R. v. C.R.H., 2020 BCPC 287

Citation: R. v. C.R.H. 2020 BCPC 287 Date: 20201023 File Nos: [Omitted for publication] Registries: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division REGINA v. C.R.H. Youth Matter - Restriction on Access, s. 118 & s. 110 YCJA BAN ON PUBLICATION 486.4 CCC; Section 16(4) Sex Offender Information and Registration Act (“SOIRA”): This

section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: C.S. Proteau Counsel for the Defendant: C.L. Hodson Place of Hearing: [Omitted for publication] , B.C. Date of Hearing: October 23, 2020 Date of Judgment: October 23, 2020

PREAM BLE These oral reasons were not originally intended for publication. At the request of an external agency, they are now provided to give a context to an appeal of these reasons. The sentencing began in the morning session of court. Rather than delay the proceedings, and in an effort to accommodate two separate courtrooms filled with the victims and the accused and their families, as well as numerous individuals attending the proceeding by phone, these reasons were delivered in the afternoon session. My intention for the quick turnaround was to provide closure to everyone involved.

I have intentionally decided not to vet these reasons for minor errors. Working off of my written notes, this what was said in Court. These were my reasons. [ 1 ] THE COURT: I want to talk first about the joint submission and the concept of making an application to withdraw a guilty plea. Then I am going to provide some reasons with respect to the sentence which is being imposed. I am mindful of the more recent B.C.

Court of Appeal decision that came out October 21, I think it was, 2020, approximately two weeks ago with respect to joint submissions, and I am guided by any number of decisions that have been written on these topics of joint submissions and applications to withdraw guilty pleas. [ 2 ] My sister, the Honourable Judge Doulis, who coincidentally was appointed as a judge about three minutes before I was, has written extensively on these topics. One of her older decisions explains it in terms that I find to be very useful, and the decision of R. v.

I.C. , 2017 BCPC, is a decision that considered Anthony-Cook , which is a decision which has been raised in these proceedings. Anthony-Cook is a very well-regarded, very high authority, R. v. Anthony-Cook , a 2016 decision of the Supreme Court of our country. It really entrenches and sets out what joint submissions are, because joint submissions are an extremely important part of the criminal justice system. [ 3 ] In Anthony-Cook , the Supreme Court of Canada held that the proper legal test a judge should apply in deciding to depart from a joint submission on sentence is the public interest test.

Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. As I have indicated, with the greatest of respect to the amount of work and effort by both Crown and defence who jointly submit a period of two years' jail is appropriate, I am not going to go along with that joint submission. [ 4 ] Continuing back to the words of Mr.

Justice Moldaver who summarized the test in Anthony-Cook as follows: Rejection denotes a submission so unhinged from -- [ 5 ] UNIDENTIFIED VOICE BY TELECONFERENCE: The judge is already talking. [ 6 ] THE COURT: For the people that are on the phone -- for the people that are on the phone, please mute your side. Thank you.

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. [ 7 ] The Supreme Court provided guidance to judges on the approach to be taken when they have concerns about a joint submission.

First, judges should approach the joint submission on an as-is basis with the exception of a mandatory order, if the parties have not asked for a particular order.

The judge must assume that it was considered and purposely excluded from the submission. [ 8 ] Second, the judge should apply the public interest test, whether jumping or undercutting a joint submission, although different considerations may factor into the public interest analysis in each context. [ 9 ] Third, when faced with contentious joint submissions, judges should consider the circumstances that led to the joint submission and pay particular attention to any benefits obtained by the Crown or concessions made by the accused.

The greater the benefits obtained by the Crown and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. [ 10 ] Fourth, where the judge is not satisfied with the proposed sentence, the judge should notify counsel and invite further submissions on the points of concern, including the possibility of allowing the accused to withdraw his or her guilty plea. [ 11 ] Fifth, where the judge remains unsatisfied by the counsel's submission, the judge may allow the accused to apply to withdraw his or her guilty plea. [ 12 ] Sixth, if the judge remains unsatisfied after further submissions, the judge must provide clear and cogent reasons for departing from the joint submission. [ 13 ] Continuing on with Judge Doulis's decision at paragraph 40: [40] The Crown submits that Anthony-Cook does apply to this case and the Court ought to accept the joint sentencing submissions [to] allow Mr.

C. to withdraw his guilty plea. Anthony-Cook represents a change in the law favourable to the accused and thus applies retrospectively . . . [ 14 ] Second, the public interest test. A determination of whether the proposed sentence satisfies the public interest test requires a careful review of the legislated and common law principles of sentencing persons convicted of child sexual offences. I pause here to note that the case Judge Doulis was dealing with also had to do with child sexual offences. [ 15 ] Continuing on with her decision at paragraph 43:

[43] . . . The courts recognize that sentencing is a highly individualized process; however, the ultimate sentence must nevertheless be proportional to the seriousness of the offences of which Mr. C. has been convicted and his degree of responsibility. My analysis of the authorities set out later in this decision leads me to conclude the sentence proposed by counsel does not satisfy the public interest test. [ 16 ] Third, the circumstances that led to the joint submission.

At paragraph 44, Judge Doulis writes: [44] In its supplemental submissions, the Crown provided the following additional information as to the benefits obtained by the Crown and the concession of the accused in the proposed sentence: a. Mr. C.’s very early guilty plea allowed the Crown to forego the time, expense, and effort of a preliminary inquiry and trial. No state resources will be expended in bringing the matter to trial; b. The Crown’s case was entirely dependent on the evidence of the complainants; c.

The Crown’s sentencing position was “taken with full consideration of the strength of the Crown’s case, including the anticipated credibility of the complainants”; d. The Crown acknowledges it does have some evidentiary issues and that witness credibility may have been a central issue at trial. The Crown will not need to prove the case beyond a reasonable doubt and will not have to address these difficulties within a contested trial; and e. No victim will need to testify. [ 17 ] I pause here to note the similarity in our case to the case that Judge Doulis was dealing with.

There are many, many benefits to accepting joint submissions. [ 18 ] At paragraph 45, Judge Doulis continues: [45] There is no doubt that Mr. C.’s very early guilty plea is a significant benefit to the Crown, the victims and the community. There is no doubt Mr. C. conceded his right to a trial to compel the Crown to try to prove its case beyond a reasonable doubt. Nevertheless, there is no suggestion Mr. C.’s guilty plea was a product of any significant or prolonged plea negotiations between the Crown and Defence. Mr. C. was intent on pleading guilty from the outset. In his submission on July 12, 2016, Mr.

Sommerfeld advised the Court that he became involved in this matter on November 10, 2015. He reviewed the Crown disclosure . . . which included the identity of the victims and what they said happened. Mr. C. clearly understood the offences for which he had been charged. On that day, he told Mr. Sommerfeld, “he would not fight these victims and he knew they were telling the truth.” Mr. Sommerfeld advised Crown counsel . . . of his instructions. There was no plea bargaining with Crown counsel for the guilty plea. After conveying to Crown counsel Mr. C.’s intention to plead guilty, Mr.

Sommerfeld left it to the Crown to formulate a sentencing position. . . . [he] attended at Court for the second time and on that date he entered his guilty plea. Sentencing was adjourned to facilitate the preparation of a Pre-Sentence Report and a Gladue Report. No psychiatric risk assessment was requested at that time. [ 19 ] At paragraph 46, Judge Doulis writes: [46] Mr. Sommerfeld advised the Court that Mr. C. was very clear in his instructions . . . [He] wanted to face this because he committed the crimes and he felt very, very badly . . . [Mr.

C.] did not say, “tell me what I am going to get first before I plead guilty.” This is what he did absolutely from the beginning . . . The first morning we had a couple of hours to talk and we walked around the block and he looked me in the eyes and said I am pleading guilty, whatever happens. [ 20 ] At paragraph 48, Judge Doulis confirms with respect to that case: [48] Although the Crown rightly emphasizes the strong mitigating factor of his early guilty plea in its submissions, I conclude that Mr. C.’s guilty plea was not the product of a plea bargain.

It was an initial sentencing position proposed by the Crown which Mr. C. supported. [ 21 ] I understand that some of that is not applicable to our situation as the plea negotiations have been extensive and the conversations with respect to the evidence and possibilities of trial between Crown and defence has been extensive. [ 22 ] With respect to the withdrawal of the guilty plea, at paragraph 50, Judge Doulis writes: [50] I have also considered whether Mr.

C. ought to be afforded an opportunity to withdraw his guilty plea, although he has not asked to do so. . . . [ 23 ] And I pause here to note the difference, that Mr. Hodson made it clear that, given the opportunity, he would be able to meet with his client and take instructions as to whether or not Mr. H. wished to bring the application, and I have not afforded him that opportunity. [ 24 ] Continuing on at paragraph 50, Judge Doulis writes: After consulting with seasoned legal counsel, he decided to plead guilty to some of the offences absent any plea negotiations as to sentence.

This decision was not the product of any quid pro quo . . . It was a decision made at the beginning of this process; it was a decision made with the benefit of legal counsel; and it was a decision made voluntarily, unequivocally without any Crown inducement. [ 25 ] Moving back to my reasons and away from Judge Doulis's words, I acknowledge that while no two cases are the same, certainly there are obvious overlapping features in cases where a person pleads guilty. There are benefits to be gained by the public and an accused.

I have been in the criminal justice business long enough to know to be aware of the seriousness of not going along with a joint submission and I do not do so lightly. I do it with great sensitivity to the totality of the issues that must be considered.

[ 26 ] In no way will the sentence I impose make the victims feel any better. That is not my intention. I am also aware that the sentence I impose will probably be seen as a light, ineffective sentence in the eyes of the community. While I wish to be sensitive to the community, I am not driven by their desire. I must be judicial, fair, and just, and determine a fit sentence within the boundaries of the law. As I mentioned, I appreciate that the actus reus in all these cases are less intrusive than some other cases, but the victims were all young, ranging from age seven to 14.

There is an argument to separate the moral culpability of the accused with respect to the historical sexual assault as at that time he was a youth and at that time the YCJA provided for a totally different and separate sentencing regime. However, for the other offences, he was an adult, a much older adult than his victims. He was in a trust-like relationship with his victims and there are elements of grooming.

He is at an elevated risk to reoffend. [ 27 ] I will discuss more of these issues later in these reasons. [ 28 ] As the victim impact statement confirmed, he is responsible for so much hurt in so many people's lives. He took away the innocence of many.

I have considered other cases with respect to joint submissions and the withdrawal of guilty pleas, and while not bound by many of these decisions, as they are different courts across the country, I note that the Alberta Court of Appeal in Belakziz , 2018 ABCA 370 , considered the issue of withdrawal of a guilty plea and indicated that it should be rare, there is a rationale behind it. The court held defendants must be taken to know that the court might not necessarily accept joint submissions, and the mere rejection of a joint submission would not routinely justify a withdrawal of the plea.

However, where a joint submission is arrived without all the information and turns out to be an error in judgment, the accused should be allowed to have the plea expunged. [ 29 ] In Espinoza-Ortega , I do not have that cite available, the judge directed the Crown to give the victim an opportunity to provide a victim impact statement. Upon receipt of the statement, the prosecutor realized the injuries were more serious than they thought and that they could not justify the appropriateness of the joint submission.

The Ontario Court of Appeal in that case said that the guilty plea was not fully informed and the judge should have expunged it.

The court said although the accused knew the extent of the victim's injury, he did not know the Crown would alter its position and say that the submission was arrived at in error and decline to actively support it. [ 30 ] Finally, although the court said that in some cases it will be appropriate for a judge to invite the accused to make an application to expunge, Anthony-Cook -- expunge -- most appellate courts observe that judge are not duty bound to make the invitation, especially when the accused is represented by counsel. [ 31 ] In a case called Mantla , 2019 NWTSC 15 , provides an example where a joint submission was unhinged, warranting its rejection.

The accused asked for an adjournment to consider whether or not his client would apply to withdraw the guilty plea following the judge's indication that she would not be following the joint submission. The judge refused and the accused appealed. In rejecting the appeal, Justice Smallwood made the following observation: It is difficult to reconcile the possibility of withdrawing a guilty plea when a joint submission is rejected as contemplated in Anthony- Cook , with the clear provisions of section 606(1.1). There is no evidence that the Appellant did not understand the provisions of the

section or that there was a risk that the Sentencing Judge would not accept the joint submission. The issue was not argued before the Sentencing Judge and has not been fully argued before me but withdrawing the guilty plea in these circumstances seems problematic. [ 32 ] In reference to R. v. Fuller , 2017 ONCJ 865 , Judge Gee observed that the ability to withdraw a guilty plea is restricted, especially when an accused is represented by counsel.

He stated: [54] Even though the Supreme Court suggested the withdrawal of guilty pleas in some cases may be appropriate the first thing to recognize is this was framed as a permissive and not mandatory form of relief. The Court said a judge may allow an accused to apply to withdraw his plea. Given this, it is obvious that there would be circumstances where withdrawal of a plea is not justified. [55] In my opinion, it comes down to a matter of fairness.

If the accused gave up something and agreed to plead guilty in exchange for a joint submission on sentence he otherwise may not get, then it may be argued that it is appropriate to allow him to withdraw his plea. If as mentioned earlier, the crown case had some weaknesses, or if the accused gave up arguably valid Charter arguments which could have brought into question the crown’s prospects of conviction, then fairness would dictate the accused [could] be restored to his previous position and allow him to argue these issues. [ 33 ] These are not new issues.

For approximately 30 years in the criminal justice system, the issue of joint submissions has been prevalent in the case law. At a Court of Appeal case in R. v. Rubenstein , [1987] O.J. No. 1118 , in that case the court stated as follows: [11] It is argued in this court that when a trial judge regards the joint submission with respect to sentence as unreasonable or in error he should so inform an accused and give that accused an opportunity to withdraw the [guilty] plea.

It is argued that to do otherwise would be fundamentally unfair since an accused in the position of an appellant offers the plea in the expectation that the joint submission will be followed. It was further argued that the joint submission was the quid pro quo for the pleas of guilty and therefore the failure of the trial judge to heed the joint submission entitled the accused to be restored to his original position, i.e., he could force the Crown to prove its case against him . . . [12] I disagree with this proposition.

The power of the trial judge to impose a sentence cannot be limited to a joint submission, and the joint submission cannot be the basis upon which . . . to escape the sentencing judge when it appears that he chooses to reject the joint submission. As Judge Draper observed, an accused who could thus withdraw his plea could simply keep doing so until he found a trial judge who would accept a joint submission. A plea of guilty in the same way as a finding of guilt after trial exposes an accused to a proper sentence to be determined by the trial judge.

In the case on appeal the difference between the sentence sought by the joint submission and that imposed by the trial judge was stark but that does not affect the principle involved. To permit an accused to withdraw his plea when the sentence does not suit him puts the court in the unseemly position of bargaining with the accused. [ 34 ] Moving back to my words. In this case, significant effort has been made to ensure that the accused knew his rights, met with counsel, got legal advice, was represented at the initial arraignment hearing. He elocuted to the facts before today. He then agreed to the facts today.

He agreed to ordering of reports which could easily affect the court's decision, both positively and negatively. Once more, today before proceeding I expressly and carefully went through the s. 606 procedure to help ensure that he understood that I was

not bound by any joint submission and it was made clear that no matter what sentence was being proposed, a significant jail sentence was a risk. [ 35 ] With respect to the charges, I will be brief as the Crown has gone through them in great detail, but with respect to Information 5061, there are two charges, two counts. We are dealing with the second one, that he sexually assaulted an individual with the initials S.N.

I note that the offence date is June 1, 1995, to July 31, 1995, and that the individual was seven years old and the accused was approximately 16 years old. [ 36 ] With respect to the rest of the charges, he was an adult, and this is on Information [omitted for publication]. He has pled guilty and accepted responsibility between January 1, 2017, to March 1, 2019, that he did sexually assault a young person with the initials -- I am going to skip the initials for any number of reasons.

The next charge he has pled guilty to is Count 5 on Information [omitted for publication], he has pled guilty and accepted responsibility for sexually assaulting another young person. With respect to Count 13, a different offence date, he has accepted responsibility and pled guilty to sexually assaulting another young person.

And with respect to Count 15, again with respect to a different timeframe, he has accepted responsibility and pled guilty to sexually assaulting another young person. [ 37 ] One of the young people, again I am not going to provide names or initials, one was between 12 to 14 years old and she had her breasts groped and her bum touched. Another was 11 or 12 years old and he entered her body by digitally penetrating her vagina with his fingers, and while we do not know how many times, there are about 20 instances of inappropriate sexual touching.

She described him as basically an uncle. [ 38 ] Another individual was 14 years old and he met with her, he went back to a store to buy some lubricant, made some sort of excuse as to why he had to go back to his hotel, invited her in, and asked if she wanted to have intercourse. In the end, he touched her vagina and she touched his penis. At one point in time, they had lived in the same home together, under the same roof together. [ 39 ] Another individual was 14 years old when she had her vagina touched by him.

Another individual was seven years old and she also had her vagina digitally penetrated by him. [ 40 ] I do not need to really get into any more of the traumatic events that these young people suffered. The record will reflect the details of these sexual predations on these young girls. [ 41 ] At least one of the children was indigenous and thus a vulnerable victim, and at least one of them had a significant disability.

Whether disabled or indigenous or from a poor background, these were all young girls and they were all extremely vulnerable. [ 42 ] In the course of knowing them, sometimes he played with them, sometimes he tucked them in bed, and again he has been described as a father/uncle type of person to them. One was his younger cousin.

I mention this because he breached their trust. [ 43 ] The issues are fairly simple for me today in the sense that there is one thing that I have to impose, and that is a sentence, but how we get to imposing the sentence is quite complicated because a sentence needs to be fit and proper and take into account all relevant purposes and principles of sentencing, the circumstances of the offence, and the circumstances of the offender. [ 44 ] I have reviewed a number of exhibits: there is a presentencing report, a Forensic Psychiatric Services Commission report, a psychosocial history report, and a psychological report. [ 45 ] I need to balance many different factors, including the impact of the offending behaviour on society in general and specifically on victims.

There are rarely two cases ever the same and that is why, more often than not, sentencing ranges are varied. Every case is different, every act is different, and every accused is different. This case involves a number of offences spanned over a fairly lengthy time period, although I do appreciate Mr. Hodson's point that the 1995 offence is distinctly separate in time, but the adult offences were over perhaps a two-year period. [ 46 ] I also point out that for one offence he was a youth, and that requires me to consider a different set of principles that applied to youth at the time of the offence.

The remaining offences were committed as an adult, and that requires me to consider, once more, a different sentencing regime. [ 47 ] No matter what sentence is imposed, it will not allow us to go back in time and lessen the harm that has been caused. The accused's actions will no doubt emotionally scar each of these victims, their families, and this community for a long time.

The best that a sentence can do now is provide some closure and create a moment in time that will allow everyone to begin the healing process. [ 48 ] With respect to the legislative framework, I am going to focus more on the recent legislative framework because the YCJA that existed in 1995 no longer exists. With respect to maximum and minimum sentences, first dealing with the youth matter, there is a wide discretion that I have as a sentencing judge. I have to consider the moment in time when this 16-year-old offended and what the options are that were available.

I also acknowledge that when a person is 16 years old, while not excused from their actions, there is a degree of lessened moral culpability. What that means is 16-year-olds do not know as much as 40-year-olds. It does not take away from the idea that a 16-year-old should know better to do than what he did. [ 49 ] With respect to the legislative framework currently, it is important to understand some of the developments in law that took place after 1995.

Perhaps these changes are less significant when assessing the penalty for the youth matter, but they are certainly appropriate when considering the offences that took place as an adult. [ 50 ] On July 17, 2015, the Tougher Penalties for Child Predators Act , 2015, c. 23 , came into force and in that Act, Parliament legislated new penalties for sexual offences against children.

The maximum sentence for s. 151 and 271 offences when charged indictably at that time was increased to 14 years and the minimum sentence remained at one year. [ 51 ] I accept that that increase is supposed to be symbolic of the legislative intent that sexual offences are to be treated more seriously

than they have been in the past. There is authority such as R. v. Vautour , 2016 BCCA 497 , a decision of Justice Kirkpatrick that discusses some of those issues. [ 52 ] One comment which seems appropriate from Justice Kirkpatrick is that "for too long crimes such as this, involving children and inflicted by persons in a position of trust, have attracted unwarranted leniency." [ 53 ] There are more current cases, R. v. Scofield , 2019 B.C.

Court of Appeal, which held that the mandatory minimum sentence set out in s. 51 was unconstitutional and of no force and effect, but even in doing that, I think Madam Justice Beames, while finding it unconstitutional, still would agree that these sorts of sexual offences on children need to be dealt with purposefully. [ 54 ] While the minimum punishment has struck and has been questioned, I am mindful that whether that existed or not, I must determine what the fit and fair sentence is with respect to the totality of the circumstances.

When I say that, I cannot be driven by the needs or desires of the community, the victims, or the accused.

I need to balance all of these different issues. [ 55 ] The purpose and principles of sentencing are enshrined in 718 of the Criminal Code and set out that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: denunciation, deterrence, protection of the public, rehabilitation of offenders, reparation to victims, and promotion of a sense of responsibility in an offender.

All of these principles must be considered. [ 56 ] With respect to all of them, I am guided by all of them, but I do consider denunciation, general and specific deterrence, and protection of the public to be paramount.

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: the harm or likely harm to the victim, and the harm or likely harm to society and its values. It is based on the idea that a sentence needs to be just and fair. This is what the public entrusts judges with in the sentencing process. [ 57 ]

Section 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing any offence involving abuse of a person under 18 years old. [ 58 ] Other important sentencing considerations are set out in 718.2, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 59 ] Today the Criminal Code legislates the following factors as aggravating: 718.2(a)(ii.1), the young age of the victims; 718.2(a) (iii), the offender was in a position of trust or authority in relation to the victim; 718.2(a)(iii.1), that the offence had a significant impact on the victim.

When I say "the victim", I am referring to all the victims. We have heard from one victim. Ms. Proteau for the Crown was absolutely correct that whether we hear from victims or whether we read their victim impact statements, we know as a matter of life experience that victims who are abused by people that have their trust and when they are abused sexually have usually lifelong consequences. [ 60 ]

Section 718.2(

b) codifies the parity principle which holds a sentence should be similar for sentences imposed on similar offenders for similar offences in similar circumstances. [ 61 ] I will not go on too much about that particular principle because, as I mentioned any number of times today, no two cases are the same, no two offenders are the same. It is very difficult to locate case authorities that help guide us to what an appropriate sentence might be, and that is that act of balancing all of these different issues that I have been discussing. [ 62 ] 718.2(

c) codifies the totality principle, which holds that where sentences are imposed consecutively, the combined sentence should not be unduly long or harsh. A sentence should not exceed the overall culpability of the offender. There is case authority for this from our Court of Appeal: R. v. G.F. , 2018 BCCA 339 .

This concept of totality is a very difficult one to understand, I think, from a layperson's perspective, but if sentences imposed are unduly harsh, it might offend this principle of totality because it may, in effect, crush the prospects of rehabilitation. [ 63 ] With respect to sentencing principles for child abuse which, in my opinion, committing sexual assaults on young people really is, again I find some guidance in the decisions of my colleagues. One in particular is the decision, R. v.

J.M. , also a decision of the Honourable Judge Doulis, 2019 BCPC, where it is emphasized that: . . . children are our most valued and most vulnerable assets and society has a duty to protect them from the harm caused by sexual predators. The harm is enduring, intergenerational and well-recognized. In R. v.

K.R.J. 2016 SCC 31 , Justice Karakatsanis, for the majority, noted at para. 83, that sexual offences against children have “persisted for centuries.” Justice Brown [in that decision] goes on to discuss the societal impact of those offences . . . [ 64 ] Judge Doulis at paragraph 131 of her decision [sic - this is paragraph 131 from K.R.J. quoted in J.M. ] confirms that: [131] . . . Their legacy is toxic. They are notorious for their devastating impact, often ruining the lives of their victims, and of those whose lives intersect with those victims as they move into adulthood.

Trauma from childhood sexual abuse may reverberate for generations . . . . . . Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. [45] Accordingly, in cases of child . . . abuse, the objectives of denunciation, deterrence and the need to separate sexual predators

from society takes precedence . . . [65] There are many authorities that stand for that proposition, perhaps more recently R. v. E.S., 2017 BCCA 354. [66] The harm to young children that results from sexual assaults is well known and recognized, although I must say over the coursesince 1995, maybe we did not have such a good recognition of the damaging effects of sexual offences against children. [67] The Crown has tendered the case, R. v. Plehanov, 2020 BCCA 249 , [2020] B.C.J. No. 1473. It is also a case from ourBritish Columbia Court of Appeal.

It may have been tendered for any number of reasons, and I note that it might support the positionthat six months for groping a six-year-old was upheld on appeal. However, I find the most useful point of that case is not that sixmonths of jail in that specific case for that specific offender was a fit sentence, but that at paragraph 18, the Court of Appeal guides me asto the R. v. Friesen case, which was also raised by the Crown. [68] It is important for me to make reference to some of these cases so you understand what the law is.

The law can be somewhatcomplicated, but I am guided by the authorities of my Court of Appeal in British Columbia as well as the Supreme Court of our country,and it is not lost on me, you have all had long days and you just want me to get to the end of this. [69] With respect to the Plehanov case at paragraph 18, at s. 7.0 and 7.1, the court writes about the impact of R. v. Friesen, which isthe Supreme Court of Canada case.

Starting at paragraph 18: [18] In para 77 of his reasons for judgment, the sentencing judge underlined the seriousness of a sexual assault against a child,concluding, however, that “within the spectrum of sexual assaults of children, this offence falls at the lesser end” (emphasis original). [19] Since that judgment was rendered, the tragic seriousness of sexual offences against children has been emphasized by theSupreme Court of Canada in R. v. Friesen, 2020 SCC 9, where appropriate sentencing considerations are discussed in detail.

Althoughthe circumstances of the sexual offence involved in that case were more egregious than those before us, and the case was decided in thecontext of legislative amendments that postdated the offence here, the Supreme Court made it clear that the guidance it provides is ofgeneral application to the imposition of sentences over the wide spectrum of sexual offences against children . . . [20] The court set out a number of important considerations, including these: [50] To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness ofsexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important.. . . [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodilyintegrity, sexual integrity, dignity, and equality of children. . . . . . . [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus theirattention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotionaland psychological harm that, as this Court held in R. v.

McCraw, . . . “may often be more pervasive and permanent in itseffect than any physical harm” (p. 81). . . . [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Becausemuch sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trustrelationship [citation omitted]. . . .

Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart familiesor render them dysfunctional [citation omitted]. . . . . . . [65] The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children isespecially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences againstchildren, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity [citation omitted].

Yetinstead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objectswhose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults thatenables adults to violently victimized [citations omitted]. . . . . . . [74] It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against childrencause and the wrongfulness of sexual violence.

In particular, taking the harmfulness of these offences into account ensures that thesentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence [citations omitted]. Courtsshould also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity [citationsomitted]. [70] While Friesen itself was referred to and not tendered, I am familiar with the guidance it provides.

I am familiar with the contentsof the decisions that they refer to and, for example, in creating a sentence that is truly fit, there are a number of things that I need toconsider. I will go through some of these factors now so you have a better understanding of some of the things that I have thought aboutin trying to design an appropriate sentence.

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a) The frequency of the sexual abuse [ 71 ] In our circumstance, while the offences span over a longer time period, it is not a situation where the abuse with one victim spanned over many years as we so often see in cases where a person is abused by the person that they trust over six or seven or eight years. But in our case, we do have a number of victims who have been abused over a fairly longer time period, perhaps up to two years. (

b) The severity of the sexual abuse [ 72 ] All of the sexual abuse here was on young people, so it is very serious, but as callous as it might sound when talking about sexual abuse, there are different and varying degrees. Much the way an assault is wrong, it is more wrong when a person is assaulted with a weapon or when assault causing bodily harm takes place. What is difficult to reconcile is that when there is sexual abuse, there might be no actual bodily harm that you can point to, and while the offender is really the weapon himself or herself, it is really difficult to place these things into categories.

So I will leave it at that; that all sexual abuse is excessively violent and not to be tolerated. (

c) The duration of sexual abuse [ 73 ] Once more, this is somewhat related to the concept of frequency, but with respect to the frequency and duration, I do note with respect to at least one of the victims, there could have been 20 violations of her sexual integrity. (

d) Whether the abuse occurred in the victim's home [ 74 ] There is a very complicated relationship which I have heard some information about that at points in time, some of these individuals lived under the same roof and lived as family. (

e) The presence of grooming [ 75 ] I will address this concept of grooming later in these reasons. (

f) The age of the victim [ 76 ] All the victims were young. One was extremely young. They were all vulnerable. (

g) Whether the offender was in a position of trust [ 77 ] Once more, I will talk about this concept of position of trust later in these reasons. I have already described that some considered him to be an uncle. Some of the reports describe him to be in a father-like or uncle-like relationship with most of them. And to be clear, I do consider the abuse of trust in the situation to be aggravating. (

h) Whether the abuse was accompanied by any gratuitous violence (

i) Whether the offender pleaded guilty [ 78 ] I will discuss these concepts later, as well. (

j) Whether the offender expressed remorse [ 79 ] Once more, with respect to the concept of pleading guilty, I will examine remorse a little more closely (

k) The offender's criminal record [ 80 ] This is a significant mitigating feature. There is no record. (

l) The offender's age and health (

m) Whether the offender was socially disadvantaged [ 81 ] I pause here to note that there is nothing to indicate that Mr. H. was socially disadvantaged, and I want to be clear that he had all the tools to have a better moral compass. "Moral compass" is a phrase that I am adopting from some things that he shared with some of the authors of the report. He comes from a background, while perhaps not highly privileged, it provided him with good family support and an advanced level of education.

But this idea of family support and some of the education, I think, proves that he is a good candidate, as time goes on, for rehabilitation, and I want to thank not only the victims for coming and participating and bringing supporters, but I also want to thank the family of Mr. H. for coming and being supportive to him. Many people do not have that same advantage and they stand here alone. And if we want to make sure that Mr. H. one day is happy, healthy, and able to be a productive member of society, he is going to need your continued support. (

n) Whether the offender presented an ongoing risk to the community [ 82 ] I will discuss this idea of risk, as well. It is a question, no doubt, that all the victims have. Is he going to do this again? Is somebody else going to be hurt? (

o) The offender's family and community support [ 83 ] I have already mentioned this and I have mentioned and want to echo again that the support is not just for Mr. H., but providing the background information to the authors of the report provided us with invaluable information to help make sure that he is rehabilitated. This information is generally passed on to other people that will be working with him in the future.

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p) The offender's bail conditions [ 84 ] I accept that he did well on bail and that he was under significant bail conditions. (

q) The impact on the victim [ 85 ] I will not go through that again. We have heard from one victim and we know that the victimization will -- we know that it exists, even if we have not heard from the other victims. [ 86 ] Sentencing, we often say in courts, is a highly individualized process.

That in itself is confusing, but I know in order to sentence him, I must provide a fit sentence, again one which balances the gravity of the offence and the degree of responsibility of the offender, sometimes referred to as moral blameworthiness or culpability. [ 87 ] There has been some talk about sentencing ranges, and sentencing ranges are religious guidelines that are supposed to provide judges with a general concept of where we can start from. Ranges can go in any number of directions, once you are able to locate a range.

I have to consider aggravating and mitigating circumstances. [ 88 ] The joint submission that has been made is two years less a day by way of global sentence. We do not really need to break it down in any particular way, but I do have an understanding how counsel reached this number, and that one day makes an extreme difference because two years less a day equals provincial time and two years plus a day equals federal time. [ 89 ] I appreciate the amount of effort that has gone into the thought of the probation and the probationary conditions.

Often the rationale for placing a person on probation, which in the eyes of the public is seen as, I suppose, a slap on the wrist, it is not meant to be punitive. Probationary conditions do have the effect of deterring people's behaviour, but it keeps them under a high amount of supervision and it creates protective conditions. It restricts their ability to do certain things.

So I understand why a lengthier period of probation has been submitted as being appropriate. [ 90 ] I want to turn back just for a moment to the idea of joint submissions, and mention the words of the Honourable Judge Skilnick in the decision, R. v. Corbett , 2017 BCPC 314 , because he succinctly captures the idea of what a joint submission is and essentially why we are even talking about it.

I will skip paragraphs 2, 3, and 4, and just reiterate paragraph 5, where Judge Skilnick writes: [5] One former Supreme Court of Canada Justice has said that “a reasonable joint submission cannot be said to ‘bring the administration of justice into disrepute’. An unreasonable joint submission, on the other hand, is surely ‘contrary to the public interest’.” While this may sound like circular logic, that judge went on to explain that if “the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted” then it is a reasonable joint submission.

The public interest test presumes fair and reasonable public sentiment that is not based purely on vengeful or inflamed sentiment, [a reasonable submission is] one that balances a desire for the rehabilitation of offenders with the need to make amends to those who have been the victims of crime. [ 91 ] In trying to determine ranges of sentences, it is difficult to do and at one point in time there was a minimum punishment of one year, except for the youth matter, and now pursuant to a provision of the Criminal Code , that would have run consecutively.

But I am aware that I have the responsibility and the ability to impose any number of sentences ranging very widely from probation to a period of provincial or federal imprisonment. I am also very mindful that Mr. H. comes before the court with no criminal record and as a first offender. [ 92 ] In reference to a much older case, talking about sexual interference not sexual assault, as we are talking about now, R. v.

T.A.D. (1995), 68 B.C.A.C., that was a Court of Appeal decision that basically confirmed that sexual offences against children over an extended time period upheld sentences of 12 years or more, but the usual sentencing range was considered to be five to eight or nine years. That is an older case, but it shows how serious we take these sorts of offences. [ 93 ] With respect to aggravating, mitigating, and collateral circumstances and collateral consequences, an aggravating factor will increase a sentence and a mitigating factor will reduce the sentence.

It is perhaps how I reach a different conclusion from counsel. I am not certain that counsel would have had the benefits of the reports when perfecting the joint submission. I am not certain counsel would have had the advantage to create an opinion with respect to risk or recidivism without those reports. [ 94 ] In R. v. Jaden , 2018 BCSC 1685 , Justice DeWitt-Van Oosten held that a 36-year age gap between offender and the victim is a significant difference and is recognized as an aggravating factor.

It has not been raised here, but it is not lost on me that he was an adult that offended against very, very young girls. He was not a 19-year-old who did it. He was an adult who had a family, who had experiences in life, who had an education, a supportive environment, and the age gap to me, in itself, just as an adult to a child, is also an abuse of trust. [ 95 ] I mention I had discussed the issue of whether there was grooming.

I will expand on the idea of grooming here, but I am also going to talk about it under the heading, the next heading of remorse. [ 96 ] The forensic report indicates that the second set of offences occurred over a two-year time period and psychological coercion in sexual violence category says that he was in a position of authority and his sexual offending likely involved threatened loss or promised gain of favour or affections. The reports confirm that he minimizes his offending and the role he played in initiating the sexual contact.

The report confirms he does not appear to be aware of how he groomed these victims. That is found at page 13 of 16 of the forensic report. [ 97 ] Overlapping the concept of grooming is the idea of his remorse. There has been some discussion about guilty pleas and there has been some discussion about remorse. These are interrelated concepts. An early guilty plea is generally considered a sign of remorse, meaning the offender regrets his wrongdoing. Genuine remorse can be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particular offence.

To be considered a true mitigating factor, the remorse must demonstrate concern for the offending conduct and not the offender's loss. Genuine remorse is relevant because it facilitates rehabilitation.

[ 98 ] True remorse, to me, can be differentiated from the simple act of pleading guilty. Whether remorseful or not, by pleading guilty an accused saves significant court time, eliminates further victimization because victims do not need to relive their experience and go through cross-examination in court which can be very traumatic. As the Crown submits, the report indicates a lack of insight and minimization. [ 99 ] With respect to one, he said she was receptive to him.

When touching one child's vagina, he said, "My hand touched hers and she did not react negatively, so I touched her vagina." He said that one of them, their statement is mostly made-up garbage. Early on, he denied the [omitted for publication] incident and said that she was "the most sexually aggressive".

He says she has made up allegations before and is a pathological liar, but in the end does agree that he did inappropriate things. [ 100 ] While I do not know exactly what to make of some of the comments he said, he says, "I should have taken a more proactive response, but they like snuggling up to me." He says he was the one invited over to visit them sometimes. He says, "I told myself that they wanted me, that they were coming onto me, but if they brushed my hand away I stopped.

I never forced or coerced anyone." [ 101 ] And while he recognizes now that he was wrong, or it appears some of his words to the authors appear to have some acknowledgment that he was wrong, these sorts of comments and explanations make me question his true remorse. He describes himself this way to the author of the Forensic Psychiatric Services report, "I was a regular guy, a positive influence on them, except for the sexual offending." [ 102 ] I pause here to say to you directly, Mr.

H., in case there is any doubt in your mind, you are not a regular guy and you were not a positive influence on these victims. [ 103 ] The psychological report confirms that as a result of psychological testing [as read in]: Mr. H. lacks empathy and in response to the older victimization charge, when asked how the victim might be affected, he said, "He guesses the incident may have had a negative impact on her in some way, in some form or fashion", but he did not know what it might be. [ 104 ] Well, he certainly knows now, because you have heard it first hand.

That same author also captures this in the report [as read in]: Mr. H. did not appear to convey any remorse for the offending, although he commented that there are no do-overs in life. [ 105 ] I believe Mr. H., with the right treatment, you will have a better understanding of your actions on others. I believe that you are a young person, that you have children, you have people that love you, and that you will be able to learn more about your behaviours in the past and the harm that you have caused.

I believe in prospects of your rehabilitation. [ 106 ] I need to address this issue as to whether the offender presents an ongoing risk to the community. This is a pressing concern for sentencing judges and we use confusing terms such as "recidivism rates", what are the chances he is going to fall back into his ways is what that word raises. It is something that we all think about, will he do it again? And if we believe he will, then why don't we lock him up for the rest of his life?

This is how some people address these issues. [ 107 ] While I appreciate that these are questions that the public may have, and that certainly I would not fault the victims if they also had these sorts of questions, in a free and democratic society we do not lock people up for the rest of their life based on a belief.

We must always keep the faith that with appropriate interventions, with counselling and treatment and high degrees of supervision, we can lessen the chance that others will be hurt. [ 108 ] Page 14 of 16 of the forensic report describes him as being at a moderate or elevated risk to reoffend and that he requires special management strategies including increased monitoring.

This risk needs to be considered in light of the doctor's conclusions that "his responses suggest that he may not have answered the questions from the doctors in a forthright manner" and, as well, his responses suggest that he has a tendency to present himself in a favourable light.

As a result, perhaps with respect to the question we all have, is he a pedophile, the answer is found on page 12 of 16 of the report, where the author writes [as read in]: Thus, based on available information, there is insufficient grounds for a diagnosis of pedophilic disorder at this time. [ 109 ] These are my words: More assessment needs to be done.

We do not know, I am not a doctor. [ 110 ] It is my conclusion that the programming described in the corrections presentence report is detailed with respect to programming and specific with respect to programming available to prisoners in provincial versus federal institutions. I will not repeat the details found on page 7 of 9 and do not claim to be an expert on these types of programs. However, I am swayed that the federal programming is preferred over the provincial programming. [ 111 ] The psychological report author writes this [as read in]: He appears to lack insight and empathy.

He focuses on himself and does not appear to understand what the victim experienced. He has given no consideration that he was 10 years older and had the power in the relationship. His prognosis is poor. The results of testing indicate that there is a high possibility that Mr. H. will reoffend. [ 112 ] Again, I am not a psychologist. I am not a doctor.

I am not going to conclude that your prognosis is poor, because I believe in the possibility of individuals receiving treatment and being rehabilitated. [ 113 ] It is required that I consider the impact on the victim and pursuant to 718.2(a)(iii.1), I consider it also to be an aggravating factor that there was significant impact on all these victims. [ 114 ] I also point out the obvious point that there have been collateral consequences already. There have been many and I am not happy

about these collateral consequences, but they are something that I need to take into account. You lost your job. You had to move out of your community because of the stigma of these sorts of charges. You will have a difficult time maintaining relationships in the future, whether that be with your children or with your wife, although I hope you are able to maintain relationships with your family.

In short, communities have long memories and you may never be forgiven by the community. [ 115 ] In considering whether sentences should run consecutively or concurrently, it appears that the answer in this case has already been provided for by the statutory guidelines. But I still wanted to consider this concept of consecutive versus concurrent, and with reference to R. v.

H.C.T.T. , a decision of Justice Harvey, 2018 BCSC, basically I would have to consider whether the convictions should generate consecutive sentences, and the test for that imposition of consecutive or concurrent is whether the acts constituting the offence were part of a linked series of acts within a single endeavour. [ 116 ] In my view, the offences were not a linked series of acts within a single endeavour, and if I had the option, I would not be imposing a concurrent sentence. It had to do with different people over different time periods with different acts.

Once more, that in itself has been answered by our statute. [ 117 ] I am going to -- I do not have a choice, the

section DNA order pursuant to 487.051 is ordered at this time. The s. 109 order to do with weapons is ordered at this time. That prohibition is for life. [ 118 ] I then want to address the s161 ancillary order. It had been jointly submitted that that order should be for life. I did some research on these cases over lunch. In one Ontario Court of Appeal case, R. v. Ball , 2014 ONCA 676 , the Court of Appeal in that case held that trial judges have a wide discretion as to the duration of the order, although in my opinion this discretion must be tempered by the joint submission.

That is, even though I am not in agreement with the sentence of incarceration that has been suggested, I must lean in favour of the lifetime 161 prohibition as a starter. [ 119 ] But now I am imposing a longer and a different sentence than has been jointly submitted and I think I have a responsibility to consider the appropriateness of a s. 161 order for a period of life. By the sentence I am about to impose, there will be programming achieved. That programming will be extensive and, in my opinion, should reinforce rehabilitation. I am going to be declining to impose a lifetime prohibition.

In my view, coupled with the penitentiary term that I am going to impose, the sentence might be considered unduly harsh and, in any event, the protective conditions and no-contact conditions that were being suggested under the probation order can still be imposed under s. 161. [ 120 ] In considering the length and term of the s. 161 ancillary order, I consider these things: whether I am satisfied that the order is necessary as a reasonable attempt to minimize the risk that the offender poses to children.

I must also consider the principles of denunciation, deterrence, and public safety, and recognize that those should take precedence over other recognized objectives of sentencing. [ 121 ] But any order of prohibition that I impose should not be unduly harsh, especially when considering a first-time offender who has not yet had an opportunity to make serious rehabilitative efforts. That case reference for me is R. v.

Brar , 2016, again it is an Ontario case, but they discuss the imposition of these ancillary orders. [ 122 ] I acknowledge that these orders are designed to protect children and the community in general and, in determining the length of the order, I have to consider future risk and, in doing so, must consider the nature of the offence, the circumstances in which the offence was committed, the prior criminal record, or in this case the lack of one, risk of reoffending, age and vulnerability of the victims, the offender's lack of insight, remorse, and willingness to accept responsibility, and reluctance to take treatment.

On that point, I note you are not reluctant to take treatment, that you are openminded and willing and wanting to take treatment, and I expect with correctional programming, even after that, you probably will continue to take treatment. [ 123 ] I am mindful when it comes to s. 161 orders, that the courts have identified some sensitivity to the broadness of prohibitions and, in some case, modified other terms.

Fulsome orders in small communities where parks and playgrounds are located within proximity have the potential effect of effectively banishing an accused from a community. [ 124 ] In one case, Sutherland , 2009 BCCA 534 , an exception was ordered to permit the offender to attend community centres to participate in counselling and social-cultural activities. In another case, R.B. , the offender sexually assaulted the friend of one of his children.

That was significant sexual offending, but the original sentencing judge imposed a 20-year 161 order and the British Columbia Court of Appeal reduced that to three years, holding that a lengthy period of 20 years is usually reserved for the worst offender, and the order was varied to allow contact between the offender and his children, as well as some other exceptions. That cite is R. v. R.R.B. , 2013 B.C. Court of Appeal. [ 125 ] Mr. H., I am going to ask you to step on this side, please. With respect to the -- just a little bit back, on the red mark, if you could.

Thanks, I am -- a little bit back. [ 126 ] THE ACCUSED: The red mark's right there. [ 127 ] UNIDENTIFIED SPEAKER: The red mark [indiscernible/overlapping speakers] [ 128 ] MR. HODSON: He was standing -- [ 129 ] THE COURT: Oh, is there, sorry, I did not see the one closest, back though, just away from -- that is perfect.

Thanks, I am sorry, with respect to these COVID times. [ 130 ] With respect to the offence of hurting a young child in 1995, and that is on Information [omitted for publication], if you were before the court now and you were 16 and you pled guilty and you were open to treatment, again, you have pled guilty and you are open to treatment, I expect any number of available sentences would be available. Sorry, any number would be possible, and this is only my recollection of being involved in the criminal justice system, but back then there were, under the old Act, there were many different

possibilities such as probation with counselling conditions. As well, there would be open custody, which is like jail but not physically in jail, and there would have been closed custody, as well. [ 131 ] In the circumstances, it seems a little bit moot to impose any of those sentences. You are not a youth anymore. We are not going to send you off to a youth worker to do counselling, and we are not going to send you off into an open custody or a closed custody facility for youth.

In the overall scheme of a global sentence, that is when we try and impose a sentence for that offence, as well as the offence for the adults, it does not make sense to impose those sorts of penalties. It is not as if there is no consequence for this crime, and I say this for the benefit of the victim who is present, but the sentence that would have been achieved is a sentence essentially enveloped in the adult sentence. But for our purposes, for our registry purposes, they need to insert something into their computer, and I am imposing a 60-day open custody sentence. [ 132 ] MR.

HODSON: Sorry, did Your Honour say 16 or 60? [ 133 ] THE COURT: Sixty. It is open custody and that is to be served concurrent to the adult sentence. It is really not helpful to explain the legalities of some of these things. Something needs to go into the system to show that we have concluded that sentence. [ 134 ] On Information [omitted for publication], I will just wait until our registrar gets to that information. On Count 2, I sentence you to a period of one year. With respect to Count 5, I also sentence you to one year. With respect to Count 13, I sentence you to one year.

With respect to Count 15, I sentence you to one year. By order of the statutory obligations or law, those are consecutive. And I should pause and indicate that even if that law did not exist, it is my thought that they should be consecutive. [ 135 ] That is a total of four years' imprisonment. [ 136 ] At this point, I need to put my mind to the principle of totality. I can indicate that they are separate incidents, different victims, over the course of time and I pose this question to myself, is the sentence unduly harsh when considered in their totality?

If they were, I acknowledge that I have the ability to lessen the sentence imposed on each of those, but with the greatest of respect, I do not think that they are unduly harsh or so crushing as to deprive you of the opportunity to be rehabilitated. [ 137 ] The total sentence is four years. [ 138 ] The ancillary orders are granted, except I impose the s. 161 condition for a period of seven years, not life, with all the conditions being sought by the Crown on that ancillary order. [ 139 ] I have provided a copy of those conditions being sought to the registrar. [ 140 ] The reason I am not taking away your liberty for life with those conditions is with the programming and with the significant orders for the next seven years, it is my view that you deserve a right, as well, to become a productive member of society, and I must keep the faith that treatment will help you with whatever brought you before the court today. [ 141 ] That concludes these reasons and I will give you a moment to hug your parents, but then you will have to go with the sheriff. [ 142 ] MS.

PROTEAU: Your Honour, when you say granted all the ancillary orders, so 743.21, no contact with any of the victims for the custodial portion of the sentence? [ 143 ] THE COURT: Oh yes, I made a note of that. While in custody, pursuant to that section, you will have no contact with respect to any of the victims. [ 144 ] MS. PROTEAU: And lifetime SOIRA ? [ 145 ] THE COURT: Yes. [ 146 ] MR. HODSON: Your Honour, is that of course modified pursuant to Family Court orders to facilitate the potential of contact with his own children? [ 147 ] THE COURT: Are you talking about the 161? [ 148 ] MR.

HODSON: I guess it would have to be. [ 149 ] THE COURT: Yes. [ 150 ] MS. PROTEAU: So sub (d), 161, having any contact, including communicating by any means with a person who is under the age of 16 years, unless the offender does so under the supervision of a person who the court considers appropriate, or unless further -- well, I suppose before "or unless further order by the court", except pursuant to a Family Court order, or except as approved by MCFD, something to that effect? [ 151 ] THE COURT: Well, I -- [ 152 ] MS. PROTEAU: That is what I discussed with Ms. H. [ 153 ] THE COURT: Okay.

I am not sure how old the children are now. [ 154 ] MS. PROTEAU: They are 12 and nine now, so -- but four years necessarily doesn't mean four years, if he is paroled after one-third, they would still likely be under 16. [ 155 ] MR. HODSON: Also --

[ 156 ] THE COURT: I am going to leave it the way it is, but I am going to say unless they are your children, because ultimately Ms. H. can allow him to see the kids or not. Maybe Ms. H. wants to bring the kids to visit him, I do not know. [ 157 ] All right, that concludes this sentencing. I am going to excuse myself to allow the sheriff to do what the sheriff needs to do. Thank you, counsel, for spending a significant amount of time on this. I respect your efforts and that is all I can say on that point. Thank you, everyone, for your patience, I know you have had a long day. (JUDGMENT CONCLUDED)