R. v. B.A.S., 2019 BCPC 47

Citation: R. v. B.A.S. 2019 BCPC 47 Date: 20190213 File No: 39606-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.A.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Section 16(4) Sex Offender Information and Registration Act (“SOIRA”): This

section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. BAN ON PUBLICATION 486 CCC Counsel for the Crown: B. Tomlin Counsel for the Accused: G. Ng, G. Prat Place of Hearing: Duncan , B.C.

Date of Hearing: February 13, 2019 Date of Sentence: February 13, 2019 Introduction [ 1 ] THE COURT: B.A.S. is before this court. [ 2 ] Mr. S. has entered a guilty plea to Count 1 of Information 39606-1. He has pled guilty to the offence that on or between the 12 th of December, 1988, and the 25 th day of January, 1997, he did for a sexual purpose, touch directly or indirectly with a part of his body or with an object of the body of J.L., being a person under the age of 14 years. That is an offence contrary to s. 151 of the Criminal Code . [ 3 ] The duty of this court is to impose a fit sentence upon Mr.

S. with respect to this particular offence. [ 4 ] I note that the Crown proceeded by way of indictment, and that an election had been made to have the Provincial Court deal with this matter. [ 5 ] By way of comment, an early guilty plea was entered with respect to this particular matter. Mr. S. entered that guilty plea back in March 2018. Thereafter the matter was adjourned in order to accommodate the preparation of a report which is now before the court after some scheduling delays. [ 6 ] That particular report was prepared by Dr. Todd Tomita. He is a forensic psychiatrist.

From what I understand, he carries on a private practice, but also consults with Correctional Services Canada, and is a member of the British Columbia Review Board. He is also a Clinical Associate Professor of Psychiatry and the program director for the Forensic Psychiatric Training Program at the University of British Columbia. His report is dated October 30, 2018 (the “Psychiatric Report”). Facts Circumstances Surrounding the Offence [ 7 ] Both Crown and defence counsel have acknowledged that the offending behaviour is adequately described in the Psychiatric Report.

There is some apparent minimization on the part of Mr. S. about the offences that took place, and some of the opinions expressed by Dr. Tomita in the Psychiatric Report are based on Crown's reports which were reviewed by Dr. Tomita for the purposes of preparing the Psychiatric Report, now available for use in this sentencing. I understand that both counsel are content that only the admissions made by Mr. S. will serve as the basis for the determination of a fit sentence in this matter. [ 8 ] By way of a

summary, the victim in this case, identified in the indictment as J.L., is the adopted daughter of Mr. S. and his wife at that time. The offending behaviour started when the child was prepubescent. I understand that the offending behaviour stopped at age 15 and the disclosure was first made by the victim at approximately age 17, while in high school. [ 9 ] At that time there was a lack of an admission on the part of Mr. S., although there was some acknowledgement of some untoward behaviour; however, the matter was not reported to the police because of the reluctance of the victim to go through that process.

However as the victim got older, in approximately 2015, she informed Mr. S. that she intended to report the matter. [ 10 ] In the meantime, Mr. S. had relocated outside the Province of British Columbia. The indictment was sworn on May the 5th, 2017. [ 11 ] The report by Dr. Tomita describes the offending behaviour as the touching and fondling of the victim's vaginal area and breasts. There is no allegation made that sexual penetration or intercourse occurred; however, there is a suggestion that there may have been an occasion when Mr.

S. ejaculated between the legs of the victim. [ 12 ] The charge period covers some eight or nine years. Hence, this is a historical sexual offence. It is only these historical sexual offences that are being advanced by Crown, and being relied upon for the purposes of this sentencing and not any allegations of untoward behaviour or sexual offending after the charge period. [ 13 ] The offending behaviour has obviously had a significant impact on the victim; I will speak further of that in a moment. Circumstances of the Offender [ 14 ] Mr. S. is before this court without any criminal record.

He is presently 61 years of age. He has been twice divorced. He is presently living with his new fiancée, M.H. [ 15 ] Mr. S. had a lengthy career with a popular tourist [attraction] in the Greater Victoria area. He worked there for a period of some 40 years. He relocated to Whitehorse in the Yukon in about 2012. He comes from a large family. He has family members in attendance today for the purposes of this sentencing. [ 16 ] The Psychiatric Report indicates that he had some learning disabilities and struggled with school; however, he did successfully complete his GED equivalency program.

He was actively involved in the community while growing up. He has two biological children

who were not subject to the offending behaviour that is described in Count 1 of this Information. [ 17 ] Mr. S. actually qualified as a Pan-American official in [omitted for publication] and hence reached a very high level of voluntary participation in those sporting activities. [ 18 ] The Psychiatric Report provides a comprehensive review of Mr. S.'s relationship and sexual history. In addition, there is an indication of some previous traumatic history suffered by Mr. S. in the course of his youth. [ 19 ] He has been comprehensively assessed by Dr. Tomita in the preparation of the Psychiatric Report.

He has been examined both as to his mental status and any psychiatric issues. None are disclosed by the report, other than as may directly relate to the offending behaviour. A number of tests were conducted on Mr. S. with a view to assessing his risk of future sexual offences, and also for the consideration of the recommendations made with respect to his treatment and risk management. [ 20 ] Based upon the extensive amount of review and assessment of Mr. S. by Dr. Tomita, a number of opinions are expressed by Dr. Tomita. They can be summarized in the following fashion. [ 21 ] First of all, Dr.

Tomita concludes that Mr. S. does not have any psychiatric disorder. At paragraph 69 of the Psychiatric Report, there is a consideration of whether or not there is a possibility of pedophilic sexual interest. That conclusion is not reached by Dr. Tomita. He notes that Mr. S.'s only offending behaviour was against his non-biological daughter, the complainant J.L., and not against the other two biological children. Hence pedophilic sexual interest is not viewed as being a risk factor for Mr. S. [ 22 ] As far as the risk assessment is concerned, the conclusion reached by Dr.

Tomita is that he is at a “low risk” of future sexual offending (see paragraph 72 of the Psychiatric Report). [ 23 ] The Psychiatric Report goes on to note that Mr. S. is an "incest-type offender". The report then states that this category of offender "has the lowest rates of sexual recidivism relative to other child molester-type offenders". [ 24 ] The Psychiatric Report then further notes, at paragraph 75, that Mr. S. “appeared to be candid as compared to sex offenders in general who had been evaluated” using the same measurement tools. Mr.

S. reported sexual experiences with adult females that was comparable to sex offenders in general. The only sexual deviance that was reported to Dr. Tomita is the touching of one prepubescent female and one female child, which Dr. Tomita further noted was consistent with Mr. S.’s offending against J.L., as a child and then an adolescent. [ 25 ] The Psychiatric Report goes on to indicate at paragraph 77 that Mr. S.'s total score on the Static 99-R was a minus 3. It is noted by defence counsel that this is a very low risk assessment, and it is described by Dr.

Tomita as being the lowest possible score on this tool, hence the conclusion that the offender represents a very low risk level of reoffending. [ 26 ] At paragraph 80 of the Psychiatric Report, Dr. Tomita notes that Mr. S. has a few risk factors present.

Those include: (1) chronicity of sexual violence, given that he offended against J.L. over a period of some eight to nine years; (2) the psychological coercion and sexual violence by way of his use of a position of power as a parent over a very young child who was dependent on him; (3) what is referred to as an “extreme minimization or denial of sexual violence”, and what is characterized as some deflecting of blame by Mr. S. on previous spouses and “subtly shifting blame to J.L.”.

The remaining provisions within this item (3) go on to note that there appears to be what is described as some “limited awareness” of Mr. S.'s “motives for his sexual behaviour”. As noted at paragraph 58 of the Psychiatric Report, when the psychiatrist confronted Mr.

S. with his difficulty acknowledging there was a sexual motive to the offences, the offender with some reluctance then accepted his minimization behaviour. [ 27 ] Notwithstanding this limited awareness and minimization, the psychiatrist notes that all of the factors referred to above represent historical and psychological adjustment risk factors. [ 28 ] At paragraph 83 of the Psychiatric Report, Dr. Tomita notes that he does not expect further sexual reoffending on the part of Mr. S., nor does he expect any future problems with Mr.

S.'s attendance at counselling and rehabilitative programming. [ 29 ] Specifically, he notes that the facts that Mr. S. has the support of his current fiancée and that he has made disclosure to her of his offending which will assist in his rehabilitation and limit the prospects of any sexual reoffending in the future. [ 30 ] Under the heading of Treatment and Risk Management Considerations , Dr. Tomita notes again that there does not appear to be any significant risk factors which remain likely to give rise to future sexual offending. Once again the recommendation presented by Dr. Tomita for Mr.

S.'s rehabilitation is that he will require a low intensity sex offender treatment program; Dr. Tomita does not expect this to change his sexual recidivism, which is already characterized as low. [ 31 ] I think it is noteworthy that the concluding sentence of the report at paragraph 89 reads as follows, and I quote Dr. Tomita [as read in]: I would, however, anticipate the completion of a sex offender treatment program is likely to increase his acceptance of degree of responsibility for his offending against J.L. and to better appreciate the damage caused by it.

Victim Impact [ 32 ] I have before me a filed copy of a victim impact statement prepared by J.L., and filed August 20, 2018. [ 33 ] That victim impact statement certainly confirms the significant harm done to the victim in this case. She summarizes her victimization in the following fashion, (and I quote): "I lost my childhood". She has continued to experience what she describes as debilitating “stress and anxiety” about Mr. S. offending against another child and her fear of him following and watching her. She has

also indicated that a lot of her adult life has been shaped by the abuse that she suffered at the hands of the offender in this case. However, she also indicates that she has learned to adapt and survive, mentally and physically, but qualifies that by saying it issomething that a child should never have to know about. [34] I can say that there is at least the appearance of some positive hope that the victim in this case will continue to recover from thescars that she suffered as part of the offending behaviour.

Joint Position of Crown and Defence on the Sentencing of theOffender [35] The joint submission I have received with respect to the sentencing disposition of this matter is that the offender should receivea custodial sentence for a duration of three years. The Crown is also seeking some additional orders. [36] With respect to the sentencing position advanced, reliance is placed on a series of cases that have been presented to the court. [37] Crown has referred this court to the decision of our Court of Appeal, R. v. D.R.W., [2012] B.C.J.

No. 2648 which upheld a fouryear prison sentence for sexual assault against the accused’s teen age stepdaughter. Specifically, reference is made to the Court ofAppeal's approach in dealing with matters of sexual offending involving a breach of trust, and specifically the child/parent relationship.

The Court of Appeal, at paragraph 41, notes as follows: I would go so far as to say the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a case involvinga breach of trust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of thatviolation, and the offender's appreciation of that violation as the behaviour continued.

We are here concerned with the offence of sexualassault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in the youth ofthe complainant, over-laid with the breach of trust in the family relationship. [38] At paragraph 45, the Court of Appeal goes on to say: I have spent some time on the British Columbian cases of R. v. M.(W.) and R. v. R.E.L., as they are cases of a sentence higher thanimposed in this case, but involve consideration of intercourse or attempted intercourse.

The range of sentence is generally discussed inR.E.L., but might be said to be evolving given the legislative developments in this area and the comments I have made concerningpenetration as an aggravating fact. [39] The Court of Appeal then goes on to make a determination about the sentence under appeal in that case, but the important factorthat the Crown is relying upon from D.R.W. is that the range of sentences have increased in recent years (see paragraphs 34 to 38).

Defence agrees with that submission. [40] Defence has presented to the court a number of other cases, which have been summarized below and which deal with similarsituations and circumstances. [41] Those cases are: R. v. G.J.S., 2014 BCSC 1105. The resulting sentence in that case, which involved sex assault upon astepdaughter between the ages of four and 10 years of age, resulted in a three and a half year prison sentence. [42] The decision of R. v. T.D.F., 2016 BCSC 984. That was a sexual interference on a common-law stepdaughter between the agesof 10 and 15.

The type of offending behaviour was not dissimilar to the offending behaviour in this case. The sentence was two and ahalf years of prison and a five-year s. 161 order of prohibition. [43] The final decision presented to this court is R. v. Vautour, 2016 BCCA 497, in which involved sexual interference of a common-law stepdaughter between the ages of five and nine, again being a similar type of offending behaviour against that complainant as in thecase before this court.

The sentence was two and a half years of prison, and that came as a result of the appeal from a two-year less aday conditional sentence order. [44] I accept those decisions as being both authoritative and helpful with respect to the offence before me. Analysis [45] I have before me a joint submission. I am satisfied that the joint submission meets the requirements set forth in R. v. Anthony-Cook, 2016 SCC 43 , [2016] S.C.J. No. 43, a decision of our Supreme Court of Canada.

This joint submission presents asuggested sentence, which is clearly well within the range, and meets the public interest requirement of not bringing the administration ofjustice into disrepute. Therefore, I accept the joint submission. [46] I am also satisfied that the joint submission properly deals with the sentencing principles that apply in this particular case. Asnoted in the case of R. v.

G.J.S., the general sentencing principles that must govern are found in s. 718 of the Criminal Code. [47] The fundamental purpose of sentencing is to contribute for respect for the law and the maintenance of a just, peaceful and safesociety by imposing just sanctions that have one or more of the following objectives: (1) denouncing the unlawful conduct; (2) deterringthe offender and other people from committing offences; (3) separating the offender from society where necessary; (4) assisting in theoffender's rehabilitation; (5) providing reparations for harm done to victims or to the community; and, (6) promoting a sense ofresponsibility in offenders and acknowledgement of the harm done to victims and to the community.

[ 48 ] It is clear from G.J.S. and other authorities that the various objectives of sentencing will vary accordingly to the particular offence and the particular offender, and the case authorities support the proposition that sentencing is an individualized process. [ 49 ] Also a guiding sentencing principal is ensuring that the sentence is to be proportionate to the gravity of the offence and the degree of the responsibility of the offender, and the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

That is the so-called proportionality principle. [ 50 ] The sentence should be increased or reduced to reflect any relevant aggravating or mitigating circumstances relating to the offender, and it is also a principal that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

Similarly all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 51 ] In applying these objectives and principles of sentencing, I must first consider the aggravating and the mitigating factors. [ 52 ] The aggravating factors here clearly are the harm done to the victim, the breach of trust position that has occurred in this case, the lengthy period of time that the sexual touching and abuse took place, and the general overall breach of the child's innocence during the offending period. [ 53 ] The mitigating factors in this case are the fact that the offender has entered an early guilty plea, has acknowledged the offending behaviour, and has taken a measure of responsibility for it.

Accordingly, the victim has not been required to testify in this matter. [ 54 ] I also take into account that the offender has no criminal record. I have before me at least two letters from family members, including Mr. S.'s present fiancée, which speaks in very positive terms about him and his life in the Yukon, where they presently reside. [ 55 ] I also have a letter from D.S., the brother of the offender, which again speaks in very positive terms of Mr. S.

Both letters indicate that this offender who is before this court on this particular offence is not the type person that either the brother of the offender, or the fiancée have known the offender to be. [ 56 ] Having taken into account all of these factors, and also having regard to the fact that, in matters of this nature, deterrence and denunciation are primary factors to guide the sentencing, I do accept that the proposed sentence of three years of custodial time as being appropriate. [ 57 ] Accordingly, I will get Mr. S. to stand, please. [ 58 ] Mr.

S., I am sentencing you to a custodial sentence of three years in a federal penitentiary. I will make the recommendation that it be served at the Ford Mountain Institution. [ 59 ] Crown is seeking the mandatory DNA order. I will make that order, and Crown is also seeking a 20-year SOIRA order. I will make that order also. [ 60 ] MR. TOMLIN: A couple of things, Your Honour. Just checking, it does not appear that there was originally a 486.4 ban on disclosure of the complainant's identity. I think that would be appropriate. [ 61 ] THE COURT: I will make that order for ban on disclosure. Thank you. [ 62 ] MR.

TOMLIN: My learned friend was seeking a direction and I am happy to say that Crown has no objection to the psych report being provided to Corrections if it assists in providing counselling or programming to Mr. S. [ 63 ] THE COURT: I will make that order. [ 64 ] MR. TOMLIN: And then finally, in discussions with the victim's mom, I believe it would be appropriate for the duration of the prison term for you to impose a no-contact order Ms. J.L., pursuant to s. 743.2(1). [ 65 ] THE COURT: That order will also go. [ 66 ] MR. TOMLIN: Thank you. [ 67 ] Oh, no, sorry. I also neglected.

Guns were not involved, but it is still a mandatory 109 order, so I can seek that order. [ 68 ] THE COURT: I will make the mandatory s. 109 order. Is that lifetime? [ 69 ] MR. TOMLIN: Yes. [ 70 ] THE COURT: All right. [ 71 ] MR. TOMLIN: Prohibited weapons is 10 years. [ 72 ] THE COURT: Prohibited weapons -- [ 73 ] MR. TOMLIN: Statutory for normal firearms. [ 74 ] THE COURT: All right. And for a lifetime. [ 75 ] MR. TOMLIN: Yeah. Or prohibited.

[ 76 ] THE COURT: Anything else? [ 77 ] MR. TOMLIN: That's it. [ 78 ] THE COURT: Okay. [ 79 ] MR. TOMLIN: I will direct a stay of the other counts, if that has not been done. [ 80 ] THE COURT: All right. A stay is recorded. [ 81 ] Mr. S., again you heard what I said about the programming. I wish you well in completing that programming and re-entering back into society, applying what you have learned in that programming and again continuing to focus on making a positive contribution to your community. Thank you. [ 82 ] MR. TOMLIN: Thank you, Your Honour. [ 83 ] MS. NG: Thank you, Your Honour. [ 84 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]