R. v. Reid Date:, 2017 BCPC 340

Citation: R. v. Reid Date: 20171030 2017 BCPC 340 File No: 44260 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DILLON CRAIG REID REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS

Section 486.4 Ban On Publication Counsel for the Crown: R. Smith Counsel for the Defendant: J. Pakenham Place of Hearing: Prince George , B.C. Date of Hearing: October 30, 2017 Date of Judgment: October 30, 2017 INTRODUCTION

[1] On March 3, 2017, following a three day trial before me, I convicted Dillon Craig Reid of one count of sexual assaultingK.L.G. on January 26, 2016, in Prince George Provincial Court. Mr. Reid appeared before me for sentencing on April 12, 2014, atwhich time the sentencing hearing was adjourned to facilitate the preparation of a psychiatric assessment. [2] On June 7, 2017, I heard Mr. Reid’s application with respect to excising certain portions of the presentence and psychiatricassessment reports prepared for the sentencing hearing. In my decision, R. v.

D.C.R., 2017 BCPC 202 , I made rulings as to theadmissibility to comments made by the authors of these reports in the sentencing hearing. [3] Earlier today, I dismissed Mr. Reid’s s. 11(

b) Charter application for a stay of proceedings. [4] The facts relevant to this conviction are set out in my Reasons for Judgment: R v. D.C.R., 2017 BCPC 80 . Insummary, Mr. Reid and Ms. G. were co-workers at the [omitted for publication] in Prince George B.C. I found that in the late afternoonof January 26, 2016, Mr. Reid came into the bathroom at work where Ms. G. had gone to change into her server’s uniform. He pulleddown her leggings and underwear, grabbed and kissed her bare buttocks. Mr. Reid claimed that through her words and actions, Ms.

G.invited him into the bathroom for the purposes of engaging in sexual activity. I found that Ms. G. did not consent to this sexual activityand convicted Mr. Reid of this offence. As a result, Mr. Reid is now before me to be sentenced for one count of sexual assault contraryto s. 271(

a) of the Criminal Code. ISSUES [5] The salient issue in this sentencing hearing is whether Mr. Reid ought to be permitted to serve his sentence in the community. BACKGROUND FACTS Circumstances of the Offences [6] Mr. Reid and Ms. G. worked in the [omitted for publication] in-house restaurant. Mr. Reid was a cook and Ms. G. a server. Mr. Reid had worked at the [omitted for publication] for 13 months; Ms. G. had worked there for two years. [7] At the date of the offence, Mr. Reid was 35 years old, married with a family. Ms.

G. was 16 and a high school student. [8] I found that on January 26, 2016, shortly before 5:00 p.m., Ms. G. and Mr. Reid engaged in a sexualized conversation. Ms. G.went into the staff bathroom to change into her server’s uniform. [9] Mr. Reid watched Ms. G. while she was in the bathroom, before she closed the door. He said to her that if she wasn’t going toclose the door, he might as well be in there. Ms. G. responded with words to the effect, “Sure go ahead.” Mr. Reid took this as aninvitation to go into the bathroom. [10] Mr. Reid went into the bathroom and stood behind Ms. G.

He pulled down her leggings and underwear leaving her lower torsoexposed. He crouched down and kissed her bare buttocks. Ms. G. told him no, and ordered him to “get out” and “get back to work”,which he did. [11] Mr. Reid and Ms. G. later discussed this incident on Facebook. Circumstances of the Offender [12] Mr. Reid is now 36 years old. He continues to work as a cook in Prince George, although not at the [omitted for publication]. He lost his job at the [omitted for publication] as a result of the offence before the court. He is a trained chef and continues to work inthis trade. [13] Mr.

Reid was born and raised in Prince George. He says that he came from a good home, not a perfect home. He is married toJ.H., his wife of 12 years. Collectively they have three children: their son N., [omitted for publication], J.’s daughter, A., who is[omitted for publication] and Mr. Reid’s child from a previous relationship, D., age [omitted for publication]. [14] As a result of the offence before the court, Mr. Reid is no longer living with Ms. H., although she is supportive of him. Hecontinues to work and helps to support the family. [15] Ms. H. is unsure if she will continue the relationship.

Presentence Report [16] I have received and reviewed the Presentence Report prepared by Probation Officer, Cindy Ross, on April 6, 2017. [17] In preparing her report, PO Ross interviewed Mr. Reid’s spouse, J.H. and his step-father, D.M. They described him as a goodfather, a great father, and a good provider for his family. [18] Ms. Ross indicates that Mr. Reid has suffered from depression both before and after the incident giving rise to the charge forwhich he is now being sentenced. He also expressed concern he may have a sexual addiction. This admission led to PO Rossrecommending that Mr.

Reid be assessed by the Forensic Psychiatric Services. [19] Mr. Reid indicated to Ms. Ross that since he was charged with the sexual assault against Ms. G. he has attempted to curb hispreoccupation with sex by spending less time on the internet and engaging in activities such as playing the guitar. Psychiatric Assessment

[20] Dr. David J. Wiebe, a Forensic Psychiatric Services psychologist, prepared and delivered to the court a psychologicalassessment report dated May 31, 2017. Dr. Wiebe noted, as did PO Ross, that Mr. Reid has a history of depression. [21] Although Mr. Reid had a plethora of sexual experiences, they have always been with adult women. [22] Mr. Reid’s risk for future sexual offending is moderate, although not against children. Criminal Record [23] Mr. Reid has no criminal record beyond this offence. He has been on bail since February 3, 2016, and has not been chargedwith any breaches of his bail conditions.

The conditions of release were onerous in respect to the following conditions his February 3,2016 Recognizance to a Judge: Condition 6: You shall have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be orwho reasonably appears to be of the age of 16 years or less, except as follows: (

a) with the advance written consent of the Bail Supervisor; and (

b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor. Condition 7 You shall not go to any public park, school ground, daycare centre, public swimming pool, playground, skating rink, or communitycentre or recreational centre where persons under the age of 16 years or less are present or can reasonably be expected to be present,except in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the Bail Supervisor. [24] Mr. Reid made multiple applications to vary bail.

Finally on June 7, 2016, Mr. Reid’s application to vary his Recognizance ofbail came on for hearing before Regional Administrative Judge Brecknell. Regional Administrative Judge Brecknell amended Condition6 of the Recognizance was to read: You shall have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be orwho reasonably appears to be of the age of 16 years or less, except as follows: (

a) with the advance written consent of the Bail Supervisor; (

b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor or; (

c) you may have contact or communication directly or indirectly with your children, A.F. and N.R. [25] All other provisions in the Recognizance remained unchanged, including Condition 7 prohibiting Mr. Reid from going alone toany place where persons under the age of 16 years or less were present or could reasonably be expected to be present. Victim Impact Statement [26] Probation Officer Ross interviewed the victim, K.G. She states the incident had a negative impact on her life. It interfered withher eating and sleeping. Eventually, Ms. G. moved away from Prince George for fear that she might encounter Mr. Reid.

Ms. G. is nowreceiving counselling as a result of the incident. She does not want any form of contact with Mr. Reid. Positions of Crown [27] Crown counsel submits that I should sentence Mr. Reid to a term of imprisonment for a period between three to six monthsfollowed by probation; a two year order. The Crown also requested the following ancillary orders:

a) an order that Mr. Reid comply with the provisions of the Sex Offender Information Registration Act (SOIRA); and

b) a DNA order. [28] The Crown submits a s. 110 CC weapons prohibition is discretionary, but something the court must consider. [29] In support of the Crown’s position, Mr. Smith has provided me with the following authorities: (

a) R. v. L.S.B., 2017 BCSC 458;(

b) R. v. Corson, 2003 BCCA 430; (

c) R. v. G.R.L., 2016 BCSC 293; (

d) R. v. Lequiere, 2006 BCSC 668; (

e) R. v. Lindstrom, 2012BCPC 354 , 2012 BCPC 0354; (

f) R. v. W.A.R., 2013 BCSC 1767; (

g) R. v. Roberts, 2015 BCPC 266 , 2015 BCPC0266. [30] The Crown agrees that a conditional sentence is available but submits that given the offence involves a sexual assault of a 16year old girl, this form of sentencing would not address the sentencing principles of denunciation and deterrence. Positions of Defence [31] Counsel for Mr. Reid seeks a conditional sentence for up to 120 days followed by an unspecified period of probation. Thedefence relies on R. v. Proulx, 2000 SCC 5 , R. v. Gavrilko, 2007 BCSC 1473 ; and R. v. A.A.F., 2014 BCPC 46, 2014 BCPC 0046 .

Legal Parameters and Principles [32] The conviction for sexual assaults carries a maximum sentence of ten years. The Crown elected to proceed summarily withrespect to this offence so the maximum sentence available is 18 months' imprisonment. It attracts no mandatory minimum sentence. [33]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives:

a) denunciation;

b) deterrence;

c) protection of the public;

d) rehabilitation of the offender;

e) reparation to victims; and

f) promotion of a sense of responsibility in the offender. [34]

Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 , para.39; R. v. Mercier,2004 BCCA 663 , para. 14. [35]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. In R. v.

Safarzadeh-Markhali, 2016 SCC 14 states, inpart at paras 70: Proportionality in the sense articulated at s 718.1 of the Code — that a sentence be proportionate to the gravity of an offence and anoffender’s degree of responsibility — is a fundamental principle of sentencing . . . proportionality is “the sine qua non of a just sanction”.It is grounded in elemental notions of justice and fairness, and is indispensable to the public’s confidence in the justice system. [36] In R. v. Lacasse, [2015] SCR 1089, Wagner J on behalf of the majority of the Supreme Court stated at paragraph 53: [48] . . .

Proportionality is determined both on an individual basis, that is, in relation to the accused, him or herself, and to the offencecommitted by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentence must be reconciled for a sentence to be proportionate: s. 718.2(a)(

b) of the Criminal Code. [49] Proportionality insures that an individual is not sacrificed “for sake of the common good”: R. v. Priest, (ONCA). [37] The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to thevictim; and (

b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 , at para. 130. In R. v. Jennings,2014 BCPC 272 , aff’d 2016 BCCA 127 , Judge Marchand stated at para. 92: [92]. . . Over the last thirty or so years, an increasingly bright light has been shone on the prevalence and consequences of sexual abuseagainst children. It has come to be generally accepted that sexual abuse of a child in any form is harmful. The degree of injury and paincan be mitigated and will vary from child to child but some form of pain or injury almost always follows. [38] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The Criminal Code legislatesthe following factors as aggravating: (

a) section 718.2(a)(ii.1) the young age of the victims; (

b) section 718.2(a)(iii) the offender was in aposition of trust or authority in relation to the victim; and (

c) section 718.2(a)(iii.1) the offence had a significant impact on the victim. [39]

Section 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing forany offence involving abuse of a person under 18. [40] Denunciation and deterrence are also the primary considerations for sexual offences against children: R. v. R.J.B., 2016 BCCA428 , at para. 29. Similarly, taking into account the impact of the offence upon the victim has always been a part of theprinciples of sentencing. [41]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. [42] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if lessrestrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2(e). [43] In this case, I find the following facts aggravating factors relevant to sentencing:

a) Ms. G. was only 16 years old and Mr. Reid was 35;

b) Ms. G. was a troubled and vulnerable teenager;

c) Ms. G. has suffered emotional harm as a result of these offences; and

d) The offence occurred at Ms. G.’s workplace. [44] I find the following factors as mitigating:

a) Prior to his conviction in this case, Mr. Reid had no criminal record;

b) Mr. Reid has complied with restrictive bail conditions for the past 21 months;

c) Mr. Reid has now accepted responsibility for the offence;

d) Mr. Reid has maintained steady and stable employment for many years;

e) Mr. Reid is a good father;

f) Mr. Reid has the support of his family;

g) Mr. Reid was candid to and cooperative with the probation officer and the psychologist who prepared the Presentence Reports;and

h) Although he initially believed Ms. G. consented to the sexual activity, he now knows that is not the case and has expressedremorse for his conduct. Crown Authorities R. v. L.B.S., 2017 BCSC 458 [45] R. v. L.S.B., 2017 BCSC 458 is a recent decision of B.C. Supreme Court wherein the offender was sentenced forsexual interference of his prepubescent daughter on multiple occasions. The Crown proceeded summarily.

The Crown sought a 14 to 18month term of imprisonment; the defence proposed a 90 day intermittent sentence followed by a lengthy probation including onerousterms such as house arrest and electronic monitoring. The victim’s mother provided a letter to the court indicating she wished theoffender to be sentenced in such a manner that would allow him to keep his job so he could continue paying her child and spousalsupport. Madam Justice Donegan rejected this as a basis for sentencing the offender. She states: [13] I will return to this, but I give this aspect of H.L.'s statement very little to no weight.

Loss of an offender's income as a result ofincarceration is, unfortunately, one of the negative financial impacts upon a victim that is as a direct result of the offender's offending. Itcannot be used, in my view, to mitigate an offender's sentence in the way advocated for by H.L. Otherwise, every parent who offendsagainst his or her child could make the same argument, contrary in some cases to the principles and purposes of sentencing. [46] In L.S.B., the court found the primary emphasis is on denunciation and deterrence. Justice Donegan cited from para. 81 of Mr.Justice Lamer’s for the unanimous SCC in R. v.

M.(C.A.), (SCC), which I will reproduce below in part: . . . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord JusticeLawton stated in R. v. Sargeant, (1974) 60 Cr. App.

R. 74, at p. 77: "society, through the courts, must show its abhorrence of particulartypes of crime, and the only way in which the courts can show this is by the sentences they pass". . . . R. v. Corson, 2003 BCCA 430 [47] In R. v. Corson, 2003 BCCA 430 , an accused with 20 convictions was found guilty of a sexual assault which occurredon New Year’s Eve in Prince George. Mr. Corson was 30 years old at the time; the victim was 16. The offender and the victim wereguests at a party; however, they had never met before that night. Throughout the evening, Mr.

Corson had made several sexual advancestowards the victim, which she rebuffed. The victim had consumed a lot of alcohol and was lying on a bed when Mr. Corson came in thebedroom, straddled her and began to kiss and fondle her. The victim told Mr. Corson to stop and leave her alone on several occasions,but he persisted. He removed her skirt, pantyhose and underwear and then performed oral sex on her. Despite the victim’s repeatedefforts to resist the offender, he had intercourse with her and then left the room. [48] In upholding the sentence of 30 months, the B.C.

Court of Appeal commented that the fact that, while the sentence may havebeen in the upper range, it was not unfit. Mr. Corson had a lengthy criminal record, albeit, primarily for property offences. He had twoprior assault convictions and had previously served a sentence of six months in prison. The Court of Appeal dismissed Mr. Corson’sappeal and upheld the trial judge’s finding that deterrence and denunciation were paramount considerations. The key factors in this caseincluded the significant age differential between the offender and the victim. R. v. G.R.L., 2016 BCSC 293 [49] In R. v.

G.R.L., 2016 BCSC 293 , Justice Joyce imposed a sentence of three years for sexual interference that occurredon a camping trip by the offender with his step-daughter's 16-year-old friend. The sexual acts included cunnilingus, vaginal intercourseand anal intercourse. The effects of the offence on the families involved were devastating. No long-lasting physical injuries werecaused, but the victim became severely depressed and was suicidal for a time.

At trial, she continued to experience flashbacks andhaunting memories of the event. [50] The offender had a favourable presentence report but he was unable to accept that he committed the offence and had no memoryof the events because of his level of intoxication at the time. Justice Joyce noted at para. 16 that G.R.L. was “dismayed or bewilderedthat he had committed the offence”. He was 43, a carpenter, and owned his own construction company. He lost almost all his clientswhen his offences became known.

[ 51 ] At para. 30, Justice Joyce noted that the cases submitted by Crown “support[ed] a range of sentence of between two and six years where the offence involve[d] sexual assault with intercourse.” The assault was, by all accounts before the judge, “totally out of his character” [para. 36]. Justice Joyce went on to find: [38] Regardless of how difficult it is to make sense of why the defendant acted as he did the fact is that he committed a very serious offence deserving of a significant sentence.

The sentence must adequately address the principles of denunciation and deterrence, while being measured and no more harsh than is appropriate. The sentence must take into account the fact that Mr. G.R.L. was in a position of trust towards the victim and seriously abused that position of trust. Adults who assume responsibility for the care and protection of children owe a particularly high duty to ensure that those children are not exposed to harm from others and, most particularly, from their own actions. R. v. Lequiere , 2006 BCSC 668 [ 52 ] In Lequiere , the accused was found guilty of a sexual assault on

summary proceedings and sentenced to the maximum sentence of 18 months in jail plus probation. At the same time he was sentenced on several other charges which resulted in a total sentence of 21 months. [ 53 ] In Lequiere , Madam Justice Dillon rejected the proposition that a sentence for a hybrid offence must be scaled down within the context of a

summary offence so that only the worst case and worst offender would warrant the maximum under a

summary conviction process. [ 54 ] As noted in Lequiere , historically, courts have found a decision to proceed summarily generally indicates the prosecutor’s view of the crime as less serious. However, Dillon J. observed at para. 48 that there may be other reasons for the Crown’s decision: [48] The significance of the Crown's election to proceed summarily should affect considerations of what is a similar offence in sentencing. If the election is an indicator of the seriousness of the crime, then the range of sentence that should be reviewed are crimes of similar severity.

However, since the election may be made for reasons unrelated to the Crown's view of the severity of the offence, for example, a desire not to put the complainant through the ordeal of testifying twice, then the sentencing judge should not be restricted to consider only those cases that proceeded summarily when other cases tried by indictment which are similar in circumstance and offender, may provide a better pool of cases against which to compare. [ 55 ] Nevertheless, Justice Dillon found Crown’s election to proceed summarily is a significant factor which affects the range: Lequiere , para. 61 .

Justice Dillon held (at para. 63) that in the case before her, the acceptable range should be determined with reference to other assaults that were prosecuted by

summary conviction. She goes on to state at para. 65: [65] I t is not an error to deliver a sentence outside the applicable range provided that the circumstances warrant it and provided that the sentencing judge complies with his or her duty to consider all relevant factors (see: Stone , supra ; and Bernier , supra ). One way in which a

summary conviction sentencing judge could provide support for a sentence outside the range identified in

summary conviction offences is by reference to the range identified for the same hybrid offence that has proceeded by indictment. Consequently, although it would be an error not to consider other cases that proceeded summarily, it is not an error to consider cases that have been tried by indictment in addition to the ones that have proceeded summarily.

It may even be required when a sentence at the high end of the range or at the maximum is under consideration. [ 56 ] In canvassing the authorities, Justice Dillion noted at para. 66: [66 ] A review of the case law to determine the range of sentences handed down in cases of sexual assault involving intercourse where the Crown elected to proceed summarily indicates a range of between 6-18 months in jail and includes a variety of conditional sentences.

That the range of sentences handed down in cases of sexual assault involving intercourse where the Crown elected to proceed summarily indicates a range of between 6-18 months in jail and includes a variety of conditional sentences. R. v. W.A.R. , 2013 BCSC 1767 [ 57 ] W.A.R. is an appeal from conviction and sentence after the trial judge found the accused guilty of having sexually assaulted an intoxicated and sleeping victim. The Crown had proceeded summarily. The trial judge sentenced W.A.R. to 18 months in prison and two years’ probation.

Justice Punnett upheld the conviction on appeal. [ 58 ] The defence argued a proper sentence was 12 months jail plus a period of probation. In dismissing the sentence appeal, Justice Punnett stated: [76] Lequiere provides an extensive analysis of the proper approach to sentencing where the Crown has decided to proceed summarily for sex assault under s. 271(1)(b). Dillon J. concluded that in

summary proceedings the Crown’s decision to proceed summarily should be taken as an indicator of the prosecutor’s opinion of the severity of the crime (at paras. 35 and 46), although there may in some cases be other reasons for the election. The election is a significant factor and affects the appropriate range of sentence. However, she also held that the maximum sentence on

summary conviction is not reserved for the worst case/worst offender (para. 58). . . . [84] The sentence imposed is at the high end of the range for a

summary conviction for sexual assault where there was intercourse. Notwithstanding that, it was, as is evidenced from the authorities reviewed in Lequiere , within the range. In this case the complainant was unconscious and vulnerable. The appellant took advantage of her condition and carried out a serious sexual assault. A number of the cases reviewed in Lequiere involved sexual assaults on complainants who were either sleeping or intoxicated. In two of those cases the offender received the maximum sentence of 18 months in prison.

In cases where the sentence was in the 14-15 month range the court noted a number of personal mitigating factors. In this case, the trial judge instead found the appellant to be a significant danger to society and emphasized the need for denunciation .

R. v. Lindstrom, 2012 BCPC 354 [59] In R. v. Lindstrom, 2012 BCPC 354, the accused pled guilty to one count of sexual assault and two counts of unlawfully beingin a dwelling place. The Crown sought a sentence of four years jail on each count, to be served concurrently. The defence soughtconcurrent conditional sentence orders of two years less a day, followed by three years’ probation. Regional Administrative JudgeBrecknell found the following aggravating and mitigating factors: [66] The following are aggravating factors in this case:

a) the Defendant was unlawfully in the bedrooms of the homes of two different women late at night knowing they were alone;

b) the Defendant attempted to pull the bedclothes off one of the women and only left her residence when she awoke, demanded that heleave and she retreated to the relative safety of her bathroom;

c) the Defendant climbed into bed with and sexually assaulted the other woman while she was asleep and when she awoke anddemanded that he leave, he delayed his departure and when he did depart he told her not to tell anyone;

d) the Defendant acknowledged to that woman’s spouse and to the RCMP that he entertained sexual thoughts about the woman;

e) the Defendant did not accept responsibility for his offenses until after one of the victims and her spouse were forced to give evidenceat trial;

f) the Defendant’s actions have had serious adverse consequences for one of the victims;

g) the Defendant was well aware that his drinking and drug taking often result in blackouts, but he persisted in that behaviourregardless. He did not however, contend that he was in that condition during the offences; [60] In Lindstrom, Regional Administrative Judge Brecknell considered the following factors mitigating:

a) the Defendant has performed well on bail for over two years;

b) the Defendant now attends church regularly and reportedly has abstained from alcohol;

c) based on the psychiatric assessment, the Defendant is a low risk to reoffend sexually if he maintains sobriety;

d) the Defendant has maintained employment and is noted as a good employee;

e) prior to these events the Defendant had no criminal record. [61] Regional Administrative Judge Brecknell characterized Mr. Lindstrom’s actions far more predatory then opportunistic. Hefound (at para. 69) Mr. Lindstrom committed the offence because of an “ill-conceived belief that he could act in that fashion withoutensuring his advances were both welcomed and consented to” and (at para. 74) his “actions showed little regard for the privacy orpersonal integrity of either of the victims.” [62] Regional Administrative Judge Brecknell commented that while Mr.

Lindstrom’s subsequent efforts to redirect his life in apositive manner were mitigating, they could not completely overcome the aggravating factors present or his high level of moralblameworthiness. Regional Administrative Judge Brecknell imposed a sentence of concurrent two year terms of incarceration in afederal penitentiary followed by a two year probation order. R. v. Roberts, 2015 BCPC 266 , 2015 BCPC 0266 [63] R. v. Roberts, 2015 BCPC 266 , 2015 BCPC 0266, was a sentencing case in which the accused was convicted of sexualexploitation under s. 153(1)(

a) of his mentally ill 17 year old employee. The 39 year old offender had sexual intercourse with the victimbetween 14 to 20 times over a ten month-period. The Crown proceeded summarily which meant the offence attracted a minimum jail of90 days.

The judge imposed a six month jail sentence and a two year probation order. [64] In considering the mitigating and aggravating circumstances, Judge Koturbash states: [43] Judges must also consider collateral consequences of the sentence on the offender, and adjust the sentence to ensure, havingregard to all the circumstances of the case, the result complies with the principles of individualization and proportionality.

The weight tobe given to the collateral consequence will depend on the type of consequence and the seriousness of the offence. [44] The factors must be either truly aggravating or mitigating and not simply the ordinary circumstances of the crime.

For example,some aggravating factors are integral features of the offence and cannot be used as justification for increasing the sentence further. [45] Some factors do not neatly fall into the categories of mitigating or aggravating because they do not relate to the gravity of theoffence or the degree of responsibility of the offender, but they are factors that nonetheless impact the sentence to be imposed. [65] In the Roberts case, Judge Koturbash considered the following factors: (

a) Mr. Roberts’ guilty plea; (

b) Mr. Roberts’ genuineremorse for how his offending behaviour affected the victim and her family; (

c) Mr. Roberts’ had no criminal record and pro-socialbehaviour; (

d) Mr. Roberts’ maintained steady and stable employment for several years; (

e) Mr. Roberts had the support of his parentsand some members of the community; (

f) Mr. Roberts’ obligations to support his family; (

g) the emotional and economic distress on Mr.Roberts’ family arising from the conviction; (

h) Mr. Roberts’ good insight into his offending behaviour and willingness to reform; (h)Mr. Roberts’ post-offence efforts to obtain counselling and modifying his employment to ensure he was not alone in the presence ofyoung females; (

i) Mr. Roberts’ was subject to restrictive bail conditions; (

j) Mr. Roberts’ cooperated with the authorities; (

k) Mr.

Roberts was subject to adverse publicity, stigma and loss of reputation; (

l) Mr. Roberts’ temporary loss of employment; (

m) Mr. Roberts’mistaken believe the victim was able to consent to the sexual activity; and (

n) the victim’s consent to the sexual activity. [66] With respect to the emotional and economic distress on family members, Judge Koturbash stated: [71] . . . the distress that a member of the accused’s family experiences as a result of his offending behaviour will rarely be a relevantconsideration serving to reduce a sentence. [72] At most, it can be considered as having a deterring effect. . . [67] With respect to restrictive bail conditions, Judge Koturbash stated: [75] Strict bail conditions can be considered mitigating; however, there must be evidence of significant custodial or penal attributesassociated to those conditions.

Before credit is due, the court must be satisfied that the conditions had a serious impact on the offender’sliberty, ability to carry on normal relationships, employment or other essential activities. [76] There must be some evidence of meaningful hardship. [68] With respect to publicity, stigma and loss of reputation, Judge Koturbash stated at paras. 84 and 85: [84] In most cases, where a crime generates a great deal of publicity, the offender is entitled to material consideration in mitigation. [85] However, giving too much credit for public embarrassment is counterintuitive to the sentencing process when the circumstancesof the offence, such as this one, elevate the objectives of denunciation and deterrence to paramountcy. [86] Notoriety is a natural and public consequence of addressing the objectives of general deterrence when sentencing for these typesof offences.

Indeed extensive publicity was a predictable consequence of Mr. Roberts’ actions. [69] As to aggravating factors, Judge Koturbash took into consideration the following: (

a) the frequency and the duration of theoffending behaviour; (

b) the age difference; (

c) the victim’s exposure to potential harm; (

d) the breach of trust; (

e) Mr. Roberts’disregarding previous warnings; (

f) the vulnerability of the victim; (

g) the impact on the community; (

h) the impact on the victim andher family; (

i) the objective seriousness of the crime by the presence of a minimum sentence; and (

j) the objectives of sentence as set outin s. 718 of the Criminal Code. [70] Although the Crown authorities provided helpful guidance, factually, they are all distinguishable from the case before me interms of the gravity of the offence or the blameworthiness of the offender. Defence Authorities [71] The defence seeks a 120 day conditional sentence followed by a period of probation. [72]

Section 742.1 lists the following five criteria a court must consider before imposing a conditional sentence:

a) the offender must be convicted of an offence that is not specifically excluded by the legislation;

b) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

c) the court must impose a term of imprisonment of less than two years;

d) the safety of the community would not be endangered by the offender serving the sentence in the community; and

e) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to718.2. [73] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not aconditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence isappropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to718.2. [74] In R. v. Proulx, 2000 SCC 5 , at para. 27, the Supreme Court set out the follow principles governing conditionalsentences: (

a) while probation is primarily a rehabilitative sentencing tool, Parliament intended conditional sentences to include both punitiveand rehabilitative aspects; (

b) if, on a preliminary determination, the court determines that the appropriate range of sentence is a term of imprisonment of lessthan two years, the judge must then consider whether it is appropriate for the offender to serve his or her sentence in the community; (

c) the conditional sentence need not be of the same length as the sentence of incarceration that would otherwise be imposed; (

d) the requirement that the judge be satisfied that the safety of the community would not be endangered by the offender serving hisor her sentence in the community is a condition precedent to the imposition of a conditional sentence. In making this determination, thejudge considers the risk posed by the specific offender, taking into account the risk of the offender re-offending and the gravity of thedamage that could ensue in the event of re-offense;

(

e) once the prerequisites of s. 742.1 are satisfied, the court should give serious consideration to the possibility of a conditionalsentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles ofsentencing; (

f) a conditional sentence can provide significant denunciation and deterrence through the imposition of punitive conditions; (

g) generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation,reparations to the victim and the community, the promotion of a sense of responsibility in the offender and acknowledgement of theharm done to the victim and the community; (

h) where both punitive and restorative objectives may be achieved, a conditional sentence may be more appropriate thanincarceration. However, where the objectives of denunciation and deterrence are particularly pressing, incarceration will generally be thepreferable sanction. Nonetheless, a conditional sentence may provide sufficient denunciation and deterrence, even where restorativeobjectives are of less significance, depending on conditions imposed, the duration of the sentence and the circumstances of the offenderand the community in which the conditional sentence would be served; (

i) a conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciationand deterrence will increase in the circumstances. R. v. Gavrilko, 2007 BCSC 1473 [75] In R. v. Gavrilko, 2007 BCSC 1473 , Mr. Justice Tysoe convicted the accused of four of seven counts of sexuallyassaulting female dental patients. The offences were in the nature of groping the patients’ breasts while providing dental services. TheCrown sought incarceration for a period from six to 12 months. The aggravating circumstance in this case was Dr. Gavrilko’s breach oftrust.

Justice Tysoe commented (at para. 4) the principles of specific and general deterrence were addressed to some extent by Dr.Gavrilko’s suspension from the College of Dental Surgeons. Upon being satisfied the accused was no danger to the community, JusticeTysoe imposed a 12 month conditional sentence. [76] In R. v. A.A.F., 2014 BCPC 46 Regional Administrative Judge Brecknell sentenced an offender after a guilty plea toone count of sexual assault. In a highly intoxicated state, A.A.F. went into the hotel room where the victim was sleeping.

She awoke toA.A.F. rubbing her back and arms, putting his hand down her shirt, and grabbing her hand and putting it between his legs. She orderedhim to leave her room which he did. [77] The Victim Impact Statement indicating the incident had an indelible negative impact on the victim, Regional AdministrativeJudge Brecknell considered the following factors mitigating: (

a) the Defendant has lived generally a pro-social lifestyle. He has stable employment, a stable marriage, and he is activelyinvolved in his community; (

b) he entered a guilty plea before the trial, thereby saving the complainant from having to revisit the events; (

c) he gave a statement of remorse, saying that he was sorry if he harmed the complainant in any way; (

d) he has remained abstinent from alcohol since the events almost two years ago, recognizing, no doubt, that the alcoholconsumption on the night in question was a possible trigger to his actions; (

e) he immediately left the complainant when told to do so and did not engage in any sort of violence or attempts to importune thecomplainant any more than the actions that have already been set out; (

f) he was cooperative with the RCMP at the time of his arrest and with the probation services in the compiling of the pre-sentence report; and (

g) that based on the available information, the Defendant is a very low risk to reoffend, particularly if he remains sober. [78] Regional Administrative Judge Brecknell found the following factors aggravating: (

a) the Defendant engaged in alcohol consumption to the point of being incoherent and, as such, unable to stop the behaviour heparticipated in until he was confronted; (

b) he assaulted the complainant in an overtly sexual manner; (

c) he entered the complainant's private accommodation without invitation at the time of the events that led to the criminal chargeshe is facing; (

d) he assaulted the complainant in circumstances where she was unable to provide consent or prevent the assaultive behaviour. [79] Regional Administrative Judge Brecknell imposed a suspended sentence of 24 months’ probation. Conclusion [80] I am of the view the appropriate sentence for this offender in the circumstances of this offence is a six month conditionalsentence followed by a two year probation order. I reaching this decision, I have taken into consideration:

a) the oral submissions of the Crown and the defence;

b) what Mr. Reid has said on his own behalf;

c) the goals, principles, and objectives of sentencing set out in s. 718 to 718.2 of the Criminal Code ;

d) section 742.1 of the Criminal Code ;

e) the case authorities provided by counsel and referred to above;

f) the circumstances of the offence as I found them in my March 3, 2017 reasons for judgment;

g) the aggravating and mitigating factors I have referred to above; and

h) Mr. Reid’s personal circumstances, as set out in the presentence and psychological assessment reports, and defence counsel’s submissions. [ 81 ] In concluding Mr. Reid would not endanger the community, I have considered the following:

a) Mr. Reid is 36 and prior to this offence had no criminal record;

b) Mr. Reid fully complied with his restrictive bail conditions for 21 months;

c) I do not share Dr. Wiebe’s pessimism that Mr. Reid presents a moderate risk to reoffend. The index offence is Mr. Reid’s first and only offence of which we are aware;

d) The incident giving rise to Mr. Reid’s conviction for sexually assaulting Ms. G. was serious. Nevertheless, it involved one victim on one occasion. The incident, although intrusive, does not compare in gravity to the incidents referred to in the Crown authorities. The incident was brief; Mr. Reid stopped when Ms. G. told him to stop and has left her alone ever since. The sexual assault did not involve intercourse or grooming;

e) Mr. Reid has lived with his mother and step-father since the offence date and will continue to do so in the foreseeable future;

f) Mr. Reid has expressed a desire to address and overcome what appears to have become an unhealthy preoccupation with sexual activity;

g) Mr. Reid has lived a pro-social life up until the offence date. I am confident the impact of this conviction will be a significant deterrent. I am mindful of the Wagner J.’s comments at paragraphs 73 and 74, in in Lacasse , in which he states: [73] . . . while it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than the chronic offenders, who will be sensitive to harsh sentences. [ 82 ] As a result of the incident giving rise to this conviction, Mr.

Reid has been subject to a Recognizance of bail for 21 months; he will not be under house arrest for six months and then probation for two years. In my view the principles of denunciation and deterrence have been adequately addressed. “Judith Doulis” ____________________________ The Honourable Judge J. T. Doulis Provincial Court of Province of British Columbia Disposition [ 83 ] For the offence of sexual assault of K.G. on January 26, 2017, I sentence Mr. Reid to a term of imprisonment of six months to be served in the community under a conditional sentence order on the following terms: a.

You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c. 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 supervisor of any change in employment or occupation. d. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. e.

You must report in person to the conditional sentence supervisor Prince George Community Corrections at 101 - 250 George Street, Prince George, B.C. by 12:00 p.m. October 31, 2017, and after that, you must report as directed by the conditional sentence

supervisor. f. You must reside with your mother and step-father at [omitted for publication], Prince George, B.C. g. You must provide your supervisor with your phone number, and you must not change your residence or your phone number without written permission from your conditional sentence supervisor. h. You must have no contact or communication, directly or indirectly, with K.L.G. except with a further order of this court. i. You must not go to anyplace you know to be the residence school or workplace of K.L.G., except with a further order of this court. j.

For the duration of this order, you must remain inside your residence or the lot which your residence is located, under house arrest 24 hours each day 7 days a week. k. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order. l. You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor.

Such permission is to be given only for compelling reasons. m. You may also be away from your residence during the house arrest hours: i. while in the course of your employment or travelling directly to or from your place of employment. If requested you must provide your conditional sentence supervisor with details of your employment including the location and hours of work. ii. in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility.

If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went. iii. for the purposes of attending counselling, or while travelling directly to or from your counsellor. If requested, you must provide your conditional sentence supervisor, with details of your counselling including its location of the dates and times of the appointments. n. You must carry the written permission when you are outside your residence during the house arrest hours. o.

You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. p. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the conditional sentence supervisor. Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to: sexual offence prevention. [ 84 ] Upon completion of the conditional sentence order Mr. Reid will be on a period of probation for two years on the following terms: a.

You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c. 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 probation officer of any change of employment or occupation. d. You must have no contact or communication, directly or indirectly, with K.L.G. except with a further order of this court. e. You must not go to or be residence, school or workplace of K.L.G., except by further order of this court. f.

You must report in person to a probation officer at 101 - 250 George Street, Prince George, BC within 72 hours after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere. After that, you must report as directed by the probation officer. g. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. h.

You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to: sexual offence prevention. [ 85 ] I also make the following ancillary orders: a. The offence of sexual assault is a primary designated offence pursuant to

section 487.051 and I will make an order that you must provide a sample of your DNA. i. Count 1 on Information 44260-1 is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA

National Databank. ii. You must attend at the RCMP Police Station in Prince George, B.C. during regular business hours before November 30, 2017, and submit to the taking of the samples. This order is valid until executed. b. Pursuant to

section 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years. c. Pursuant to section 737(2) you must pay a victim surcharge within 60 days. [ 86 ] I have also considered but decline to make orders pursuant to

section 110 and 161 of the Criminal Code . “Judith Doulis” ____________________ J.T. Doulis Provincial Court Judge