R. v. S.R., 2020 BCPC 227

Citation: R. v. S.R. 2020 BCPC 227 Date: 20201127 File No: 39317-2 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.R. BAN ON PUBLICATION –

SECTION 486.4(1) C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: E. Bonner Counsel for the Accused: C. Beckingham Place of Hearing: [Omitted for publication] , B.C. Dates of Hearing: September 18, 2019, January 30, May 15, 2020 Date of Sentence: November 27, 2020 INTRODUCTION

[ 1 ] I use the word “Indigenous” in these reasons for sentence as I find it is inclusive of what the law often refers to as “Aboriginal”, and in an effort to be inclusive of anyone who self-identifies as “Aboriginal, Metis, Inuit, First Nations, status or non-status Indian” under the Indian Act and whether they reside on or off of a reserve and whether or not they have a close connection to their Indigenous culture. [ 2 ] I have used the initials of S.R. to indicate the accused and J.R. to indicate the complainant. I do this to protect the identity of the victim.

CHARGES [ 3 ] S.R., from the 26 th day of January, 1982, to the 30 th day of November 1982, inclusive, at or near [omitted for publication], in the Province of British Columbia, did indecently assault J.R., a female person, contrary to s. 149 of the Criminal Code . [ 4 ] The charge is extremely dated, as the offence took place 38 years ago. S.R. was 28 years old. J.R. was 6 years old, she is now 43 years old. [ 5 ] The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty on May 29, 2019. The maximum punishment available is 5 years’ incarceration.

THE FACTS The Complaint to Police - 2018 [ 6 ] On July 8, 2018, the 42 year old complainant, J.R., reported to the police that her father sexually abused her when she was 6 years old. There were a number of incidents. She remembered that on occasion he would touch her breast area and rub his penis against her. She also recalls S.R. placing his penis in her mouth and touching her vagina with his mouth. This sexual abuse took place over the course of a year. This abuse happened in the family vehicle and family home.

S.R. reports that it “may have been half a dozen times… but I’m not sure.” In any event, he fully adopts J.R.’s account of the events. The Complaint to Family - 1990 [ 7 ] Somewhere around the end of the 1980s to early 1990s, when she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. I will examine this ‘intervention’ later in these reasons. [ 8 ] S.R. provided a statement to the police. He does not remember any specifics of the sexual abuse. However, he does not deny any of the acts.

Rather, he acknowledged that there was abuse and with respect to the details, he says that ‘if she says it is true, then it must be true’. He does not excuse or minimize his behaviour, but does tell the Court he was drinking alcohol excessively during this time of his life. CROWN POSITION ON SENTENCE [ 9 ] The Crown seeks a sentence of three to five years jail. DEFENCE POSITION ON SENTENCE [ 10 ] Defence originally submitted a conditional jail sentence was appropriate. However, counsel now agree that a conditional sentence is not an available sentence.

Defence also implicitly argued that a suspended sentence is an available sentence. If jail is to be imposed, they strongly urge the court to impose a provincial sentence.

SUMMARY OF COURT PROCEEDINGS - NOTABLE TIMELINE • 26-January-82 to 30-November-82: Offence date. • 1990: Family intervention with social worker. • 08-July-18: Complainant provides statement to police. • 30-April-19: Charge laid. • 29-May-19: First Appearance and Guilty Pleas entered, reports ordered. • 12-August-19: Forensic Psychiatric Report Completed. • 19-August-19: Pre-Sentence Report Completed. • 18-September- 19: Sentencing commenced and adjourned - Gladue Report Ordered. • 30-January-20: Gladue Report Completed. • 04-March-20: Defence adjourned sentencing to provide further authorities. • 15-May-20: Sentencing adjourned due to COVID-19. • 14-August-20: Sentencing Adjourned due to lack of court time.

• 27-November-20: Sentencing continued.

CROWN SUBMISSIONS Aggravating and Mitigating Factors [ 11 ] The Crown submits these are the aggravating factors: a.) S.R. position of J.R.: Father to complainant, and thus breach of trust; b.) J.R.’s age: At the time, she was six, and very vulnerable; c.) Repetition of acts: Multiple acts; d.) Time period: Perhaps each week for a year; e.) J.R. is member of vulnerable group: Indigenous person; and f.) Statutory authority: Offending against a child is aggravating. [ 12 ] The Crown submits there are mitigating factors: a.) S.R. pled guilty; b.) S.R. was cooperative with the police; and c.) S.R. has no criminal record.

Crown Authorities [ 13 ] The Crown relied on the following cases: R. v. Worthington , 2012 BCCA 454 ; R. v. R.E.L., 2010 BCCA 493 ; R. v. S.B ., 2017 NLPC 1316 ; R. v. Williams , 2011 BCCA 194 ; R. v. Woodward , 107 O.R. (3d) 81 , 2011 ONCA 610 ; and R. v. Vautour , 2016 BCCA 497 , as well as nine other cases. [ 14 ] The Crown’s submissions were extensive and fair. I do not wish to summarize them but there were a number of important points made based on these authorities.

For example, Worthington confirms that a breach of trust is a significant factor. [ 15 ] As well, while no two cases are the same, in R.E.L. a six year old was abused for six years, in a similar manner. The accused had no record, was low risk to re-offend and had pled guilty. That accused still received a five year sentence. [ 16 ] All the cases make it clear in legal terms, something that we as society already know. There are significant consequences on children when children are sexually abused.

As a result denunciation and deterrence are the main objectives of sentencing in these type of cases. [ 17 ] At the risk of oversimplifying the Crown’s submissions with respect to the many authorities filed, they submit that the range of sentence in British Columbia for sexually abusing children has been anywhere from five to seven years. However, taking into account the Indigenous status of this accused, and his ‘ Gladue Factors’, the Crown believes the appropriate range of sentence for this accused is three to five years. I accept the high end of the range could be up to five years jail.

I note, however, that the maximum punishment for this offence is five years jail. DEFENCE SUBMISSIONS [ 18 ] Defence agreed that he was not aware of any precedent that supported his position that a suspended sentence was appropriate. Although there was an adjournment to allow some time to double check this legal point. [ 19 ] However, prior to the adjournment, I saw that S.R. had many supporters in Court with him. I allowed his nephew, a First Nations Crisis Coordinator and two of his daughters to sit with him at defence counsel’s table.

The Crown made an objection that it was not appropriate to proceed in a ‘sentencing circle’ without the victim being present. [ 20 ] I agreed that it would be inappropriate to have a ‘sentencing circle’ without victim participation. However, I overruled the objection with respect to his supporters sitting with him and allowed the people to provide support to S.R. by sitting around him. I also allowed each of the individuals to speak in Court. The victim was not present. If she was, and if she had supporters, I would have also allowed each of them to speak as well.

DISCUSSION [ 21 ] In my experience, sentencing has become a bit mathematical or even cold. Probation is usually 6, 12, 18 or 24 months. Jail sentences are 30, 60 or 90 days or 6, 12, 18 or 24 months. The magic number that separates offenders from the provincial jail versus federal penitentiary is 24 months minus 1 day (provincial) versus 24 months plus 1 day (federal). We have ‘ranges’ of sentences that attempt to help judges understand starting positions for certain offences. In my experience, the human voice, actual or metaphoric, of the victims and offenders is often lost in the sentencing process.

It is also my experience, that this is particularly true when the victim or the offender is Indigenous. My experience is based on thousands of interactions and cases involving Indigenous victims and offenders. Systemic Barriers to Indigenous Victims and Indigenous Offenders

[ 22 ] To be clear, I believe it is the obligation of a sentencing judge to create a time and space where both supporters of the victim and the accused can be heard and supported. For example, sometimes when there is high emotional stress, in some Indigenous cultures, supporters of the person in crisis will physically embrace or touch the person in a show of emotional-spiritual support. [ 23 ] Our mainstream courts are not conducive to this sort of physicality. There is a Crown table to one side. There is a Defence table to the other.

There is a large barricade that separates the actual court area where counsel congregate from where members of the public sit (the body of the court). Traditionally, only legal professionals would be able to sit at the counsel’s table. Allowing so many people to sit past the barrier can also raise safety concerns for the sheriff who is responsible for the safety of everyone in the courtroom environment. COVID now complicates physicality even further. [ 24 ] In fairness to any presiding judge, courts are often busy, fast paced and with too many humans that need to be heard.

Even giving a person two hours of court time for a serious sexual assault sentencing rarely happens. If it does, there still is not much time to hear from people who would like to speak to the judge. [ 25 ] Anyone that has spent any time in a mainstream court knows that a courtroom is not the most inviting environment. Of course, this is probably true for all victims and offenders, but I think it is particularly true for Indigenous peoples. Courts are rarely held in Indigenous-friendly environments. They are often cold, concrete square buildings. Sometimes you have to pass through security checks.

More often than not you have to sit for a long time for your case to be heard. You will be sitting on uncomfortable, hardwood benches. (Or this was certainly true pre-COVID). The process is foreign to most. The language used is controlling and unfamiliar. There are strict protocols of who is to speak and when. Time is limited. [ 26 ] Prior to court the victims may have received a letter inviting them to fill out a form that details the impact the crime has had on them. Sometimes they get help filling out that form. Sometimes a crown is able to reach out to them by phone.

Sometimes victims will have contact with a Victim Support Worker. Even with this effort, it is a rare occasion that I ever hear from victims directly. I expect there are many reasons for this. Perhaps a distrust of the system, a feeling of being re-victimized, a fear of seeing the accused person in court, are some of the possibilities. Or perhaps the victim cannot take the time from work, get child care, or bus fare … the list is endless. More often than not, it is hard for a victim to even know when the sentencing is to take place.

I also accept that in some cases, victims, for their own unique reason, may simply wish to not participate in the sentencing process. That appears to be the case here. J.R. has declined to provide a victim impact statement and has declined invitations to attend Court. [ 27 ] An offender is sometimes, but not always, represented. In either case he is allowed to speak to the judge before a sentence is given.

In practical terms, this sometimes means the judge will say, “You have the right to address the court before sentence is passed, do you have anything to say?” I think wording it this way is confusing. “Right to address the court” itself might be confusing. In the scenario where a judge, dressed in ornate robes, sitting high above you, about to sentence you for a crime, in a cold foreign environment one might consider the invitation to speak, to be confusing and intimidating. More often than not, an offender does not “address the court”.

Sometimes they might have something to say, but are advised by their lawyers not to speak. Or they might be nervous or simply not know what to say, worried that if they say the wrong thing, the sentence will be more harsh. Access to Justice: Alternatives to Mainstream Sentencing Process – Indigenous Community Courts [ 28 ] In British Columbia there are a number of Indigenous Community Courts. They are sentencing courts.

If a person charged with a crime self-identifies as an Indigenous person, then they can speak to a lawyer and possibly go from the mainstream court to an Indigenous court to be sentenced. [ 29 ] Each Indigenous court is unique. There are different requirements for each of them. For example, one Indigenous Community Court does not take offenders if there is a realistic chance of a jail sentence.

Another will take offenders even in sexual assault cases and even when jail sentences are being sought. [ 30 ] With respect to this case and S.R., he lives in an isolated area where there is no access to any of the Indigenous Community Courts. It is my finding that it is inherently unfair that if S.R. lived in North Vancouver, he more than likely could have been sentenced in a culturally appropriate Indigenous court that eliminates many of the systemic barriers mentioned above that limit the access of justice to Indigenous victims and offenders.

The crown would still be able to seek a 3 to 5 year jail sentence, and both the victim and offender would be able to have increased participation in the sentencing process. The sentence may or not be the same in that Court versus this Court. In simple terms, other Indigenous victims and offenders have greater access to justice than this victim or this offender. Other Alternatives – The Sentencing Circle [ 31 ] There are many publications that can be reviewed to have a better understanding of what has often been referred to as a ‘sentencing circle’. For our purposes, however, I provide this information.

It is an example of something that has been used in combination with mainstream legal tools. I have been counsel in many sentencing circles and have presided as a Judge in cases using this sentencing approach. I provide the information, well aware that no sentencing circle was requested in this case. In my view, it was open to the offender, victim or community or crown to proceed in this manner. If invited, it would have been open to me as the presiding judge to work with the participants. Once more the institutional barrier that exists is time.

It takes time to prepare the participants, find an appropriate venue and allow full participation. Another issue is that these concepts are foreign to most counsel and it may be hard to navigate the process for the first time. Of course, the reality is that legal aid retainers are limited as well. Lack of community understanding is also an issue is most places. Community members often want to make the justice system more ‘just’, but still have not worked out how they can do it in a way that is sensitive to local, more culturally appropriate, decision making.

Sentencing Circles A sentencing circle is a community-directed process, conducted in partnership with the criminal justice system, to develop consensus on an appropriate sentencing plan that addresses the concerns of all interested parties. Sentencing circles — sometimes called peacemaking circles — use traditional circle ritual and structure to involve the victim, victim supporters, the offender, offender supporters, judge and court personnel, prosecutor, defense counsel, police, and all interested community members. Within the circle, people can speak from the

heart in a shared search for understanding of the event, and together identify the steps necessary to assist in healing all affected parties and prevent future crimes. Sentencing circles typically involve a multi-step procedure that includes: (1) application by the offender to participate in the circle process; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle to develop consensus on the elements of a sentencing plan; and (5) follow-up circles to monitor the progress of the offender.

The sentencing plan may incorporate commitments by the system, community, and family members, as well as by the offender. Sentencing circles are used for adult and juvenile offenders with a variety of offenses and have been used in both rural and urban settings. Specifics of the circle process vary from community to community and are designed locally to fit community needs and culture . Sentencing circles have been developed most extensively in Saskatchewan, Manitoba, and the Yukon and have been used occasionally in several other communities.

Their use spread to the United States in 1996 when a pilot project was initiated in Minnesota. Goals The goals of sentencing circles include: • Promote healing for all affected parties. • Provide an opportunity for the offender to make amends. • Empower victims, community members, families, and offenders by giving them a voice and a shared responsibility in finding constructive resolutions. • Address the underlying causes of criminal behavior. • Build a sense of community and its capacity for resolving conflict. • Promote and share community values.

Implementation A successful sentencing circle process depends upon a healthy partnership between the formal justice system and the community. Participants from both need training and skill building in the circle process, peacemaking, and consensus building. The community can subsequently customize the circle process to fit local resources and culture. It is critically important that the community's planning process allows sufficient time for strong relationships among justice professionals and community members to develop.

Implementation procedures must be highly flexible, because the circle process will evolve over time based on the community's knowledge and experience. In many communities, direction and leadership are provided by a community justice committee that decides which cases to accept, develops support groups for the victim and offender, and helps to conduct circles. In most communities, circles are facilitated by a trained community member, who is often called a "keeper." Sentencing circles are not appropriate for all offenders.

The connection of the offender to the community, the sincerity and nature of the offender's efforts to be healed, the input of victims, and the dedication of the offender's support group are key factors in determining whether a case is appropriate for the circle process. Because communities vary in health and in their capacity to deal constructively with conflict, representatives of the formal justice system must participate in circles to ensure fair treatment of both victims and offenders.

The capacity of the circle to advance solutions capable of improving the lives of participants and the overall well-being of the community depends upon the effectiveness of the participating volunteers. To ensure a cadre of capable volunteers, the program should support a paid community-based volunteer coordinator to supply logistical support, establish linkages with other agencies and community representatives, and provide appropriate training for all staff. Lessons Learned Very little research has been conducted to date on the effectiveness of sentencing circles.

One study conducted by Judge Barry Stuart (1996) in Canada indicated that fewer offenders who had gone through the circle recidivated than offenders who were processed by standard criminal justice practices. Those who have been involved with circles report that circles empower participants to resolve conflict in a manner that shares responsibility for outcomes; generate constructive relationships; enhance respect and understanding among all involved; and foster enduring, innovative solutions.

For More Information For a more complete discussion of sentencing circles, see Building Community Justice Partnerships: Community Peacemaking Circles , by Barry Stuart, available from Aboriginal Justice Section, Department of Justice of Canada, Ottawa, Ontario, K1AOH8; Fax - (613-957- 4697, Attn. Learning Network). This Restorative Justice Fact Sheet is presented by a partnership among the Office or Justice Programs, National Institute of Justice, Office for Victims of Crime, National Institute of Corrections, and Office of Juvenile Justice and Delinquency Prevention, all within the U.S.

Department of Justice. [Cite for above link] https://www.courts.ca.gov/documents/SentencingCircles.pdf

THE LAW [32] From the time the sentencing commenced, I have reviewed approximately 75 cases involving Indigenous offenders and sexualoffending. I have provided summaries of most of these cases to counsel. And they have provided me with cases. [33] As a starting point, I wish to begin with the guiding words of the Honourable Justice Bennett in R. v. D.G., 2014 BCCA 84. Inote that the systemic issues and Gladue factors of that case overlap with this case and with the background of S.R. However, theoffending behaviour is very distinguishable.

At paragraph 37 Justice Bennett writes: [37] There is no question that the sexual assault of a child would often draw a serious penitentiary term. This Court has often said thatchildren are “priceless assets”, and it is extremely important to denounce conduct that takes advantage of their vulnerability. This is notthe only consideration. [38] A sentencing judge must be cognizant of the usual sentencing range, but that range is not determined in a vacuum.

It dependsentirely on the circumstances of the offence and the offender before the court. … [34] This golden thread rings true through most of the cases in BC decided after D.G.. [35] As usual, I am thankful to my fellow Judges across the country that spend countless hours writing on these issues. In this case, Iam particularly thankful to the Honourable Judge McCarthy for his analysis in R. v. C.G.J., 2019 BCPC 252 and the Honourable JudgeDoulis. Both are prolific legal writers and I appreciate their work immensely.

Rather than reinvent the format, I adopt Judge McCarthy’sreasoning and words in full where he writes about the principles a judge must consider when sentencing an Indigenous offender for asexual offence against a child: Applicable Sentencing Provisions of the Criminal Code [62] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Code. These sections codify and plainly state theintention and rationale for imposing particular sentences, as well as the common law principles of sentencing: R. v. Nasogaluak, 2010SCC 6 at para 39. Fundamental Purpose [63]

Section 718 of the Code outlines the fundamental purpose of sentencing as: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance 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 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. Proportionality Principle [64]

Section 718.1 sets out and codifies a fundamental principle of sentencing. It directs that a sentence must be proportionate to thegravity of the offence and the degree of the offender's responsibility. [65] The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to thevictim; and (

b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 , at para. 130. The Supreme Courtof Canada has held that proportionality as articulated in s. 718.1 is a fundamental principle of sentencing - "the sine qua non of a justsanction". It is grounded in elemental notions of justice and fairness, and is indispensable to the public's confidence in the justice system"(see R. v. Safarzadeh-Markhali, 2016 SCC 14 , para. 70). Other Sentencing Principles [66]

Section 718.2, under the heading of "Other Sentencing Principles," states, in part, that: 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 the offenceor the offender, and, without limiting the generality of the foregoing . . . (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation . . . or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, . . . shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Parity Principle [67]

Section 718.2(

b) codifies the parity principle which holds sentences should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held that the "parity principle . . . meansthat any disparity between sanctions for different offenders needs to be justified." In Canada, the appellate courts diverge on theapplication of parity in sexual offences. In R. v.

Williams, 2019 BCCA 295 , the Court of Appeal held (at paragraphs 53 to 57)that in British Columbia, as in most provinces, the appellate courts adopted the approach of sentencing ranges for a particular offence.D.M. Smith J.A. for the Court of Appeal in Williams stated (at paragraph 57) that sentencing ranges "provide an optimal balance betweenfurthering parity and individualization in a sentence. . . . They are intended to assist judges in arriving at a sentence that is consistent withsentences for similarly situated offenders, in similar circumstances . . . ." The Totality Principle [68]

Section 728.2(

c) codifies the totality principle, which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender: see R. v. G.F., 2018BCCA 339 . It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious ofthe individual offences involved, or its effect is crushing and not in keeping with the offender's record and prospects: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. Restraint Principle [69] Sections 718.2(

d) and 718.2(

e) codify the restraint principle, which holds an offender should not be deprived of liberty if lessrestrictive principles may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e). Sentencing Considerations for Aboriginal Offenders and the Gladue Factors [70]

Section 718.2(

e) does not permit the court to impose an unfit sentence: R. v. Jackson, 2012 ABCA 154. Thus, in decidingwhether an Aboriginal offender should be incarcerated, a judge using all available information before the court about an offender mustdetermine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence anddenunciation. [71] The fact that an offender is Aboriginal, on its own, does not justify a different sentence.

However, the uniqueness of Aboriginaloffenders can justify a disparity between the sentences of an Aboriginal versus a non-Aboriginal person (see Ipeelee). Further, as stated inR. v. Ladue, 2011 BCCA 101 at para. 45, " . . . there is no automatic Aboriginal discount" of a sentence, and the more serious the crime,the more reduced role the systemic factors play in crafting a sentence. Also, as the British Columbia Supreme Court wrote in R. v. Sam,2014 BCSC 1267 at paragraph 21: . . .

That is not to say, however, that being of Aboriginal heritage gives an offender a stay out of jail card or an automatic discount, but thesystemic factors can sometimes operate in subtle ways that are difficult to discern. [72] Therefore, the objective is not to favour Aboriginal offenders over other offenders; rather background and systemic factors areconsidered for all offenders (thereby justifying disparity in sentences (see R. v. Pangman, 2011 MBCA 64)).

While rehabilitative andGladue objectives need to inform a fit sentence, they do not automatically trump other sentencing objectives and sometimes public safetyis paramount (see R. v. Cisneros, 2014 BCCA 154; see also R. v. Killiktee, 2013 ONCA 332). [73] Highly aggravating factors leave little scope for a reduction of a sentence based on the offender's Aboriginal heritage (see R. v.Thorn, 2013 NWTSC 8). Separation, denunciation and deterrence retain their relevance for some offenders who commit serious offences(see R. v. Jacko, 2010 ONCA 452; R. v. Blind, 2013 SKPC 168).

Restorative objectives do not trump other sentencing objectives in everycase involving Aboriginal offenders.

Section 718.1 of the Code still requires that a sentence be proportionate to the gravity of theoffence, regardless of whether the offender is Aboriginal or non-Aboriginal (see R. v. Paul, 2014 BCCA 81). [74] The fundamental principle of proportionality requires an assessment of the offender's moral blameworthiness. Any historic andindividual circumstances of an Aboriginal offender are highly relevant to that assessment, regardless of the nature of the crime (see: R. v.D.G. 2014 BCCA 84).

[75] There is no burden on an Aboriginal offender to establish a causal link between the Gladue factors and the commission of the offences (see R. v. Eustach e, 2014 BCCA 337 ]. However, as noted in Ipeelee , unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives should be actualized, such factors do not influence the ultimate sentence. In determining the impact of Gladue factors, the courts cannot abandon traditional concepts of relevance (see R. v. Edmonds , 2012 ABCA 340 ; see also R. v. Donetz , 2013 ABCA 95 ).

The sentencing judge must consider and explain whether the circumstances are relevant to determining a fit sentence by effecting the offender's degree of blameworthiness for the offence (see R. v. Napesis , 2014 ABCA 308 , and see, for example, R. v. Cochrane , 2013 BCCA 93 ). [76] Although the Accused bears the onus of establishing mitigating factors on a balance of probabilities, Ipeelee says it can be difficult for Aboriginal offenders to establish direct causal links between the circumstances and the offending behaviour. The interconnections are often too complex.

Imposing the burden of persuasion on an Aboriginal offender to establish a direct causal link demonstrates "an inadequate understanding of the devastating intergenerational effects of the collective experience of Aboriginal people and would impose a burden on offenders that Gladue never intended" ( Ipeelee at paragraph 82 ). While an Aboriginal offender need not establish a direct causal link between his or her personal circumstances and the predicate offence, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (see R. v. D.B. , 2013 ONCA 691 ).

A sentencing judge cannot simply apply "an automatic discount" to an offender because of the experience of his ancestors, without discussing how the offender's Aboriginal heritage had any relationship to the offence or his moral culpability (see R. v. Popowich , 2013 ABCA 149 ; and see R. v. McArthur , 2013 SKCA 139 ). A sentencing judge must ask themselves what combination of systemic or background factors contributed to or impacted on a particular offender's culpability for the particular offence.

Examples included are how has the offender been affected by substance abuse in the community or poverty or overt racism or family or community breakdown? (See R. v. Knockwood , 2012 ONSC 2238 .) [77] R. v.

Gladue instructs sentencing judges that in sentencing an Aboriginal offender, the sentencing judge must carry out a three- step process: 1) examine the unique systemic or background factors common to Aboriginal people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained. [78] The authorities are clear that, practically speaking, Gladue factors can affect a sentence in two ways: 1) they can affect the type a sentence imposed, such as one based on restorative justice model; or 2) they can affect the length of or severity of the sentence imposed. [79] Gladue factors should be considered when determining the appropriate sentence for an offence, in conjunction with any mitigating and aggravating factors and "not at the end when reviewing the sentence on the basis of totality" (see R. v.

Charlette , 2015 MBCA 32 ). The Gladue factors are to be considered with all other mitigating factors. The weight to be given will vary from case to case. The factors are not to be considered after the sentencing judge has determined an otherwise fit sentence to decide whether the sentence should be reduced on the basis of Gladue factors (see R. v. Dick , 2015 MBCA). In addition to considering restorative justice processes for Aboriginal offenders, sentencing judges can also address Gladue factors in crafting appropriate conditions for probation or conditional sentence orders.

If community support and supervision are available, it might be possible to impose a non-custodial sentence in situations where jail has seen to be the only viable option. In other words the court must explore alternatives.

Criminal Code Provisions Relating to Sex Offences Against Children [80] Of particular importance in this case is the provision of s. 718.01 which deals with offences against children and provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [81] Therefore s. 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18.

Other important sentencing considerations are set out in s. 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The Code legislates the following factors as aggravating: (

a) s. 718.2(a)(ii.1), the young age of the victims; (

b) s. 718.2(a)(iii), the offender was in a position of trust or authority in relation to the victim; and (

c) s. 718.2(a)(iii.1), the offence had a significant impact on the victim. [82] On September 19, 2019, s. 718.04 of the Code came into effect. It states: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [83] I respectfully agree with the comments of the Honourable Judge J.T. Doulis in R. v.

J.M., 2019 BCPC 235 , when she says at paragraph 37 as follows: [37] Although the offences and J.M.’s conviction for those offences predate s. 718.04 coming into force, I do not consider it a substantive change to the principles in play at a sentencing hearing.

Section 718.2(a)(iii.1) already requires a sentencing judge to take into consideration the impact of the offence on the victim. In my view, a victim’s vulnerability to sexual violation and its impact are two sides of the same coin. Moreover, courts have long recognized the victim’s vulnerability as an aggravating factor in sentencing child sex

offenders: see R. v. Klassen, 2012 BCCA 405 ; R. v. Seagull, 2013 BCSC 1811 , para. 53; R. v. Pappas, 2005 BCSC1431 cited in R. v. D.C.E., 2012 BCPC 491 , at para. 34; R. v. Roberts, 2015 BCPC 266 ; and R. v. Campbell-Ball, 2019 SKCA 41 , para. 60. Sentencing Principles for Child Sexual Abuse Offences [186] The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established. For example,R. v. D.(D.), (ONCA), and R. v.

Woodward, 2011 ONCA 610 , emphasize that children are our most valuedand most vulnerable assets, and society has a duty to protect them from the harm caused by sexual predators. The harm is enduring,intergenerational, and well recognized. [187] In R. v. K.R.J., 2016 SCC 31 , Justice Karakatsanis, for the majority, noted at paragraph 83 that sexual offences againstchildren have "persisted for centuries." Justice Brown (in dissent) goes on to discuss the societal impact of those offences: [131] . . . Their legacy is toxic.

They are notorious for their devastating impact, often ruining the lives of their victims, and of thosewhose lives intersect with those victims as they move into adulthood. Trauma from childhood sexual abuse may reverberate forgenerations, creating pernicious cycles of abuse. [188] Abella J.A. (as she then was), in R. v. Stuckless, (ONCA), described the impact of sexual abuse on a child: Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. . . . [189] Therefore, in cases of child sexual abuse, the objectives of denunciation and deterrence, and the need to separate sexual predatorsfrom society takes precedence (see R. v. E.S., 2017 BCCA 354 at paragraphs 53 and 58, citing Woodward and R. v. O.M., 2009BCCA 287 , at paragraph 60; G.F., (supra) at paragraph 49). [190] In R. v.

R.E.L., 2010 BCCA 493 , Hinkson J.A. (as he then was) states at paragraph 10: [10] The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciationand deterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code. Such assaults not only violate thechild’s physical integrity, but erode the child’s ability to develop emotional trust, and create the sort of profound and long-lastingconsequences that are evident in the appellant’s victim.

The Individualized Approach in Sentencing [191] As noted at the outset of these reasons, sentencing is a very highly individualized process. [192] In R. v. J.M. (supra), Judge J.T. Doulis very recently provided the following excellent

summary of this individualized process atparagraphs 47 to 50: [47] . . . A fit sentence is one which is proportionate to the gravity of the offence and the degree of responsibility of the offender. Thecorrectional imperative of sentence individualization informs the sentencing process: R. v. Pham, 2013 SCC 15 at para. 8, thus,proportionality is determined both individually and comparatively. Individualization and parity of sentences must be reconciled for asentence to be proportionate: s. 718.2(

a) and (

b) of the Code: Williams, at para. 51 citing Lacasse, 2015 SCC 64 at paras. 53–54. [48] In arriving at a fit sentence, case authorities are helpful, but not determinative. The myriad of relevant factors generate asignificant variation in the range of sentences, particularly in sexual offences of children. Justice Saunders’ words in R. v. Wesley, 2014BCCA 321 , are apposite: [25] Notwithstanding the able submissions on behalf of the appellant, it does not appear to me that the cases establish two tightranges of sentence, two to four years and five to eight years, as contended.

In the case of sexual assault of children the variables areconsiderable, the background of the offenders are so different, the range of offending behaviour is so broad, the nuances of relationshipbetween offender and victim are so varied, and the needs of the community involved are so disparate that I do not consider the cases canbe separated into the two tight divisions posited. [49] Saunders JA cautioned sentencing judges from over-reliance upon appellate decisions to determine the appropriate range ofsentence.

She states at para. 26: In considering the many cases presented for our assistance, I observe first that many of them were appeals by the offender where thequestion was whether the sentence was beyond the appropriate range. Dismissal of those appeals does not tell us where the top of therange is, rather it tells us what is not the top of the range.

Such cases, therefore, do not provide a great deal of help in determiningwhether this sentence exceeds the top of the appropriate range. [50] Nevertheless, as Justice Hunter comments in E.S. (supra), at para. 62, sentencing ranges do serve a useful purpose in determininga fit sentence: While sentencing ranges are to be treated as guidelines only, and sentences must always be individualized to the offender, thesestatements provide appropriate yardsticks to measure the fitness of a sentence for the type of offence committed by this appellant.

Aggravating, Mitigating, and Collateral Consequences [193] The individualized approach requires the court to consider all aggravating and mitigating circumstances and the collateralconsequences. As a result, sentences for offenders convicted of sexual offences against children vary significantly depending on the

circumstances. Those circumstances may include:

a) the frequency of the sexual abuse;

b) the severity of the sexual abuse;

c) the duration of the sexual abuse;

d) whether the abuse occurred in the victim's home;

e) the presence of grooming;

f) the age of the victim;

g) whether the offender was in a position of trust;

h) whether the abuse was accompanied by any gratuitous violence;

i) whether the offender pleaded guilty;

j) whether the offender expressed remorse;

k) the offender's criminal record;

l) the offender's age and health;

m) whether the offender was socially disadvantaged;

n) whether the offender presented an ongoing risk to the community;

o) the offender's family and community support;

p) the offender's bail conditions; and

q) the impact on the victim. [194] Mr. Justice Romilly's decision in H.M.T.Q. v. T.P.C., 2000 BCSC 742 , at paragraph 16, references many of thesefactors. I must instruct myself that some of these factors are either aggravating or mitigating, others, although relevant, are neither. Theymay bear examination when determining a fit sentence. An aggravating factor, either statutorily or judicially mandated, may prompt acourt to impose a longer sentence than otherwise may be imposed. A mitigating factor may reduce the sentence that might otherwise beimposed.

The absence of an aggravating factor does not equate to a mitigating factor or vice versa: see Scofield, paragraphs 35 to 36, andR. v. Prince, 2018 BCSC 987 , at para. 72. [195] The Crown bears the burden of proving disputed aggravating factors beyond a reasonable doubt. The defence bears the burden ofproving disputed mitigating factors on a balance of probabilities: R. v. Dreger, 2014 BCCA 54 , para. 45. R. v. Friesen, 2020 SCC 9 Decision April 2, 2020 [36] This decision of Canada’s Supreme Court was published approximately one month after this sentencing commenced.

Neithercounsel have referred to it but no doubt, we are all familiar with it. Defence ceased researching old cases once this decision was given, asit provides a new lens to view these cases with. [37] In my view, it is the most recent and relevant case that prescribes the approach sentencing judges should take when sentencingoffenders for sexual offences against children. [38] The Court in Friesen confirms many of the points found in our precedents.

Proportionality and parity are examined and the Courtwrites, “Sentencing precedents reflect the range of factual situations in the world, embody the collective experience and wisdom of thejudiciary, and are the practical expression of both parity and proportionality.” They also confirm that “sentencing ranges and startingpoints are guidelines, not hard and fast rules.” [39] The court emphasizes that protecting children from wrongful exploitation and harm is the overarching objective of our laws inthe Criminal Code.

In the headnote, it could not be made more clear what the Supreme Court of Canada requires of sentencing judgeswhen they write: Courts must impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normativecharacter of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.

Specifically,courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flowsfrom these offences; and (3) the actual harm that children suffer as a result of these offences. Sexual offences against children areinherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potentialharm materializes, and actual harm vary from case to case.

Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account whendetermining the offender’s degree of responsibility. Intentionally applying force of a sexual nature to a child is highly morallyblameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves thewrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencing

to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to thesentencing objective of denunciation. The fact that the victim is a child increases the offender’s degree of responsibility. [40] They provide a list of factors that can be considered such as: risk of reoffending, whether there was an abuse of trust, whether itwas a single instance of offending or multiple occasions and the age of the victim. [41] The court makes clear the purpose of the decision. They write: [1] Children are the future of our country and our communities.

They are also some of the most vulnerable members of our society.They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands ofCanadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to theprofound wrongfulness and harmfulness of sexual offences against children. [42] The court states that they have repeatedly held that sentencing ranges and starting points are guidelines, not hard fast rules. (Para37). [43] Further that: [38] The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both inmethod and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits thefeatures of a particular case.

Different methods may even be required to account properly for relevant systemic and background factors(Ipeelee, at para. 59). Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far fromany starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v.

Suter, 2018 SCC 34, [2018] 2 S.C.R.496, at para. 4). [44] At paragraph 70, with respect to Indigenous people and other vulnerable groups the court writes: [70] Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate thedisadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at adisproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10).

Canadian governmentpolicies, particularly the physical, sexual, emotional, and spiritual violence against Indigenous children in Indian Residential Schools,have contributed to conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence(see British Columbia, Representative for Children and Youth, Too Many Victims: Sexualized Violence in the Lives of Children andYouth in Care (2016), at p. 8 (“Too Many Victims”); The Sexual Exploitation of Children in Canada: the Need for National Action, at pp.29-33).

In particular, the over-representation of Indigenous children and youth in the child welfare system makes them especiallyvulnerable to sexual violence (Too Many Victims, at pp. 11-12). We would emphasize that, when a child victim is Indigenous, the courtmay consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence(T. Lindberg, P. Campeau and M. Campbell, “Indigenous Women and Sexual Assault in Canada”, in E. A.

Sheehy, ed., Sexual Assault inCanada: Law, Legal Practice and Women’s Activism (2012), 87, at pp. 87 and 98-99). [45] In examining moral blameworthiness the Court is clear that “intentionally applying force of a sexual nature to a child is highlymorally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.” (Para. 88).

I pausehere to note that J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. [46] In concluding that moral blameworthiness is high when a child is hurt, the Court also balances this with a separate issue of howto assess moral blameworthiness when the offender is Indigenous when they write: [91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability.The proportionality principle requires that the punishment imposed be “just and appropriate . . ., and nothing more” (M. (C.A.), at para.80 (emphasis deleted); see also Ipeelee, at para. 37).

First, as sexual assault and sexual interference are broadly-defined offences thatembrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, thepersonal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that imposeserious cognitive limitations will likely have reduced moral culpability (R. v.

Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v.Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180). [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexualviolence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing theIndigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73).

Similarly, a different or alternativesanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). J.R.’S CIRCUMSTANCES – THE VICTIM [47] It is important to understand the impact that this offence had on the victim. Sadly, in the past, I believe considering the Gladuefactors of the accused often overshadowed the need to consider the circumstances of the victim. Generally speaking, in its most simpleform, sentences are crafted by examining the circumstances of the offence and the circumstances of the offender.

I believe it is essentialto balance on this artificial dichotomous measuring scale, the circumstances of the victim. [48] In this case, J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexuallyabused than if she were not Indigenous. She was an extremely vulnerable child at the time of the offence. Since she has reported thiscrime to the police, she probably feels somehow responsible for what is taking place in Court. If she were here today, then I would tellher this: It is not your fault.

You have been victimized by your father and he has breached your trust. He was supposed to keep you safe and not

hurt you. He is sorry he hurt you. I am sorry you have been hurt. But none of this is your fault. [ 49 ] Under the heading “Victim Information” in S.R.’s pre-sentence report, J.R. provides her information. The victim of the offence, J.R., was contacted for the purposes of this report. There was no victim impact statement prepared for the court. J.R. indicates that she has no relationship with her father, S.R. She states that although they maintained contact over the years, they were never close.

J.R. reports having maintained contact with S.R. out of necessity for keeping the family together and the shame of having to explain why she didn’t include him in her life. Since his arrest, J.R. reports they have had no contact whatsoever. J.R. advises she was and remains deeply impacted by the sexual abuse and that she has spent her entire life carrying around shame and pain. She states she has lived her life in survival mode, doing just what she had to do to get by and to feel normal. She indicates that she has very low self-esteem and self-worth and felt unlovable.

She advises she struggled in school and did not graduate from high school. J.R. reports that at times she drank more than she should have as a means of coping with the shame. She explains she stayed in a mentally and emotionally abusive relationship for many years as she did not feel she deserved more than that. In her younger years, J.R. felt a constant need to protect her younger sisters and she feared that her father would abuse them as well. It should be noted that each of the sisters have indicated that they were never abused by their father and have been supporting him through this process.

They asserted that they have always felt safe and trusted and still do trust him and have no concerns for themselves or their children. They were physically embracing him as the sentencing hearing took place. She states she has always struggled with trusting people as she felt betrayed by her father, who she explains should have been there to protect her and not be the one who sexually abusing her. J.R. advises that she first disclosed the sexual abuse to her mother when she was around 14 years old.

This was brought to the attention of a social worker, who, in discussion with family agreed not to involve law enforcement. In discussing this, J.R. states she isn’t sure why the choice to not press charges was given to her being that she was so young and believes it was not fair to place that responsibility on her. J.R. indicates that S.R. has asked for her forgiveness in the past and she was unable to forgive him. Since she reported the sexual abuse to the police, J.R. states she feels as though a huge weight has been lifted.

J.R. advises that there has been a negative side to report the offence as it has created some tension amongst herself and her siblings. She states it feels as though people have started to take sides. Despite this, J.R. advises she is in a better place than she has ever been and feels as though she can finally start her healing journey. J.R. has never attended for counselling to deal with the sexual abuse. She explains that she does not want to relive the trauma and instead reaches out to her support system of friends and family.

J.R. states she never wants to have to see S.R. again and would like a no-contact condition put in place at sentencing. S.R.’S CIRCUMSTANCES Pre-Sentence Report – August 16, 2019 [ 50 ] S.R. is 65 years old First Nations’ man, and has two living siblings. His parents and seven brothers and sisters have passed away. He was 28 years old at the time of the offence. [ 51 ] When S.R. was 19 when he dated a 15 year old, they married and they had four children together. J.R. is one of those children. He remarried and had another daughter.

He is also a grandfather to six grandchildren. [ 52 ] He states that he has a close relationship with all his family, including J.R. However, J.R. disagrees, stating that they have had contact with each other, but have never been close. [ 53 ] S.R. states he and his cousins “witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions.

S.R. saw this so often he states he believed this to be normal behaviour.” He was six years old when he was exposed to sexual behaviour and pornographic images. [ 54 ] As for alcohol, he “spoke of the normalization of excessive alcohol consumption.

He advises he grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.” [ 55 ] The author believes that he would benefit from trauma counselling for the violence he witnessed growing up. [ 56 ] He tells the author of the report that “most of his family members became aware of his offending behaviour over thirty years ago when J.R. first reported the sexual abuse to her mother. J.R. was 14 years old at that time.

A social worker became involved and subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement.” [ 57 ] On this point, I believe it is important to note that the social worker was S.R.’s sister-in-law. She in turn went to S.R.’s oldest brother for advice. This appears to be what S.R. meant when he said the incident was dealt with in a ‘traditional way’. I am not familiar with local Indigenous customs when it comes to seeking the guidance of the eldest brother.

Although, in my view, perhaps the gender imbalance, the fact that the victim was only 14, and the fact that we are dealing with sexual abuse might not have been conducive to providing a safe environment to J.R. I do not get the impression that J.R. felt empowered by her ability to have input. In any event, I would have welcomed input from elders as to what the ‘traditional way’ meant. If it had a traditional meaning of ‘concluding or resolving the conflict’ then that would be important to know.

Without a better cultural understanding, the approach taken might even leave one with the impression that the issue was simply ‘swept under the rug.’ [ 58 ] As to his attitude and understanding, he takes full responsibility. He states that he does not remember much of the details but believes whatever J.R. has to say about it.

He “expresses appropriate victim empathy and is able to identify the tremendous impact the offence would have had on J.R.… He understands why she felt the need to come forward and he is willing to accept the consequences for his actions.” [ 59 ] As for Indigenous background, many of his family members went to residential school. He knows that many of those family members were physically, emotionally and sexually abused. The pre-sentence report sets out the history of colonialism and the negative

impact on S.R., his family and his community. I do take into consideration the inter-generational trauma that his family would have suffered as a result of the residential school system. Forensic Psychiatric Report – July 30, 2019 [ 60 ] In the clinical opinion of the forensic report writer: S.R. indicated having fully accepted responsibility for his offences. He also indicated a level of remorse for his offending… However, and to his credit, he mentioned that although he was using alcohol heavily at the same time in his life, he does not blame his alcohol use for his poor decision making.

It is important to note that S.R.’s offences are now very historical. Given that S.R. has not had any other issues and stopped his offending even before he disclosed it to the Band Social Worker many years ago, there is no reason to believe that S.R. presents a risk at this point… because he is seen as low risk, he is not a candidate for the Sex Offender Treatment Program. Should S.R. be granted a community disposition (which is strongly supported in this case), in lieu of, or in addition to, a custodial sentence, a number of conditions are recommended.

The Gladue Report – January 30, 2020 [ 61 ] Cynthia Sewid authored this report. I extend my thanks to her and all other Gladue report writers.

Their work and expertise is always of great assistance to me when I have to sentence an Indigenous offender. [ 62 ] It is important to note that these reports are extensive and cover all aspects of an individual’s life from finances to their relationship with their culture. [ 63 ] In this case, the author contacted S.R., his son, two daughters, a nephew, a Cultural Awareness Worker, a Crisis Care and Wellness Coordinator, a Resolution Health Support Worker, a Prevention Coordinator, Clinical Counsellor, Wellness Worker, and other individuals. [ 64 ] I acknowledge the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system.

As the Gladue report confirms, that the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without any ones knowledge. [ 65 ] The report confirms that all throughout his life S.R. suffered from severe racism. [ 66 ] The Gladue report also reveals more details regarding the 1990 disclosure and decision to deal with it in a ‘traditional way’.

He tells the Gladue writer “he believed J.R. and the rest of the family had forgiven him for his inappropriate behavior as they maintained regular contact…” He said he recalls a discussion of the abuse with J.R. when he was planning to run to be councillor [for his First Nation] in 2004. S.R. said before the voting he received an anonymous letter threatening him that, if he runs, the history of the abuse would be presented to the community. Following receiving the letter, he said he spoke with J.R. and showed her the letter. S.R. said J.R. said she was not ever going to deny what happened.

However, she told him to go ahead and run, and see what happens. S.R. did, was voted in, and served as [his First Nations councillor] for eight years. [ 67 ] Despite the cultural cuts that residential schools scarred his community with, he is involved with cultural practices such as singing, drumming and other cultural events, including language classes. [ 68 ] He tells the writer that “he is remorseful for this offence and regrets it ever happened and I wish I could take it back.

However, I can’t so I will do what I can at this point to make it right.” [ 69 ] The author of the report summarizes the Gladue factors that need to be considered: • Community history of displacement including forced amalgamation and relocation; • Interruption of community culture due to potlatch ban; • Community and family history of forced attendance to residential schools; • Personal and family and community history of substance abuse; • Racism; • Personal and family and community history of mental health issues; • Personal and family history of involvement with the criminal justice system; and • Inability to appreciate legacy of colonialisms and IRS in own life and circumstances. [ 70 ] In short, the report also confirms that S.R. continues to “work on his sobriety and he is willing to participate in any restorative justice program the court may order.” [ 71 ] There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options.

There is also a Men’s Group that is offered to men who have sexually offended. The doctor that runs that program indicates that this group also assists people like S.R. There are also cultural healing retreats.

[ 72 ] The author also creates an individual heading that is worth repeating in full: Participate in Community Family Apology Traditional justice is deeply rooted in Aboriginal culture, systems, and beliefs with the underlying philosophy of healing and the restoration of social harmony. Interconnectedness, equality and continuity is of utmost importance in aboriginal social structure. [One senior cultural awareness worker] said there are various reasons for public-family apologies. However, all is conducted with a purpose which guides the protocols and who is in attendance.

Restorative justice often involves all parties involved. However, [one crisis care and wellness coordinator] who initially proposed a public apology informed that the apology does not need to have his victim present, if she does not wish to be. She advised that to be an advocate for change, an apology would provide the community-family immense healing.

She explained that their community has suffered from years of sexual interference and S.R.’s apology would open up the means for “true reconciliation.” S.R.’s support for this would include: [a number of traditional and culturally appropriate trained professionals]. They have all agreed to work together with S.R. to plan the specifics of where and when this would take place.

All affirmed the importance of S.R. participating in this significant event when the time is ready, and they explained that he would need to meet with a counsellor and then they will work together to assess the readiness and plan what the apology will look like to benefit him, his family and the community. CONCLUSIONS [ 73 ] He formally pled guilty in May 2019. The sentencing is now coming to a conclusion some 18 months later. The delay from the offence date to when charges were laid is significant. The delay from the time of the plea being entered to today is significant.

We are going on two years where this victim and this accused have had the stress of these proceedings. No doubt the toll on everyone in their family has been significant. [ 74 ] The last main court date was a number of days before COVID. I wonder if COVID did not exist, if S.R. would have been able to accomplish the community family apology. If he did, would this make a difference in sentencing? I suspect it might have. In my respectful view, I agree that a community restorative justice intervention would be appropriate.

But in my view, with S.R.’s supports, such an approach does not need to be ordered by this Court. It can be accomplished without a court order. To be clear, I hope S.R. can use his position as an elder in his community and work hand in hand with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

Hopefully a community driven restorative approach will help victims heal, but it is not for me to impose a sentence on S.R. to do this – it must come from the community and S.R. [ 75 ] I have considered the frequency of the abuse. It took place over the course of a year. A year is a very long time period. It was not a one-off occurrence. I take into account that there were numerous significant sexual aggressions.

I note that J.R. was a vulnerable Indigenous child and that S.R. breached a sacred trust as her father. [ 76 ] I take into account his guilty plea, his remorse, and other personal antecedents. [ 77 ] I acknowledge that his actions have had a profound and deep impact on the victim. [ 78 ] In all the circumstances, I am of the view that this case has some exceptionally unusual circumstances. To echo language used in cases that discuss ‘exceptional circumstances’, S.R. has no record, has a strong record of employment, and has taken significant and objectively identifiable steps to be a productive member of society.

He has served his community. He has been consistent in his remorse and is very aware of the harm he has caused by his actions. As a result, deterrence and rehabilitation are less of a concern for me today, but denunciation still needs to be addressed. [ 79 ] Despite the unusual and exceptional circumstances of this case, the balancing of the competing sentencing principles and objectives brings me to a conclusion that a period of jail is warranted. If there is any question as to how I come to this conclusion, one only need to remember the facts that were set out at the beginning of these reasons.

A little girl’s emotional, spiritual and physical integrity has been scarred because S.R. sexually abused her for a year. [ 80 ] In my view, the unusual circumstances of this case do not require a sentence in the range sought by the Crown. [ 81 ] I sentence S.R. to a period of one year jail. If a conditional jail sentence was available, I would make it a conditional jail sentence.

In my view, this life-long journey of exemplary behaviour, dedication of service to his community, early interventions, expressions of remorse and other antecedents all weigh in favour of a jail sentence that could be served in the community. House arrest, counselling, and the development of a restorative sentence could be accomplished. However, this is not an option in law. [ 82 ] I acknowledge that I could impose a suspended sentence with probation. Protective conditions would be the main purpose of the probation. Suspending the sentence would mean S.R. would not serve any custody.

However, I decline to impose probation. I note that J.R. does not want to have contact with S.R. Once more, I do not think a court order is required. S.R. is an elder and has heard the wishes of his daughter. He should not have contact with her, unless initiated by her. If there is a community event and J.R. is there, S.R. should respect her wishes and leave that event. [ 83 ] I decline to impose any other discretionary orders. All mandatory orders are ordered. ___________________________

The Honourable Judge A. Wolf Provincial Court of British Columbia