R. v. D.J., 2021 BCPC 232

Citation: R. v. D.J. 2021 BCPC 232 Date: 20210913 File No: 39794-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.J. PUBLICATION BAN pursuant to ss. 486(4.1) and 517(1) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: A. Taylor Counsel for the Defendant: C. Beckingham Place of Hearing: [Omitted for publication] , B.C. Date of Hearing: September 13, 2021 Date of Judgment: Septmeber 13, 2021

INTRODUCTION [ 1 ] These are the reasons for sentence in the matter of this young 26 year old Indigenous male offender. We are on circuit, in a small town, in a cold gymnasium. This offender is not surrounded by family or supporters.

He has had a long journey to come from a pre-trial facility, where he has been waiting the equivalent of seven and a half months to have this sentencing completed. [ 2 ] I am told the care givers to the young infant victim were trying to make it here, and due to unforeseen circumstances they have not been able to attend court, either in person or by phone. [ 3 ] Perhaps there is some sense to adjourning this sentence to another day to allow the victim and his family to attend court. [ 4 ] Instead, I will order a copy of these reasons to be provided to the accused and the victim’s family.

THE CHARGE [ 5 ] Between December 14, 2016 and December 22, 2016, at or near [omitted for publication] BC, the accused did commit an offence of aggravated assault, contrary to section 268(2) of the Criminal Code . FACTS [ 6 ] The accused threw the infant child and caused serious injuries. [ 7 ] Specifically, the facts as indicated in the Pre-Sentence Report are “between December 14 and 22, 2016 the infant was screaming at the time and the accused lost his temper.

He threw the two year old baby across the living room causing him to land on a couch on the other side of the room.” [ 8 ] The circumstances described by the Crown today confirm that the accused threw this infant in frustration, and with such aggressiveness, that the injuries that were caused are consistent with injuries caused in high velocity traumas such as motor vehicle accidents. [ 9 ] I do not think ‘serious injuries’ properly describe the injuries. The injuries were significant.

The author of the Pre-Sentence Report describes the injuries as this: “On January 2, 2017, the infant was transported to [omitted for publication] General Hospital as he was showing symptoms of pneumonia. As his condition did not improve with treatment, x-rays were ordered. The radiologist noted “some misalignment of the lower thoracic” and suspected “significant spinal trauma.” A subsequent CT body scan revealed the infant had sustained an acute thoracic spine avulsion fracture as well as multiple spinous process avulsion fractures to his vertebrae.

The infant required several surgeries and extensive rehabilitation for his injuries. REPORTS [ 10 ] There is a Pre-Sentence Report, Gladue Report, Forensic report, and I have heard submissions from Crown and defence. [ 11 ] Fifteen cases have been submitted. Contained within those cases are dozens of other references to dozens of other cases across the country that address sentencing considerations in cases where adults hurt children in their care. PRINCIPLES OF SENTENCING [ 12 ] There are many cases, but one in the Crown’s book of authorities is R. v. K.S.H. , 2015 ABCA 370 is useful to me today.

The Alberta Court of Appeal succinctly sets out some of the relevant sentencing principles in

section V, starting at paragraph 37 and 38. Albeit in dissent, the minority of the court wrote this: V. Key Criminal Code Provisions [37] Section 268(1) of the Criminal Code sets out the crime of aggravated assault: 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [38] The purposes and principles of sentencing are recorded in

Part XXIII of the Criminal Code . They are as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct ...; (

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

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

d) to assist in rehabilitating offenders;

(

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.01 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. ... 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing ... (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, including their health ... ... 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.

CROWN POSITION ON SENTENCE [ 13 ] I accept the Crown’s submission that courts impose a wide variety of sentences and that sentences imposed in other cases are of limited value. [ 14 ] I also accept the Crown’s submission that in British Columbia, the range of sentence is in the 16 month to 6 year range for aggravated assaults on adult victims. [ 15 ] A higher range from two or three to six years, while wide, also seems to be in accord with aggravated assaults on infants. [ 16 ] The Crown argues that after balancing the aggravating and mitigating factors, the appropriate sentence that should be imposed is five years.

They submit that the sentence would be much higher, but for the guilty plea.

With time served of seven and half months with enhanced credit, the Crown submits a further period of 52 and a half months would be the remnant, still to be served. [ 17 ] The Crown finds the following to be aggravating: • Abuse of the position of trust/authority; role of step father • Abuse of child under 18 years old is statutorily aggravating under 718.01 of the Criminal Code ; • The level of force and violence was excessive; • The injuries were life altering, there were multiple month long stays in the hospital, multiple surgeries and the victim’s recovery path is still not clearly understood; it was thought at one point he would be a paraplegic, but thankfully, he seems to be doing better; • Notably, a differentiating feature of this case, versus others, is the accused did not seek medical help; the accused knew something was wrong; but he did not tell the doctors.

This is very aggravating; [ 18 ] The Crown acknowledges that there are some limited mitigating factors: • He plead guilty; • There is no prior record; • The accused is an Indigenous offender; and thus there are some systemic and particular background factors that may effect his moral blameworthiness; which again, I note, is aggravated for the reasons just mentioned. DEFENCE POSITION ON SENTENCE [ 19 ] The defence argues that the range of sentence is difficult to pinpoint.

They submit that this was a fleeting spur of the moment matter that arose out of frustration and that this is not a case where in a protracted way he abused the child in some sort of intentional way. Defence urges the court to consider his circumstances as exceptional, pointing out that there are many Gladue factors that are specific to him, but also to his community that are exceptional. [ 20 ] Defence submits that perhaps an additional 18 to 24 months is a fit sentence. With time served that would be an approximate 31 and a half month sentence.

WHAT IS THE GENERAL RANGE OF SENTENCE? [ 21 ] The maximum sentence is 14 years imprisonment. There are cases that suggest a starting range of sentence for cases of aggravated assault against young children should be in the four year range, certainly R. v. Friesen , 2020 SCC 9 might support the idea that previously sentencing judges have not sentenced offenders harsh enough for abusing children.

Therefore, it could be argued that any previous ranges of sentence should be increased, to reflect a more developed understanding of the vulnerability of our children, and the idea that we must be clear in our denunciation of harm caused to them by reckless, or malicious, or negligent, or even intentional acts by adults, who by all accounts, ‘should know better’. I do note that Friesen is a highly respected authority, but it did expressly deal with sexual offences against children.

While some of the broader principles of the need to ‘protect our children’ might be applicable, I do not find that it gives me much assistance in this sentencing today. [ 22 ] There has been much discussion between counsel and myself about the effect of Friesen on offences to do with children. They argue that any previous decisions should provide a small amount of guidance and in this post- Friesen era, it should be the case that ranges should increase to reflect the intention of our Nation’s Supreme Court.

I will not address this concept further in this decision, other than to acknowledge I understand the argument. But to me, increasing sentences for all offenders, for all offences against children is too broad of a blanket. It fails to take into consideration the highly individual characteristics of offending behaviour and the specific circumstances of particular offenders, especially Indigenous offenders with significant Gladue factors. [ 23 ] I find it dangerous to start off with some sort of arbitrary line and number that creates an exact starting point of sentence.

Unlike hitting a dart board, to me, there is no one place that all offences must land as far as penalty. As well, there is no one place that an offender lands with respect to penalty. Respectfully, to those that disagree, to say ‘if you hurt a child in your care’ the starting point is “x” years forgets that the sentencing process is a highly individualistic process.

The degree of moral blameworthiness of the offender, the actual acts of the offence, and the surrounding characteristics of the crime in general are always unique, exceptional and deserving of proper consideration. [ 24 ] I believe it is more fair to say that a more general range can be helpful. I am of the view that when a person in trust hurts their child, a number of factors favour a starting range anywhere from the ‘penitentiary range’ of two years and up, depending on the circumstances. ARE THERE SIMILAR SENTENCES IN OTHER CASES? [ 25 ] This concept of parity in sentencing is a difficult one to deal with.

Rarely are any two offenders overly similar. [ 26 ] Sadly, there are many reported cases concerning parents ‘shaking’ their infants. And a review of that case law helps judges create ranges of sentences. [ 27 ] However, there are few that seem to capture the circumstances that we are dealing with today. [ 28 ] Perhaps one of the closest examples submitted to the court is found in the decision of R. v. H., 2014 BCSC 600 . This case is from this geographical region, that is the west coast of Vancouver Island. Baird J. provides extensive information on the accused.

I note at paragraph 43 Baird J. captures the essence of the offending behaviour as “The infant…was crying and the offender, to use her own word “snapped”. She was angry and she took it out on the tiny defenceless child in a serious assault resulting in life threatening injuries.” [ 29 ] I note the accused received a two year jail sentence with probation after an 11 day trial. [ 30 ] Noteworthy and relevant comments between paragraphs 47 and 50 are: [47] The crime committed by this offender was extreme in nature and worthy of the court's strong condemnation.

Her moral responsibility for wilfully attacking a defenceless infant and inflicting life-threatening harm upon him is high. The degree of her departure from the standards expected of a fit and competent parent was marked, and the consequences of her actions upon the infant, H.F., were severe. [48] There was no guilty plea here. The offender's expressions of remorse and acceptance of responsibility have been late in coming and may not, in my estimation, be entirely sincere.

She lacks insight into her personality problems and, in the three-year interval since her arrest, she has taken no treatment or counselling for anger management, effective parenting, dealing with stress, coping with relationships, or indeed any other therapeutic steps towards addressing or understanding the flaws in her makeup that have led her to the prisoner's box. What may be a long and difficult road to rehabilitation has not even begun. [49] The authorities are unanimous that offences of aggravated assault upon defenceless infants merit severe sentences.

I think it is safe to say that it will be the exceptional case in which a penitentiary term is not imposed. The principles of denunciation, deterrence, retribution, and promotion of a sense of responsibility in offenders are the preeminent concerns here. The fact that the offender is H.F.'s natural mother is a significant aggravating feature, as a more drastic breach of trust is impossible to imagine.

I also bear in mind the principle that similar offenders who commit similar offences in similar circumstances should receive similar sentences. [50] Rehabilitation is an important, albeit lesser, consideration for this offender. Although it is clear that a jail sentence must be imposed in this case, I am mindful of the principle that restraint should be exercised in sentencing first-time offenders. I am aware that the offender in this case, since her assault upon H.F., has been convicted of a narcotics offence. Her conduct against H.F. is of another order of magnitude altogether.

For present purposes, I intend to treat the offender as a newcomer to the criminal justice system. [ 31 ] The total punitive and rehabilitative controls on the accused in that case was for about five years. GENERAL PRINCIPLES FROM CASES [ 32 ] I agree with these general principles found in the case law:

• The law must protect children and those who are defenceless from unwarranted bodily interference; • Denunciation and deterrence are the paramount sentencing considerations in child abuse sentencing cases; • Even your own problems as a parent do not warrant reckless endangerment of a child’s safety; • While I also agree that the more serious the harm, generally the more serious the penalty, I also am of the view, just because an accused was lucky and the victim healed, that does not forgive the behaviour or lower the moral blameworthiness or culpability of the accused. [ 33 ] While I am not bound by these comments, I find that McLeod J. in R. v.

S.B. , [2021] O.J. No. 1479 summarizes a key feature of these type of sentencings best at paragraph 35, referring to R. v. McInroy , [2014] O.J. No. 2186 . [ 34 ] [35] In McInroy , referencing R.v. A.N.C. , [2006] O.J. No. 3144 , the court spoke to the need for denunciation: [17] ... cases of child abuse are ones where the effective denunciation of the actions involved is only accomplished by the imposition of a term of imprisonment.

Citizens of this community would, in my view, expect that our courts would send the clearest possible message that the physical abuse of children is conduct that simply will not be tolerated because of the serious jeopardy it visits on the weakest and most defenceless among us.

WHAT ARE THE AGGRAVATING FACTORS? [ 35 ] The offence was committed on a person under 18 years old; [ 36 ] The victim was his step son – and he was duty bound to take care of this child; he breached the sacred trust owed to our children; I would even say, even if they are not our child, we owe a duty to protect the children around us. [ 37 ] There has been significant impact on the victim; I cannot understate the significant injuries that resulted; and not to just the victim but also to the care givers of this young human being. [ 38 ] The fact that the child was young, defenceless, vulnerable, and Indigenous; there are already systemic barriers that hinder success in school, in society and in all aspects of thriving.

These injuries have created an additional burden to overcome. WHAT ARE THE MITIGATING FACTORS? [ 39 ] Guilty plea/Remorse; Guilty plea; I know you are not supposed to place in a hierarchy aggravating or mitigating factors; they all count, none is worth more than another; to try to mathematically to all the factors, I think is a mistake. Although, judicial thinkers smarter than I sometimes allocate a 1/3 or 33.3% discount in sentence when a person pleads guilty at the earliest opportunity.

It would have been difficult to prove the case except for his own statement or admission of guilt; a two year old cannot testify. An expert might be able to pinpoint why and how the child was hurt, but not the essential element of ‘who’ hurt the child.

Indeed, we have a grandmother to the accused who still believes it was the infant’s mother, and not the accused who committed the wrong. [ 40 ] He has no adult criminal record; this is significant in the eyes of the law as he is a first time offender. [ 41 ] Also with respect to remorse he does indicate in his Pre-Sentence Report that: “I take full responsibility; I’d switch places with him if I could…. I never wanted this to happen.” [ 42 ] His grandmother says he has been confirmed to have Fetal Alcohol Syndrome Disorder (FASD).

He strongly denies that any such diagnosis has taken place; if there were significant FASD considerations, I expect that would be a mitigating feature, lessening moral blameworthiness, much the same way a brain injury might. But that is not proven; it has only been discussed. [ 43 ] Gladue factors: Client’s Indigenous Community D.J. is an [omitted for publication] band member. [Omitted for publication] ([omitted for publication]) is a [omitted for publication] First Nation residing on the west coast of Vancouver Island, British Columbia.

The word [omitted for publication] means “facing opposite from the ocean” or “people living with their backs to the land and mountains” in the [omitted for publication] language. Prior to the arrival of Europeans, the [omitted for publication] were a fishing community. Fishing – particularly salmon fishing – still remains an integral part of their contemporary economy.

Like other [omitted for publication] nations, the [omitted for publication] travelled by canoe and on foot to get to and from hunting and fishing sites. [Omitted for publication] society is governed by hereditary chiefs ( hawiih ) who are also responsible for traditional lands and resources ( hahuulthi ). Since the Indian Act only recognizes elected chiefs, the [omitted for publication] nation operates with both elected and hereditary chiefs. This hybrid system includes three principle hereditary chiefs, once elected chief, and an elected council.

The [omitted for publication] have a strong ceremonial culture, characterised by feasting and entertainment with song, dance, contests, and theatricals. Whaling was a significant cultural practice as well as an important economic venture for the [omitted for publication]. The [omitted for publication] belief system centres on a Creator being as well as spirits whose powers can be used to bring peace and fortune. The [omitted for publication] believe that all life forms have a spirit, and should therefore be respected and appreciated.

Shamans ensured the spiritual health of the people by practicing ancient medicines and healing rituals to cure illness and restore balance to the soul. The [omitted for publication] and other [omitted for publication] nations have traditional laws that were superseded in Canadian Law by

the Indian Act . However, [omitted for publication] customs surrounding law and justice have survived and are still used today. In one noted example in 2021, [omitted for publication] leaders threatened members accused of drug and alcohol abuse with banishment if they did not live a clean life. Indigenous leaders argue that traditional law and other cultural customs can be key to healing individuals and communities. Dewhirst, John. “[Omitted for publication]”. The Canadian Encyclopedia, 09 November 2018, Historical Canada. https://www.thecanadianencyclopedia.ca/en/article/[omitted for publication].

Accessed 07 May 2021. … In the context of this report, the intergenerational and contemporary impacts on Indigenous communities have been identified as Gladue Factors.

Though not an exhaustive list, Gladue Factors include the following: • Intergenerational impacts of colonialism and displacement. • Loss of autonomy via the Indian Act and other attacks on self-determination. • Racism and systemic discrimination against Indigenous peoples. • Legacy of sex discrimination in Indian Act and related policies. • Physical/Sexual/Institutional Abuse. • Loss of parenting skills and familial composition. • Normalization of violence and neglect. • Substance abuse/Addiction, Mental Health issues. • Lack of opportunity or isolation of communities. • High rate of unemployment and poverty. • Low levels of educational attainment. • Loneliness, Abandonment and Dislocation from culture, community and family. [ 44 ] He reports a history of ‘depression’ to the Pre-Sentence Report writer; yet the psychologist report confirms that he does not report any current difficulties with depression.

Although, I note that there are overlapping ideations of suicide. I do not want to highlight this point too much, as I would think until further psychological assessments are completed, we simply must accept that he is troubled. But I note, his information around suicide ideation and his father’s suicide attempts are hard to reconcile. I will say no more on that topic. NEUTRAL FACTORS [ 45 ] I do not consider it aggravating or mitigating that the accused had limited experience as a parent. He is the adult. He should know better than to throw a child so recklessly.

The outcome is obvious to an adult, whether you have no experience as a parent, or whether you have five children. [ 46 ] The Pre-Sentence Report indicates that “alcohol and use of cannabis was significant’ around the time of the offence; but it is unclear whether intoxication played a role in the offending behaviour. CONCLUSIONS [ 47 ] While courts often exclaim there is no automatic discount for Gladue factors, I respectfully conclude the topic in a different manner. Significant Gladue factors almost always effect the moral blameworthiness of the accused.

As such, I am of the view that a ‘discount’ may not apply, but an offender with less moral culpability or blameworthiness should generally receive a less intrusive sentence, if appropriate in the circumstances, than an offender who has a higher degree of moral culpability. There is no way to actually create a mathematical expression of this factor with any degree of accuracy.

As well, I acknowledge that Gladue factors are only one factor, I must not give it any more weight than other aggravating or mitigating factors. [ 48 ] The Gladue Report is well written, balanced, and offers great insight into the contextual features of this Indigenous accused person. Sadly, he is a text book case of a human being who has been traumatized all of his life because he is an Indigenous person. He was apprehended, spent much of his time in care, suffered alienation from his siblings and family, and was physically and emotionally abused by his father and other people in his life.

It is horrific that his earliest memory is when he was in the back of a police car, after being apprehended, and as a result, being sent off to foster parents. He knew at least seven more foster homes. [ 49 ] The Gladue Report reminds me that he is young. He has a life ahead of him. He has a daughter that he wants to love and take care of. He has dreams of learning more about art, and maybe even going to school in this area. There are many Gladue factors for me to consider. They are found throughout the Gladue Report. [ 50 ] I am bothered by a number of factors. Notably the Gladue Report writer writes that D.

J. “is not convinced that he needs help with his recovery at the present time.” He has not availed himself of services while in VIRCC that address alcohol and drug addiction as yet. First, how is injuring a two year old not a wake up call? It appears by all accounts there is a history of polysubstance abuse, patterns of impulsive behaviour and sometimes behaviour that supposedly translates into intimate partner domestic violence.

[ 51 ] His response to these charges has been replete with a concept of denial. He says he will be okay with drugs, because he has “not experienced any cravings during his incarceration.” He says he will “participate in substance use and anger management” if ordered by the court. But he has done very little since the offence and he has had lots of time to try. In fact, contrary to court order, he continued to see the mother of the victim, even though he was on a no contact condition.

He ‘does not believe he will have a problem staying away from drugs’, yet he is told he is impulsive, has a low tolerance level, poor coping abilities, all of which “increases the chance that he will respond violently when challenged or overwhelmed.” [ 52 ] The Forensic Report indicates clearly that “there is no indication that the accused meets criteria for a mental illness such as a major mood, psychotic or anxiety disorder. However, he does meet criteria for several substance related disorders including alcohol use disorder, cocaine use disorder and opiate use disorder.

He also exhibits antisocial traits” p. 10. [ 53 ] Yet by all accounts, for anybody that has met him, he comes across as intelligent, articulate, and thoughtful. [ 54 ] I conclude and confirm that denunciation and deterrence are the main principles. He is young, and it goes without saying that rehabilitation will be part of his journey. [ 55 ] I know that if he could, he would probably go back in time and not hurt this child. I acknowledge that if he could change places with the child, he would. [ 56 ] The accused said he wished that the ‘little guy’ was here so he could apologize to him in person.

I will pause here to read in the letter of apology and his family will receive a copy of the transcript of these reasons. Hey little guy, I want you to know I never meant to hurt you and I know there is nothing I can do to take it back or anything I can do to compensate you all. All I can do is take responsibility for what happened and please believe if I could go back and take back I would. But clearly I can’t. And I wouldn’t wish that pain you are going through on anyone. I also know that you yourself are not in pain but your entire family is hurting alongside with you.

And I know that you may not ever ever forgive me and that your family may hate me forever and I don’t blame them and that I hate myself for what happened and that I will not ever get my life back to the way it was. But that is not my concern, what is my concern, however, is that you will never be able to live out your childhood the way you may want and that I may spend most of all my life in prison and that’s okay with me because I never really had a life on the outside anyway and I that ruined your life with only a few minutes of rage and frustration or whatever it was but whatever happened, happened.

And I am truly sorry for hurting you and your family but please don’t blame your mother. She didn’t know the anger and frustration and aggression I had building up inside me. I am not even quite sure I knew of the emotions I had or could still have inside of me. [ 57 ] He will be punished for his actions. But if he is to be forgiven, it is his family, the little boy’s family, and his community that will have to accept his apology. While he may be a good person who did a bad thing, he committed

an act that will haunt this young child for the rest of his life. [ 58 ] If there is any doubt, if you hurt a child in this manner, you will go to jail and it is just a question of how long. [ 59 ] I find that 72 months or six years, is a good starting point. To me, one third off the sentence to take into account the cost of trial time, the inconvenience to witnesses, and the concept it would be difficult to prove the case without his admissions is reasonable. As well, I do find the accused to be remorseful, not just because of his guilty plea, but also from his words in his letter of apology.

Deducting one third is 24 months and that leaves a remnant of 48 months. Minus credit of eight months served is 40 months. Minus four months to take into account his Gladue factors, which do lessen his moral culpability. Again, this lessening is fettered by the idea that he did not immediately seek help or tell the doctors what he knew.

As well, I think this reduction in sentence also takes into consideration that this is a young person, who has no record and who has not been in custody before. [ 60 ] The remnant to be served is 36 months. [ 61 ] Mindful of the 718 (2) principle that I must consider all sentences to jail that are reasonable in the circumstances, I have put my mind to the idea of deducting a further 12 months to get him into the provincial range, and then being able to place him on rehabilitative conditions for two or three years.

I note that while he is not pleading guilty to any of them, he managed to rack up nine charges since the originating offence. He has a difficult time being compliant to conditions. I am hopeful that federal programming will benefit him and get him back on track. [ 62 ] R. v. K.A.S ., 2016 BCPC 401 is a case where I sent another individual to jail for a very long time. I receive no pleasure in doing it then, nor do I receive any pleasure doing it now, especially considering the over incarceration rates of our Indigenous peoples.

In K.A.S . , at paragraph 94 in that decision I explained part of the rationale: [94] Once more, I recognize the extreme youthfulness of K.A.S. He was even younger at the time of the offence. I understand the argument that sentencing such a young man to a lengthy penitentiary term may seem unduly harsh. I find Justice Kirkpatrick expresses this court’s view in Munt , supra , at paragraph 17, in referring to R. v.

S. (J.S.) , 2001 MBCA 144 , at paragraph 37 (square parenthesis are mine): [37] I recognize that to the accused, his family and friends, it must seem unduly harsh to sentence such a seemingly good young man to a penitentiary term when the availability of a conditional sentence [or I would say the alternative sentence such as less time] is not too far away. Surely, they might think, society has more to gain by sentencing him to a remedial conditional sentence [or a period of incarceration in a smaller amount] with its own elements of denunciation and general deterrence.

The answer lies in the need to say, as loud as the judicial system can say it, that conduct of this kind will simply not be tolerated. In particular, potential victims must be assured that, to the extent possible, the law protects them and potential offenders must know that, if they dare to commit such an offence, the firm hands of the law, without kid gloves, will be upon them. [95] In conclusion, I believe the sentence imposed takes into account the gravity of the offence and the moral blameworthiness of the offender.

[ 63 ] All ancillary orders, whether primary or secondary are granted. _____________________________ The Honourable Judge Wolf Provincial Court of British Columbia