R. v. J.J.B., 2019 BCPC 306

Citation: R. v. J.J.B. 2019 BCPC 306 Date: 20191210 File No: 39258 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.J.B. BAN ON PUBLICATION –

SECTION 486.4(1) C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BARRETT RE CONSTITUTIONAL CHALLENGE TO

SECTION 271(

b) C.C.C. Counsel for the Crown: Jim Blazina and Lara Vizsolyi Counsel for the Accused: Roberto Alberto Place of Hearing: Duncan , B.C. Dates of Hearing: July 5 and 8, 2019, November 19, 2019

Date of Sentence: December 10, 2019 INTRODUCTION: [1] J.J.B. (“Mr. B.”) was charged with sexual assault and sexual interference in relation to his step-daughter, B.S., who was 14years old at the time. The offences were alleged to have occurred from June through to mid-August 2016. [2] Crown proceeded summarily on both charges. [3] After a trial, I found Mr. B. guilty of sexual assault but acquitted him of sexual interference. I accepted Mr. B.’s explanation forhis behaviour towards B.S. and his denial that he had any sexual intent or purpose in touching B.S. [4] Under s. 271(

b) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”), when the victim of a sexual assault is under the age of16 years at the time of the offence, the offender is subject to a mandatory minimum penalty of six months in custody and a maximumpenalty of two years less a day. [5] Mr. B. challenges the constitutionality of the mandatory minimum sentence under s. 271(

b) and applies, under s. 8(2)(

a) of theConstitutional Question Act, R.S.B.C. 1996, c. 68, for a finding that the mandatory minimum punishment in this case constitutes “crueland unusual punishment” and thereby infringes Mr. B.’s rights under s. 12 of the Canadian Charter of Rights and Freedoms (“Charter”). [6] Counsel for Mr. B. submits the Court should decline to impose the six month mandatory minimum sentence as it is “grosslydisproportionate” to a proportionate and fit sentence for Mr.

B. in this case or, alternatively, for a hypothetical offender in a reasonablyforeseeable set of circumstances. [7] Counsel have provided me with several case authorities to assist me in determining the appropriate sentence for Mr. B. andaddressing the constitutional challenge before me. As I will not be referring to all of those authorities within my reasons, I have attacheda list of those authorities in Appendix “A” attached to these reasons.

ANALYTICAL PROCESS: [8] The analytical framework to apply when considering the constitutional challenge to a mandatory minimum sentence has beenclarified by the Supreme Court of Canada (“SCC”) in its decisions R. v. Nur, 2015 SCC 15 , [2015] 1 SCR 773 and R. v. Lloyd,2016 SCC 13 , [2016] 1 SCR 130. Recently, the British Columbia Court of Appeal has applied this framework in two recentcases, namely R. v. Swaby, 2018 BCCA 416 and R. v.

Scofield, 2019 BCCA 3 . [9] In Scofield, the Court determined the Crown’s appeal from the trial court’s sentencing decision of a six month ConditionalSentence Order (“CSO”) for two counts of sexual interference with a child under s. 151(

a) of the Code and its declaration that the oneyear mandatory minimum sentence under s. 151(

a) was unconstitutional. The Court of Appeal confirmed the lower court’s declarationthat the mandatory minimum sentence of one year was unconstitutional but increased Mr. Scofield’s sentence to a 12 month CSO. [10] The Court, in Scofield, referenced and relied on Madam Justice Bennett’s

summary of the SCC’s analytical framework clarifiedin Nur and Lloyd (para 6 of Scofield). [11] In short, the analysis requires two steps. [12] First, I must determine a fit and appropriate sentence for Mr. B. without considering the mandatory minimum sentence of sixmonths jail applicable to this offence. In other words, I must simply determine a fit and appropriate sentence for Mr. B. considering thecircumstances of this offence, Mr.

B.’s circumstances, and applying the sentencing provisions as set out in the Code. [13] Second, I must determine whether or not the mandatory minimum penalty of six months in custody impacts Mr. B.’s sentence.In doing so, I must decide whether or not the minimum six month custodial term mandated is “grossly disproportionate” to the sentence Iwould have imposed on Mr. B. but for the mandatory minimum sentence.

I will discuss further below in my reasons the specific meaningof “grossly disproportionate”. [14] If I find the mandated minimum penalty is “grossly disproportionate” to the sentence I would have imposed on Mr. B., I maythen find that the mandatory minimum sentence, for Mr. B., constitutes “cruel and unusual” punishment and thereby contravenes s. 12 ofthe Charter. With that finding, I may then decline to impose the mandatory minimum when sentencing Mr. B. [15] If, however, I find the mandatory minimum sentence of six months is not “grossly disproportionate” to the sentence I wouldhave imposed on Mr.

B., I have two options. [16] One option is to simply end the analysis there, decline to consider the constitutionality of the mandatory minimum imposedunder s. 271(

b) and proceed to sentence Mr. B. while bound by the mandatory minimum penalty under that section. [17] The second option is to continue with my analysis and consider the constitutionality of the mandatory minimum on the basis ofa hypothetic offender in “reasonably foreseeable circumstances”.

This option is discretionary and I am not obliged to take this step if it isnot necessary to resolve the matter before me. [18] If, in the case of the hypothetic offender, I find the mandatory minimum sentence of six months’ custody is not “grosslydisproportionate” to a fit sentence in “reasonably foreseeable circumstances”, the mandatory minimum sentence applies when sentencingMr. B. [19] If, however, I find the mandatory minimum sentence for that hypothetical offender is “grossly disproportionate” to a fit

sentence, I may decline to impose the mandatory minimum sentence when sentencing Mr. B. 1. FIRST STEP - DETERMINATION OF A FIT AND APPROPRIATE SENTENCE WITHOUT CONSIDERATION OF THE MANDATORY MINIMUM [ 20 ] I will begin with determining what sentence is fit and appropriate for Mr. B. without considering the mandatory minimum sentence under s. 271 (

b) of the Code . CIRCUMSTANCES OF THE OFFENCE: [ 21 ] I have included in these reasons a

summary of the circumstances of the offence. A more detailed account of those circumstances can be found within my Reasons for Judgment dated November 14, 2018. [ 22 ] By way of background, Mr. B. and B.S.’s mother, who I will refer to as “A”, were in a long-term relationship and married shortly before A’s unfortunate passing in August 2014. B.S. was approximately 13 months of age when Mr. B. and A began their relationship. B.S. considered Mr. B. to be her father and Mr. B. considered B.S. to be his daughter. Mr. B. and A had three more children, three girls, during their relationship. Upon A’s death, Mr.

B. became sole parent to all four children. [ 23 ] In mid-August 2016, B.S. was at a friend’s home when Mr. B. came to pick her up and take her home. B.S. became distraught and refused to return home with Mr. B. Police were called and it was at that time and shortly thereafter that B.S. disclosed what Mr. B. had been doing to her. [ 24 ] I found that Mr.

B. had repeatedly poked B.S. in the top area of her breasts with his finger, on one occasion he elbowed her in the breast, he repeatedly snapped her bra straps, slapped her buttocks, tugged at the towel she was wrapped in after showering, and on one occasion pulled her shorts down exposing her underwear. [ 25 ] Mr. B. behaved this way openly and in various places including the family home. Although B.S. was fully clothed or covered when he would touch her, his poking of her breasts would have been directly on her skin. [ 26 ] Mr.

B. would also glare at B.S. and her breasts if he thought she was not appropriately dressed. He acknowledged making inappropriate comments to B.S. about the size of her breasts, her manner of dress, and called her names (names associated with the size of her breasts) in front of others. [ 27 ] Mr. B. did not deny much of what B.S. alleged at trial, but did deny he ever touched her for any sexual purpose or personal gratification. I accepted his evidence on this point. [ 28 ] Mr.

B. explained that he would poke and elbow B.S.’s breasts, pull her bra straps and glare at her because he thought she was inappropriately dressed for a child of her age. His intention was to make her aware of how inappropriate she appeared. He glared at her to make her feel uncomfortable as that would be her experience out in the community if she continued to dress the way she was.

In his view, he was trying to parent and protect her. [ 29 ] He tugged at her towel because she ‘hoarded’ towels in her room after showering and he wanted her to bring them down to be laundered. [ 30 ] He had slapped B.S. on the buttocks ever since she was a young child out of affection and simply continued to do so as she aged. He didn’t appreciate there was anything wrong with it. [ 31 ] He pulled down her shorts once and in fun. He thought B.S. thought it was funny too as she responded by chasing him. [ 32 ] B.S. asked Mr. B. to stop touching her breasts but he failed to do so.

He was also told, on one occasion by an adult female friend, J.S. that he should not poke B.S. in the breast area because it was inappropriate. Unfortunately, Mr. B. did not stop and continued poking B.S. [ 33 ] Regardless of Mr. B.’s intentions, I found that his touching of B.S., coupled with his other behaviours noted above, significantly and negatively impacted B.S.’s sexual integrity. For that reason, I found him guilty of the offence of sexual assault. CIRCUMSTANCES OF THE OFFENDER: [ 34 ] A Pre-Sentence Report, Psychological Assessment and full Gladue Report were prepared to assist with sentencing.

All reports have been made exhibits in the sentencing hearing. [ 35 ] While I acknowledge there are some inconsistencies in some of the historical information about Mr. B. and his Indigenous status among the various reports, they do not affect my ability to determine a fit and appropriate sentence for Mr. B. [ 36 ] Mr. B. was 40 years old when the Pre-Sentence Report was prepared and therefore, would have been about 37 years of age in the summer of 2016 when the offence occurred. [ 37 ] Mr. B. is Indigenous. While it is reported in the Gladue Report that Mr.

B. identifies as Métis, it is reported in the Pre-Sentence Report that Mr. B. identifies as a member of the [omitted for publication]. Mr. B.’s mother was born a member of [omitted for publication] and is currently a member of the [omitted for publication]. His father is Caucasian. Mr. B.’s mother was a residential school survivor as were all of her 13 siblings. [ 38 ] Mr. B. has two half-sisters, one younger and one older and one younger half-brother. He grew up with his older sister who, he claims, beat up on him when they were younger.

[ 39 ] He was raised by his parents until they separated when he was 12 years old. His mother primarily cared for him. After his parents’ separation, he lived with his mother until the age of 14 when his mother sent him to live with his father. Mr. B. did not get along with his step-mother and as a result, left that home and went to a friend’s home. He became a ward of the Crown when he was 16 years old and eventually rented his own apartment. It is not clear what Mr.

B.’s exact living arrangements were after leaving his father’s home but it is clear he did not live, for any length of time, with either parent after that age. [ 40 ] Mr. B. described his parents as “functional alcoholics” and noted that conflicts between them were more likely if alcohol was consumed. He described a childhood that was “pretty good” and free from any physical or emotional abuse although his sister claimed he had been sexually abused when he was between one and two years of age. He has no memory of that occurring. [ 41 ] Mr.

B. has a close relationship with his mother but has minimal contact with his father and siblings. [ 42 ] Mr. B. has another daughter, D.L., who would now be approximately 15 years of age. Mr. B. and D.L.’s mother have remained friends over the years. [ 43 ] Mr. B. has a limited formal education, having left school in Grade 9. At the age of 23, he made attempts to complete his GED but failed to do so. [ 44 ] He has worked steadily over the years and appears to have a very strong work ethic.

It is noted in the Pre-Sentence Report that he had been employed with the same employer as an insulation installer for 11 years. I have no reason to believe this employment has changed since then and assume he continues to be fully and gainfully employed with the same employer at this time. [ 45 ] Mr. B. reported having a reasonable income and no financial difficulties. His hope is to save for and purchase a home in the future. He is concerned, however, about his employment if he is incarcerated. [ 46 ] Mr. B. reported being in good physical and mental health.

While it was suspected he had ADHD as a young teenager, he does not believe he was ever diagnosed with that ailment. [ 47 ] Mr. B. denies any current struggles with substance misuse or addiction, however in the Gladue Report, he acknowledged having a major drug issue in his late teens and living on the streets of East Vancouver for a period of time. In the Pre-Sentence Report, it is noted Mr. B. had a past addiction to cocaine and crack cocaine but stopped using those substances 10 years ago. Currently, Mr.

B. describes himself as a social drinker and uses marijuana in the evenings to help him relax and go to sleep. [ 48 ] Mr. B. has a very limited and dated criminal history but the accounts of that history differ among the sentencing reports and the criminal record filed by Crown as an exhibit in this proceeding. [ 49 ] The criminal record filed by Crown includes one entry for a conviction for possession of a controlled substance on July 21, 1998 for which Mr. B. received a fine of $250. [ 50 ] Regardless of the various reports of Mr. B.’s criminal history, both counsel have agreed I should consider Mr.

B. a first offender when sentencing him. [ 51 ] After Mr. B. was charged with these offences, the Ministry of Children and Family Development (“MCFD”) intervened and B.S. and the younger girls were removed from Mr. B.’s care. They have lived with other family members since then. For a significant period of time after being charged, Mr. B.’s time with his younger children was limited and supervised. He has had no contact with B.S. since August 2016. [ 52 ] Mr. B. intends to resume parenting of the three younger children as soon as he is able. The outcome of this sentencing hearing will determine that issue.

B.S. does not want to return to Mr. B.’s care. [ 53 ] After these charges were laid, Mr. B. sought out private counselling. Since December 2016, he has regularly attended counselling with Registered Clinical Counsellor, Dr. G. Frank Groenewold to address the underlying concerns relating to his offending behaviours and to deal with other issues in his life. Several reports of Dr. Groenewold were filed as exhibits in this proceeding. [ 54 ] Mr. B. testified at trial and told the Court that, with the assistance of the MCFD’s intervention and counselling with Dr.

Groenewold, he has come to realize his behaviour towards and treatment of B.S. was wrong and inappropriate. Mr. B. accepted responsibility for his actions and expressed remorse for his treatment of B.S. [ 55 ] Ms. McKay, in the Pre-Sentence Report, was not convinced Mr. B. had accepted responsibility for his offending behaviour and believed there continued to be some “victim blaming” going on. Ms. McKay recommended Mr. B. complete treatment for sexual offenders. I note, however, Ms. McKay did not have the benefit of Dr.

Lopes’ Psychological Assessment when she prepared her Pre- Sentence Report. [ 56 ] In his Psychological Assessment, Dr. Lopes reports, “With regards to his index offences, he does not deny that he was, in fact, inappropriate with his daughter. He indicated that he realized that the way he touched her and the way he tried to shame her by calling her “jugs” was completely inappropriate. However, he indicated that in no way were his intentions sexual in nature. In fact, his actions were to try to stop her from sexualizing her body at her young age.” [ 57 ] Dr. Lopes assessed Mr.

B. as presenting a below average or low risk for re-offending. Dr. Lopes did not see the need for Mr. B. to complete any sexual offender programming and expressed that Mr. B. may not even qualify for the programming based on his assessed risk levels. At page 12 of his Psychological Assessment, Dr. Lopes states: “In this particular case Mr. B. does not seem to require the completion of the Sex Offender Treatment Program (SOP), which would normally be a standard recommendation. It is noted that Mr.

B. scores low on the STATIC-99R and the STABLE 2007, which diminishes his ability to be accepted to the SOP even [if] it had been a recommendation.”

[ 58 ] B.S., in her Victim Impact Statements, feels Mr. B. blames her for the breakdown of the family. She, too, believes Mr. B. has not yet taken full responsibility for his actions towards her. [ 59 ] While I accept Mr. B. knows he acted wrongly towards B.S., and he is remorseful for his actions, I accept he continues to need counselling to gain a more fulsome understanding of the damage his actions have caused to B.S. and to better appreciate the full extent of his responsibility for the harm he has caused to both B.S. and his entire family. [ 60 ] I accept Mr.

B. presents a low risk to re-offend sexually or otherwise and that, based on Dr. Lopes’ assessment and opinion, he is not someone who needs to complete the Sexual Offender Treatment Program. I also agree with Dr. Lopes’ recommendation that Mr. B. should attend parenting courses. [ 61 ] In my view, Mr. B. needs to continue with counselling to gain a more fulsome understanding of the damage his conduct has caused to B.S. and his family as a whole and to appreciate the full extent of his responsibility for that harm.

VICTIM IMPACT STATEMENT : [ 62 ] B.S. provided two Victim Impact Statements to Crown which explain how she has been impacted by Mr. B.’s offending behaviour and overall treatment of her. One statement was filed as an exhibit on the sentencing hearing in July 2019 and the updated statement was filed as an exhibit on November 19, 2019. [ 63 ] I have also had the opportunity to observe B.S. during her testimony at trial and hear from her at that time about how Mr. B.’s actions have affected her. [ 64 ] She is angry and hurt by what Mr. B has done to her and how he treated her.

She is also angry because she believes he blames her for separating him from the younger children. [ 65 ] B.S. expressed guilt for taking her sisters’ father away from them and initially feared they would hate her for it. More recently, she has expressed a strong desire to keep connected to, and spend time with her sisters, but fears Mr. B. will frustrate and undermine that relationship. She does not want to lose her connection to her sisters. [ 66 ] B.S. believes her confidence and self-image have been seriously damaged by Mr. B.’s treatment of her.

She described how her previous carefree, happy and confident manner has been replaced with insecurity, negative self-image, and feelings of worthlessness. She has suffered from anxiety and depression, and has had trouble sleeping, all of which impact her normal everyday functioning. [ 67 ] I am satisfied Mr. B.’s offending behaviours, coupled with his overall treatment of B.S., has harmed B.S. in a significant way and it will take her some time to recover from that harm.

While currently, B.S. fears she may never recover, I am hopeful that, over that time, she will regain her confidence, carefree manner, and positive self-image. RELEVANT SENTENCING PROVISIONS IN THE CRIMINAL CODE: [ 68 ] When sentencing Mr. B., I must consider and apply the relevant sentencing provisions contained within

Part XXIII of the Code . Fundamental Purpose of Sentencing [ 69 ] The fundamental purpose of sentencing, set out in s. 718 of the Code , is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives enumerated within that section. Sentencing Objectives [ 70 ] Those enumerated sentencing objectives are:

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. [ 71 ]

Section 718.01 of the Code mandates that a court give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involves the abuse of a person under the age of 18 years. [ 72 ] The case authorities also find that deterrence and denunciation are the primary sentencing objectives to be met when sentencing offenders who abuse children. [ 73 ] Clearly, the sentencing objectives of deterrence and deterrence are the primary objectives to be met with sentencing Mr. B.

Additionally, however, I find the further objectives of rehabilitation and the promotion of a sense of responsibility in Mr. B. and acknowledgement of the harm caused to B.S. must also be met when determining a fit sentence for Mr. B. Principles of Sentencing

[74]

Section 718.1 sets out the fundamental sentencing principle that a sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender. [75] Other sentencing principles set out in s. 718.2 of the Code which are relevant in this case are:

a) A court must consider any relevant aggravating and mitigating circumstances relating to the offence and the offender andincrease or decrease the sentence accordingly;

section 718.2(

a) identifies a number of circumstances which are deemed, by statute, to beaggravating.

b) The principle of “Parity”: That is, the court should impose a sentence which is similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances. While this is a stated sentencing principle, it is also well recognizedby the courts that sentencing an offender is an individualized process designed to ensure that a fit and appropriate sentence is determinedfor a specific offender based on a specific set of circumstances (s. 718.2(b)).

c) The principle of “Restraint”: That is, an offender should not be deprived of liberty if less restrictive sanctions are available andall relevant sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims orto the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s.718.2(

d) and (e)).

Section 742.1 – Conditional Sentence Order (“CSO”) [76] Because, at this stage, I am determining a sentence for Mr. B. without considering the mandatory minimum sentence under s.271(b), I must also consider s. 742.1 of the Code if I am considering a custodial sentence for Mr. B. [77]

Section 742.1 provides that if a court imposes a sentence of imprisonment of less than two years, the court may, for the purposeof supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community subject toconditions if (among other things) the court is satisfied that the service of the sentence in the community would not endanger the safetyof the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of theCode. [78] In my view, this sentencing option must be seriously considered in this case in light of the sentencing principle of “restraint” andconsidering Mr.

B. is an Aboriginal offender. POSITION OF THE PARTIES ON SENTENCE: [79] The Crown takes the position that a fit and appropriate sentence in this case is between 6 to 12 months in custody together witha period of probation and mandated ancillary orders. [80] Defence counsel, on the other hand, takes the position that a non-custodial disposition, notably, a suspended sentence isappropriate. If, however, the Court determines a custodial sentence is called for, a CSO should be made.

Defence counsel takes no issuewith the imposition of a probation order following a CSO and the mandated ancillary orders. [81] Both counsel have provided to me written submissions as to what specific terms of any possible CSO and/or Probation Orderwould be appropriate.

OBJECTIVE SERIOUSNESS OF THE OFFENCE: [82] When determining an appropriate range of sentence for an offence, the objective seriousness of the offence must be considered. [83] It is now well accepted, and better understood, that sexually offending against children is a serious and heinous crime which hasthe potential of causing significant, long-lasting and life-altering harm, both physical and psychological, to victims. [84] The serious nature of this type of offending is reflected in the legislative changes to the sentencing provisions in the Code aswell as to the increased mandatory minimum and maximum sentences to be imposed on those sexually offending against children. [85] Courts, too, at all levels, have imposed, over time, increasingly more serious penalties for offenders who have offended sexuallyagainst children.

This was recognized by our Court of Appeal in paragraph 62 of the Scofield decision: “Sentences are increasing ascourts more fully appreciate the damage that sexual exploitation of children by adults cause to vulnerable, young victims: see R. v.Vautour, 2016 BCCA 497 at paras. 52-54.” [86] The challenge, however, in sentencing offenders for sexual offences against children is the broad range of conduct capturedwithin those offences. This is particularly so with respect to the offence of “sexual assault” which is a general intent offence.

An offendercan be convicted of sexual assault even if that offender does not have any sexual purpose for his or her offending. That is thecircumstance in this case. [87] Given the broad reach of this offence, it is important to also consider what conduct the legislature intended to target whenenacting the penal sanctions in the Code. [88] This was mentioned by our Court of Appeal at paragraphs 77 and 78 of the Scofield decision: [77] There can be no doubt of the vital public purpose behind s. 151. Courts impose sentences intended to vindicate that purpose inlight of the sentencing objectives set out in the Code.

But the offence can be committed through conduct that is significantly removedfrom the evil to which it is directed. The difficulty with the mandatory minimum sentence in this case was described by McLachlinC.J.C. in R. v. Lloyd, 2016 SCC 13 :

[3] As this Court’s decision in R. v.

Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773, illustrates, the reality is that mandatoryminimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of peopleare constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum wouldrequire an unconstitutional sentence. [78] It follows that the offence may capture conduct different from what it principally targets…… [89] Within the broad range of conduct caught within the offence of “sexual assault”, there are degrees in the seriousness of theconduct within that range.

This reality must also be considered if a just and proportionate sanction is to be imposed on an offender. [90] In this case, I find Mr. B.’s conduct falls very much at the low end of the range of conduct caught within the offence of “sexualassault” based on both the nature of the offending conduct and my finding that Mr. B had no sexual purpose for his touching of B.S.

ANALYSIS OF RANGE OF SENTENCE BASED ON CASE AUTHORITIES: [91] It is very difficult to determine a definitive range of sentence for this offence given the broad range of conduct it captures. [92] Counsel have provided me with several case authorities to assist me in determining that range. I have considered all of thosecases but found that none are sufficiently similar as to be particularly persuasive when determining an appropriate range of sentence toapply in this case. [93] However, two of those authorities, namely R. v. Plehanov, [2017] BCJ No. 2386 and R. v.

CVEB [2019] BCJ No. 1094, aredecisions wherein the Court sentenced offenders for sexually assaulting children under s. 271 of the Code. For that reason, I have foundthose cases somewhat helpful notwithstanding each can be distinguished from this case on their facts and circumstances of the offender. [94] In the Plehanov case, Mr. Justice Blok convicted Mr. Plehanov of sexual assault of a six year old child under s. 271(

a) of theCode but acquitted him of sexual interference under s. 151. Mr. Plehanov did not testify at trial. [95] Mr. Plehanov was an acquaintance of the victim’s family and they had attended the same gathering at another’s home. Whenthe gathering ended, Mr. Plehanov planned to ride with the victim’s family in their van to where his own vehicle was parked. Thevictim’s father asked Mr. Plehanov to briefly watch the victim and her two younger siblings, who were seated in the family van, whilethe father ran back into the home to collect his older children. [96] When the father went back into the house, Mr.

Plehanov was standing outside the open side door of the van. The six year oldvictim moved from her seat in the van and lost her balance in the area of the side door. Mr. Plehanov caught the young girl during thefall and subsequently rubbed her buttocks over her pants several times and, at some point after catching the child, Mr. Plehanov’s fingershooked into the front area of her pants, his fingers touched the area above the child’s groin and his palm touched her groin over her pantsfor about 20 to 30 seconds. [97] Mr. Plehanov was 43 year old at the time of sentencing.

He was an educated man, holding two post-secondary universitydegrees, one in engineering and one in education. He had no criminal record but had been previously charged and acquitted of criminalcharges arising from reported incidents of inappropriate behaviour, described as “boundary issues”, which ended his employment as ateacher on call in a local school district some years prior to the incident before the Court. Mr. Plehanov suffered from chronic symptomsof depression and anxiety. The Court found Mr.

Plehanov posed a “moderate” risk to re-offend. [98] The Court found that while all sexual assaults on children are very serious, within the spectrum of sexual assaults on children,this offence fell at the lower end of the spectrum and was very brief. Mr. Plehanov was in a limited position of trust when he offendedand the victim was very young and vulnerable. The Court found Mr. Plehanov’s insight into and understanding of his offending was verylimited (para 95). [99] At the time of sentencing, the mandatory minimum sentence of one year in custody under s. 271(

a) had been struck down by theSupreme Court of British Columbia in the case of R. v. ERDR, 2016 BCSC 684. Mr. Justice Blok declined to revisit that issue in the casebefore him. [100] The Crown submitted an appropriate sentence would be 12 to 15 months’ jail plus 3 years’ probation. Defence counsel arguedthe appropriate sentence ranged from a conditional discharge or a suspended sentence to 15 months’ jail. [101] With respect to defence’s submission for a suspended sentence, Justice Blok stated, in paragraph 92: In R. v.

Tuffs, 2012 SKCA 6, the court overturned a suspended sentence imposed on an offender who got into the sleeping adultcomplainant’s bed, put his hand down her pants and touched her vagina. The court instead imposed a 12-month jail sentence, saying that“sexual assaults of this nature should draw a period of incarceration” (at para.10). While that case is not binding on this court, it isnonetheless persuasive. By reason of s. 718.01 of the Code, a suspended sentence must be even more inappropriate in most casesinvolving the abuse of a child. [102] And in paragraph 93, he stated: Though Mr.

Plenhanov’s counsel has said everything that could possibly be said in favour of a suspended sentence in this case, Iconclude that it would be inappropriate here, because of the nature of the offence, the fact that it involved the abuse of a child, the factthat there was a limited position of the trust between offender and victim, and because there are no exceptional circumstances that wouldwarrant a departure from the custodial sentence that such an offence would usually attract.

A custodial sentence is called for in this case. [103] Based on the case authorities he reviewed, Justice Blok found the appropriate range of sentence for the offence was a custodialterm of between 3 to 12 months. He imposed, on Mr. Plehanov, a sentence of six months in custody followed by 24 months’ probation

and made various ancillary orders. I note a CSO was not available in that case as Crown had proceeded by indictment. [104] In the CVEB case, Judge Morgan convicted his offender, “Mr. B.” of sexually assaulting his 10 year old neighbour under s.271(

b) of the Code. He was asked to consider the constitutionality of the mandatory minimum sentence under s. 271(

b) when sentencing“Mr. B.”. [105] “Mr. B.” was almost 82 years of age at the time of sentencing with no criminal record. He was described as a functioningalcoholic who had confirmed health challenges including dementia. He had no recollection of the offence. [106] “Mr. B.” sexually assaulted the victim, D.A., when she went to his home upon his request for the purpose of helping himretrieve something behind his fridge. D.A. attended his house as requested. While in his bedroom, “Mr.

B.” hugged D.A., cupped hishands over her breasts on the outside of her clothing, and briefly touched her vagina on the outside of her clothing. D.A. could smellliquor on his breath. When D.A. started to cry, he told her not to cry and gave her a Kleenex. D.A. told him she wanted to go home and“Mr. B.” said “okay but let’s keep this between us”.

D.A. ran home and told her father what had happened. [107] Judge Morgan found that “[t]he current range of sentences available for sexual assault on an adult where there is no mandatoryminimum sentence is from a conditional discharge to, if the Crown proceeded by indictment, 14 years in jail.” (para 56). [108] Judge Morgan determined, without consideration of the mandatory minimum sentence, that an eight month CSO was the mostappropriate sentence for “Mr. B.” and would effectively meet the sentencing objectives of deterrence and denunciation (CVEB, paras 85,86, 87).

He further imposed a lengthy probation order and made other ancillary orders. [109] Judge Morgan found that the mandatory minimum sentence of six months’ imprisonment under s. 271(

b) of the Codecontravened s. 12 of the Charter and he declined to impose the mandatory minimum sentence in his case. He also declined to impose themandatory minimum sentence in his case based on a “reasonable hypothetical set of circumstances”. He considered the “reasonablehypothetical set of circumstances” referenced by Justice Harris in paragraph 83 of the Scofield decision (reproduced in paragraph 164 inthese reasons). [110] In Scofield, Mr.

Justice Harris reviewed several case authorities for the purpose of determining the overall appropriateness ofCSOs for offenders convicted of sexual offences against children. In paragraph 70 of the Scofield decision, Justice Harris stated: [70] I acknowledge that conditional sentences will rarely satisfy the primary sentencing objectives of deterrence and denunciation incases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved: see R. v. Safaee, 2009BCCA 367 . But as Swaby demonstrates, there are situations in which a CSO can satisfy those principles.

Given the findings ofthe sentencing judge, I accept that this is a rare case in which a CSO can satisfy the principles of sentencing. Indeed as this Court hasreiterated in R. v. A.E.S., 2018 BCCA 478 at para. 66: This Court has said a number of times that a CSO is not usually a fit sentence for an offender who has sexually abused children,particularly as here, by a parent or person in trust or authority. See R. v. Safaee, 2009 BCCA 367 at para. 26. On the other hand,this Court has upheld CSOs in such cases, including in R. v. Chen, 2017 BCCA 426 . Indeed, in R. v.

L.F.W., 2000 SCC 6 at paras. 20-21, a companion case to R. v. Proulx, 2000 SCC 5 , the Supreme Court upheld a CSO for an indecentassault involving forced masturbation and fellatio with a child who was then between the ages of 6 and 12 years old, stating that a CSOwas within the acceptable range and could provide sufficient denunciation and deterrence. (That case involved a 4-4 split on the issue, asCory J. did not participate.

Thus, the appeal was dismissed, upholding the sentence.) [111] Based on the case authorities provided to me, it is clear courts typically impose custodial sentences on offenders who sexuallyoffend against children, particularly when the offender is in a position of trust and abuses that trust when offending.

Courts havetypically determined that, when a custodial sentence is deemed appropriate, a CSO is not sufficient to meet the objectives of deterrenceand denunciation for those sexually offending against children. [112] While I accept this is typically the Court’s response to offenders who have sexually offended against children, the caseauthorities also demonstrate there are circumstances when other sentences other than ‘real jail’ are found to be most appropriate, even forthose who have seriously offended against children (for example, Scofield). [113] Justice Harris’ example, in Scofield, of a hypothetical offender in reasonable foreseeable circumstances demonstrates that theremay even be situations wherein an offender should not receive a custodial sentence for sexually offending against a child (para 83Scofield, reproduced at para 164 in these reasons). [114] Having considered the case authorities provided to me and the specific and unique circumstances of this offence and Mr.

B., Ifind the appropriate range of sentence for this offence includes a suspended sentence at the low end and a custodial sentence at the highend. The high end of any custodial term, for this offence, should not exceed three months’ custody. [115] When considering this range, I have considered the range of 3 to 12 months found by Justice Blok to apply in the Plehanov case.I find, however, that the Plehanov case can be distinguished from this case both on the nature of the touching in that case and the specificcircumstances of Mr. Plehanov. I find that that range is excessive in the circumstances before me.

AGGRAVATING AND MITIGATING FACTORS: [116] When considering where, along this range, Mr. B.’s sentence should fall, I must consider both the aggravating and mitigatingfactors present. [117] I find the aggravating factors to be as follows:

a) B.S.’s age at the time of the offence. B.S. was 14 years of age. While B.S.’s age is an element of the offence under s. 271(

b) of

the Code , it is also deemed to be an aggravated circumstance under s. 718.2 (a)(ii.1) of the Code .

b) Mr. B. breached a position of trust and authority when he offended against B.S. Mr. B. was B.S.’s step-father and the only father she had known. He was also her only parent and solely responsible for her care and that of her siblings at the time of the offence. This is deemed aggravating under s. 718.2 (a)(iii) of the Code .

c) Mr. B.’s offending behaviour has had a significant impact on B.S. which I have earlier described. These events will take a considerable amount of time for B.S. to heal from. The significant impact of this offence on B.S. is deemed an aggravating factor under s. 718.2 (a)(iii.1) of the Code .

d) Mr. B. repeatedly offended against B.S. and in many different ways. He continued his poking of B.S.’s breasts, in particular, notwithstanding B.S. asking him to stop and being told by J.S. it was inappropriate and he should stop doing it.

e) Mr. B.’s offending behaviour only stopped once B.S. disclosed what was happening.

f) B.S. is an Indigenous female youth and particularly vulnerable. Just as there are Gladue factors that impact Mr. B.’s culpability in this case (which I mention below), those same factors are relevant when considering B.S.’s vulnerability as a young Indigenous teenager.

g) B.S. was also vulnerable because she had lost her mother only two years earlier.

h) While Mr. B. has a criminal record, it is very dated and unrelated; I do not truly consider it an aggravating factor in these circumstances and have considered, as counsel agree, Mr. B. to be a first offender for sentencing purposes. [ 118 ] I find the mitigating factors to be as follows:

a) Mr. B. did not touch B.S. for any sexual purpose or personal gratification. His actions were not “predatory”. Rather, his actions are more properly described as misguided parenting, inappropriate boundaries between a male parent with his teenage daughter, immature and insensitive.

b) When touching and commenting on B.S.’s breasts and appearance, he believed he was acting as a “protective parent” and responding to his concern for B.S.’s personal safety given her age and stage of development.

c) Although there was a trial in this matter, Mr. B. did not actually dispute much of what B.S. alleged; rather, his dispute related to his intention behind his actions.

d) By the time the matter came to trial, he had come to realize his parenting approach with B.S. was wrong and inappropriate and stated this during the trial. By that time, he had come to accept some responsibility for his actions and to appreciate his actions were harmful to B.S.

e) Mr. B. sought out and began counselling soon after he was charged to address the underlying issues with his parenting as well as other issues. He was cooperative with the intervention of the MCFD and has genuinely worked on improving his parenting knowledge and skills.

f) Mr. B. acknowledges the need to continue counselling and to work on being a better parent. He wants to reunite with and successfully parent his younger children and respects B.S.’s current wish not to see him.

g) Mr. B. is genuinely remorseful for his actions and that he harmed B.S.

h) Mr. B.’s familial history is a mitigating factor. Although he views his childhood as “pretty good”, it is clear his family had struggles with alcohol abuse and domestic arguments. He experienced a family breakdown in his early teen years which destabilized him. While he has been able to overcome his substance abuse and successfully achieve a stable adult life, there is no doubt his past experiences would have impacted him.

i) Mr. B. is an Indigenous offender. His mother, and her siblings, were residential school survivors. Ms. Cotie, on page 10 of her Gladue report, stated: “[Mr. B.] shows signs and symptoms of historical and inter-generational trauma.” I accept the Gladue factors are relevant in this case when sentencing Mr. B.

j) Mr. B. has a strong work ethic and has been steadily and gainfully employed for many years. He is financially stable and secure. He has employment available to him with his current employer if he is available to work. I note his employer has previously given him time off when he was needed at home to care for his ailing wife. It is clear he is valued by his employer which speaks volumes about how Mr. B. is regarded in his work environment.

k) Mr. B. has the ongoing support of family and friends notwithstanding this offence.

l) I accept Dr. Lopes’ finding that Mr. B. presents a low risk to reoffend and based on his assessment scores, he does not see the need for Mr. B. to complete the Sex Offender Treatment Program (SOP) which is typically recommended in these cases.

m) Mr. B. has been on release conditions and therefore supervised within the community for several years, at this point, without issue. By reason of these conditions, his liberty has been restricted prior to any sentence being imposed. DISCUSSION OF A PROPORTIONATE SENTENCE FOR MR. B.: [ 119 ] As mentioned, the mandated primary sentencing objectives to be met when sentencing Mr. B. are deterrence, both specific and general, and denunciation. As well, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgement of

the harm caused are important sentencing objectives that must be met by any sentence imposed on Mr. B. [120] I am satisfied the objective of specific deterrence has already been met by a number of factors impacting Mr. B. This matter hastaken a considerable period of time to resolve. The stress associated with going through criminal proceedings, the restrictions placed onhim by his bail order pending the outcome of these proceedings, and the prolonged uncertainty as to the outcome of these proceedingswill no doubt have a deterrent effect on Mr. B.

As well, the obvious disruptive effect this offence has had on his ability to parent hischildren and the knowledge he now possesses of the harm he has caused to B.S. will deter Mr. B. from re-offending. [121] That leaves the primary sentencing objectives as general deterrence and denunciation. I must ensure Mr. B’s sentence sends astrong message to the community that, although conduct may fall at the lower end of the spectrum of conduct considered “sexualassault”, it continues to be considered serious conduct which can harm children.

Any sentence imposed must send a strong message toother parents or persons interacting with children that if they engage with a child in a manner that impacts that child’s sexual integrity,notwithstanding their personal intentions, their conduct may be criminal and have serious consequences. [122] In addition to the gravity of the offence, I must also take into account Mr. B.’s culpability to ensure that the sentence I impose isproportionate both to the gravity of the offence and Mr. B’s culpability. [123] At first glance, Mr. B.’s culpability appears to be relatively high.

He was solely responsible for his actions which were deliberateand intentional. While Mr. B.’s “shaming” of B.S. is not a criminal offence, it exacerbated the harmful impact of his offendingbehaviour. [124] Mr. B. continued to poke B.S.’s breasts notwithstanding her objections and requests that he stop and after J.S. told him it wasinappropriate and he should stop. Once J.S. spoke to Mr. B., it is reasonable to assume Mr. B. had some level of awareness that hispoking of B.S.’s breasts might be inappropriate.

That awareness, however, did not cause him to discontinue that behaviour. [125] His culpability is lessened, however, by several other factors. [126] Mr. B. intended, through his poking and some of his other actions, to protect B.S. who he perceived to be at risk given hermanner of dress. He considered it his role, as parent, to try to change her behaviour in order to protect her from harm. [127] He did not intend, by any of his actions, to touch B.S. for any sexual purpose or any personal sexual gratification. His actionswere misguided and inappropriate, but not ‘predatory’. [128] Given Mr.

B.’s personal background, it is reasonable to believe he had little opportunity to learn healthy ways to parent children.Growing up he was beaten up by his older sister, exposed to domestic arguments and substance misuse, and experienced instability. Bythe age of 16, he was more or less on his own and fending for himself. During part of his late teen or early adult years he lived on thestreets of East Vancouver and was abusing substances as well. [129] There are Gladue factors at play in this case which reduce Mr. B.’s moral culpability. His mother and her siblings attendedresidential schools.

The intergenerational trauma and the impact of that trauma on Mr. B. and his entire family cannot be minimized. [130] Mr. B. willingly accepted help from the MCFD and has actively participated in personal counselling in an effort to learn whatwent wrong. He has accepted that he was wrong in how he treated B.S. He is gaining insight into how harmful his actions have been toB.S. He is open to continue working in these areas in the future. [131] The aggravating and mitigating factors present in this case influence where, along the range of sentence I have determinedapplies in this case, Mr.

B.’s sentence should fall. [132] Having considered all of the above, and taking into account the specific aggravating and mitigating factors present in this case, Ifind that a custodial sentence is necessary to adequately meet the primary sentencing objectives of deterrence and denunciation. [133] In my view a suspended sentence does not adequately respond to the fact that Mr.

B. repeatedly offended against B.S. and inseveral ways, he failed to stop poking B.S. after being told by J.S. it was inappropriate and he should stop, he was in a position of trustwhen offending against B.S., and his actions have significantly harmed B.S. and caused disruption to his family as a whole. [134] But for the mandatory minimum sentence under s. 271(b), a CSO would be a sentencing option available to the Court in thiscase. [135] Based on all of the information available to me about Mr. B., I am satisfied that Mr.

B.’s “service of the sentence in thecommunity would not endanger the safety of the community”. (s. 742.1). He has successfully abided by conditions of release for severalyears now without incident demonstrating his ability to comply with court ordered conditions. [136] The real question is whether a CSO “would be consistent with the fundamental purpose and principles of sentencing set out insections 718 to 718.2”. (s. 742.1) [137] In considering the appropriateness of a CSO in this case, I have reviewed the Supreme Court of Canada’s decision in R. v.Proulx, 2000 SCC 5 , [2000] 1 SCR 61.

The SCC in Proulx considered, for the first time, “the principles that govern the newand innovative conditional sentencing regime”. [138] In Proulx, the Court cautioned against judicially created presumptions against CSOs for specific offences. In paragraphs 80 to82, Chief Justice Lamer states: 80 Several parties in the appeals before us argued that the fundamental purpose and principles of sentencing support a presumptionagainst conditional sentences for certain offences. The Attorney General of Canada and the Attorney General for Ontario submitted that

a conditional sentence would rarely be appropriate for offences such as: sexual offences against children; aggravated sexual assault; manslaughter; serious fraud or theft; serious morality offences; impaired or dangerous driving causing death or bodily harm; and trafficking or possession of certain narcotics. They submitted that this followed from the principle of proportionality as well as from a consideration of the objectives of denunciation and deterrence.

A number of appellate court decisions support this position. 81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction.

Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences. 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

In M. (C.A.) , supra , I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [ 139 ] Justice Lamer stated that the codification of the restraint principle in sections 718.2 (

d) and (

e) of the Code were specifically enacted to reduce the rate of incarceration in Canada. “Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met.” (para 90). [ 140 ] The Court recognized that incarceration will usually provide more denunciation than a conditional sentence order because a conditional sentence order is a more lenient sentence, but “a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.” (para 102). [ 141 ] The Court recognized that incarceration, which is normally a harsher sentence, may provide more deterrence than a conditional sentence, however, “a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.” (para 107). [ 142 ] The Court noted that a conditional sentence order is “generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender. …The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism.

Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above.” (para 109). [ 143 ] In my view, the imposition of a properly crafted CSO in this case can meet the primary sentencing objectives of general deterrence and denunciation and best meets the sentencing objectives of rehabilitation and promotion of a sense of responsibility and acknowledgement in Mr.

B. [ 144 ] A ‘real’ jail sentence in this case is not necessary to meet the primary sentencing objectives and is certainly not necessary to specifically deter Mr. B. In my view, a real jail sentence is excessively punitive for this offence and this offender and does not properly recognize, in this case, the principle of ‘restraint’ under s. 718.2 (

d) and (e). [ 145 ] Mr. B, unlike Mr. Plehanov, has insight into and has accepted responsibility for his offending behaviour. He testified at trial that his parenting of B.S. was wrong. He is of low risk to re-offend and does not need to be specifically deterred by any sentence imposed. There is very little chance Mr. B. will ever be before the Court again because of similarly, or in any way, re-offending. [ 146 ] The punitive effect of a CSO is achieved through the imposition of appropriate conditions and the duration of the order. It must be longer than a ‘real’ custodial term for that reason.

If I was to impose a ‘real’ jail term in this case, it would be a short, sharp custodial sentence of no more than 30 days’ in custody. That guides my determination of what duration of a CSO would be sufficiently punitive in this case. [ 147 ] With that in mind, and having considered all of the above, I find a fit sentence for Mr. B., without considering the mandatory minimum sentence under s. 271(

b) to be a 60 day CSO followed by a period of probation. In my view, a probation order of 18 months’ duration would allow Mr. B. to continue his rehabilitation and enable him to achieve greater appreciation of the harmful consequences of his actions. 2. STEP 2:

SECTION 12 ANALYSIS AND “GROSSLY DISPROPORTIONATE”: [ 148 ] Having determined what I consider to be a fit sentence for Mr. B. without consideration of the mandatory minimum sentence under s. 271(b), I must now move onto the next step in this analysis. That is, whether or not the mandatory minimum sentence of six months’ custody under s. 271(

b) has any impact when sentencing Mr. B. [ 149 ] Clearly, the sentence I have found to be fit for Mr. B. differs from the mandated minimum sentence of six months’ custody. The

question then becomes whether or not the mandated minimum sentence for this offence offends Mr.

B.’s right, under s. 12 of theCharter, “…not to be subjected to cruel and unusual punishment.” [150] In Lloyd, Madam Chief Justice McLachlin summarized the test to be applied when a court is asked to determine if a mandatoryminimum sentence infringes s. 12 of the Charter. [151] Beginning at paragraph 22 of Lloyd, Chief Justice McLachlin states: 22 A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature ofthe offence and the circumstances of the offender: Nur, at para. 39; R v. Smith (SCC), [1987] 1 SCR 1045, at p. 1073.

Alaw will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonablyforeseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77. ….. 24 This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grosslydisproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society; Smith, at p. 1072, citing Miller v.

The Queen, (SCC), [1977] 2 SCR 680, at p. 688.Morrisey, at para. 26; R v. Ferguson, 2008 SCC 6 , 2008 SCC6, [2-8] 1 SCR 96, at para. 14. The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate. [152] Therefore, for a sentence to be considered “cruel and unusual punishment” and infringe s. 12, it must be “grosslydisproportionate” to a fit sentence.

It must be more than simply excessive to a fit sentence; it must be “so excessive as to outragestandards of decency” and be “abhorrent or intolerable” to society. [153] Chief Justice McLachlin recognized that mandatory minimum sentences for an offence which “casts its net over a wide range ofpotential conduct” is rendered “constitutionally vulnerable” because it catches not only serious conduct which is the proper aim of themandated penalty but also conduct that is must less blameworthy (Lloyd, para 27).

The offence of “sexual assault” under s. 271 is one ofthose offences and therefore, vulnerable. [154] The penological goals of the challenged penalty is important to consider when applying this test.

With respect to this and otheroffences relating to the sexual abuse of children, I accept the goal of the mandatory minimum penalty, which is to protect children fromsexual predators and prevent the harmful impact on children of such offending, is a valid penological goal and addresses a justifiableconcern. [155] I also accept there is a rational connection between the imposition of mandatory minimum sentences and the object of protectingchildren. (R. v. Lonegren, 2010 BCSC 960).

This is demonstrated by both the trend of sentencing courts to impose increasingly longercustodial sentences for those convicted of sexually offending against children and the amendments to the sentencing provisions in theCode that require courts to primarily focus on deterrence and denunciation when sentencing offenders against children. [156] While all of that is true, there remain those select cases where a mandatory minimum penalty has been found to be “grosslydisproportionate” notwithstanding the valid goals of the legislation. [157] In my view, this is one of those rare and select cases. I am satisfied Mr.

B.’s offending conduct, absent any sexual purpose forthat conduct, was not the type of behaviour the legislature intended to target when mandating a minimum of six months in jail forsexually assaulting a child. Mr. B. is not a ‘sexual predator’; rather, he is an ill-equipped and unskilled parent. [158] The real impact of the mandatory minimum sentence on Mr. B. would be significant. Based on the criminal record the Crownrelies on, he has never spent any time in jail before and a six month custodial sentence would be a significant penalty for him.

Given thenature of this offence, his time in custody would be difficult for him. [159] Mr. B.’s sentence would also impact his family. He would be absent from their lives again for a significant period of time. [160] In my view, the imposition of the mandatory minimum sentence of six months’ custody on Mr. B. for this offence and in thesecircumstances would be “grossly disproportionate” to a fit and proportionate sentence and specifically, to the sentence I have determinedto be fit and appropriate. [161] Therefore, I find the mandatory minimum sentence under s. 271(

b) in this particular case infringes s. 12 of the Charter and Idecline to impose it when sentencing Mr. B. IS THE MANDATORY MINIMUM SENTENCE “GROSSLY DISPROPORTIONATE” BASED ON THE REASONABLEHYPOTHETICAL TEST: [162] In the event I am incorrect and the sentence I have found to be fit for Mr.

B. is not “grossly disproportionate” to the mandatoryminimum sentence under s. 271(b), I have also considered the reasonable hypothetical circumstances considered by Justice Harris in theScofield decision in this analysis. [163] While Crown submits I should not wade into a constitutional analysis unless it is necessary for me to do so, I find it is importantfor me to do so in this case given what I have found to be a fit sentence for Mr. B. [164] The specific hypothetical circumstances I have considered are set out in paragraphs 82 to 83 of Scofield. I have set out thoseparagraphs for ease of reference:

[82] Apart from this, the mandatory minimum must fail the reasonable hypothetical test. Consider a case in which two young people meet at a party attended by other young people. One is almost 16 years old. The other turned 21 years old a few months earlier. The close-in-age exception is inapplicable by a few months and certainly less than one year. The two people drink alcohol and smoke marihuana. They are not drunk but their inhibitions are reduced. Finding that they are attracted to each other, they find a private bedroom.

They engage in some kissing and brief sexual touching over their clothing, but they do not undress or have intercourse. After approximately ten minutes, they return to the party. During their time together, they act willingly, knowing each other’s ages. Neither person has a criminal record. This is the only occasion where either one engages in this kind of conduct with each other. [83] In my opinion, imposing a one-year mandatory minimum sentence in those circumstances is grossly disproportionate, would shock the conscience of Canadians, and would be cruel and unusual punishment.

A proportionate sentence would not attract imprisonment or even necessarily a CSO. The result does not turn on the gender of the participants or any other details about the personal circumstances of the older person. Other reasonably relevant factors about the offender that heighten the disproportionate character of the sentence can be added to the hypothetical. As in this case, the offender might have disabilities that reduce moral culpability.

Alternatively, the judge might be obliged to consider significant Gladue factors in sentencing. [ 165 ] Judge Morgan, in CVEB , also considered the same hypothetical circumstances. Judge Morgan found that “in the circumstances of that reasonable hypothetical… the six month mandatory minimum sentence for sexual assault on a person under the age of 16 as set out in s. 271(

b) would be a grossly disproportionate sentence in contravention of s. 12 of the Charter .” [ 166 ] I agree with Judge Morgan’s finding, and also find, that, based on Judge Harris’ hypothetical offender and circumstances, the mandatory minimum sentence under s. 271(

b) is “grossly disproportionate” to a proportionate and fit sentence for that hypothetical offender and infringes s. 12 of the Charter in those circumstances. [ 167 ] Therefore, I decline to impose the mandatory minimum sentence under s. 271(

b) when imposing sentence on Mr. B. on this basis as well. [ 168 ] Crown had previously stated she would not take any position on whether or not the infringement of s. 12 could be saved under s. 1 of the Charter if the Court found an infringement occurred. A similar position was taken by the Crown in the CVEB case. SENTENCING ORDER: [ 169 ] As I have declined to impose the mandatory minimum sentence, I find a fit and appropriate sentence for Mr. B. for sexual assault of B.S. under s. 271(

b) is a conditional sentence order of 60 days in duration, followed by an 18 month Probation Order. [ 170 ] The ancillary orders requested by Crown, namely an order authorizing the taking of a DNA sample from Mr. B. and requiring Mr.

B. to comply with the requirements of the Sex Offender Information Registration Act for a period of 10 years will also be made. [ 171 ] With respect to the conditions, in short, I accept the conditions as laid out by Crown as to the conditional sentence order and as accepted by Defence are appropriate in the circumstances and I’ll mention those in a moment. [ 172 ] With respect to the probation order, I am not including the abstention clause or the ‘no go to liquor outlets’ in the probation order as alcohol did not play a factor in this offending. [ 173 ] I’ll have to identify specifically what the conditions are at this point. [ 174 ] Mr.

B. do you mind standing please sir. You have heard what the sentence is that I have given you. [ 175 ] The terms of your conditional sentence order are going to be as follows [terms of order below reflect the terms as per the picklist and discussion relating to those terms is not included in these Reasons]: 3001: The mandatory terms as follows: You must keep the peace and be of good behaviour. You must appear before the Court when you are required to do so by the Court.

You must notify the Court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change in employment or occupation.

You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province in which case you must carry the written permission with you when you are outside the province. 3002: You must have no contact or communication directly or indirectly with B.S. except for the purpose of providing a letter of apology in accordance with the terms of this order. 3005: You must not go any residence, school or workplace of B.S. 3101: You must report in person to the conditional sentence supervisor at 205B Boundary Road, Duncan, BC by 12 p.m. on December 11, 2019 and after that you must report as and when directed by the conditional sentence supervisor.

3201: When first reporting to the conditional sentence supervisor you must inform his or her of your residential address and telephone number. You must not change your residence or phone number without prior written permission from your conditional sentence supervisor. 3212: You must provide your conditional sentence supervisor with the particulars of your employment or relationship status.

You must inform your conditional sentence supervisor within two business days of any change in your employment or relationship status. 3209: For the duration of this order, you must remain inside your residence or on the lot of your residence between the hours of 11 p.m. and 6 a.m. each day.

You must present yourself immediately at the door to your residence or answer your phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the curfew condition of this order You may be away from your residence during the curfew hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours. You may also be away from your residence during the curfew hours:

a) while in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide a conditional sentence supervisor with details of your employment, including location and hours of work; and

b) in the event of a medical emergency relating to you personally or to any child in your care and then only while at a health care facility, or when travelling directly to, or returning directly from the facility.

If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went. 3306: You must not date, or enter into a marriage like or common-law relationship with any person under the age of 16 years, until you have identified to your conditional sentence supervisor the person with whom you propose to enter into such a relationship, and your conditional sentence supervisor has informed that person or your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment. 3401: You must not possess or consume any alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. 3403: You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence. 3501: You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the conditional sentence supervisor. 3508: You must sign any waiver of confidentiality or release of information forms as will enable your conditional sentence supervisor, counsellors or treatment providers to monitor your attendance and completion of any intake, assessment, counselling or treatment programs and to collaboratively discuss your treatment needs.

You must sign any release of information forms as will enable your conditional sentence supervisor to monitor you’re attendance and completion of any assessments, counselling or rehabilitative programs as directed.

You must provide proof of your attendance and completion of any assessments, counselling or treatment programs as directed by your conditional sentence supervisor. 3515: You must apologize to B.S. in the manner directed by your conditional sentence supervisor and to the satisfaction of your conditional sentence supervisor within the next 50 days. [ 176 ] With respect to the Probation Order, the terms are [included as per picklist terms]: 2001: You must keep the peace and be of good behaviour.

You must appear before the Court when you are required to do so by the Court.

You must notify the Court or your probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation. 2002: You must have no contact or communication, directly or indirectly, with B.S. 2005: You must not go to any residence, school or workplace of B.S. 2101: Within two business days after completion of the CSO, you must report to a probation officer at 205B Boundary Road, Duncan, BC and after that you must report as and when directed by the probation officer.

This requirement to report will terminate once you have completed any counselling, treatment or program your have been directed to complete to the satisfaction of your probation officer. 2201: When first reporting to the probation officer, you must inform him or her of your residential address and telephone number. You must not change your residence or phone number without first notifying your probation officer in advance of any change. 2212: You must provide your probation officer with the particulars of your employment or relationship status.

You must inform your probation officer within two business days of any change in your employment or relationship status. 2306: You must not date, or enter into a marriage like or common-law relationship that has the care or access to children under the age of 16 years until you have identified to your probation officer the person with whom you propose to enter into such a relationship, and your probation officer has informed that person or your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment. 2501: You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. 2508: You must sign any waiver of confidentiality or release of information forms as will enable your probation officer, counsellors or treatment providers to monitor your attendance and completion of any intake, assessment, counselling or treatment programs and to collaboratively discuss your treatment needs.

You must sign any release of information forms as will enable your probation officer to monitor you’re attendance and completion of any assessments, counselling or rehabilitative programs as directed. You must provide proof of your attendance and completion of any assessments, counselling or treatment programs as directed by your probation officer. [ 177 ] There will be the following orders as well:

a) This is a primary designated offence. Pursuant to s. 487.051(1) of the Code , I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank.

b) As you are not in custody, you must attend at the Duncan RCMP detachment within seven days of today’s date (December 10, 2019) and submit to the taking of the samples. This order is valid until executed.

c) In addition to that, another mandatory order, pursuant to s. 490.012 of the Code , you are required to comply with the Sex Offender Information Registration Act for 10 years. _____________________________ The Honourable Judge J. Barrett Provincial Court of British Columbia APPENDIX A

1. R. v A.B., 2013 SKQB 56 2. R. v. A.B., 2015 ONCA 803 3. R. v. A.W., [2018] N.J. 296 (N.L.P.C.) 4. R. v. Alexander (16 May 2018), Port Coquitlam Registry No. 94514 (B.C.P.C.); 29 BCCA 100 5. R. v. B. and S., 2014 BCPC 94 , 2014 BCPC 0094 6. R. v. B.J.C. (2 September 2016), North Vancouver Registry No. 608869-4-CA (B.C.P.C.) 7. R. v. Boesel, 2017 BCSC 970 8. R. v. Burnett (21 May 2019), Salmon Arm Registry No. 23660-1 (B.C.P.C.) 9. R. v. C.V.E.B., 2019 BCPC 118 10. R. v. D.B.S., 2018 YKSC 16 11. R. v. Drumonde, 2019 ONSC 1005 12. R. v. E.J.B., 2018 ABCA 239, leave to appeal refused [2018] S.C.C.A. No. 441 13.

R. v. E.M.Q., 2015 BCSC 201 14. R. v. E.R.D.R., 2016 BCSC 684 15. R. v. E.R.D.R., 2016 BCSC 1758 16. R. v. E.R.D.R., 2016 BCSC 1759 17. R. v. Ford, 2017 ABQB 542, aff’d 2019 ABCA 87 18. R. v. Gumban, 2017 BCPC 226 19. R. v. Hajar, 2016 ABCA 222 20. R. v. Hilan, 2015 ONCA 338 21. R. v. Horswill, 2019 BCCA 2 22. R. v. J.E.D., 2018 MBCA 123 23. R. v. J.G., 2017 ONCJ 881 24. R. v. J.T.D., S.C.C. No. 02539 (N.S.C.A.) 25. R. v. K.(H.), 2014 MBQB 18 26. R. v. Lloyd, 2016 SCC 13 27. R. v. M.G.F., 2010 ABCA 102 28. R. v. Michelin, 2013 SKQB 390 29. R. v. Nur, 2015 SCC 15 30. R. v. Plehanov, 2017 BCSC 2176 31. R. v.

Pope (27 September 2018), North Vancouver Registry No. 63464 32. R. v. Proulx, 2000 SCC 5 33. R. v. R.R.G.S., 2014 BCPC 170 34. R. v. Roller [1991] B.C.W.L.D. 2601 (B.C.C.A.)

35. R. v. S.A., 2016 ONSC 5355 36. R. v. Safaee , 2009 BCCA 367 37. R. v. Sandercock , 1985 ABCA 218 38. R. v. Savage , 2011 ONCA 107 39. R. v. Scofield , 2019 BCCA 3 40. R. v. Siber (9 May 2017), Abbotsford Registry No. 81820 (B.C.P.C.) 41. R. v. Swaby , 2018 BCCA 416 42. R. v. Tom , [1991] B.C.J. No. 2617 (B.C.C.A.) 43. Re Hansard Spruce Mills Ltd., Dominion Law Reports [1954] 4 D.L.R.