R. v. C.G.J., 2020 BCPC 26

Citation: R. v. C.G.J. 2020 BCPC 26 Date: 20200204 File No: 39866-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.G.J. BAN ON PUBLICATION 486.4(2) &

(2.2) CCC ORAL REASONS FOR SENTENCE (PART TWO) OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Richards L.A. Ruzicka (appearing by teleconference) Counsel for the Accused: R. Alberto Place of Hearing: Duncan, B.C. Dates of Hearing: July 29, 30, 2019; October 29, 2019; November 15, 2019; and January 27, 2020 Date of Sentence (Part One): October 29, 2019 Date of Sentence (Part Two): February 4, 2020 Introduction [ 1 ] THE COURT: This is the continuation and conclusion of a sentencing hearing for C.G.J. (the "Accused") for the

summary conviction offence of sexual interference contrary to s. 151 (

b) of the Criminal Code . At the time of the offence on April 27, 2017, he was

18 years of age and the victim, L.J. (the "Complainant") was 13 years of age. They are both Indigenous persons but are not related. TheAccused has no prior criminal record. He has been diagnosed with Partial Fetal Alcohol Syndrome (pFAS) and there are a number ofoperative Gladue factors which have affected the Accused. [2] The Accused was convicted of the offence after a three-day trial, all as set out in my reasons for judgment rendered July 19,2018, which are reported under the neutral citations as follows: R. v. C.G.J., 2018 BCPC 216 , 2018 CarswellBC 2309; [2018]B.C.J.

No. 3081 (the "Reasons for Judgment"). [3] On July 29 and 30, 2019, the matter was before this Court to hear the submissions on sentencing, as well as a preliminaryconsideration of the Accused's application to challenge the constitutionality of the mandatory minimum sentence of 90 days'imprisonment provided for in s. 151(

b) of the Criminal Code (the "MMS") as being a violation of the Accused's s. 12 Charter right ofnot being subjected to cruel and unusual treatment or punishment. [4]

Section 12 of the Canadian Charter of Rights and Freedoms (herein referred to as the "Charter") reads: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [5] On October 29, 2019, I rendered the first part of my reasons for sentencing, which are reported under the neutral citations asfollows: R. v. C.G.J., 2019 BCPC 252 , 2019 CarswellBC 3238, [2019] B.C.J. No. 2097 (the "Reasons for Sentencing,

Part 1"). [6] The Reasons for Sentencing,

Part 1, are incorporated by reference into and form part of these Reasons for Sentencing whichdeal with the s. 12 Charter challenge and the final determination of the sentence for the Accused. I will call these reasons the "Reasonsfor Sentencing,

Part 2". Therefore, the Reasons for Sentencing,

Part 2, must be read in conjunction with the Reasons for Sentencing, Part1. [7] To come to various decisions in the Reasons for Sentencing,

Part 1, I reviewed and made certain findings and drew certainconclusions on a number of matters that can be classified under the following areas:

a) the operative circumstances surrounding the offence (see paras. 14 to 16);

b) the circumstances of the Accused, including information obtained from a Presentence Report, a Gladue Report, a ForensicAssessment Report, Behavioural Conditions Reports, and Letters of Support (see paras. 17 to 53);

c) Victim Impact information (see paras. 54 to 59);

d) the Purposes, Objectives and Principles of Sentencing (see paras. 60 to 69), including the Code provisions relating to sexoffences against children (see paras. 80 to 83) and sentencing of sexual offenders (see paras. 186 to 190);

e) the individualized approach in sentencing (see paras. 191 to 192) and Sentencing Considerations for Aboriginal Offenders (seeparas. 70 to 79), including the identification and consideration of the Accused's operative Gladue factors (see paras. 228 to 234) and theAccused's cognitive disorders (see paras. 235 to 244);

f) the Sentencing Options (see paras. 84 to 112), the Sentencing Position of Crown (see paras. 117 to 138), and the SentencingPosition of Defence (see paras. 154 to 162);

g) the case authorities relied upon by Crown (see paras. 116 and 139 to 152), the case authorities relied upon by Defence (seeparas. 153 and 163 to 175), and additional relevant sentencing authorities (see paras. 176 to 181); and

h) the applicable Aggravating and Mitigating Circumstances (see paras. 193 to 244). [8] Having heard both Crown and Defence's submissions on the applicable sentencing ranges and having considered all necessaryfactors and the case law presented, I then made a determination that the sentencing range for the Accused for this offence and in thesecircumstances, unfettered by the MMS, was a custodial sentence of between two and five months, with a lengthy period of probation ofbetween two and three years (see paras. 245 to 257). [9] However, I then specifically considered many of the Accused's exceptional circumstances, including his reduced moralblameworthiness due to his diagnosed pFAS and the resulting deficits and the appropriate reduced moral blameworthiness resulting fromthe applicable Gladue factors.

I considered the requirements of a conditional sentence order. I determined that a conditional sentenceorder should be part of a fit sentence, but for the existence of the MMS [10] I made particular note of the fact that I was convinced that a conditional sentence order would minimize the negative impact ofthe jail system upon the Accused. That negative impact was identified by Dr.

Down, who had made the original diagnoses of theAccused's pFAS and it was reported to the Court in the Gladue Report (see paras. 43 and 258 to 262). [11] I therefore concluded that, unfettered by the MMS, I would sentence the Accused to a five-month conditional sentence order (a"CSO") and 30 months of probation (see para. 262). Additional Information Regarding the Endangerment of the Safety of the Community by Serving a CSO within the Community [12] In order for this Court to impose a CSO, the four criteria that the Court must consider are set out in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 46.

As noted in R. v. Proulx, this Court must be satisfied that serving the sentence in thecommunity will not endanger the safety of the community. I canvassed the four factors and this requirement at paras. 84 to 86 and paras.258 to 262 of the Reasons for Sentencing,

Part 1. [13] Since rendering the Reasons for Sentencing,

Part 1, two additional documents have been prepared by the British Columbia

Corrections Branch which have been submitted to the Court and marked as exhibits at the January 27, 2020, hearing. They are as follows:

a) an Electronic Supervision and Technical Suitability Report; and

b) a January 23, 2020, court-ordered letter update to the original Presentence Report completed on June 6, 2019. These documents bear consideration in order to ensure that before imposing the final sentence, that the Proulx criteria are still met. [ 14 ] The Electronic Supervision and Technical Suitability Report was filed December 6, 2019 (the "Technical Suitability Report"). It referenced the location of the Accused's residence, which is with his adoptive parents on his home First Nation's reserve (the "Reserve"), located on an island with regular ferry service to Vancouver Island. Most of these details are described in para. 19 of the Reasons for Sentencing,

Part 1. [ 15 ] The Technical Suitability Report notes that because of its location, the Accused's residence does not have cellular coverage and therefore the Accused's residence is not suitable for electronic monitoring of the Accused. I understand that lack of cell coverage is a problem for the entire Reserve. [ 16 ] Although it was not stated in the Technical Suitability Report, I understand from Defence submissions that the residence of the Accused's adoptive parents is equipped with an operative landline telephone. This fact was unchallenged by the Crown.

This operative landline telephone therefore would be available for such things as communication with a CSO supervisor or probation officer, or for police curfew checks. [ 17 ] A letter from the Corrections Branch, dated January 23, 2020 (the "Update Letter"), was prepared by Probation Officer Kurt Sharpe. He was the original author of the June 6, 2019, Presentence Report that was before the Court at the time of submissions giving rise to the Reasons for Sentencing,

Part 1. [ 18 ] The Update Letter was prepared to update the Presentence Report, but with a confined focus and to make inquiries about community supervision in the Accused's Residence and within his home community on the island Reserve. Mr. Sharpe is familiar with and has been on the Reserve in his professional capacity. He has dealt with residents of the Reserve community who have been under supervision on bail conditions and probation orders over the past five years. He meets with these individuals, who are under some form of community supervision, both on the Reserve and at his Duncan office.

He attends once a month on the island Reserve for the in-person meetings. He has not supervised anybody on the Reserve who was bound by a CSO. [ 19 ] In the course of completing the Update Letter, Mr. Sharpe spoke to the Reserve's Band Chief and the Reserve's Band Manager. Also, Mr. Sharpe spoke to the Acting Staff Sergeant at the Ladysmith Detachment of the RCMP which provides police services to the Reserve. [DISCUSSION RE LOSS OF TELECONFERENCE CONNECTION AT 2:31:32 P.M.

TO 2:32:43 PM] [ 20 ] THE COURT: At the time of making the court order for the preparation of the Update Letter, it was agreed that Defence counsel was to provide Crown counsel with additional names of knowledgeable resources who then could be contacted by Mr. Sharpe in order to gain a fuller or alternative perspective than may be obtained from the Band Chief.

It was suggested by Defence counsel that there may be some friction between the Band Chief and the Accused's adoptive mother, who is also a member of the Reserve's Band Council. [ 21 ] Those names were provided by Defence counsel to Crown counsel, who in turn passed them along to Community Corrections for Mr. Sharpe's consideration, all in a timely manner, but with no direction from this Court requiring him to speak to any specific individuals. Mr.

Sharpe did not speak to any of those individuals named by Defence counsel. [ 22 ] At the continuation of the sentencing hearing on January 27, 2020, there was insufficient time to call any of these individuals, suggested by Defence, to court to provide their information in person. Accordingly, it was agreed that Defence counsel would be permitted to place calls to and attempt to speak to some of these or other individuals from the Reserve community. Then, as an officer of the court, he would report back to the court and provide a

summary of those discussions. That all occurred. Similarly, when the Court sought clarification about certain matters from Mr. Sharpe, Crown counsel contacted him and reported back to the Court on this same basis. [ 23 ] The Update Letter raises concerns from the Band Chief and the Band Manager about the lack of ability of the Reserve Community to "effectively monitor a court-ordered community based disposition". Such monitoring is not part of the "Band initiatives which strive to maintain a safe, peaceful and crime free community".

These two representatives of the Band also raised concerns about the ability of the RCMP to "respond to calls for service in a timely and effective manner". Examples were given to Mr. Sharpe about past calls for services made to the RCMP which unfortunately, due to competing demands and priorities, the RCMP were unable to dispatch responding officers to the island Reserve. [ 24 ] The Update Letter also speaks of information obtained from the Acting Sergeant at the Ladysmith detachment of the RCMP. That information confirms some of the challenges of providing police services to the island Reserve.

Part of the challenges flow from the requirement to have two RCMP members at a time attend on the island Reserve in response to service calls. It is noted that there are difficulties of checking curfew conditions unless the RCMP members were on the island Reserve on another matter.

There are also issues about the RCMP's response time of at least one hour, the necessity of prioritizing service calls, and the possible impediment of weather conditions preventing police attendance on the island Reserve. [ 25 ] The Acting Staff Sergeant also noted that the Accused's First Nation is not part of a Community Tripartite Agreement which provides dedicated police services that are "responsive to the specific needs of each First Nation community".

It is explained that under these sorts of arrangements, the First Nation community has "dedicated police officers" over and above police services provided by the

Province under the Provincial Police Service Agreement. [ 26 ] Defence counsel did speak to both the Accused's adoptive mother, P.J., and also with another Band Councillor who I will identify as "Councillor R.C." He is a cousin of the Accused's adoptive father. Councillor R.C. indicated that, given that the population of the Reserve is relatively small, a number of the people in the Reserve community are related. In addition, according to the information obtained from Councillor R.C., everybody on the Reserve "knows each other" and the Reserve community "comes together" to deal with safety concerns.

An example was provided about members of that First Nation community who work for the connecting ferry service being vigilant about the arrival of individuals via ferry who are not welcome to the island Reserve and, I presume, then report the arrival of those individuals to the appropriate leaders or officials on the Reserve. [ 27 ] Based upon Defence counsel's telephone discussions with Councillor R.C. and Defence counsel's discussions with the Accused's adoptive mother, P.J. (with her background and knowledge as another band councillor), and what was then presented to this Court, I understand as follows: Matters of concern that may involve placing a call to the RCMP are usually relayed by Reserve community members to members of the Band Council, who then inform the RCMP and then make a request for a service call when appropriate.

It was indicated that, based upon the experience of Councillor R.C. and the Accused's mother, P.J., the police will respond to "urgent situations" and may not respond to "non-urgent matters". The problem of weather preventing RCMP access was also mentioned by these two sources. [ 28 ] It is common ground that the Accused has been on a tight curfew and tight reporting conditions. The Accused sees Mr. Sharpe or his Corrections Branch colleagues, in their capacities as a bail supervisors, on a bi-weekly basis, such that the Accused reports in person once per month and the other time is by way of telephone.

This supervision arrangement accommodates the Accused's existing and continuing steady work at a local mill on Vancouver Island and which is referenced in para. 27 of the Reasons for Sentencing,

Part 1. That employment requires the Accused to commute each working day from the island Reserve via the ferry service. Crown is not aware of any reported breaches under the Accused's present bail conditions. [ 29 ] The Accused's plan is to continue to reside in his adoptive parents' residence on the island Reserve if a community disposition is ordered. As noted in the Reasons for Sentencing,

Part 1, his adoptive parents are very supportive of the Accused. The Necessity to Consider the Mandated s. 151(

b) Mandatory Minimum Sentence in this Case [ 30 ] As discussed in the Reasons for Sentencing,

Part 1, our Court of Appeal in R. v. Scofield , 2019 BCCA 3 , recently held that the one-year mandatory minimum sentence for sexual interference under s. 151(a) (where the Crown proceeds by indictment) violated s. 12 of the Charter and could not be saved by s. 1 of the Charter . [ 31 ] As noted very recently in the decision of the Honourable Judge D.L. Dorey in the case of R. v. R.L.K , 2019 BCPC 260 , rendered on November 6, 2019, (being just subsequent to the Reasons for Sentencing,

Part 1), and as confirmed in the most recent submissions of counsel in this case, there has been no similar declaration made by the British Columbia Supreme Court or the British Columbia Court of Appeal that the MMS in s. 151(

b) is of no force or effect.

Therefore, the MMS remains "on the books" where Crown has proceeded summarily, that is it remains operative and stands in the way of the proposed CSO in this case. [ 32 ] Since I have also determined a proportionate sentence in this case includes a CSO that is not available because of the MMS , I must then turn to a consideration of the s. 12 argument and consider whether or not the 90-day MMS is grossly disproportionate on the basis of the individualized, that is the particularized, inquiry or alternatively on the basis of the reasonable hypothetical or generalized inquiry. [ 33 ] That analysis is required in order to make a formal finding of unconstitutionality of the MMS and to thereby allow this Court to apply the correct remedy, that being to decline to apply the MMS , which would then permit this Court to utilize and impose the CSO as a fit and proportionate sentence.

Defence's Submission Authorities [ 34 ] The Sentencing Reasons,

Part 1, at para. 153 lists the case authorities relied upon by Defence, both in sentencing and in its s. 12 arguments. [ 35 ] In its s. 12 argument submissions, Defence specifically referred to the following decisions:

a) R. v. Drumonde , 2019 ONSC 1005 , especially at paras. 51 to 53 (the relevant facts and principles are summarized at para. 172 of the Reasons for Sentencing,

Part 1).

b) R. v. Pye , 2019 YKTC 21 , especially at paras. 44 to 46 (the relevant facts and principles are summarized at para. 173 of the Reasons for Sentencing,

Part 1).

c) R. v. Hood , 2018 NSCA 18 (the relevant facts and principles are summarized at para. 175 of the Reasons for Sentencing,

Part 1). [ 36 ] While I may not make specific reference to some of these cases or other Defence authorities in these Reasons for Sentencing,

Part 2, I have read and considered all of these authorities in coming to my decision in these reasons. Defence Submissions [ 37 ] The Accused applies for a finding that the 90-day MMS mandated by s. 151 (

b) of the Criminal Code constitutes cruel and unusual punishment, thereby infringing s. 12 of the Charter ; that the 90-day MMS mandated by s. 151 (

b) is not saved by s. 1 of the Charter ; and that the portion of s. 151(

b) mandating the 90-day MMS should therefore be found to be of no force or effect pursuant to s. 52(1) of the Constitution Act .

[38] The Accused submits that, on balancing the gravity of the s. 151(

b) offence in itself with the particular circumstances of theoffence at bar and the personal characteristics of the Accused, the imposition of 90 days of imprisonment mandated by the MMS isgrossly disproportionate to what would be appropriate as applied to the Accused, thus infringing s. 12 of the Charter. [39] The Accused alternatively submits that the s. 151(

b) MMS will impose grossly disproportionate sentences on others inreasonably foreseeable applications of the provision, thus infringing s. 12 of the Charter. [40] Defence stresses that an application of the MMS in this case fails to take into account the personal characteristics of theAccused, including his Indigenous background, his operative Gladue factors, and his cognitive challenges. Thus, argues Defence, thatthe "one size fits all" approach of a MMS, without the ability to undertake the individualized approach to sentencing required by R. v.Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v.

Ipeelee, 2012 SCC 13, therefore will result in a grossly disproportionatesentence for the Accused (see R. v. Drumonde at paras. 51 to 53). [41] Defence further submits that this Court must consider and avoid the collateral harm and the negative consequences ofincarceration for this Accused that will result from the imposition of the MMS. [42] Alternatively, Defence asks this Court to apply the reasonable hypothetical used by the British Columbia Court of Appeal in R.v.

Scofield, in order for this Court not to be required to impose the MMS and to be able to impose the CSO. [43] Defence says that notwithstanding the potential problems of community supervision posed by the lack of cell coverage on theisland Reserve and the absence of regular attendances and limited availability of a CSO supervisor on the Reserve, the prevalent"watching out for each other" tradition within the Accused's First Nation community and the strong support of the Accused's parentsaddresses these concerns.

These factors, along with the imposition of appropriate CSO conditions, address and meet the Proulxprecondition of not endangering the community. [44] Therefore, as I understand Defence's submissions, they do not oppose but rather support this Court's conclusion that, unfetteredby the MMS, the Accused should be sentenced to a five-month CSO and 30 months of probation.

Defence opposes Crown's suggestionof incarceration by way of the MMS, even if it is served intermittently. [45] I have received the Defence’s submissions about suggested amendments to the proposed terms of any CSO and the terms of theprobation order that have been suggested by Crown. Crown's Submission Authorities [46] In addition to the case authorities submitted and relied upon by Crown and which are noted in the Reasons for Sentencing, Part1 (see para. 116), Crown relies upon the following authorities in its written submissions with respect to the s. 12 Charter Application:

a) R. v. Alexander, 2019 BCCA 100 at para. 8;

b) R. v. C.V.E.B., 2019 BCPC 118;

c) R. v. Hood, 2018 NSCA 18 at para. 5;

d) R. v. Horswill, 2019 BCCA 2 at para. 13;

e) R. v. Inksetter, 2018 ONCA 474 at para. 14;

f) R. v. Lloyd, 2016 SCC 13 at paras. 8 to 9;

g) R. v. Scofield, supra, at paras. 4, 6 to 7, 9, 11 to 13;

h) R. v. Swaby, 2018 BCCA 416, application for leave to appeal refused, [2019] S.C.C.A. No. 17 at para. 9; and

i) R. v. Proulx, especially at paras. 63, 68, 72 and 73. [47] Crown has also referred this Court to the very recent decision of the Honourable Judge Barrett in R. v. J.J.B, 2019 BCPC 306,and the analysis contained therein. That decision dealt with a s. 12 constitutional challenge to the mandatory minimum sentence of sixmonths in custody, under the provisions of s. 271(

b) of the Criminal Code. That being an offence of sexual assault when the victim isunder the age of 16 years at the time of the offence. Judge Barrett declined to impose the six-month mandatory minimum sentence in thatcase on the basis of both the individualized inquiry and the reasonable hypothetical used in R. v. Scofield. In that regard, she followed thesame conclusions reached by the Honourable Judge R.D. Morgan in R. v. C.V.E.B. [48] While I may not make specific reference to some of these Crown authorities in these Reasons for Sentencing,

Part 2, I have readand considered all of these authorities in coming to my decision in these reasons. Crown's Submissions on the Prerequisites of a CSO [49] Crown now further submits that it is necessary for this Court to consider several important factors that arise from the TechnicalSuitability Report and the Update Letter and to therefore decline to impose a CSO on the Accused. [50] First, this Court must be satisfied about the existence of the CSO condition precedent requirement of s. 741.1(

a) and asconsidered in R. v. Proulx at paras. 61 to 65 inclusive. That condition precedent is that this Court must be satisfied that having theAccused serve the sentence in the community will not endanger the safety of the community. If this Court is not satisfied that the safetyof the community can be preserved, then a CSO must never be imposed. Crown says that this precondition for a CSO is not met in thiscase.

[ 51 ] Furthermore, Crown says that in evaluating the risk to the safety of the community posed by this particular offender (being the Accused), this Court must carefully note that the Accused has been evaluated by Dr. Dugbartey in the Forensic Assessment Report as being a "moderate risk of reoffending" (see Reasons for Sentencing,

Part 1 at para. 35). [ 52 ] Crown further notes that, given this identified risk of the Accused reoffending, then this Court must take note of the supervision available in the community. In this case, I understand that Crown is saying that there is insufficient supervision for the Accused available on the island Reserve in order to ensure the safety of the community, and therefore this Court should impose a sentence of actual incarceration ( see R. v.

Proulx at para. 73 ). [ 53 ] I understand Crown's submission to be that, given all of the above, a CSO should not be imposed and actual incarceration is required, which, as noted below, should be the MMS of 90 days. Analysis With Respect to the Prerequisites of a CSO Raised by the Technical Suitability Report and Update Letter [ 54 ] It is essential that before proceeding with any further sentencing analysis, that I consider and deal with the Crown's submissions regarding the absence of the above-noted important CSO prerequisites.

This, of course, flows in part from my previous determination in the Reasons for Sentencing,

Part 1, that as part of a fit sentence, I must consider a CSO. If the prerequisites for a CSO are not now presently met, although that appeared to be the case at the time of the Reasons for Sentencing,

Part 1, then of course it will be necessary for me to reconsider the appropriate sentence before finally rendering the sentence upon consideration and determination of the s. 12 Charter issue. [ 55 ] In the Reasons for Sentencing,

Part 1, at paras. 88 to 95 and in particular at para. 92, and then in paras. 218 and 259, I gave consideration to and discussed the endangerment of the community issue when considering and determining a CSO as being part of a fit sentence for the Accused. [ 56 ] I have concluded that the Technical Suitability Report and the Update Letter and the Crown's submissions do not persuade me to change my view with respect to the use of a CSO. [ 57 ] I am satisfied that the Accused can be adequately supervised within the island Reserve community and in the broader community.

I am also satisfied that having the Accused serve a CSO sentence in the community will not endanger the safety of the community, being both the Reserve community and the broader community. [ 58 ] I have reached this conclusion having regard to the following matters:

a) The Accused has been on quite onerous but appropriate bail conditions for several months, under the supervision of the Duncan Community Corrections Office, and without any known or alleged breaches on the part of the Accused.

b) The offence did not occur on the Reserve and the Complainant, being the young victim, does not reside on the Reserve.

c) The Accused has apparently been adequately supervised by Mr. Sharpe and his community supervision colleagues at Duncan Community Corrections while on judicial interim release and while residing on the Reserve. This has occurred, notwithstanding the Reserve's relatively isolated island location, problematic police response times, and a lack of cell coverage to permit electronic monitoring. That said, there is a landline connection at the Accused's parents' residence which is also the Accused's residence while on judicial interim release and for the proposed CSO.

d) The Accused's supervision while on judicial interim release has required some creativity on the part of the Duncan Community Corrections Office, in terms of the Accused's reporting requirements, and again no problems have apparently arisen.

e) There is no information presented to the Court from Mr. Sharpe or from the Presentence Report that Duncan Community Corrections cannot adequately supervise the Accused while on a CSO, mindful that this will be a novel situation for Mr. Sharpe and his colleagues.

f) While again being mindful of the concerns raised by the Band Chief and the Band Manager about the lack of the ability of the Reserve community to monitor a court-ordered community-based disposition, in the end that will not be the formal responsibility of the Band Council, the Reserve community nor the broader community. That will be the responsibility of the Duncan Community Corrections Office.

g) That said, I am also mindful that any community-based disposition, including a possible CSO and probation, will be reliant upon the cooperation and the support of the Accused's parents, who have performed a support role and an informal supervisory role for the Accused while he has been on judicial interim release. Any CSO terms, by necessity, will require that same level of cooperation and supervision by the Accused's parents. They are prepared to do that.

h) I am also further mindful that members of this Reserve community know each other, and that includes the Accused. The Accused is widely recognized for his sporting acumen and, in particular, his ability at soccer. These criminal charges and his conviction have no doubt come to the attention of the Reserve community leaders, including the Band Chief and the Band Manager, and his conviction has negatively raised the Accused's profile within the Reserve community.

Thus, it is a reasonable inference that Accused's situation is undoubtedly well known to the Reserve community, and that the final sentencing disposition on these charges will become as well known within the Reserve community. That inference is supported by the Letters of Support referenced and canvassed in the Reasons for Sentencing,

Part 1. The information before me confirms the Reserve community's tradition of informal watching over each other, including watching over the safety of each other. Given what I have learned about the interface between the Reserve community and the RCMP, and about the Band Chief and the Band Manger's views as captured in the Update Letter, it is also a reasonable inference that there is a strong possibility that any breach of conditions by the Accused will be reported to the RCMP. [ 59 ] In coming to this decision, I have also taken into account that many Indigenous individuals who come before the courts reside

in either remote or isolated communities, which may have access and communication problems and lack certain things that maybe regarded as modern conveniences or necessities, such as cellphones, Wi-Fi, and internet coverage. [ 60 ] In my view, it would be inequitable and unjust to simply use urban standards to determine whether there is adequately available supervision of a community-based disposition within those remote or isolated communities, and to use those same standards to determine whether the community safety is at risk.

Those urban standards have an attendant level of urban anonymity, personal isolation, a lack of knowledge of one's neighbours, but more plentiful resources and ready access to and an expectation of more ample services, both of the necessary variety and the convenience variety.

All of these features are not necessarily applicable, available, nor sometimes particularly relevant to remote or isolated communities. [ 61 ] That is not to say that there can be no supervision of offenders on community-based court orders, or that those isolated or remote communities should be put at a higher level of risk because of individuals serving their sentences in those communities. [ 62 ] What it does mean is that alternative, appropriate, innovative, and creative means of conducting formal supervision must be found, adequately funded, and implemented by the state in order to assist with community supervision of persons being considered for or actually serving their sentences in those communities. [ 63 ] In other words, adequate community supervision may look and be different in those remote and isolated communities; hence, reliance must often be placed upon resources that are not commonly viewed or valued in more urban environments as being solutions.

In remote or isolated Indigenous communities such resources may include the use of long-established cultural institutions and traditional structures, including the resources provided by elders and extended family. This implementation of alternative, appropriate, innovative, and creative means must be done in consultation with individual First Nations.

One size will not fit all. [ 64 ] If such innovative and creative approaches are not utilized by the justice and corrections system, in consultation with and with the assistance of individual First Nations, then the Truth and Reconciliation Commission of Canada's Calls to Action and its goals of achieving reconciliation and reducing the overrepresentation of Indigenous persons in penal institutions will not be furthered, and we will be continuing or adding yet another unfortunate barrier to Indigenous persons who come before the courts.

Crown's Submissions on s. 12 Constitutionality of the MMS [ 65 ] Crown acknowledges that in the Reasons for Sentencing,

Part 1, this Court has conducted the necessary "individual or particularized inquiry" as it relates to the Accused in considering whether the 90-day MMS is cruel or unusual punishment, and thus contrary to s. 12 of the Charter . Crown confirms that it is not seeking to justify the MMS under s. 1 of the Charter . [ 66 ] However, in assessing whether the 90-day MMS is grossly disproportionate for the Accused in a particularized inquiry under s. 12, the Crown submits that this case does not involve exceptional circumstances similar to those considered in R. v. Scofield and R. v. Swaby , supra . [ 67 ] In

summary, Crown initially relied upon five points and circumstances that Crown submitted existed and which were referenced in the Crown's sentencing submissions, and which were then subsequently dealt with by way of findings either accepting or rejecting them in the Reasons for Sentencing,

Part 1, and to which I have made further reference below:

a) the offence was not spontaneous and there was a degree of grooming (which I accepted);

b) there is no evidence that there is a causal connection between the Accused's mental health (partial FASD) and the offending behaviour, such as to attenuate or diminish his moral blameworthiness (which I rejected); and

c) there is no evidence that a period of incarceration would have a negative impact on the Accused (which I rejected). [ 68 ] Crown therefore acknowledges that these factors have been "overtaken and dealt with" by the findings and conclusions in the Reasons for Sentencing,

Part 1. [ 69 ] Crown still places reliance on the following two points and circumstances in its submissions on the s. 12 argument:

a) the Accused has been assessed as a moderate risk to offend; and

b) the 90-day MMS could be served intermittently. As Bennett J.A. observed in R. v. Swaby , "in some circumstances, an intermittent sentence will be proportionate where a 'straight time' sentence would not be. Ordering a sentence to be served intermittently can alleviate deleterious effects for certain offenders" (para. 82). [ 70 ] Therefore, Crown now submits that the 90-day MMS of actual custodial time is not grossly disproportionate for the Accused personally. In doing so, Crown does concede that their original sentencing position was six to eight months of custodial time, followed by two years of probation.

Thus, if the 90-day MMS is imposed, Crown suggests that it can be served by the Accused on an intermittent basis. [ 71 ] I also understand that Crown now makes this argument, having particular regard for the conclusion reached by this Court that unfettered by the MMS , the Accused should be sentenced to a five-month CSO and 30 months of probation. [ 72 ] As discussed above, Crown suggests that a CSO is not available, based upon the information contained in the Technical Suitability Report and the Update Letter and the conclusions to be drawn therefrom. [ 73 ] Crown then goes on to submit that if this Court finds that the 90-day MMS is not cruel and unusual punishment for the Accused personally, then it acknowledges that Harris J.A.'s findings about the reasonable hypothetical in R. v.

Scofield could be applied in this case as a reasonable hypothetical with respect to s. 151 (b).

[ 74 ] However, regardless of the constitutionality of the 90-day MMS , Crown urges this Court to be mindful of a number of the factors at the forefront of its analysis when determining what constitutes a proportionate sentence. [ 75 ] Thus, Crown notes that, except in exceptional circumstances, those who commit sexual interference will be incarcerated ( see R. v.

Scofield at paras. 75 to 77 , and the analysis and cases referred to therein). [ 76 ] Crown further notes that Harris J.A. also reiterates that "sentences are increasing as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims" ( see R. v. Scofield , at para. 62 ). [ 77 ] Then Crown submits that a "conditional sentence will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved" ( see R. v.

Scofield , at para. 70 ; see R. v. Horswill , supra , at paras. 15 to 20 ). [ 78 ] Crown then goes on to refer this Court to the analysis framework in R. v. Swaby at paras. 55 to 58 , which must be undertaken in determining whether the MMS meets the requirements of a grossly-disproportionate sentence. R. v. Swaby is relied upon in the analysis found in R. v. Scofield . [ 79 ] I understand Crown's submission to be that, in this case, the MMS does not meet the "high bar" for what constitutes cruel and unusual punishment under s. 12 of the Charter , as described in R. v.

Swaby and specifically at para. 58 of that decision. [ 80 ] In particular, Crown notes the gravity of sexual offences generally and the circumstances of the Accused's offending specifically, the aggravating and mitigating factors relied upon by Crown and which are noted at paras. 124 to 126 of the Reasons for Judgment,

Part 1 (but, as I take it, subject to those that have been "overtaken and dealt with" in the Reasons for Judgment,

Part 1), and the significant impact of the offence upon the young Complainant. [ 81 ] Finally, Crown submits that even though this Court must determine the proportionate sentence without constraints of the MMS , it must have regard to the important factor that Parliament has chosen to impose a mandatory minimum sentence when assessing the gravity of the offence ( see R v. Inksetter , supra ).

Linked with that, Crown further submits that the Ontario Court of Appeal in that case noted Parliament's direction under s. 718.01 makes it clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child, and found that the sentencing judge failed to give the principles of denunciation and deterrence paramount effect. [ 82 ] Thus, Crown says that in this case, on the individualized or particularized inquiry, that this Court should not find the MMS to be grossly disproportionate and amounting to a violation of the Accused's s. 12 Charter rights.

Crown Submissions on the Scofield Reasonable Hypothetical [ 83 ] The Crown acknowledges that in R. v. Scofield , supra , Harris J.A., writing for the majority, made findings that could impact the constitutional analysis in this case. [ 84 ] As noted in part above, in R. v. Scofield , the Court held that the one-year mandatory minimum sentence under s. 151 (a) (where Crown proceeds by indictment) violated s. 12 of the Charter and could not be saved under s. 1 . The Court of Appeal declared the one-year mandatory minimum sentence to be of no force and effect.

Crown notes that in the course of assessing the reasonable hypothetical, Harris J.A., writing for the Court on this point, made the following observations which could also impact the constitutionality of the 90-day MMS in the Accused's case before me: [82] Apart from this, the mandatory minimum must fail the reasonable hypothetical test. Consider a case in which two young people meet at a party attended by other young people. One is almost 16 years old. The other turned 21 years old a few months earlier. The close-in-age exception is inapplicable by a few months and certainly less than one year.

The two people drink alcohol and smoke marihuana. They are not drunk but their inhibitions are reduced. Finding that they are attracted to each other, they find a private bedroom. They engage in some kissing and brief sexual touching over their clothing, but they do not undress or have intercourse. After approximately ten minutes, they return to the party. During their time together, they act willingly, knowing each other’s ages. Neither person has a criminal record.

This is the only occasion where either one engages in this kind of conduct with each other. [83] In my opinion, imposing a one-year mandatory minimum sentence in those circumstances is grossly disproportionate, would shock the conscience of Canadians, and would be cruel and unusual punishment. A proportionate sentence would not attract imprisonment or even necessarily a CSO. The result does not turn on the gender of the participants or any other details about the personal circumstances of the older person.

Other reasonably relevant factors about the offender that heighten the disproportionate character of the sentence can be added to the hypothetical. As in this case, the offender might have disabilities that reduce moral culpability. Alternatively, the judge might be obliged to consider significant Gladue factors in sentencing. [Emphasis added.] [ 85 ] Crown further notes that Harris J.A. in R. v. Scofield also cited the reasonable hypotheticals in R. v. Hood , supra , with approval (paras. 84, 85 and 97). In R. v.

Hood , the Nova Scotia Court of Appeal said that: [154] . . . it is unlikely that any of these hypothetical crimes would even draw jail time. Instead, based upon our judicial experience, we would expect to see a suspended sentence with a term of probation (with strict conditions) or at most, a brief period of incarceration and probation (also with strict conditions). Therefore, by comparison, a one year term would be grossly disproportionate and would represent cruel and unusual punishment.

In other words, it would, “outrage our standards of decency” and be “abhorrent” and “intolerable”. [Emphasis added.] [ 86 ] The Crown then goes on to acknowledge that Harris J.A.'s findings on the reasonable hypothetical inquiry in R. v. Scofield

could be applied in this case as a reasonable hypothetical. That is, Harris J.A.'s conclusion that the one-year mandatory minimumsentence in s. 151(

a) is grossly disproportionate for the reasonable hypothetical offender in R. v. Scofield, and that it could be used as abasis for concluding that the 90-day MMS in s. 151(

b) could be grossly disproportionate for the same reasonable hypothetical offender. Analysis The Framework for Analyzing Whether Mandatory Minimum Sentences are Unconstitutional [87] Our Court of Appeal in R. v. Scofield, relies upon the Court of Appeal decision in R. v. Swaby, which provides the guidance foranalyzing whether the 90-day MMS in this case is unconstitutional. At para. 6 of R. v. Scofield, Mr. Justice Harris states as follows: [6] The framework for analyzing whether mandatory minimum sentences are unconstitutional was conveniently summarized byMadam Justice Bennett in R. v.

Swaby, 2018 BCCA 416; a case declaring the mandatory minimum sentence of 90 days’ imprisonmentfor possession of child pornography unconstitutional: [55] Since the introduction of the Charter, mandatory minimum sentences imposed by Parliament have been subject to the scrutiny ofs. 12, which provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [56] In R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, the Supreme Court of Canada, for the first time, struck down amandatory minimum sentence on the basis that it violated s. 12.

While the majority found that the mandatory sentence of seven years’imprisonment for importing drugs would not be “grossly disproportionate” in all cases, it held that such a sentence could constitute“cruel and unusual punishment” in a reasonable hypothetical factual matrix (at 1077-78). [57] Proportionality is an essential ingredient of a just sentence (R. v. Nur, 2015 SCC 15 at para. 43). In Smith, the majority discussedthe meaning of gross disproportionality at 1072-73: The limitation at issue here is s. 12 of the Charter.

In my view, the protection afforded by s. 12 governs the quality of the punishmentand is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. inMiller and Cockriell, [ (SCC), [1977] 2 S.C.R. 680], where he defined the phrase “cruel and unusual” as a “compendiousexpression of a norm”.

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within themeaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, “whether the punishmentprescribed is so excessive as to outrage standards of decency”. In other words, though the state may impose punishment, the effect of thatpunishment must not be grossly disproportionate to what would have been appropriate. . . .

Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grosslydisproportionate. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

The otherpurposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus notrelevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or otherpenological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not begrossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is “prescribed by law”, then the purposewhich it seeks to attain will fall to be assessed under s.

Section 12 ensures that individual offenders receive punishments that areappropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden toachieve some important societal objective. [58] The Supreme Court recently examined mandatory minimums in Nur and R. v. Lloyd, 2016 SCC 13 [Lloyd SCC]. In Nur, theCourt affirmed the Smith approach to gross disproportionality and identified the “high bar” for what constitutes “cruel and unusualpunishment” under s. 12 of the Charter.

The Court elaborated at para. 39: [39] This Court has set a high bar for what constitutes “cruel and unusual . . . punishment” under s. 12 of the Charter. A sentenceattacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offenceand the circumstances of the offender: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was)explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”.

He added,“[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. A prescribedsentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionateimpact on others, rendering the law unconstitutional. . . . [62] In Nur, the majority set out the analytical process to be followed when a mandatory minimum sentence is challenged.

First, thecourt must determine what constitutes a proportionate sentence for the offence based on the objectives and principles of sentencing in theCode (para. 46). Second, it must decide, bearing the proportionate sentence in mind, whether applying the mandatory minimum wouldresult in a grossly disproportionate sentence for the offender before the court (para. 46). Third, if the sentence is not grosslydisproportionate for that offender, the court must then consider whether any “reasonably foreseeable applications” of the provision willresult in grossly disproportionate sentences for other offenders (para. 77).

If the answer to either of the latter two questions is yes, thenthe mandatory minimum sentence is inconsistent with s. 12 and “will fall unless justified under s. 1 of the Charter” (paras. 46, 105-106). The First Step in the Nur Analysis

[ 88 ] As noted above in the Reasons for Sentencing,

Part 1, I have completed the first step of the analysis set out in Nur and have made a determination of what constitutes a proportionate sentence for the Accused for the offence, based on the objectives and principles of sentencing contained in the Code . [ 89 ] In doing so, I agreed with Crown that the subject offence contrary to s. 151 (

b) was not spontaneous and there was a degree of grooming. Further, it was acknowledged that the Accused has been assessed as a moderate risk to reoffend. These personal circumstances and factors for the Accused were taken into account in arriving at the decision as to a proportionate sentence and the proposed use of a conditional sentence order. [ 90 ] For the reasons stated in the Reasons for Sentencing,

Part 1, I respectfully disagreed and rejected Crown's submission that:

a) there is no evidence that there is a causal connection between the Accused's mental health (pFAS) and the offending behaviour, as to attenuate or diminish his moral blameworthiness;

b) there is no evidence that a period of incarceration would have a negative impact on the Accused; and thus I found that there was satisfactory evidence to the contrary before this Court. [ 91 ] I do not disagree, as a general proposition, with Crown's submissions that the 90-day MMS could be served intermittently on weekends, nor do I disagree with Crown's reliance on the observations of Bennett J.A. in R. v. Swaby that "in some circumstances, an intermittent sentence will be proportionate where a 'straight time' sentence would not be.

Ordering a sentence to be served intermittently can alleviate deleterious effects for certain offenders" (see para. 82). [ 92 ] However, in this case, I have found that a proportionate sentence would exceed the 90-day statutory limit for an intermittent sentence.

An intermittent sentence served on weekends would not permit the Accused to start and complete the recommended (and in my view necessary) Forensic Sex Offender Treatment Program (FSOP). [ 93 ] The Presentence Report tells this Court that the 12-session FSOP, on an in-custody basis, requires a period of incarceration of between of 12 to 18 months to allow sufficient time to complete the program. That period of time is less than what Crown submitted was a fit custodial sentence in this case.

It is apparent from the Forensic Assessment Report that an individualized FSOP and a necessary individualized follow-up program known as the Sexual Offender Maintenance Program (SOMP), which can both be facilitated by trained probation officers within the community, are both required for the Accused. According to the Presentence Report, the completion of the SOMP program requires a period of community supervision for a period of 12 to 18 months. [ 94 ] The FSOP and the SOMP are essential for the protection of the community and, of course, to enable the rehabilitation of the Accused.

Given the waiting times described in the Presentence Report for these programs, a CSO will most likely permit the Accused to start and complete both of these programs within the community, on an individualized basis, that has been adapted for the Accused, having regard to his significant deficits. It is more likely that this can start to occur on a more consistent and uninterrupted timeframe within a CSO. [ 95 ] As noted in the Reasons for Sentencing,

Part 1, the proposed sentence with the use of a CSO stems in this case from this Court's consideration of the unique and exceptional personal circumstances of the Accused. [ 96 ] In R. v. Scofield , the Court of Appeal notes as follows: [65] Personal circumstances of the offender are considered separately from the seriousness of the offence; they do not lessen its seriousness. Personal circumstances, where applicable, are considered independently to determine a proportionate sentence in light of the seriousness of the offence. [ 97 ] In R. v.

Scofield , the Court of Appeal upheld the imposition of a conditional sentence order by the sentencing judge as being a rare case in which a conditional sentence order can satisfy the principles of sentencing. In so finding, Justice Harris did state as follows: [70] I acknowledge that conditional sentences will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved: see R. v. Safaee , 2009 BCCA 367 .

But as Swaby demonstrates, there are situations in which a CSO can satisfy those principles. Given the findings of the sentencing judge, I accept that this is a rare case in which a CSO can satisfy the principles of sentencing. Indeed as this Court has reiterated in R. v. A.E.S ., 2018 BCCA 478 at para. 66 : This Court has said a number of times that a CSO is not usually a fit sentence for an offender who has sexually abused children, particularly as here, by a parent or person in trust or authority. See R. v. Safaee , 2009 BCCA 367 at para. 26 .

On the other hand, this Court has upheld CSOs in such cases, including in R. v. Chen , 2017 BCCA 426 . Indeed, in R. v. L.F.W ., 2000 SCC 6 at paras. 20 - 21 , a companion case to R. v. Proulx , 2000 SCC 5 , the Supreme Court upheld a CSO for an indecent assault involving forced masturbation and fellatio with a child who was then between the ages of 6 and 12 years old, stating that a CSO was within the acceptable range and could provide sufficient denunciation and deterrence. (That case involved a 4 - 4 split on the issue, as Cory J. did not participate.

Thus, the appeal was dismissed, upholding the sentence.) The Second Step in the Nur Analysis [ 98 ] I must now turn to the second step in the Nur analysis. That is, bearing in mind the proposed proportionate sentence involving the use of a CSO for the Accused, to determine whether applying the MMS of 90 days in custody would result in a grossly-disproportionate sentence for this offender, namely the Accused, and hence an infringement of the Accused's s. 12 Charter rights. [ 99 ] I have instructed myself utilizing the guidance provided by the Supreme Court of Canada in R. v. Nur that to be cruel and

unusual within the meaning of s. 12 of the Charter , the MMS of 90 days must reach the high bar of being "so excessive as to outrage standards of decency" and not be merely excessive or disproportionate. [ 100 ] In that regard, in the Reasons for Sentencing,

Part 1, I have already considered and analyzed the gravity of the offence, the personal characteristics of the Accused, and the particular circumstances of this case to determine the range of sentences that would be appropriate to punish, rehabilitate, or deter this particular offender. The conclusion, therefore, was a sentence with a five-month conditional sentence in order to serve the sentence in the community, followed by 30 months of probation. [ 101 ] Is the MMS of 90 days of actual jail time a grossly disproportionate sentence for the Accused in contrast with that CSO?

I have concluded that it is. [ 102 ] In my view, there is a significant difference for this particular young, immature Accused, with his unique circumstances and with his significant deficits, to serve his sentence in the community under a CSO, with the support of his family and his First Nations Community, and with an early opportunity to start and continue with his necessary sex offender treatment in the community, than to serve a "real jail sentence", with the exposure to the professionally identified risks for the Accused that have been raised by Dr. Down.

I have reached this conclusion, notwithstanding that such a "real jail sentence" is only for the duration of the 90-day MMS . [ 103 ] I am, of course, mindful that if the Accused were to be found to have breached a condition of the CSO then, under s. 742.6(9) of the Code , the Accused might be liable under subsection (

c) to serve in custody a portion of the unexpired conditional sentence.

It is conceivable that because of the duration of the proposed five-month CSO length, with that length the amount of actual custodial time in the event of the breach might exceed the duration of the 90-day MMS . [ 104 ] However, on the basis of the particularized inquiry, I find that a sentence of actual custodial time for this Accused, either equal to, or greater than, or less than the MMS , rather than the use of a CSO, would outrage the standards of decency of most informed Canadians. [ 105 ] I therefore find that the s. 12 Charter rights of the Accused are breached by the 90-day MMS , which prevents the proposed imposition of a CSO that is being considered as appropriate in this case by this Court.

Therefore, in accordance with R. v. Lloyd , supra, I will decline to impose the MMS in this case, and then proceed to impose the fit sentence of a conditional sentence order of five months, followed by 30 months of probation. The Third Step in the Nur Analysis [ 106 ] If I am wrong in the conclusions that I have reached on the particularized inquiry, such that an actual in-custody jail sentence for the Accused equal to or greater than the MMS is not grossly disproportionate, then I must move to the third step of the Nur analysis.

I must then consider whether "reasonably foreseeable applications" of the MMS will result in grossly disproportionate sentences for other offenders. [ 107 ] In that regard, I am very mindful of Crown's submissions with respect to the guidance of Mr. Justice Harris in R. v. Scofield that is referenced above, and with particular note to the reasonable hypothetical described in para. 82 and analyzed in para. 83 of R. v. Scofield . [ 108 ] I am of the view that such a reasonable hypothetical is also applicable to the 90-day MMS that is mandated by s. 151 (b).

In my view, it too would outrage the standards of decency of most informed Canadians and would therefore result in a grossly disproportionate sentence and would render the MMS unconstitutional, and lead me to decline to impose the MMS in this case, and then proceed to impose the fit sentence of a CSO of five months followed by 30 months of probation. Conclusions and Resulting Orders and Disposition [ 109 ] Given all of the above, I will now ask Mr. C.G.J. to stand.

Having convicted you on the charge of, for a sexual purpose, touching directly or indirectly with a part of your body or with an object, the body of the Complainant, L.J., a person under the age of 16 years, being an offence contrary to s. of 151(

b) of the Code , I now sentence you to a Conditional Sentence Order for a duration of five months and with a term of probation of 30 months. [ 110 ] The terms and conditions of the CSO and the probation order will be as set out below. I note parenthetically that I will use the initials L.J. of the young Complainant for the purposes of these reasons, and also in the conditions for both orders. The Complainant's full name will appear in the written form of both orders.

The Terms and Conditions of the CSO [ 111 ] I have taken into account the submissions made by both Crown and Defence and considered the whole of the evidence, in arriving at suitable terms for the five-month CSO, which will be as follows: [ 112 ] You must comply with the conditions of a conditional sentence order for a term of five months.

The conditions of the order are: [ 113 ] You must keep the peace and be of good behaviour. [ 114 ] You must appear before the court when required to do so by the court. [ 115 ] You must notify the court or your conditional sentence supervisor seven days in advance of any change in name or address, and promptly notify the court or supervisor of any change of employment or occupation. [ 116 ] You must remain in British Columbia, unless you have written permission from the court or your conditional sentence supervisor to leave the province. You must carry the written permission when you are outside the province.

[ 117 ] You must have no contact or communication, directly or indirectly, with L.J. [ 118 ] You must not publish or publicly make available any information respecting L.J. via the internet or social media, including Facebook, Twitter, Myspace, Instagram, text messaging, and email, or any other like service. [ 119 ] You must not go to any residence, school, or workplace of L.J. [ 120 ] You must report in person to the conditional sentence supervisor at 205B Boundary Road by 12 noon tomorrow, February 5, 2020, and after that, you must report as directed by the conditional sentence supervisor.

At the discretion of your conditional sentence supervisor and on occasions as your conditional sentence supervisor directs, you may report by telephone rather than in person, to accommodate your employment schedule. [ 121 ] You must reside at with your parents, G.J. and P.J., at [omitted for publication] Island, British Columbia. You must provide your supervisor with your landline telephone number, and you must not change your residence or your phone number without written permission from your conditional sentence supervisor.

You must continue to reside at a residence approved of in advance by your conditional sentence supervisor, and any such approved residence must be serviced with an operative landline telephone connection, unless permission is otherwise granted to you by your conditional sentence supervisor to dispense with this landline requirement. [ 122 ] You must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or the directions of your supervisor.

If there is a conflict, you must tell your conditional sentence supervisor about that conflict immediately. [ 123 ] For the duration of this order, you must remain inside your residence under house arrest 24 hours per day. [ 124 ] You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest conditions of this order. [ 125 ] You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor.

Such permission is to be given only for compelling reasons and on any such occasions, at the discretion of your conditional sentence supervisor, you may be required to be in the immediate presence of and within plain view of any of the following individuals: G.J., K.J., G.F.J., or N.J. You must carry the written permission when you are outside your residence during the house arrest hours. [ 126 ] You may also be away from your residence during the house arrest hours:

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

b) In the event of a medical emergency and then only while at a healthcare facility, or when travelling directly to, or returning directly from the facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the healthcare facility to which you went.

c) For the purposes of attending specific cultural or spiritual activities, at designated times and locations approved of in advance in writing by your conditional sentence supervisor. [ 127 ] You must carry a copy of this order and any written permission from your conditional sentence supervisor with you at all times when you are outside your residence.

If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this order and written permission without being requested to do so. [ 128 ] You must not go to any public sports field, public park, public swimming area, or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or sports field, except with the written permission of your conditional sentence supervisor and in the immediate presence of and within plain view of any of the following individuals: G.J., K.J., G.F.J., or N.J.

You must carry the written permission with you when you are in the prohibited area. [ 129 ] You must have no contact or communication, directly or indirectly, with, nor be alone in the presence of, any person you know to be or who reasonably appears to be under the age of 16 years. [ 130 ] The exceptions are as follows:

a) If you have the written permission of your conditional sentence supervisor and you are in the immediate presence of and within plain view of any of the following individuals: G.J., K.J., G.F.J., or N.J., and in which case you must carry the written permission. [ 131 ] You must not engage in activities, volunteer work, or employment that could bring you in contact with persons under the age of 16 years, without the written permission of your conditional sentence supervisor and, except for approved employment, you are also in the immediate presence of and within plain view of any of the following individuals: G.J., K.J., G.F.J., or N.J., and when so engaged, you must carry this permission. [ 132 ] You must not date, or enter into a marriage or common law relationship with anyone who has the care or access to children under the age of 16 years, until you have identified to your conditional sentence supervisor the person with whom you propose to enter into such a relationship and your conditional sentence supervisor has informed that person of your history, as described in your criminal record, Presentence Report, if any, and these Reasons for Sentence rendered February 4, 2020, and the Reasons for Sentence rendered October 29, 2019. [ 133 ] You must not possess or consume alcohol, drugs, or any other intoxicating substance, except in accordance with a medical

prescription. [ 134 ] You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the conditional sentence supervisor. [ 135 ] Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to: (

a) mental health; (

b) sexual offence prevention. [ 136 ] You must attend, at the direction of your conditional sentence supervisor, for a psychiatric intake, assessment, counselling, or treatment program through Forensic Psychiatric Services, or such other facility or location as designated by your conditional sentence supervisor. [ 137 ] Having consented you must do the following:

a) At the direction of your conditional sentence supervisor, report to Forensic Psychiatric Services or elsewhere for an intake, assessment, counselling, or treatment.

b) Attend all scheduled appointments with your doctor, psychiatrist, and counsellor.

c) Take all medications prescribed to you.

d) Give your doctor, psychiatrist, and counsellor a copy of this order.

e) You must provide your conditional sentence supervisor with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor.

f) Tell your doctor, psychiatrist, and counsellor that if you do not follow any terms of this order, he or she is to inform your conditional sentence supervisor. [ 138 ] If you decide not to follow these conditions, you must immediately report to your conditional sentence supervisor when his or her office is open and tell your supervisor. [ 139 ] You must sign any waiver of confidentiality or release of information forms that will enable your conditional sentence supervisor, counsellors, or treatment providers to monitor your attendance, and completion of any intake, assessments, counselling, or treatment programs, and to collaboratively discuss your treatment needs. [ 140 ] You must sign any release of information forms that will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. [ 141 ] You must provide proof of your attendance and completion of any assessments, counselling, or treatment programs as directed by your conditional sentence supervisor. [ 142 ] While owning, possessing, or using a cellphone or device capable of accessing any computer network, including the internet:

a) You must not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents him or herself to be under the age of 16 years through, but not limited to, any social networking website, instant messaging service, chat room program, email, or texting. [ 143 ] You must not possess any pornographic material or access any pornographic material by electronic means.

The Terms and Conditions of the Probation Order [ 144 ] I have taken into account the submissions made by both Crown and Defence counsel, and considered the whole of the evidence, in arriving at suitable terms for the 30-month Probation Order, which will be as follows: [ 145 ] You must comply with the conditions of a probation order for a term of 30 months.

The conditions of the order are: [ 146 ] You must keep the peace and be of good behaviour. [ 147 ] You must appear before the court when required to do so by the court. [ 148 ] You must notify the court or the probation officer 14 days in advance of any change in name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 149 ] You must have no contact or communication, directly or indirectly, with L.J. [ 150 ] You must not publish or publicly make available any information respecting L.J. via the internet or social media, including Facebook, Twitter, Myspace, Instagram, or any other like service. [ 151 ] You must not go to any residence, school, or workplace of L.J. [ 152 ] You must report in person to a probation officer at 205B Boundary Road, Duncan, British Columbia, within two business days after completion of your conditional sentence order or your release from custody, unless you have obtained, prior to completion of your conditional sentence order or your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. At the discretion of the probation officer and on occasions as

your probation officer directs, you may report by telephone rather than in person to accommodate your employment schedule. [ 153 ] You must reside with your parents, G.J. and P.J., at [omitted for publication] Island, British Columbia. You must provide your probation officer with your landline telephone number, and you must not change your residence or your phone number without written permission from your probation officer.

You must continue to reside at a residence approved of in advance by your probation officer, and any such approved residence must be serviced with an operative landline connection, unless permission is otherwise granted to you by your probation officer to dispense with this landline requirement. [ 154 ] You must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or the direction of your probation officer.

If there is a conflict, you must tell your probation officer about the conflict immediately. [ 155 ] You must provide your probation officer with the particulars of your employment, including the name of your employer, contact particulars for your employer, location of employer, and your employment

schedule or your relationship status.

You must inform your probation officer within two business days of any change in your employment or relationship status. [ 156 ] You must not go to any public park, public swimming area, community centre, sports field, or playground where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground. [ 157 ] The exceptions are with the written permission of your probation officer and which written permission may, at the direction of your probation officer, require you to be in the immediate presence and within the plain view of any one of the following individuals: G.J., K.J., G.F.J., or N.J.

Such permission, without limitation, may be granted for the purposes of permitting you, at the discretion of your probation officer, to attend and participate in organized soccer activities, including games and practices. You must carry the written permission when you are in the prohibited area. [ 158 ] You must have no contact or communication, directly or indirectly, nor be alone in the presence of any person you know to be or who reasonably appears to be under the age of 16 years. [ 159 ] The exceptions are:

a) If you have the written permission of your probation officer and which written permission may, at the direction of your probation officer, require you to be in the immediate presence and within the plain view of any one of the following individuals: G.J., K.J., G.F.J., or N.J., and in any such case, you must carry the written permission. [ 160 ] You must not engage in activities, volunteer work, or employment that could bring you in contact with persons under the age of 16 years, without the written permission of your probation officer and, except for approved employment, the terms of the written permission may, at the direction of your probation officer, require you to be in the immediate presence and within plain view of any one of the following individuals: G.J., K.J., G.F.J., or N.J., and when so engaged, you must carry this permission. [ 161 ] You must not date or enter into a marriage or common-law relationship that has the care or access to children under the age of 16 years, until you have identified to your probation officer the person with whom you propose to enter into such a relationship, and your probation officer has informed that person of your history as described in your criminal record, Presentence Report, if any, and these Reasons for Sentence rendered February 4, 2020, and the Reasons for Sentence rendered October 29, 2019. [ 162 ] You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer. [ 163 ] Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to: (

a) mental health; (

b) sexual offence prevention. [ 164 ] Having consented, you must attend, participate in, and successfully complete any intake, assessment, counselling, program, treatment, or residential treatment program as directed by your probation officer. [ 165 ] Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling, or treatment program through Forensic Psychiatric Services or such other facility or location as designated by your probation officer. [ 166 ] Having consented, you must do the following:

a) At the direction of your probation officer, report to the Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or program.

b) Attend all scheduled appointments with your doctor, psychiatrist, and counsellor.

c) Take all medications prescribed to you.

d) Give your doctor, psychiatrist, and counsellor a copy of this order.

e) You must provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor.

f) Tell your doctor, psychiatrist, and counsellor that, if you do not follow any terms of this order, he or she is to inform your probation officer. [ 167 ] If you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer.

[ 168 ] You must sign any waiver of confidentiality or release of information forms as will enable your probation officer, counsellors, or treatment providers to monitor your attendance and completion of any intake, assessment, counselling, or treatment programs, and to collaboratively discuss your treatment needs. [ 169 ] You must sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. [ 170 ] You must provide proof of your attendance and completion of any assessments, counselling, or rehabilitative programs as directed by your probation officer. [ 171 ] While owning, possessing, or using any cellphone or device capable of accessing any computer network, including the internet:

a) You must not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents him or herself to be under the age of 16 years through, but not limited to, any social networking website, instant messaging service, chat room program, email, or texting. Ancillary Orders [ 172 ] Crown is not seeking a s. 161 prohibition order. None will be ordered. [ 173 ] The Accused has been convicted on Count 1 on Information 39866-1, which is a primary designated offence.

Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from the Accused for the purpose of registration in the DNA National Data Bank. You are required to report to the Duncan-North Cowichan Detachment of the RCMP for the purposes of permitting the taking of the required samples of bodily substances on or before February 18, 2020. [ 174 ] Pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years. [ 175 ] This concludes my reasons for sentencing. (JUDGMENT CONCLUDED)