R. v. J.A.P.H., 2023 BCPC 90

Citation: R. v. J.A.P.H. 2023 BCPC 90 Date: 20230403 File No: 43481-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. J.A.P.H. BAN ON PUBLICATION – s. 486(4.1) C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.L. Cameron Counsel for the Accused: S. Knott Place of Hearing: Duncan , B.C. Date of Hearing: April 3, 2023 Date of Sentence: April 3, 2023

Introduction [1] THE COURT: J.A.P.H. entered a guilty plea on February 18, 2022, to Count 2 on Information 43481-1. Count 2 alleges asfollows: J.A.P.H., on or about the 18th day of June, 2020, at or near Duncan, in the Province of British Columbia, did, for a sexual purpose,touch, directly or indirectly, with a part of his body or with an object, the body of L.J., a person under the age of sixteen years, contrary toSection 151 of the Criminal Code. [2] That offence is hereinafter referred to as the "Sexual Interference Offence." Crown has proceeded summarily with respect to thisparticular offence.

Accordingly, the maximum sentence would be two years less a day. There was a mandatory minimum provision for a90-day minimum sentence which has been struck down by the decision of R. v. C.B.A., 2021 BCSC 2107. [3] J.A.P.H. (hereinafter referred to as "the Offender") has been out of custody and bound initially by a Form 10, a policeundertaking, and subsequently by a release order made on August 23, 2021. That release order contained provisions for reporting andalso prohibitions against having any contact with the child victim, L.J., or that child's mother, M.J.

There is also a provision prohibitingthe Offender from attending at any place where either M.J. or L.J. work, attend school, or worships, or happens to be, or resides. It isnoteworthy that the child victim in this case, L.J., is the daughter of the Offender and was approximately 11 years of age at the time ofthe Sexual Interference Offence (the “Child Victim”). The Child Victim is now approximately 13 years of age.

Sentencing Reports Before the Court [4] The Offender is subject to the following reports that are before the court: a. a presentence report dated May 27, 2022, prepared by Cecil Bickle, a probation officer with Duncan Community Corrections(the "Presentence Report"); b. the Gladue Report prepared and completed October 10, 2022, by Kelly Batke, a Gladue Report writer (the “Gladue Report”); c. a forensic assessment report dated February 17, 2023, prepared by Dr. Kimberly L. Kreklewetz, Registered Psychologist,Forensic Psychiatric Services Commission ( the “Forensic Report”).

These three reports are collectively referred to as (the "Reports"). Joint Submission On Sentencing [5] Based on the materials before this court and the joint submission received from both Crown and Defence counsel, it is submittedthat for this particular Sexual Interference Offence the sentence to be imposed upon the Offender should be an 18-month conditionalsentence order followed by an 18-month probation order. [6] In addition, there would be some ancillary orders, the terms of which are not the subject of any disagreement as betweencounsel.

Those would include a SOIRA order for a duration of 10 years pursuant to s. 490.012 of the Criminal Code, commencing ontoday's date, and then because this is a primary designated offence, there would be a DNA order under s. 487.051. Also, Crown isseeking a s. 161 order for a duration of five years, again commencing on today's date, thereby preventing the Offender from attending atresidences and other locations occupied by the Child Victim.

That is not opposed. [7] As I understand it, although I have not received a direct submission in this regard, this being a primary designated offence andgiven the nature of this offence, that there is a mandatory s. 109 firearms prohibition required to be imposed. Before considering thatpoint, I will seek further submissions from counsel. [8] The task of this court is to determine a fit sentence and to determine whether or not the joint submission that has been presentedto it meets the principles and tests set out in R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, a decision of the SupremeCourt of Canada.

Facts The Circumstances Surrounding the Offence [9] One issue arose in connection with the facts that were accepted and formed the basis for the sentencing submissions. That issuearose upon receipt of the Gladue Report and also the Forensic Report. In the Gladue Report, there were a couple of notations found onpage 11. In the Gladue Report, it stated that the Offender had indicated to the report writer as follows: [as read in]: I take complete responsibility for my actions. I promise and guarantee this is never going to happen again. It wasn't something I did onpurpose.

It was an accident. [10] Similarly in the Forensic Report on page 2 under the heading, "Offender's Version of Offences," again, there was an assertion bythe Offender to the report writer to the effect that the Offender, [as read in]: … described the offence as an accident that "kind of just happened". He admitted that, "My hand did go down her pants … She waswearing very loose PJs.

He elaborated that, "We were just having a tickle fight … My stepdad and family members always tickled me …There is a very ticklish spot on the back of the thigh." He claimed that in trying to reach the ticklish spot, his hand slipped down L.J.'spants. [The Offender] shared that, "When I noticed I balled my eyes out." [The Offender] denied any sexual intent and commented that,"It wasn't planned." He remarked that, "I feel it's quite unforgivable … I totally understand if she never wants to see me again [eventhough it was an accident] it still happened."

[ 11 ] The provisions of concern contained in those two reports were identified and raised at the outset of the sentencing hearing, which thereby necessitated the following procedures being instituted. First, the circumstances which were being relied upon by Crown and had been agreed to between Crown and Defence were read out to the Offender.

After an explanation from the court and hearing his own lawyer's submissions, the Offender then agreed that those circumstances were, in fact, the circumstances that he was admitting to when he had entered his guilty plea before the Honourable Judge Webb back on February 18, 2022. I am told that at the time of the guilty plea he also acknowledged that he understood the essential elements of the Sexual Interference Offence and both the actus reus as well as the mens rea , being his intention to touch the Child Victim and that such touching was for a sexual purpose.

He reconfirmed that in front of me. [ 12 ] This court also canvassed with him, as had apparently been previously done before Judge Webb, the provisions of s. 606 of the Code . The Offender confirmed to the court that the decision to reconfirm his guilty plea before me was his own voluntary choice and he also acknowledged that he understood, notwithstanding that this court was likely to hear a joint submission, that this court is not obliged to accept that joint submission and, at the end of the day, the decision as to a fit sentence was left to this court. [ 13 ] The sentencing then proceeded on that basis.

Then Crown again outlined the agreed to applicable circumstances that they were relying upon. In essence, the Crown's circumstances were to the effect that the Child Victim came to visit her father at his residence, apparently unexpectedly. Thus, the Offender was unaware that there was an intention for her to visit him at his residence. He had consumed a significant amount of alcohol.

As a result of the Offender’s intoxication and during the playing and tickling match that took place as between the Offender and the Child Victim, the offence of touching the vaginal area of the Child Victim in a sexual manner occurred. [ 14 ] That Sexual Interference Offence was reported by the Child Victim to her mother around July 24, 2020, who thereafter relayed it to the Ministry of Children and Family Development. A report by the Ministry of Children and Family Development was made to the Duncan-North Cowichan detachment of the Royal Canadian Mounted Police.

The Sexual Interference Offence apparently took place at a time when the Offender was celebrating his birthday. A statement taken by the RCMP from the Child Victim identified the Offender as the perpetrator of the offence. The Child Victim was questioned in an appropriate manner in order to obtain her statement; it included the use of gingerbread diagrams.

There was some uncertainty in the Child Victim’s report about the timing of the events, but it was clear that the Sexual Interference Offence did occur and that the Child Victim was not injured, but certainly she was afraid of what had occurred and was very concerned about returning to the Offender's house as a result of this offence occurring. [ 15 ] Defence explained to this court the context surrounding the Offender’s concerning comments set out in both the Gladue Report and in the Forensics Report as described above, which suggested there was an accidental nature about the events.

Defence says the context of the supposed accidental nature of events giving rise to the admitted Sexual Interference Offence was that those events were intentional but just “not planned in advance” by the Offender. Victim Impact Statement [ 16 ] In addition to the Reports that are before this court, I also have the benefit of reading a victim impact statement (the “Victim Impact Statement”). The Victim Impact Statement was prepared by M.J., the estranged spouse of the Offender, and is dated April 1, 2023.

The Victim Impact Statement was apparently prepared having regard to the condition and the effect upon the Child Victim, arising from the occurrence of the Sexual Interference Offence. [ 17 ] What is clear is that the Child Victim was very negatively affected; she had difficulty attending school; she had significant emotional reactions to the events and, in particular, negative emotional reactions to the Offender, his family members, his other relatives and the friends of the Offender and his family. The Victim Impact Statement goes on to say that the Child Victim is afraid of her paternal grandparents.

In the Victim Impact Statement where it requests the author of the Victim Impact Statement to, "Express the impact that the offence has had on you" by drawing a picture or writing a poem or letter, the following appears: It is a drawing of a broken heart with the following words [as read in]: What A Impact, what he did Feeling scared and scarring [sic] what happened, the high anxiety and difficulty feeling worried and scared of seen [sic] (name of Offender) or any Of his Family Members Information Contained in the Reports Presentence Report [ 18 ] The Presentence Report indicates that the Offender grew up knowing who his mother was, but he did not know his biological father.

He has a stepfather who has been in his life since about age nine. The Offender is presently 27 years of age. He has two children, one being a nine-year-old son who resides with his maternal grandmother. The second is the Child Victim in this case. [ 19 ] The Offender resides in a family home with five other relatives. He apparently devotes a good portion of his life to caring for elderly family members. The grandmother of the Offender is a survivor of the residential school system.

The other noteworthy fact which is confirmed to a greater degree in both the Gladue Report and the Forensic Report is that the Offender's mother was approximately age 15 when she became pregnant as a result of a sexual offence perpetrated against her by an older man.

Accordingly, the Offender has never had any relationship with that individual, being his biological father. [ 20 ] It is also noteworthy, as confirmed in the Gladue Report, that in addition to having no communication or contact with his paternal biological family, he also has had no connection with his own band (through his paternal side) which is the Upper Cayuga First Nations Band located in the Toronto, Ontario, area. From a very early age, the Offender has resided in the Cowichan Valley and, although not a

member of the Cowichan Tribes, has attempted to utilize resources provided by Cowichan Tribes. [ 21 ] The Offender, according to the Presentence Report, has also suffered bullying throughout his life. He also grew up in households where substance misuse and, in particular, alcohol misuse, was normalized.

There is a notation in the Presentence Report, which is certainly not substantiated nor corroborated by the Forensic Report or by the Gladue Report, in which the Offender describes himself as a light drinker, but having started to consume alcohol at an early age. [ 22 ] In submissions, Defence counsel says that the Offender has remained sober and not consuming any alcohol since January of 2023. The Presentence Report suggests that the Offender, at the time that report was authored back in May of 2022, did not see the need to attend alcohol counselling.

The subsequent reports indicate that he appears to have taken a different approach to acknowledging his substance misuse. [ 23 ] The Presentence Report speaks of the Offender's significant insight into the Sexual Interference Offence, at the time that report was prepared. It also speaks in terms of a number of approaches that could be used as far as rehabilitative sentences, including services accessible within the community, if the Offender is ordered to serve a sentence in the community. Gladue Report [ 24 ] The Gladue Report is particularly extensive in nature.

It contains considerable more amplification on the personal history and family relationships of the Offender. There is a re-emphasis of the Offender’s lack of knowledge of his biological father and a further amplification that the Offender's mother herself was sexually molested by that particular individual, between the ages of four and 14 years of age. [ 25 ] There is also further confirmation, based upon information provided by the Offender's mother, that he had a difficult time at school, was possibly dyslexic and possibly had Attention Deficit Hyperactivity Disorder.

There is a further confirmation that the Offender was picked on, particularly because of both his Indigenous heritage as well as the fact he was small in stature; that the Offender did not complete high school, but did achieve one course short of his grade 11 at an alternative high school for Indigenous children. [ 26 ] There is considerable amplification about the close relationship that the Offender had with his great grandmother who has since passed away. The Offender devoted his available time to caring for her rather than trying to hold other employment.

However, based on all of the Reports, it is clear that from time to time the Offender has maintained some level of stable work, mostly in the service industry areas. The Offender does not have significant debt, but has apparently purchased a car which he allows his family members to use and, on occasion, they provide him with transportation. [ 27 ] In the Gladue Report, it is indicated that the Offender admitted that he struggles with alcohol addiction. It apparently was increasing in its severity and frequency immediately before the offending behaviour occurred.

There is also an expression of concern on the part of the Offender's biological mother, who herself had a drinking problem at an earlier age, about the Offender's alcohol addiction and substance misuse. [ 28 ] Interestingly enough, the Gladue Report indicates that many of the Offender's family members, who are members of the Cowichan Tribes, are very active within the community in a number of cultural activities. That is not the same situation for either the Offender or his mother.

There is a clear indication that the Offender's family members, in particular, a grandmother, attended Kuper Island Residential School. The negative impacts of that particular experience are detailed in the Gladue Report. [ 29 ] In

summary form, the Gladue Report indicates as follows: a. the Offender gains income through part-time jobs at a restaurant, but struggles to pay his bills; b. the Offender is disconnected from his Indigenous culture and heritage; c. the Offender is addicted to alcohol; d. the Offender expressed a strong awareness of his ongoing challenges and is interested in taking steps towards healing; e. the Offender was born of a teenage mother as a result of a sexual assault upon her by a man unknown to the Offender; f. the Offender struggles with depression and anxiety; g. the Offender was not provided with consistent parenting growing up; h. the Offender's mother acknowledged she consumed alcohol during her pregnancy; and i. the Offender had learning difficulties and did not complete high school, but was never formally tested for FASD or ADHD.

Forensic Report [ 30 ] The Forensic Report is the most recent of the Reports. It confirms that, at the time the Sexual Interference Offence occurred, the Offender and his spouse were separated. The Forensic Report confirms the lack of stability in the homes in which the Offender was raised. That continued for a number of years and was particularly problematic for the Offender.

It describes the substance use history of the Offender and indicates that the Offender has reduced his alcohol and indicates that he had been abstinent from alcohol since January 5th of 2023 . [ 31 ] Under the headings relating to "Clinical Impressions" and "Current Mental Status," there is information obtained by testing conducted on the Offender using the DSM-5-TR diagnosis. The diagnostic formulation that was proffered as a result of that is as follows:

Query alcohol use disorder (mild in early remission per self-report); query pedophilic disorder, non-exclusive type sexually attracted tofemales. [32] As a result of the testing that took place and the analysis flowing from that testing, the conclusion reached was that the Offenderdid not meet the criteria for a diagnosis of pedophilic disorder.

However, that was subject to a suggested possible further review in aperiod of some six months following the completion date of the Forensic Report. [33] With respect to the use of alcohol, again, it is noted that much of the information contained in the Forensic Report was basedupon self-reporting, but it is recorded by the author of the Forensic Report that the Offender has been abstinent since January 5 of 2022(although earlier in the Forensic Report it says January of 2023 which is the same as in Defence counsel’s submissions). [34] The more important provisions contained in the report relate to risk assessment for sexual recidivism on the part of the Offender.The Static-99R actuarial tool was utilized and the score that was attributed to the Offender was that he fell within the average (Level III)range.

With respect to the Risk for Sexual Violence Protocol (RSVP), the result of that testing, taking into account the issues of sexualviolence history, psychological adjustment, mental disorder, and social adjustment and manageability led to the following conclusions.With respect to the Offender at this juncture, it states: [The Offender]'s risk for sexual re-offending based on an assessment of dynamic factors should be considered to fall in the Low-Moderate range. [The Offender]'s statements during the clinical interview indicated that there was insight into the nature of the indexoffences, but there was limited insight into impact on the victim and the presence of minimization. [The Offender]'s level of risk isthought to increase into the Moderate range when he is under the influence of substances that would impair judgment and reducebehavioural controls.

Future victims are likely to be minor females with whom [the Offender] has cultivated ongoing relationships and/orwith whom he has opportunistic access. Given access to these types of vulnerable victims [the Offender]'s risk level based on acombination of standing and dynamic factors is believed to be best characterized as falling within the Low-Moderate range.

However, atthe time of the clinical interview [the Offender] had limited contact with underage family members due to court-imposed conditions.Should this contact continue to be prohibited (and should [the Offender] maintain sobriety), his risk for sexual re-offence towards astranger or casual acquaintance (minor or adult female) is judged to fall with the Low range. [35] As part of the Forensic Report, there are a number of recommendations, including that the Offender should be referred for sexoffender treatment programming and, also, there is an indication that, if prone to do so, the Offender may benefit from accessingcounselling or other social leisure opportunities that are consistent with cultural identity, that is, fostering connections with First Nationscommunities and the like. [36] Finally, there is a suggestion that the Offender, who did express a desire to reduce his alcohol consumption, may benefit fromprogramming while incarcerated at either provincial or federal institutions, or alternatively, in the community through BC Mental Healthand Addictions or BC Community Corrections.

Case Authorities [37] Crown and Defence have both relied upon Crown’s book of authorities which contains the following cases: a. R. v. Mason, 2022 CarswellBC 2644, 2022 BCPC 187; b. R. v. P.R.J., 2021 CarswellBC 4142, 2021 BCSC 2537; c. R. v. Vaux, 2021 CarswellBC 2808, 2021 BCSC 1773; and d. R. v. C.G.J., 2019 CarswellBC 3238, 2019 BCPC 252, and [2019] B.C.J. No. 2097.

Submissions on Sentencing Crown Submissions on Sentencing [38] Based on the Reports that have been presented to the court and the assessment of the Offender specifically set out in the ForensicReport, the Crown, by way of joint submission, agrees that there should be an 18-month conditional sentence order followed by theperiod of 18 months' probation. In particular, the Crown points to a number of the Gladue factors which are highlighted in the Reports. [39] The Crown notes that the Offender comes before this court with no prior criminal record.

It also points out that the guilty pleaentered in this matter is extremely beneficial to the Child Victim. That, Crown says, is a significant mitigating factor. It has saved theChild Victim, who has obviously been traumatized by the Sexual interference Offence, from the agony of reliving those circumstancesand recounting them in an open-court situation. [40] The Crown has relied significantly on both the first two decisions cited above, being R. v. Mason and R. v. P.R.J. There aresimilarities, but some significant dissimilarities, in the factual patterns outlined in those particular cases.

However, what is emphasized isthe necessity both under the “Other Sentencing Principles” provisions of the Criminal Code (such as 718.2 (a) (ii), (ii.1), (iii) and (iii.1))as well as the recent Supreme Court of Canada decision in R. v. Friesen, 2020 SCC 9, that in any sentences for sexual offences againstchildren there must be an emphasis on a significant amount of denunciation and deterrence. However, the Supreme Court of Canada hasalso directed in decisions such as R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, that the unique systemic factors orbackground factors of Aboriginal offenders (such as in this case) must be considered in the context of a consideration of sentencingsanctions, as described in

section 718.2(e). [41] The offending behaviour in the Mason case is significantly more egregious than in the present case. The Mason case involvedsexual violence offences against a young male victim who was between the age of 13 and 15 while the accused, Mr. Mason, wasbetween ages 38 and 40. Both the victim and the accused in that case were Indigenous persons. At the end of the day, taking into account

a number of factors, in a carefully crafted and thoughtful judgment, Judge D. Patterson of the Provincial Court of British Columbia imposed a conditional sentence order on the accused, citing the existence of exceptional circumstances that lessened the accused’s moral blameworthiness. That conditional sentence order was set at two years less one day and then followed by three years of probation. In fact, there were two separate charges of sexual violence to which the conditional sentence order applied. [ 42 ] The Crown also has relied on P.R.J. , a decision of Justice Davies of our Supreme Court.

In this case, the victim at the time of the offences was seven or eight years of age. The sexual interference that was committed upon the victim and charged by way of indictment was digitally inserting a finger into the female child's vagina and kissing her vagina. There was also a conviction for invitation to sexual touching when P.R.J. caused the victim to touch P.R.J.’s own vagina.

This case has the factual similarity in that the accused, P.R.J., was the mother of the young victim and the sexual offending occurred on one occasion only. [ 43 ] Justice Davies sentenced the offender in that case by way of a conditional sentence order. In doing so, the resulting sentence was a conditional sentence order of 23 months followed by probation for a further two years. Justice Davies took into account a number of factors which are set out in paragraph 23; one of the important factors considered was that this appeared to be a single event.

It was noted the offending behaviour led to the removal of the child victim from the care of the accused. This led Justice Davies to conclude that the accused’s offending conduct had deservedly been denounced and would continue to be denounced, at least in part by the total removal of her only child from her life, which in itself, had a punitive aspect. [ 44 ] The decision in R. v. Vaux involved the accused sexually offending against a 15-year-old and then a second count involved a 14- year-old. Those were separate victims of sexual interference of a person under 16 years of age.

The Vaux decision goes through a significant analysis of the sentencing requirements in child sexual offence cases. Devlin J. then comes to the conclusion that a conditional sentence order was a fit and appropriate disposition having regard to some extraordinary circumstances. The conditional sentence order in that case was 23 months followed by a probation order for three years. [ 45 ] The final cited decision of R. v. C.G.J. predated the Friesen case and also predated the R. v. C.B.A . case, but was decided after R. v.

Scofield, 2019 BCCA 3 , which struck down the mandatory minimum sentence under s. 151(c), where Crown had proceeded by indictment. The C.G.J. decision case dealt with an 18-year-old male Indigenous offender (with no criminal record) and a female Indigenous victim who was 13 years of age. The offence of sexual interference can be described as a significant sexual groping that occurred in the hallways of a high school, which was planned by the accused and which followed some on-line grooming.

It resulted in a significant detrimental effect on the victim. [ 46 ] THE CLERK: [Dealing with an unidentified, unmuted audio interruption]. [ 47 ] THE COURT: In that case, the court had to deal with whether or not to impose the mandatory minimum sentence where Crown had proceeded summarily. The sentencing followed a conviction after trial. At the end of the day based upon several factors, including a number of Gladue factors, a conditional sentence was ordered in place of the mandatory minimum sentence of 90 days in custody.

A five-month conditional sentence order and 30 months of probation were imposed. [ 48 ] Crown indicates that, in their view, a conditional sentence order in this case is an appropriate and fit sentence. That position is based upon the whole of the circumstances, including the unique and exceptional circumstances in this case, the authorities cited to the court, the numerous factors as set out both in counsels’ submissions and the Reports.

Defence's Submissions [ 49 ] Not surprisingly, Defence joins in with the extensive submissions made by Crown, all in support of the joint submission. [ 50 ] A number of the mitigating and aggravating circumstances were canvassed by Defence. One of the important factors that is emphasized is that the Offender in this case is almost in the same situation as an Indigenous person who was a subject of the Sixties Scoop. Here, the Offender has been removed, really, from his biological father, his paternal biological family and his paternal First Nations affiliation.

He has been required to grow up in a environment in which he is estranged both from membership in the Cowichan Tribes, but also in terms of being actively supported by that community, notwithstanding the fact that he does live on its reserve lands in some difficult circumstances. [ 51 ] Defence has referenced a number of the Gladue factors which apply.

I accept those Gladue factors, which may be summarized in the following manner: a. the poverty in which the Offender has grown up; b. the alcohol misuse in his family while growing up; c. his continuing struggles with poverty; and d. the fact that he is a lonely individual both within his community and now estranged from a significant portion of his family as a result of his offending behaviour. [ 52 ] Defence also points out that and relies upon the fact that the Offender has no criminal record and has taken active steps to attain sobriety and maintain that sobriety since January 2023.

Analysis [ 53 ] I am mindful of the decision of Justice Marchand, then of our Supreme Court of British Columbia, which is cited at paragraph 8 of the Mason decision, which reads as follows: 8. As pointed out by Justice Marchand, as he then was, in R. v. C.C.C. , 2021 BCSC 599 , a case involving the sexual victimization of a

pre-teen girl by an Indigenous man: [2] These are amongst the most painful of reasons for judgment a sentencing judge can be asked to deliver. Two crises that arisefrom the same historical factors pull in opposite directions. On the one hand, the circumstances call on me to denounce and deter thesexual victimization of an extremely vulnerable Indigenous girl. On the other hand, I do not wish to exacerbate the grotesquelydisproportionate rate of incarceration of Indigenous people.

There is no easy solution. [54] I must instruct myself that the Criminal Code sets out the purposes, objective, and principles of sentencing.

The purposes,objective and principles of sentencing are set out in: s. 718 entitled, "Purpose and Principles of Sentencing;" s. 718.01, "Objectives -Offences Against Children;" s. 718.1, "Fundamental Principle;" and s. 718.2, "Other Sentencing Principles." [55] I must also further instruct myself that sentencing is an individualized process which requires the court to take into account boththe circumstances of the offence and the specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44, at paragraph 14, and R.v.

Angelillo, 2006 SCC 55, at paragraph 22). [56] As the sentencing judge, I must instruct myself to consider all the principles of sentencing contained in the Code, but be mindfulthat, depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R. v. McCormick,2006 ABCA 410, at paragraphs 9 to 12). [57]

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

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [58]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree the offender'sresponsibility. Under s. 718.2, the "Other Sentencing Principles", it states in part that a court that imposes a sentence will also take intoconsideration both aggravating and mitigating circumstances and also take into account that sentences should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances. It also requires in ss. (

d) and (

e) that offendersshould not be deprived of liberty if less restrictive sanctions may be imposed in the circumstances, and: … all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [59] This case requires me to pay particular necessary attention to s. 718.01 which deals with offences against children and provides asfollows: 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 primaryconsideration to the objectives of denunciation and deterrence of such conduct. [60] A decision that requires significant consideration by this court is R. v.

Friesen, 2020 SCC 9. In the introductory remarks inFriesen and specifically at paragraph 5, the Supreme Court of Canada states as follows: … we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability andcause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentencesthat are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed byParliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violenceagainst children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoingharm that it causes to children, families, and society at large. [61] Of course I must also take into account the joint submission in support of a conditional sentence.

I further note that the principleswhich underlie conditional sentences are set out in s. 742 to 742.7 of the Code. R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61,describes the proper approach to the application of these principles at paragraph 127.

Having reviewed those principles, I am able toconclude that in this particular case those principles may be applied to this case before me. [62] It is noteworthy that, in Proulx, the court points out that: a. a conditional sentence can provide a significant amount of denunciation particularly where onerous conditions are imposed andthe term of the sentence is longer than would have been imposed as a jail sentence; b. a conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed and judges should bewary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration; and

c. a conditional sentence is intended to address punitive and rehabilitative sentencing objectives and should generally include punitive conditions that restrict the offender's liberty. Thus it is to be distinguished from probationary measures which are primarily a rehabilitative sentencing tool. [ 63 ] In this case, given the fact that the mandatory minimum sentence provisions of s. 151 have been held to be unconstitutional, the statutory requirements for a conditional sentence order are met.

I further note that I must determine and do say that I am satisfied that serving the sentence in the community by this Offender will not endanger the safety of the community. Conclusion and Resulting Sentence The Conditional Sentence Order [ 64 ] Mr. J.A.P.H., would you please stand. [ 65 ] As I noted previously, I am satisfied that the proposed sentence as set out in the joint submission meets the test in R. v. Anthony- Cook . Therefore, I sentence you to a conditional sentence order of a duration of 18 months. [ 66 ] I want to emphasize that a conditional sentence order is a jail sentence.

It is a sentence for which you are granted the privilege of serving it within the community. However, you must understand that if you were to breach any provisions contained within this conditional sentence order, then the default position usually adopted by Crown and presented to the court will be to collapse the conditional sentence order.

If the court were to accept Crown’s submission, it would result in you having to serve the balance of the conditional sentence order in a custodial setting. [ 67 ] So please be very mindful that in connection with both the terms of the conditional sentence order as well as the probation order which I am also going to be imposing upon you - these are conditions or things you must do. They should not be regarded by you as something in the nature of an inconvenient suggestion.

If you do and you breach, you are going to be either facing the conditional sentence order being collapsed, then having to serve the balance of the time in jail or, alternatively, if you were to breach the probation order, you are going to be facing additional charges for failing to comply with that probation order. Do you understand that? [ 68 ] THE ACCUSED: Yes, I do. [ 69 ] THE COURT: Okay. So listen carefully.

So the terms of the conditional sentence order will be as follows. [ 70 ] 3101: you must report in person to a conditional sentence supervisor at Duncan Community Corrections Office located at Unit 7 - 180 Central Road, Village Green Mall, Duncan, B.C., V9L 4X3, telephone, 250-746-2854, and that will be by 3:00 p.m. tomorrow, being April the 4th, 2023, and after that, you must report as directed by your conditional sentence supervisor. [ 71 ] 3105: if you are arrested, detained, or serve a jail sentence for another offence, you must report in person to your conditional sentence supervisor within two business days of your release from custody or completion of the sentence so that your conditional sentence supervisor can give you further direction to report. [ 72 ] I omitted to put in the compulsory conditions found in 3001 which are as follows: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or a supervisor of any change of employment or occupation. You must remain in British Columbia unless you have the prior written permission from the court or your conditional sentence supervisor to leave the province. [ 73 ] Then continuing with the no-contact provision -- I am going to pause for a moment. I note that only the Child Victim is named in the proposed conditions.

Previously under his bail order, he was not entitled to have any contact or communication with the mother. Is that no longer going to be required? [ 74 ] CNSL J. CAMERON: Your Honour, I had discussed with M.J. the conditions previously and so she is aware of the conditions. [ 75 ] THE COURT: All right. [ 76 ] CNSL J. CAMERON: I don't believe she wishes to have to have contact with Mr. J.A.P.H., but I don't know that it's an appropriate -- [ 77 ] THE COURT: All right. [ 78 ] CNSL J.

CAMERON: -- part of the sentence. [ 79 ] THE COURT: Okay, thank you. [ 80 ] So, then, 3002, and this will read as follows: "You must have no contact or communication directly or indirectly with [the Child Victim] who is “L.J.” in the information"; and then 3005-1, you must not go to any place where L.J. lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 81 ] 3203: you must live at an address approved of in advance by your conditional sentence supervisor and you must provide your supervisor with your phone number if you have one. You must not change -- and that will be either your address or your telephone number, without the prior written permission of your conditional sentence supervisor. [ 82 ] Then the 3209 is a curfew condition: You must obey a curfew -- well, it is actually a house arrest condition. I will rephrase that.

You must obey a house arrest by being inside the place where you live and regularly sleep, which I am going to add in the words, "which has been approved of in advance by your conditional sentence supervisor," 24 hours a day. The exceptions are, 3209: you have the

written permission of your conditional sentence supervisor; such permission is to be given only for employment -- I am going to add in, "employment, family, or other reasonable purposes." [ 83 ] Does everyone agree with that? [ 84 ] CNSL J. CAMERON: That's fine. [ 85 ] THE COURT: Okay. [ 86 ] CNSL S. KNOTT: Certainly, Your Honour. [ 87 ] THE COURT: 3209 being a further exception: you are going directly to or returning directly from a healthcare facility because of a medical emergency.

You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor. [ 88 ] Then the next provision will be the 3209-2: you must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. [ 89 ] 3209-3: if you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. [ 90 ] 3209-4: if a peace officer finds you outside the place where you are living during the curfew or house arrest hours and requests to see the permission, you must show it to the officer. [ 91 ] Then the final exception is you may be outside your residence for two hours each day between the hours of noon and 2:00 p.m. [ 92 ] Then the next one is 3303, no-go parks or schools: You must not go to any park, public swimming area, daycare centre, school ground, playground, community centre, or theatre where persons under the age of 16 years -- is that what is being sought? [ 93 ] CNSL J.

CAMERON: Yes. [ 94 ] THE COURT: are known by you to be present or can reasonably be expected to be present. [ 95 ] 3404 -- [ 96 ] CNSL J. CAMERON: Oh, Your Honour, I think I mislabelled this one as "3404" when it's -- [ 97 ] THE COURT: Yes. [ 98 ] CNSL J. CAMERON: -- "3304." Sorry about that -- [ 99 ] THE COURT: Yes, I was just trying to find that. [ 100 ] CNSL J. CAMERON: -- and just looking at -- Your Honour, at the Picklist now, as you are about to read this order, I'm wondering if two exceptions -- this is a no-contact with persons under the age of 16.

It occurs to me that it may be appropriate that the two exceptions, (

f) and (g), be put in place which would be incidental communication during his or the child's employment or incidental in a public place where other adults are present. That -- just to protect Mr. J.A.P.H. to some degree. [ 101 ] THE COURT: All right. Mr. Knott, agreeable? [ 102 ] CNSL S. KNOTT: Certainly, Your Honour, and that would be something I would probably raise just in terms of employment, especially. [ 103 ] THE COURT: Okay. All right. So 3304: you must not have any contact or communication directly or indirectly with or be in the presence of any person under the age of 16 years of age. The exceptions are: sub (

f) incidental communication, contact, or presence in the course of your or the child's employment; and (

g) incidental communication, contact, or presence in a public place where other adults are present. [ 104 ] Then 3305, which is: you must not seek, obtain, or continue with any volunteer position or employment that involves being in a position of trust or authority towards a person under the age of 16 years, unless you have the advance written permission of your conditional sentence supervisor. [ 105 ] Are you seeking the sub (a)? [ 106 ] CNSL J. CAMERON: It would make sense, I think -- [ 107 ] THE COURT: Yes. [ 108 ] CNSL J. CAMERON: -- if the exception is ordered -- [ 109 ] THE COURT: Yes. [ 110 ] CNSL J.

CAMERON: -- Your Honour. [ 111 ] THE COURT: If you are given permission, you must carry it with you in paper or electronic format at all times when you are

engaged in the activity requiring permission. If a peace officer finds you engaged in the activity and requests to see the permission, you must show it to the officer. [ 112 ] You are agreeable to that, are you, Mr. Knott? [ 113 ] CNSL S. KNOTT: Yes, Your Honour. [ 114 ] THE COURT: Thank you. [ 115 ] Then the Elton Hubbs order: you must not enter into or continue any dating relationship, common-law relationship, or marriage with any person who has children under the age of 16 years or who has the care of or access to children under that age. [ 116 ] Now, do we need the exception or not in dash-A? [ 117 ] CNSL S.

KNOTT: Household, is that what it is? [ 118 ] CNSL J. CAMERON: I think the exception allows the conditional sentence supervisor to do that. So I think it's one and the same. Yes, I think it could be ordered. [ 119 ] THE COURT: Yes. [ 120 ] CNSL J. CAMERON: It just provides for the ability -- Mr. J.A.P.H. doesn't have to do it. He let his -- he can rely on the CSO supervisor -- [ 121 ] THE COURT: Mm-hmm. [ 122 ] CNSL J. CAMERON: -- to do it for him. [ 123 ] THE COURT: Yes, all right, okay. Well, I think I will put it in. The exception is -- any disagreement with putting the exception in? [ 124 ] CNSL S.

KNOTT: No. [ 125 ] THE COURT: All right. [ 126 ] CNSL S. KNOTT: Not at all, Your Honour. [ 127 ] THE COURT: So the exception is: you have identified to your conditional sentence supervisor the person with whom you are in or propose to enter a relationship, and your conditional sentence supervisor has informed that person of this order and your criminal record. [ 128 ] Then the no drugs or alcohol provision. You must not possess or consume: (

a) alcohol; (

b) illegal drugs; (

c) intoxicating substances; (

d) marihuana; (

e) prescription medication, except in accordance with a medical prescription. [ 129 ] 3501: you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for: (

a) alcohol or substance use; (

b) mental health; (

c) trauma recovery; and I think, (

d) sexual offence prevention? [ 130 ] CNSL J. CAMERON: Yes, thank you, Your Honour. [ 131 ] THE COURT: So, Mr. Knott, you are agreeable to those -- [ 132 ] CNSL S. KNOTT: Yes, Your Honour. [ 133 ] THE COURT: -- conditions? All right. [ 134 ] 3502: you must attend, participate in, and complete any intake, assessment, program, treatment, or a full time live-in treatment program as directed by your conditional sentence supervisor. This may include programming -- this may include programming or treatment for -- and are we talking about sexual offence prevention? Is that what -- [ 135 ] CNSL J.

CAMERON: I think -- I'm just trying to remember what the report said, but I certainly think that the treatment condition needs to be there for all of the available resources to be available to the CSO supervisor. I'm not certain if it needs to -- I think -- I think it could be just left without any "this may include." Just "treatment as directed". [ 136 ] THE COURT: Okay. Agreeable to that? [ 137 ] CNSL S. KNOTT: Yes, I think that's the best way to approach that, Your Honour, certainly. [ 138 ] THE COURT: Okay.

Then 3503: you must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your conditional sentence supervisor. [ 139 ] 3508: -- and you have to agree to this in court, Mr. J.A.P.H.: So having consented in court, you must sign any document that is necessary for your conditional sentence supervisor, a doctor, psychiatrist, psychologist, counsellor, mental health worker, to share information concerning your attendance and completion of any intake, assessment, counselling, or treatment program, and that -- I don't think we want "or" there.

So that is what is being agreed to?

[ 140 ] CNSL S. KNOTT: It is, Your Honour. [ 141 ] CNSL J. CAMERON: Yes. [ 142 ] THE COURT: So that is to sign any document that is necessary for your conditional sentence supervisor, yes, and those individuals to share information. [ 143 ] All right. So you understand all those terms and conditions do you, Mr. J.A.P.H.? [ 144 ] THE ACCUSED: Yes, I do, Your Honour. [ 145 ] THE COURT: Okay. So that is for a total of 18 months on the conditional sentence order. Probation Order and Ancillary Orders [ 146 ] I am now going to switch to the terms of the 18 month probation order.

The probation order starts with the compulsory conditions, 2001: you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 147 ] 2002 will be the no-contact provision: You must have no contact or communication directly or indirectly, and then the individual L.J.'s name will be inserted.

No exceptions to that. [ 148 ] The reporting condition -- 2014, I think is, really, the one we should be using: You must report in person to a probation officer.

That will be at Duncan Community Corrections Office, Unit 7 - 180 Central Road, Duncan, British Columbia, and then we will put the same postal code and telephone number as in the conditional sentence order, within two business days after your release from custody or completion of your conditional sentence unless you have obtained, before your release from custody or completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 149 ] 2105: if you are arrested, detained, or serve a jail sentence for another offence, you must report in person to your probation officer within two business days of your release from custody or completion of the sentence so that your probation officer can give you further direction to report. [ 150 ] 2202: when first reporting to the probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change either your location where you regularly sleep or your telephone number without notifying your probation officer in advance -- in advance before making the change. [ 151 ] 2302? -- I think 2033 -- [ 152 ] CNSL J. CAMERON: 2033, Your Honour. [ 153 ] THE COURT: 2303, yes: You must not go to any public park, public swimming area, daycare centre, school ground, playground, community centre, theatre, where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present. [ 154 ] Then the next is the no-contact with minors.

That is 2304: you must not have any contact or communication directly or indirectly with or be in the presence of any person under the age of 16 years, and then the exceptions are as follows, and they will be the same; sub (

f) incidental communication, contact, or presence in the course of your or the child's employment; and (

g) incidental communication, contact, or presence in a public place where other adults are present. [ 155 ] Then the Elton Hubbs order … I think we are going to need the Elton Hubbs being 2306: you must not enter into or continue any dating relationship, common-law relationship, or marriage with any person who has children under the age of 16 years or who has the care of or access to children under the age, and then the sub (

a) exception, the exception is you have identified to your probation officer the person with whom you are in or propose to enter a relationship and your probation officer has informed that person of this order and your criminal record. [ 156 ] The abstention provision 2400: you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. [ 157 ] 2501, counselling as directed: you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for -- do you want me just to leave it, "As directed by your probation officer," as we did with the CSO? [ 158 ] CNSL J. CAMERON: I'm fine with that, Your Honour. [ 159 ] THE COURT: You are fine with that, too? [ 160 ] CNSL S. KNOTT: Yes, Your Honour. [ 161 ] THE COURT: All right. So it will end at, "As directed by your probation officer." [ 162 ] Then the -- oh, although I see you have got sexual offence prevention, do you want me to say, "Without limitation, sexual offence prevention"?

[ 163 ] CNSL J. CAMERON: Your Honour, it could, but I think -- I think we did for the CSO, for the counselling as directed, we had including sexual offence prevention and then we left the treatment just -- [ 164 ] THE COURT: All right. [ 165 ] CNSL J. CAMERON: -- blank. [ 166 ] THE COURT: Okay. [ 167 ] CNSL J. CAMERON: I just think the fact that it's in there somewhere -- [ 168 ] THE COURT: All right, all right. [ 169 ] CNSL J. CAMERON: -- yeah. [ 170 ] THE COURT: I will not include it in that particular provision, then, as requested. [ 171 ] 2502: having consented in court - again, Mr.

J.A.P.H., you have got to agree to this in court, please. Having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full time live-in treatment program as directed by your probation officer, full stop. [ 172 ] Then 2503, again, you are agreeing to this in court, Mr.

J.A.P.H.: having consented in court, you must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your probation officer. [ 173 ] All right, and then so I have all the terms and conditions from both the CSO as well as the probation order that had been discussed and agreed to; is that correct? [ 174 ] CNSL S. KNOTT: That's correct, Your Honour. [ 175 ] THE COURT: Thank you, and then the s. 161 order, that will be a duration of five years from today, and the s. 161 order, I think it is set out in our ancillary -- [ 176 ] CNSL J.

CAMERON: It is, Your Honour, I believe it's on page 10. [ 177 ] THE COURT: On my copy, I don't see it. Do you have the wording there, please? [ 178 ] CNSL J. CAMERON: I do, Your Honour. It says, "Pursuant" -- [ 179 ] THE COURT: Oh, sorry, it is -- I found it. [ 180 ] CNSL J. CAMERON: You found it. [ 181 ] THE COURT: It is on page 16 of my copy. [ 182 ] CNSL J.

CAMERON: Okay. [ 183 ] THE COURT: So, pursuant to s. 161 of the Criminal Code , you are prohibited for five years from today's date, and then today's date being April 3, 2023, from going to any public park, public swimming area, daycare centre, school ground, playground, community centre, or theatre where any persons under the age of 16 years are known by you to be present or can reasonably be expected to be present, and the exceptions are in this case? [DISCUSSION RE EXCEPTIONS TO

SECTION 161 ORDER] [ 184 ] THE COURT: I am going to say, then -- so we are going to use the s. 161 introduction and then the (a.1) portion: going to or -- going any place where -- place you know and then it is the victim's name, L.J. lives, works, attends school, or worships or happens to be. If you see them you must leave their presence immediately without any words or gestures. [ 185 ] Is that correct? [ 186 ] CNSL S. KNOTT: Yes. [ 187 ] CNSL J. CAMERON: Yes. [ 188 ] THE COURT: All right, and then I think you want the no-employment provision.

So it is seeking or obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves a position of trust or authority towards persons under the age of 16. [ 189 ] That is agreed to, is it? [ 190 ] CNSL J. CAMERON: Yes. [ 191 ] CNSL S. KNOTT: Yes. [ 192 ] THE COURT: Then (

c) having any contact or communication directly or indirectly or being in the presence of any person under the age of 16, and the exceptions are (b), the communication, contact, or your presence is incidental to employment --

[ 193 ] CNSL J. CAMERON: Yes, I would be -- that would be agreeable. [ 194 ] THE COURT: Yes, and then -- so that it is employment and that is either on your part or with a person under the age of 16. [ 195 ] Is that correct? [ 196 ] CNSL S. KNOTT: It is just incidental to his employment, the prohibition -- [ 197 ] THE COURT: Is it -- [ 198 ] CNSL S. KNOTT: -- initially would prohibit him from -- [ 199 ] THE COURT: Your -- it is incidental -- it says "to employment," okay, it does not say "your employment." [ 200 ] CNSL S. KNOTT: Oh. [ 201 ] THE COURT: Yes, that is the -- that is the -- [ 202 ] CNSL S.

KNOTT: Well, I think it is fine. I think it -- I mean -- [ 203 ] THE COURT: So your -- should it be "to your employment or the employment of any person under the age of 16"? [ 204 ] CNSL S. KNOTT: I guess that -- what that catches, Your Honour, is if Mr. J.A.P.H. happens to walk into -- [ 205 ] THE COURT: Yes. [ 206 ] CNSL S. KNOTT: -- a Subway or something -- [ 207 ] THE COURT: Correct. [ 208 ] CNSL S. KNOTT: -- and order a -- [ 209 ] THE COURT: Yes. [ 210 ] CNSL S. KNOTT: -- lunch sandwich, there's a person -- [ 211 ] THE COURT: Yes. [ 212 ] CNSL S.

KNOTT: -- serving him -- [ 213 ] THE COURT: Yes, yes. [ 214 ] CNSL S. KNOTT: -- that would -- [ 215 ] THE COURT: So it -- but -- [ 216 ] CNSL S. KNOTT: -- be an exception. [ 217 ] THE COURT: -- but if he is -- if he is behind the counter at Subway and a 16-year-old comes in, that protects him, too, from that. [ 218 ] CNSL S. KNOTT: Yes, but I think we -- [ 219 ] THE COURT: So I think we need both. [ 220 ] CNSL S. KNOTT: Yeah, I agree, Your Honour -- [ 221 ] THE COURT: Okay. [ 222 ] CNSL S. KNOTT: -- as long as my learned friend is comfortable with that. [ 223 ] CNSL J. CAMERON: I'm content with that.

The one thing I'm just wondering is we did a no-go with respect to the complainant on the 161 and I think 161 allows for a no-contact, as well, even though it is not on the Picklist. I'm just checking that. No, it appears I'm incorrect. So -- [ 224 ] THE COURT: Okay. [ 225 ] CNSL J. CAMERON: So we'll leave it, then. [ 226 ] THE COURT: So as I have outlined the s. 161 order, you are content with that? [ 227 ] CNSL J. CAMERON: Yes. [ 228 ] THE COURT: Okay. [ 229 ] CNSL S. KNOTT: We are, Your Honour.

[ 230 ] THE COURT: All right, and then the SOIRA order, he -- where did -- I think he has got to go somewhere for that, does he not? He has to go for the DNA order. [DISCUSSION RE SOIRA AND DNA ORDERS] [ 231 ] THE COURT: Madam Clerk, do you know where the provision concerning the SOIRA order is? [ 232 ] THE CLERK: I do not, Your Honour. I'll have to look back, as well. [ 233 ] THE COURT: All right. Well, I am going to impose the SOIRA order commencing as of today for a period of 10 years. That is under s. 490.012 . Page 16.

So, yes, so it is on page 16, it is the Sex Offender Information Registration Act , so the wording is, pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for a period of five years from today's date -- [ 234 ] CNSL S. KNOTT: Ten years, Your Honour. [ 235 ] CNSL J. CAMERON: Ten years, Your Honour. [ 236 ] THE COURT: -- or 10 years, is that what you are seeking? [ 237 ] CNSL J.

CAMERON: Yes. [ 238 ] THE COURT: Or 10 years, I apologize, 10 years from today's date. [ 239 ] Then the DNA order, so this is being -- Count 2 of the information and then the number gets inserted, 43481-1. It is a primary designated offence. So, pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substance from you. [ 240 ] So do we -- he is out of custody. He must report within 14 days to the -- do we know when they take it in Duncan? [ 241 ] CNSL S. KNOTT: I would allow a month -- [ 242 ] THE COURT: Okay. [ 243 ] CNSL S. KNOTT: -- out of the abundance of caution.

I think that's the trend, generally, just -- [ 244 ] THE COURT: All right. [ 245 ] CNSL S. KNOTT: -- in case we just miss one and they're three weeks out -- [ 246 ] THE COURT: Okay. [ 247 ] CNSL S. KNOTT: -- or something, Your Honour. [ 248 ] THE COURT: All right. So the -- make it on or before, shall I say May 12, 2023? [ 249 ] CNSL S. KNOTT: That is more than acceptable, thank you. [ 250 ] THE COURT: Okay. So you must attend at the RCMP -- [ 251 ] CNSL S.

KNOTT: RCMP in -- [ 252 ] THE COURT: -- detachment -- the North Cowichan/Duncan detachment of the RCMP, the address will be inserted, on or before May 12th, 2023, and submit to the taking of samples, and this order is valid until executed. [ 253 ] Now, there is, I think, is it not, a mandatory s. 109 firearms requirement for this offence? [ 254 ] CNSL S. KNOTT: I thought it was discretionary. [ 255 ] THE COURT: -- or is it -- does it only apply to -- [ 256 ] CNSL S.

KNOTT: I mean, Your Honour, my understanding was that if it involved a weapon or if it was -- it was discretionary, otherwise. [ 257 ] THE COURT: Let us look in the grid. It is discretionary for

summary conviction. [ 258 ] CNSL J. CAMERON: Yes, I would agree with that. [ 259 ] THE COURT: So -- [ 260 ] CNSL J. CAMERON: I am not seeking it in this case. [ 261 ] THE COURT: All right. So I am not -- I am not -- [ 262 ] CNSL J. CAMERON: Thank you. [ 263 ] THE COURT: -- being asked to impose a s. 109 order; is that correct?

[ 264 ] CNSL J. CAMERON: Correct. [ 265 ] THE COURT: All right. There will be no such order. [ 266 ] CNSL S. KNOTT: That's my understanding, Your Honour. [ 267 ] THE COURT: Okay. So, Mr. J.A.P.H., those are an exhaustive number of conditions, but the important thing is, as I indicated before, these are things you must do. [ 268 ] THE ACCUSED: Yeah. [ 269 ] THE COURT: Okay, and if you fail to do them, I have explained the ramifications of that to you. [ 270 ] THE ACCUSED: Yes, Your Honour. [ 271 ] THE COURT: Do you understand that?

Okay. [ 272 ] THE ACCUSED: Yes, Your Honour. [ 273 ] THE COURT: I think he has got -- I am conscious of the time, but I think he should go to the registry to sign or -- [ 274 ] CNSL S. KNOTT: Well, they close at 4:00, Your Honour. [ 275 ] THE CLERK: Yeah, they're already closed. [ 276 ] THE COURT: They are already closed. [ 277 ] CNSL S. KNOTT: Yeah. [ 278 ] THE COURT: So I will get him to report -- [ 279 ] CNSL S. KNOTT: He's reporting tomorrow. I'm going to go through this with him again -- [ 280 ] THE COURT: Yes. [ 281 ] CNSL S. KNOTT: -- before he leaves tonight.

Once he reports tomorrow, they'll provide him with a list of everything. [ 282 ] THE COURT: Okay. All right. So you are asking me to waive the -- [ 283 ] CNSL S. KNOTT: I would -- I would appreciate that, Your Honour. [ 284 ] THE COURT: All right. So -- [ 285 ] CNSL S.

KNOTT: I think it's -- [ 286 ] THE COURT: -- you have heard all those conditions -- [ 287 ] THE ACCUSED: Yeah. [ 288 ] THE COURT: -- both on the conditional sentence order as well as the probation order? [ 289 ] THE ACCUSED: Yup. [ 290 ] THE COURT: You understand them? [ 291 ] THE ACCUSED: Yes, I do. [ 292 ] THE COURT: You are agreeing to follow them? [ 293 ] THE ACCUSED: Yes, I am. [ 294 ] THE COURT: You understand what I have explained to you what happens if you do not -- [ 295 ] THE ACCUSED: Yes. [ 296 ] THE COURT: -- charges or having the conditional sentence order collapsed; do you understand that? [ 297 ] THE ACCUSED: Yes, Your Honour. [ 298 ] THE COURT: Okay.

I am going to waive his signature on the sentencing documents. [ 299 ] CNSL S. KNOTT: Thank you, Your Honour. [ 300 ] THE COURT: Given his financial circumstances, I am going to waive the victim fine surcharge. [ 301 ] CNSL S. KNOTT: Thank you again, Your Honour.

[ 302 ] THE COURT: Okay. Now, have I dealt with everything? [ 303 ] CNSL J. CAMERON: Yes. [ 304 ] THE COURT: Okay. All right. That concludes matters. Mr.

J.A.P.H., you are going to have to take some significant steps if you want to reunite with family members. [ 305 ] THE ACCUSED: Mm-hmm. [ 306 ] THE COURT: It is going to be a while, but you know, I think that is a goal that you should have at hand. [ 307 ] THE ACCUSED: Okay. [ 308 ] THE COURT: Seek all the help you possibly can get and, if you do not think you are getting the kind of help you need, then I want you to reach out to either your conditional sentence supervisor or your probation officer and tell them, "I need help in this particular area." Do you understand that? [ 309 ] THE ACCUSED: Yes, I do. [ 310 ] THE COURT: I thank counsel for their helpful submissions.

That concludes dealing with Mr. J.A.P.H.'s matters, except Count 1 on the information? [ 311 ] CNSL J. CAMERON: Yes, thank you, Your Honour, the Crown directs a stay of proceedings on Count 1. [ 312 ] THE COURT: All right, stay of proceedings is recorded. Thank you. (REASONS FOR SENTENCE CONCLUDED