R. v. D.A., 2021 BCPC 317

Citation: R. v. D.A. 2021 BCPC 317 Date: 20211206 File No: 43637-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. D.A. PUBLICATION BAN Pursuant to s. 486.4(1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: J. Vivian Counsel for the Defendant: J. Arndt Place of Hearing: [ Omitted for publication ], B.C. Dates of Hearing: October 19 & November 5, 2021 Date of Sentence: December 6, 2021 INTRODUCTION

[ 1 ] D.A. has entered a guilty plea on the following indictable offence. Count 1 of Information 43637 alleges as follows: D.A., from the 1st day of October, 2019 to the 26th day of September, 2020, inclusive, at or near [omitted for publication], 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 [omitted for publication], a person under the age of sixteen years, contrary to s. 151 of the Criminal Code .

That offence is hereinafter referred to as the "Sexual Interference Offence". [ 2 ] Crown has proceeded by way of Indictment. Where Crown proceeds by way of Indictment the Criminal Code provides that there be a 14 year maximum sentence and a 1 year minimum sentence. That mandatory minimum was struck down as unconstitutional by the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3 . Where Crown proceeds by way of

summary conviction the Criminal Code provides for a maximum sentence of 2 years less a day. The minimum sentence is 90 days' incarceration. That minimum sentence was very recently held to be invalid and of no force or effect in R. v. C.A.B., 2021 BCSC 2107 . [ 3 ] D.A. (the "Offender") has been out of custody and bound by a Form 10 police undertaking containing a reporting condition since November 21st, 2020. [ 4 ] The Offender is the subject of the following reports that are before the court:

a) Forensic Assessment Report completed August 5th, 2021 by Dr. Sarah Farstad, a registered psychologist with Forensic Psychiatric Services Commission, Victoria Regional Forensic Clinic (the " Forensic Assessment Report" )

b) Pre-sentence report completed August 11th, 2021 by Cecil Bickle, a Probation Officer at the [omitted for publication] Communities Probation Officer (the "Pre-Sentence Report ") (collectively the "Reports"). [ 5 ] Based on all the circumstances surrounding the Sexual Interference Offence, a Victim Impact Statement, the Offender's personal circumstances both outlined in the Reports, and in oral sentencing submissions to the Court, both Crown and Defence agree that a custodial sentence and a period of probation are warranted. They differ on the length of the sentence and the period of probation.

No issue is taken about the ancillary orders being sought by Crown. [ 6 ] The task of this court is to determine a fit sentence. FACTS Circumstances Surrounding the Offences [ 7 ] Crown has outlined the circumstances surrounding the three separate events that have given rise to the charges on the Sexual Interference Offence.

Those circumstances have been set out in a document marked Exhibit A for identification. [ 8 ] In my recital of the circumstances from Exhibit A I have made some incidental amendments to various names by initializing them or otherwise using defining terms for family members in order to assist in the protection of the identity of [omitted for publication], being the young female complainant named in the Information. [ 9 ] During the offence date range [omitted for publication] (hereinafter referred to as "[omitted for publication]" or "the Child Victim" was 9 years old turning 10 in September of 2020.

She primarily lives with her mother, [omitted for publication] (the "Mother") and the stepfather, [omitted for publication] (the "Stepfather"). She also has a biological father with whom she regularly visits. Her Stepfather, [omitted for publication], has a half-brother who is the Offender. The Offender was 40 years old during the offence date range. [ 10 ] Around August 2019, the Child Victim and her Mother and Stepfather moved into their residence in [omitted for publication], British Columbia, where the Sexual Interference Offence occurred.

The residence has a yard and in that yard there was a large tree fort described as being large enough to fit five adults inside. [ 11 ] The Offender would visit the residence and would play with the Child Victim and watch her for her parents while they did errands or were otherwise busy. He often brought her candy. He and the Child Victim would do benign activities like picking berries or playing Frisbee. He would also often drink alcohol while at the residence. [ 12 ] On three occasions during the offence period the Offender engaged in sexual touching with the Child Victim while in the treehouse.

Some of the incidents occurred during the summer of 2020. [ 13 ] On one occasion the Child Victim's parents left to go grocery shopping and asked the Offender to watch the Child Victim. The Child Victim suggested to the Offender that they go into the treehouse to engage in pretend baking with toys in there. While in the treehouse the Child Victim describes that the Offender told the Child Victim to take her clothes off. The Child Victim was scared and felt threatened and did so. The Child Victim reports that the Offender took off his pants.

The Offender then pushed up against the Child Victim from behind such that he was applying pressure to her buttocks area while she was pushed against the wall. The Child Victim pushed him away and heard a car returning to the residence. She quickly dressed. During this time the Offender also kissed the Child Victim. The Child Victim observed his breath and it smelled like alcohol. [ 14 ] I note parenthetically that the Offender denies that he told the Child Victim to take off her clothes or that she did so.

The Offender also denies he took his pants off. [ 15 ] The remainder of those circumstances are admitted by the Offender.

[ 16 ] Two further similar incidents occurred on other dates in the treehouse. On one of those occasions the Child Victim's parents had gone out to a local cidery. The Offender was babysitting the Child Victim. The Child Victim was unable to provide a lot of details about the sexual touching and how the sexual touching unfolded on the other two occasions, but described it as being similar to the above incident. [ 17 ] The matter came to the attention of the police in September 2020 after the Child Victim disclosed to her Mother and Stepfather in brief terms what had happened.

The parents then reported it to the police. The disclosure to the parents occurred after the Mother caught the Child Victim and her friend creating a profile on some sort of on-line meeting or dating website. The on-line chats also included one of the girls asking if the person on the other end liked 10-year-olds. The girls had also taken nude photos of themselves. The Mother was concerned about this sexualized behaviour and queried if the Child Victim had ever been sexually abused. At that point the Child Victim disclosed that she had so by the Offender in the tree fort.

The Child Victim told her parents it was a relief and a weight off her shoulders to disclose it. Her parents were upset, as was her biological father, when he was informed of the matter. [ 18 ] A.P. was a business partner of the Offender. A.P. told the police that the Offender had attended his residence around September 19th, 2020 and told he him he had something important to tell him. He then disclosed that he had had an "inappropriate" relationship with his niece, who he said was 10 something, in the summer. He described it as "somewhat innocent" and that they were cuddling and "smooching".

At that point an upset A.P. stopped him and did not want to hear more. The Offender told A.P. he was going to turn himself in to the police. [ 19 ] On November 21st, 2020, the Offender attended the [omitted for publication] RCMP and was arrested. He provided a warned statement and was released that same date on a police undertaking. In his warned statement the Offender admitted to the sexual interactions in the tree fort with the Child Victim, including that: (

a) they kissed; (

b) they spooned/rubbed; (

c) once she touched him on the penis under his clothes; (

d) he touched her vagina and rubbed it over her underwear, possibly one time touching under the clothes on her skin; (

e) he denied being unclothed but admitted the one time his penis was exposed. He denied the Child Victim was unclothed; (

f) when asked if he was drinking at the time, the Offender said he did not drink that much, he may have had a drink or two but he almost never gets drunk; (

g) most of the time that he would hang out with the Child Victim it was non-sexual. [ 20 ] When asked by the investigator what happened to move the relationship from [the Offender] and [the Child Victim] hanging out, to [the Offender] touching [the Child Victim's] vagina and spooning her, [the Offender] replied: "She wanted to play a little game, and it's been years and years, since I've had any kind of love, and, and years before that, a year before that, so, emotionally, started at the time." [ 21 ] In her report to the RCMP, [omitted for publication] reported that she was threatened or forced during the commission of the sexual interference offence.

This is denied by the Offender and Crown does not rely upon these allegations or circumstances. Circumstances of the Offender and the Reports [ 22 ] The Reports before the court are detailed, comprehensive and useful.

Information from the Forensic Assessment Report [ 23 ] The Pre-Sentence Report provides some background information and the following additional information. [ 24 ] The Offender is 42 and he has no criminal record. [ 25 ] The Offender was raised on Vancouver Island and latterly completed his education up to Grade 10 in the Cowichan Valley through home schooling, regular schooling, open learning and alternate school programs. He left school to pursue employment in the midst of Grade 11. He has no future educational plans. [ 26 ] The Offender's biological parents separated when he was age 3.

He was raised by his mother and his stepfather, who utilized a "super strict" discipline style and was emotionally abusive to him and his mother. The stepfather threatened and used physical abuse against his mother. On one occasion the then teenage Offender intervened when the stepfather raised his fist to his mother. The Offender threatened the stepfather with physical violence if he continued his abusive behaviour against his mother. The stepfather's physical violence ceased.

The Offender's parents separated about 2 years later. [ 27 ] There is no diagnosed physical health issues for the Offender. [ 28 ] In the preparation of the Pre-Sentence Report the Offender is described as respectful, cooperative, forthcoming with information and is "open to whatever the court asks of him, including treatment for sexual offending." [ 29 ] He reported that he has substantially quit drinking alcohol shortly after being charged with the Sexual Interference Offence. He continues to use cannabis a few times per week.

He was "unsure if he was under the influence of alcohol during the commission of the offence".

[ 30 ] Under the heading "Attitude and Understanding Regarding the Offence" on page 4 the Pre-Sentence Report author reports as follows: [The Offender] accepts responsibility for the offence and says he feels ashamed for what he has done. When asked about the emotional impact on the victim, [the Offender] thought she must feel guilty for his behaviour, when asked what he meant by that he states she must feel ashamed and embarrassed. [ 31 ] As at the date of the Pre-Sentence Report the Offender had not sought any treatment or counselling to address his offending behaviour.

Information from the Forensic Assessment Report [ 32 ] It is noted within the Forensic Assessment Report that the information contained within the report is based on a June 23rd, 2021 psychological testing using the Personality Assessment Inventory ("PAI") and a 2 1/4 hour clinical interview conducted via Zoom and a review of other court records, including the RCMP Report to Crown Counsel. [ 33 ] The Forensic Assessment Report indicates that the Offender presented as "cooperative, pleasant but somewhat grandiose". [ 34 ] The Offender reported having good relationships with his mother and his sisters, but rocky with his "half-brother", who is the step-parent of the Child Victim. [ 35 ] He reported having held 12 long-term jobs in various fields such as construction, security, server and painter.

He completed "approximately 1,000 one-day jobs". He described himself as unemployed, but continuing his work on his inventions which he hoped to complete and have on the market in 5 years. [ 36 ] He reported having four serious romantic relationships and multiple adult female sexual partners. He regularly views pornography.

He denied any unusual sexual interests, including interest in sexual activity with children. [ 37 ] Although he admitted he was "probably" drinking at the time of the Sexual Interference Offence incidents he denied being concerned about his drinking and stated that he did not need substance abuse treatment in the future. [ 38 ] The Forensic Assessment Report under the heading Criminal History and Index Offences notes at pages 8 and 9 as follows, and I quote: [The Offender] said that he did not think much about getting an erection after his first interaction with [omitted for publication].

He said that he felt guilty and confused after their second interaction. He reported that he "ended it" after [omitted for publication] said that "it was weird." He denied experiencing any significant stressors or problems in his life at the time of the index offense. He said that he was feeling lonely, and it felt good to "feel wanted" by [omitted for publication]. (i.e., "[omitted for publication] wanted to snuggle . . . and "touch and hold [him]"). He reported that loneliness was the main factor that contributed to the index offense.

He reported that he was working fulltime and focussed on his inventions, which left little time for having relationships. When asked why he believed he was accused of the index offense he said "because I did it . . . I didn't do what she said, but I did touch her." He reported that he believed [omitted for publication] "partially caused" the index offense because "she asked [him] to hang out and snuggle . . . she set up the situations to hang out and be together." In terms of personal responsibility, he believed he needed to "think about stuff" more before he acts on his urges.

When asked what he could have done differently, he said he could have (1) told [omitted for publication] it was inappropriate to snuggle because "it's what led to the touching" and/or (2) hired an escort to manage his sexual urges/needs. He identified [omitted for publication] and himself as the victims of the index offense.

He said that the index offense has "destroyed his life" (i.e. lost his invention, friends, and savings) and it "may mess [omitted for publication] up." When asked how the index offense could impact [omitted for publication], he said she "will feel guilty." He elaborated by saying "[omitted for publication] and I have been great friends for years. It's right that she betrayed her friend, but she still betrayed me.

She will feel guilty that she caused this." He also said [omitted for publication] "might be curious [about sex] earlier than she should be." [The Offender] reported that he believed there was 0% chance of him reoffending. He reported that in the future he would "get an escort" if he needed to have sex and could not find a date.

He said that he believes he is an "asshole" because he touched another person; he advised that he "needs to deal with it and forgive [himself]." When asked what type of treatment/programs may help lower his risk of reoffending, he said on two occasions that he "wants a girl to ask [him] out one time." He went on to say that in our current society, "guys never get asked out and never feel wanted." [ 39 ] Under the heading "Opinions: Diagnostic Information" the author notes that notwithstanding the Offender's denial of being interested in sexual activity with children or incest, the three incidences of sexual touching with his 10-year-old niece occurred over a 6 month period.

In addition, the fact that he engaged in repeated sexual behaviour with a prepubescent child over a 6 month period leads to the following opinion: "his presentation meets diagnostic criteria for Pedophilic Disorder, Non-exclusive Type." [ 40 ] Based upon the risk factors that were assessed using the " Risk for Sexual Violence Protocol " the Offender was rated as having six present and nine partially/possibly present indicators.

Among those identified by the Forensic Assessment Report , I particularly note the following: "extreme minimization/denial of sexual violence", “problems with self-awareness”, “sexual deviance”, “problematic personality traits including narcissism, entitlement, attention seeking, self-focussed, lack of empathy” and “problems with intimate relationships”. [ 41 ] The author of the Forensic Assessment Report cites several of these as factors that contribute to his offending behaviour and noting particularly his "tendency to blame the 10-year-old victim". [ 42 ] The author opines that the Offender "likely represents a moderate risk of future sexual offending".

As I understand it, this is based upon the conclusion that the Offender is "sexually attracted to children”.

[ 43 ] The author then states at page 10 as follows: Considering the information available at the time this report was prepared, I believe the most likely scenario of reoffending would involve [the Offender] engaging in inappropriate sexual activity with an affectionate child he knew, particularly given his problematic boundaries with his niece. I believe his risk would most easily be managed through reducing his access to potential victims.

However, I believe that his long-term risk would be more sustainably addressed through engagement with sex offender treatment. [ 44 ] Under the heading "Summary and Recommendations" it is suggested that participation in the Forensic Sex Offender program is important for the Offender to help him "develop a self-management plan to reduce his risk of future sexual offending". [ 45 ] Defence takes issue with some aspects of the Forensic Assessment Report . In particular Defence submits that there is "questionable logic" that goes to the strength of the opinions expressed.

In particular Defence suggests the author conflates the Offender's comments to the effect that women "should initiate sexual or romantic encounters to show him that he was wanted" with a diagnosis of pedophilia. [ 46 ] In the Forensic Assessment Report Defence impugns the suggestion made as follows: When his expectations that women should "ask him out" were not realized, he sought out the affection and sexual contact with [the] child; these action would be extremely [emphasis in the original] unlikely to occur is he were not sexually attracted to children, particularly given the victim's young age. [ 47 ] Defence contends that these two suggestions do not logically follow, especially in light of the Offender's statement to the author of the Forensic Assessment Report that he does not have an attraction to children and his explanation that his offending behaviour resulted from a loneliness and feelings of not being wanted.

Defence further notes that on page 8 of the Forensic Assessment Report the Offender is reported to have told the police, when he admitted the inappropriate touching of his niece on three occasions, that it had been “years and years, since he'd had any kind of love”. Victim Impact Statement [ 48 ] The Child Victim provided a Victim Impact Statement (the "Victim Impact Statement"), which at the request of [omitted for publication] and her Mother was recorded by the Child Victim's counsellor and thereafter transcribed, all on or about May 26th, 2021.

The Child Victim has been significantly impacted by the offending behaviour of the Offender against her. The Victim Impact Statement confirms in part as follows: What happened to me felt not good. It has made it a lot harder for me to be friends with boys because since that happened it has made things scarier because I am worried that it could happen again with another man or boy. I've been anxious a lot since it happened. I get shaky, I stutter and it has been harder for me to sleep. Sometimes the memories come back and I wish they would stop.

They make me feel confused. [ 49 ] The Victim Impact Statement goes on to indicate that the Child Victim feels much more self-conscious about things and the events have made her feel self-conscious about her own body. She says that "I look at men and boys differently now and it makes me feel weird and uncomfortable" and she continues by saying "This makes me feel mad. I wish it had never happened. I wish I could be like I was before this happened”. [ 50 ] There is a reference in the Victim Impact Statement of the Child Victim feeling fearful of the Offender.

In that regard I note parenthetically that through submissions received from Defence counsel that the Offender has told Defence counsel that he does not want to do anything that would make the Child Victim fearful of him in the future. Position of Crown on Sentencing [ 51 ] On the Sexual Interference Offence Crown seeks the following: (

a) A custodial sentence of 2 years less a day. (

b) A probation order for a term of 18 months. (

c) A s. 161 Order of Prohibition for a period of 5 years commencing upon the Offender's release from custody. (

d) A Sex Offender Information Registration Order ( SOIRA order) for a duration of 20 years, pursuant to s. 490.012. (

e) A DNA Order as a primary designated offence, pursuant to s. 487.051. (

f) A no contact order with the Child Victim while the Offender remains in custody, pursuant to s. 743.21 of the Criminal Code and; (

g) A mandatory s. 109 firearms order. [ 52 ] In support of its position Crown says that based upon the relevant provisions of the Criminal Code and the recent case authorities such as the Supreme Court of Canada decision in R. v. Friesen (infra), dealing with sexual offences against children, that denunciation and deterrence must be the primary focus for the sentence. Case Authorities Relied Upon By Crown [ 53 ] Crown relies upon the following case authorities: 1) R. v. Gerrard , 2021 BCSC 1219

2) R. v. Josephson, 2021 BCSC 1947 3) R. v. Plehanov, 2020 BCCA 249 4) R. v. Friesen, 2020 SCC 9 Defence Position on Sentencing of Offender [54] Defence submits that a fit sentence, especially given the Offender's early confessions to the police, the Offender's guilty plea andhis acceptance of responsibility and his sincere expression of remorse should be: (

a) A custodial sentence of 18 months. (

b) A lengthy probation order even in excess of 18 months in order to permit the Offender to receive necessary treatment andcounselling. [55] Defence takes no issue with the other ancillary orders being sought by Crown. Case Authorities Relied Upon by the Offender [56] Defence relies upon the following case authorities with respect to the level of mitigation and reduction in the sentence that shouldbe afforded to an accused person who is guilty and who enters a guilty plea: 1) R. v. Layte, [1983] OJ No. 2415 2) R. v. Spiller, (BC CA), [1969] 4 CCC 211 3) R. v.

Macki, [2001] BCSC 427 Purposes, Objective and Principles of Sentencing [57] The purposes, objectives 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", s. 718.2 "Other sentencing principles". [58] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the Offender (see R. v. Shoker, 2006 SCC 44 at paragraph 14 and R. v.

Angelillo, 2006 SCC 55 atparagraph 22). [59] As the sentencing judge I must direct myself to consider all the principles of sentencing contained in the Criminal Code, but alsobe mindful that 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). [60] As previously noted, the purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code. These sectionscodify these purposes and principles and plainly state the intention and the rationale for imposing particular sentences. [61]

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

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [62]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender'sresponsibility. [63]

Section 718.2, under the heading of "Other sentencing principles" states, in part, that a court that imposes a sentence shall alsotake into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including

their health and financial situation, . . . shall be deemed to be aggravating circumstances; (

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

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 64 ] Of particular importance in this case is the provision of s. 718.01, which deals with offences against children and provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Aggravating Factors [ 65 ] It is common ground between Crown and Defence, except as otherwise specifically noted, the following are the Aggravating Factors this court should consider: (

a) There was a significant breach of trust, as the Offender was a family member of the Child Victim and in that particular relationship he was entrusted on several occasions with her care and protection. (

b) The Sexual Interference Offence entailed three separate events over a lengthy period of time and accordingly was not a “one-off” incident. (

c) At the time of the offending behavior the Child Victim was only 9 years of age turning 10 and was a pre-pubescent child. (

d) The Offender lacks insight and awareness into his offending behavior against a very young child and the harm caused to her. Crown says amounts in part to “victim blaming”. [ 66 ] Defence agrees that Offender has minimized his conduct, but disagrees with the suggestion about the Offender’s lack of awareness and further suggests that there are portions of both the Pre-Sentence Report and the Forensic Assessment Report that support the contrary notion as well as the prompt confession he offered to the police. Mitigating Factors [ 67 ] It is common ground between the Crown and Defence, except as otherwise specifically noted, the following are the Mitigating Factors this court should consider:

a) The early guilty plea entered by the Offender on May 18, 2021 which has saved the Child Victim from having to testify in court.

b) The Offender has no prior criminal record.

c) The Offender was co-operative with the police investigation and with the process required to complete the Pre-Sentence Report and the Forensic Assessment Report .

d) The Offender has expressed a willingness to engage in treatment. Review of the Case Authorities R. v. Friesen [ 68 ] In the introductory remarks in Friesen (supra) 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 and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 69 ] In R. v. Gerrard , Justice P.K.

Shergill acknowledges this strong message that sentences for sexual abuse of children must increase and then at paragraphs 14 to 18 provides this very useful

summary of Friesen : [14] To that end, the Court provided direction to sentencing judges on how to impose sentences for sexual crimes against children that fully reflect the harm done as well as the wrongfulness of the conduct. To ensure that sentences for sexual offences against children correspond to Parliament's initiatives and the contemporary understanding of the profound harm that sexual violence causes to children, the Court in Friesen at para. 107 provided guidance on three specific points: 1) An upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because

Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened. 2) Sexual offences against children should generally be punished more severely than sexual offences against adults. 3) Treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. [15] The Court went on at paras. 121 to 154, to provide the following non-exhaustive list of significant factors to determine a fit sentence for sexual offences against children: 1) The higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. 2) An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. 3) Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility. 4) The age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence.

The moral blameworthiness of the offender is enhanced in such cases. 5) Defining a sentencing range based on the specific type of sexual activity at issue poses several dangers.

In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. 6) A child’s participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. [16] The Court in Friesen stated as follows in relation to the principle of proportionality: [76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children.

It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. ( C.A. ), at para. 80; R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 35 ). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children.

Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences.

We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [17] The Court also provided guidance at paras. 88 to 90, on how to assess the moral blameworthiness of the offender, when determining a just and appropriate sentence for offences of a sexual nature. The Court noted:

a) Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.

b) All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity.

c) The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because [these] children are so vulnerable. [18] In the context of historical sexual offences such as this one, it is important to bear in mind that some of the legislative initiatives that support increasing sentences occurred after the offending period. These include increasing the statutory maximum for these offences, and the provisions contained in s. 718.01 of the Code .

However, as the Court stated in Friesen , there exists another compelling reason for an upward departure of sentences – our contemporary social understanding of harmfulness and the wrongfulness of sexual offences against children. Indeed, as our Court of Appeal noted in R. v. Plehanov , 2020 BCCA 249 at para. 19 , the Friesen principles have general application even in cases where the offence predates the legislative changes. R. v.

Gerrard [ 70 ] This is a historical sexual interference case in which the female victim was 11 or 12 at the time of the offence and the accused was 36 or 37 years of age and the sexual offending involved sexual touching of the victim's breasts over clothing and an attempt by the accused to touch her vagina inside her underwear, while she was in bed. [ 71 ] The offences occurred when the vulnerable victim attended a sleepover with the accused's daughter. The accused was a trusted family friend. [ 72 ] The accused in that case was convicted after trial.

It was noted that he was deceptive to his wife as to why the victim was so upset. He was found by the court to be an unreliable historian and lacking credibility at trial. [ 73 ] The accused in that case had no prior record. According to the psychological risk assessment he was found to be a very low risk

designation for reoffending. There was a further conclusion that the accused did not meet the criteria for Pedophilic Disorder. There wasin this case a profound emotional impact on the victim. [74] The Gerrard case reviews extensively the post Friesen authorities in British Columbia at paragraphs 61 to 70. [75] The court concluded in Gerrard that while specific deterrence was not required, the circumstances of the offence and the highermoral blameworthiness of the accused led to the conclusion that a 20 month custodial sentence and 2 years of probation was required. R. v.

Josephson [76] Again this is a case of historical sexual offending against a young male victim who was 10 years of age; the offences involvedboth oral and anal sexual assaults on two occasions while the accused had been entrusted with the care of his romantic partner's childrenand hence was in a position of trust. The accused in that case was found guilty after trial. I understand that the accused was in his earlythirties at the time of the offence. [77] The accused in that case had no prior criminal record.

He was determined to be a low risk to reoffend; however, there wassignificant continuing victim impact on the child victim in that case. [78] Justice R.W. Jenkins of the British Columbia Supreme Court accepted that a period of incarceration of 3 years would be fit andappropriate, but a warranted period of probation would not then be available. Hence the court imposed a sentence of 2 years less a dayand a 3 year period of probation. R. v.

Plehanov [79] In this case the male appellant (who was 38 years of age at the time of the offence) and was a first time offender, was convictedof sexual assault of a six-year-old female victim, pursuant to s. 217 of the Criminal Code. [80] While that accused was minding the victim for her parents, the accused caught the victim in the groin area during a fall andsubsequently rubbed the victim's buttocks for several seconds on two occasions. [81] The appellant was highly educated and had become a Canadian citizen after immigrating to Canada in 2002. There was asignificant emotional impact on the victim.

The accused was found to be at a moderate risk to reoffend. [82] He was found to be in the lower range of a position of trust with respect to the victim with whom he had accepted a responsibilityto protect and to care for her. [83] The original sentence imposed was 6 months imprisonment and 2 years' probation. A suspended sentence was rejected by thesentencing judge. That custodial sentence was upheld on appeal by our Court of Appeal, except for the granting of the accused 4 dayscredit for pre-sentence custody. R. v.

Layte [84] This Ontario County Court decision canvassed and accepted the principles stated in paragraphs 4 through 6 on the mitigationarising from a guilty plea, as follows: [4] On the other hand, an equally important principle is involved, and that is that people who are guilty (and I emphasize "who areguilty") should be encouraged to plead guilty, and that encouragement must be reflected in a reduction of their sentence. [5] The simple issue is this.

Why should anyone plead guilty to an offence if he is automatically going to receive the same sentence as aco-accused who has decided to put the prosecutor to the strict proof of his case in the hope that the prosecutor might, through some erroror other reason, fail to prove his case? [6] Unfortunately, few courts in Canada, at the appellate level, have been prepared to articulate these principles as they have beenarticulated in England. There are only two cases of which I am aware. One is the decision of Ontario Court of Appeal in R. v.

Johnston, (ON CA), [1970] 2 O.R. 780, [1970] 4 C.C.C. 64, which approves of the principle, and another decision, of the BritishColumbia Court of Appeal in R. v. Spiller, (BC CA), 6 C.R.N.S. 360, 68 W.W.R. 187, [1969] 4 C.C.C. 211, which doesnot. [85] In paragraph 8 the court in Layte concludes as follows: The more difficult problem is this. What is the discount which should be granted by the trial court? As was pointed out by the Court ofCriminal Appeal in Davis, this will vary according to the circumstances in which the plea is tendered.

In other words, a plea of guiltyoffered in the face of overwhelming evidence of guilt will not necessarily attract so great a discount as one tendered in othercircumstances. In Mr. Thomas' book on Principles of Sentencing, 2nd ed. (1970), at pp. 51-52 he points out that in England, as a generalrule, the courts have held that a plea of guilty, without further mitigation, will justify a discount of between one-quarter to one-third ofthe sentence which would have been passed if there had been a contest. R. v. Macki [86] In paragraphs 53 to 56 of Macki, Mr.

Justice Romilly of our Supreme Court canvassed and confirmed the principle that an earlyguilty plea merits considerable weight in sentencing dispositions because it shows remorse. Aside from that the accused should receivesubstantial recognition either for sparing the victim the need to testify or to wait to testify or for waiving some of his constitutional rightsin deference to expeditious justice. CONCLUSIONS

[ 87 ] I accept the agreed circumstances of the Sexual Interference Offence that have been set forth above. [ 88 ] I accept the aggravating and mitigating circumstances that have been agreed to and are set forth above. [ 89 ] As I understand Defence's submission, I should be cautious in accepting some of the disputed conclusions set out in the Forensic Assessment Report either as being lacking in logic or perhaps engaging in speculation. [ 90 ] I am not sufficiently persuaded that the important conclusion about the Offender being at moderate risk to re-offend in the future can be disregarded.

The portion of the Forensic Assessment Report that the Defence seeks to impugn is only a part of the basis for the author's conclusion on that issue. In my view, the Forensic Assessment Report sets out a sufficient overall basis for the opinions expressed in it. I have no contradictory reports in front of me upon which to rely in support of the Defence's position. [ 91 ] In R. v.

Gerrard at paragraph 64 the court states as follows: While no post- Friesen range has yet been delineated for child sex offences in B.C., the message from Friesen is that "mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances": para. 114. [ 92 ] I accept that Crown's proposed sentence of 2 years less a day in custody is within a suitable range. [ 93 ] Based upon my review of the authorities specifically referred to this court and also based upon a number of cases set out and considered in those authorities, I am of the view that the appropriate sentencing range in this case and in these circumstances is between 16 months to 3 years of incarceration. [ 94 ] I do not understand that Defence is submitting the Crown's position on sentencing is outside the appropriate range.

However, Defence seeks a reduction to 18 months in custody because of the mitigation by way of the guilty plea, with its attendant acceptance of responsibility and the remorse expressed. In Defence's submission that reduces the necessity for additional jail time beyond the 18 months. [ 95 ] These factors were considered at paragraphs 164 of Friesen (Guilty Plea) and paragraph 165 (Expression of Remorse). [ 96 ] Based upon my reading and understanding of the seminal decision in Friesen , it requires an additional and fuller analysis of all of the circumstances.

In my view, my final determination of the fit sentence that I will be imposing gives an appropriate weight to those mitigating factors relied upon by Defence. [ 97 ] Given the overall direction in Friesen , I am of the view that something in the nature of a reduction or discount in sentencing of one-quarter to one-third, as discussed in Layte , would not be appropriate in this type of case.

Saying that I am very mindful that sparing young victims the horror of having to relive the sexual violence perpetrated upon them in a trial setting needs to be acknowledged in sentencing, but it needs to be done in the full context of all the circumstances rather than on some percentage formula. [ 98 ] Here the Offender's significant high degree of moral blameworthiness, the significant breach of trust and the repeated harm perpetrated upon the Child Victim over an extended period of time, her young age and the continuing negative emotional impact suffered by the Child Victim significantly outweigh the mitigating factors specifically relied upon by Defence for a reduced sentence.

I am also of the view, based upon my review of the Forensic Assessment Report, that there may be a continuing lack of insight on the part of the Offender about the harm done. [ 99 ] I am also mindful that the sentences in Gerrard and Josephson each followed a trial that was not necessary in this case before me because of the early guilty plea. [ 100 ] I am of the view that an extended period of probation is warranted to both protect the public and to ensure that the Offender has ample opportunity to receive the appropriate treatment. SENTENCING [ 101 ] I will have Mr.

A. stand, please. [ 102 ] Considering all the circumstances and all the factors and having regard to all of the case authorities presented to and considered by me, and in particular the Supreme Court of Canada decision in R. v. Friesen , on the Sexual Interference Offence I sentence you to a period of 20 months in custody. [ 103 ] I recommend to the authorities that you attend an institution that will, if possible, make appropriate sexual offender counselling available to you. [ 104 ] Thereafter, I sentence you to a 30 month probation order to take effect upon your release from custody. [ 105 ] Mr.

A., listen carefully, please, to the terms and conditions of the probation order. I need you to confirm that you understand these terms and conditions and that you will acknowledge on the record that you will be compliant with those terms and conditions. Do you understand that? [ 106 ] THE ACCUSED: I do. [ 107 ] THE COURT: Thank you. [ 108 ] Starting with the terms of probation will be the compulsory condition, 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 the probation officer in advance of

any change of name or address and promptly notify the court or the officer of any change of employment or occupation. [ 109 ] 2002 - You must have no contact or communication, directly or indirectly, with the complainant [omitted for publication], identified in the Information as [omitted for publication]. [ 110 ] 2005 - You must not go to or be within 100 metres of any place where [omitted for publication] lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 111 ] 2104 - You must report in person to a probation officer at [omitted for publication] Community Corrections, located at [omitted for publication], within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your officer. [ 112 ] 2201 - When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your officer. [ 113 ] 2304 - You must not have any contact, communication, directly or indirectly, or be in the presence of any person under the age of 16 years. The exceptions are as follows: With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons.

You must carry the permission, which can be in electronic format, with you at all times. [ 114 ] 2305 - You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 16 years without the prior written permission of your probation officer.

You must carry this permission, which can be in electronic format, when you are engaged in the activity. [ 115 ] 2306 - You must not enter into or continue any dating relationship, or marriage, or common-law relationship 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, until 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 your convictions, and this order and your history as described in your criminal record, Pre-Sentence Report , if any, and these Reasons for Judgment). [ 116 ] 2501 - 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 (

a) alcohol or drug addiction; (

b) sexual offence prevention. [ 117 ] 2303 - You must not go to any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school or playground. The exceptions are as follows: With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area. [ 118 ] Crown has sought a s. 161 prohibition.

I will grant that on the following terms: Pursuant to s. 161 of the Criminal Code you are prohibited for 5 years, commencing from the date you are released from prison, from: (

a) being within 100 metres of any residence, school or workplace of [omitted for publication]; (

b) seeking, 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; (

c) having contact or communication by any means with a person who is under the age of 16 years, except in the following circumstances: (

i) as may be permitted pursuant to any probation order in effect; in the presence of or under the supervision of a person approved in writing by the Court, your probation officer, your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act ( SOIRA ).

You must carry a copy of the written permission with you. (ii) Lawful employment, with the nature of your employment being approved of in advance, that is in writing, by the Court, your probation officer, your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. (iii) As approved of in advance in writing by the Court, your probation officer, your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act .

You must carry a copy of the written permission with you. [ 119 ] There will be also the following ancillary orders: no contact with the complainant during any term of imprisonment, pursuant s. 743.21 of the Criminal Code ; a mandatory firearms prohibition under s. 109(2) of the Criminal Code ; a DNA order as the offence is a primary designated offence under s. 487.04 and; s. 487.051 of the Criminal Code and a mandatory order to comply with SOIRA for a period of 20 years, pursuant to s. 490.012 of the Criminal Code . [ 120 ] I am going to pause for a moment.

I believe that those were all of the ancillary orders Crown was seeking. Is that correct? [ 121 ] CNSL J. VIVIAN: They are, Your Honour. Just one thing with regards to the s. 109 order. I didn't quite catch it, Your Honour said the duration, but I believe it should be 10 years, pursuant to s. 109(2) . [ 122 ] THE COURT: Yes. [ 123 ] CNSL J. VIVIAN: Thank you. [ 124 ] THE COURT: That will be for a period of 10 years. [ 125 ] CNSL J. VIVIAN: Thank you. [ 126 ] CNSL J. ARNDT: Firearms prohibition, Your Honour, 109, s. 109 I think you have not addressed that. [ 127 ] THE COURT: Sorry, Mr. Arndt? [ 128 ] CNSL J.

ARNDT: The firearms prohibition, that is mandatory.

[ 129 ] THE COURT: Yes, I think I stated that. Madam Clerk says I did. [ 130 ] CNSL J. ARNDT: Oh, I didn't hear that. [ 131 ] THE COURT: I think that was for a period of 10 years; that what was being sought. [ 132 ] CNSL J. VIVIAN: Yes, 10 years. [ 133 ] THE COURT: Correct. [ 134 ] CNSL J. ARNDT: Okay. [ 135 ] THE COURT: Okay, that leaves the issue of the Victim Fine Surcharge. Given the whole of these circumstances and the resulting sentencing decision I will waive the Victim Fine Surcharge since Mr.

A. will be without employment for a significant period of time. [ 136 ] Is there any additional matters that I need deal with? [ 137 ] CNSL J. VIVIAN: Not from my perspective, Your Honour, thank you. [ 138 ] THE CLERK: Your Honour, waiving signature? [ 139 ] THE COURT: Oh, thank you. [ 140 ] Mr.

A., you have heard me read out all of the terms and conditions of your probation order and the sentence? [ 141 ] THE ACCUSED: I have, Your Honour. [ 142 ] THE COURT: Do you understand all of those, sir? [ 143 ] THE ACCUSED: I do, Your Honour. [ 144 ] THE COURT: Are you agreeing to follow all the terms and conditions? [ 145 ] THE ACCUSED: Yes, sir, I will. [ 146 ] THE COURT: You understand that if you were to fail to do so you could be charged with a criminal offence of failing to comply with a court order that could result in your arrest, your detention and further criminal charges and resulting convictions may result in additional custodial time.

Do you understand all of that? [ 147 ] THE ACCUSED: I understand, Your Honour. [ 148 ] THE COURT: All right, Mr. A., I wish you the very best in getting the necessary counselling and treatment both in custody as well as in the community. [ 149 ] THE ACCUSED: Thank you. [ 150 ] THE COURT: Thank you. [ 151 ] THE CLERK: I am sorry, Your Honour, his signature is waived? [ 152 ] THE COURT: Yes, Mr. A.’s signature is waived on all of the sentencing documentation, including the probation order. [ 153 ] CNSL J. ARNDT: He will be provided with a copy of that, though? [ 154 ] THE COURT: Yes. [ 155 ] CNSL J.

ARNDT: All right, thank you. [ 156 ] THE COURT: A copy of the order will be provided to Mr. Arndt and Mr. Arndt will arrange to make sure that a copy is provided to Mr. A. [ 157 ] CNSL J. ARNDT: Thank you, Your Honour. [ 158 ] THE COURT: Anything further? [ 159 ] CNSL J. ARNDT: No, Your Honour, thank you. [ 160 ] CNSL J. VIVIAN: No, thank you. [ 161 ] THE COURT: Thank you and thank you for counsel's submissions throughout this matter.