in their charge or care. Jail sentences were imposed at trial and upheld on appeal in cases involving a lawyer exploiting ayouthful offender (R. v. Power

(2010) BCCA 21), a pastor and camp counsellor (R. v. Archibald [2012] A.J. No. 671) or a school teacher(R. v. Smart

(1992) CanLII330 (BCCA)). [30] The Honourable Mr. Justice Toy wrote in the Smart decision in the first paragraph on page 11: “With respect to general deterrence other teachers of either sex are entitled to know that the courts will impose serious penalties on thosewho are like minded to Ms. Smart.

Furthermore it must be recognized that society requires that young persons be protected fromconduct of this nature.” CONCLUSION [31] Parents have to feel confident that in leaving their children in the charge of another adult, be it teachers, pastors or babysitters,their children will be safe and will not be sexually assaulted.

In the case of an offender who is in a position of trust, and uses thatposition to perpetrate the sexual exploitation of a young person, denunciation will be achieved through a jail sentence unless there areexceptional circumstances which militate towards a Conditional Sentence Order. [32] Mr. K. was in a position of trust as pastor and teacher. He took advantage of a position of trust to sexually exploit Ms Z. Mr.K. must receive a sentence of denunciation that signals to others in similar positons of trust in respect of young persons that sexualexploitation of their charges will result in serious penalties.

SENTENCING [33] The accused in Power received a sentence of 18 months and two years’ probation. The accused in Archibald received 12months in jail on each count concurrent. Ms. Smart received a sentence of six months in jail on each count to be served consecutively. [34] The Crown seeks a jail sentence of 18 months. I take into consideration that: 1. Mr. K. has pleaded guilty; 2. He has no criminal record; 3. His religious credentials have been revoked; 4. He has been steadily employed and is the sole financial support for his family. [35] Taking these factors into account I sentence Mr.

K. to twelve months in jail and two years’ probation. ___________________ R. W. Callan Provincial Court Judge

Province Of British Columbia