R. v. Friesen, 2019 BCPC 166

Citation: R. v. Friesen 2019 BCPC 166 Date: 20190627 File No: 46170 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ERNEST FRIESEN 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 G. KOTURBASH Counsel for the Crown: N. Devji Counsel for the Defendant: J. Pennington Place of Hearing: [ Omitted for publication ], B.C. Dates of Hearing: March 12, 13, 2019 Date of Judgment: June 27, 2019

[ 1 ] THE COURT: I found Mr. Friesen guilty of committing an indecent act for exposing his genitals to a 12-year-old boy in a local park. At the time, he was bound by a probation order not to have any contact with children under the age of 16 and prohibited from attending parks or playgrounds. That probation order flowed from a conviction for a similar incident in 2017 where Mr. Friesen exposed himself to some children in front of the public library. I also found him guilty for breaching this order. [ 2 ] He has been in custody since October 14, 2018, or 256 days.

He is entitled to enhanced credit of 384 days. [ 3 ] On the original sentencing date, the Crown sought a sentence of 12 months and Mr. Friesen a sentence of time served. Mr. Friesen also argues that he does not require much in the way of supervision following his release from custody and opposes any suggestion that a curfew condition be imposed if he is placed on probation. The circumstances of the offender [ 4 ] Mr. Friesen is 66 years old. Aside from his father suffering from bipolar disorder and attempting suicide when Mr. Friesen was 14, Mr. Friesen's childhood was unremarkable.

He has a master's in archaeology and I am told a teaching degree. He worked primarily as a substitute teacher and stopped working 12 years ago. He now supports himself through a disability pension. He is not married and does not have any children. He suffers, like his father, from bipolar disorder. He has spent time in psychiatric wards in the past; how often is unknown. [ 5 ] In 2009, Judge Cartwright found him guilty of assaulting a 14-year-old child, a child who was autistic and dependant on his care aide, Mr. Friesen. Judge Cartwright acquitted Mr.

Friesen of trying to administer his bipolar drug to the child. Not because he did not do it, but because, at the time of the offending behaviour, he was in a manic phase and believed what he was doing was right. What Mr. Friesen believes or does not believe, however, when he is in a manic state does not diminish his risk. [ 6 ] At the time of the offence, he was seeing Dr. Nichols, a psychiatrist. He had been seeing her for several years. In a report prepared for Mr. Friesen's last sentencing for committing an indecent act, Dr. Nichols observed that with medications Mr.

Friesen can be stable but, because bipolar is a chronic illness, it can break through the medications and result in hypomanic states and move to mania. She explained that it is in the hypomanic state when Mr. Friesen exhibits inappropriate behaviours, some of them being sexual in nature. [ 7 ] Prior to being incarcerated, Mr. Friesen was well connected with a mental health worker who worked with the adult community support services in [omitted for publication]. Unfortunately, both his psychiatrist and mental health worker have retired, and Mr.

Friesen now finds himself on a wait list for a psychiatrist. [ 8 ] While on probation, Mr. Friesen completed the Forensic Psychiatric Clinic sex offender program and followed up by attending the sex offender maintenance program. It was during one of these group sessions in September 2018 when he was observed to be exhibiting unusual behaviour. The officer believed that Mr. Friesen was decompensating and immediately informed others within the mental health community to get extra support. It is unclear what that response was, but despite those efforts, Mr. Friesen reoffended and the system failed. [ 9 ] Mr.

Friesen is currently homeless. Following his arrest, he lost his apartment. While incarcerated, despite it being beyond the scope of their duties, Community Corrections has gone above and beyond to try and find suitable housing for Mr. Friesen, but have been unsuccessful. The lack of a fixed address is concerning and poses challenges for monitoring Mr. Friesen when he is released. According to Community Corrections, if Mr.

Friesen is sentenced to a further term of custody, the institution can provide additional resources to help him find suitable housing. [ 10 ] The challenge is that, without a suitable residence, I cannot, as part of a probation order, require Mr. Friesen to be monitored by electronic supervision. Although Mr. Friesen now takes a different position, when asked by the psychiatrist how he could stop his offending behaviour, Mr. Friesen recognized the important role electronic supervision could have. His words were that with the help of God and electronic monitoring that he would not reoffend. [ 11 ] Mr.

Friesen has a criminal record which includes, as I indicated, an assault of a 14-year-old boy in 2009 and exposing his genitals to a child and her mother in 2017. He also has convictions for failing to comply with both an undertaking, recognizance and probation order. [ 12 ] The circumstances of the breach of probation conviction on his record involved Mr. Friesen attending a local beach to take photographs of young children. He also attended a local beach on another occasion and was found guilty of breaching his order at that time as well.

Despite being prohibited from going to beaches or having contact with children, the order did not seem to prevent him from doing so. [ 13 ] In preparation for sentencing, Mr. Friesen met with a forensic psychiatrist. Despite the opinion of Dr. Nichols, his treating psychiatrist, Dr. Lessing opined that Mr. Friesen's mental illness did not appear to play any

part in his offending behaviour. He states the only psychological abnormality that he noticed or observed was Mr. Friesen's lack of insight and insistence of blaming the child for lying to the police and the court. Dr. Lessing did not comment on Mr. Friesen's level of risk. [ 14 ] With the greatest of respect to Dr. Lessing, neither I, Mr. Friesen's counsel, or Crown counsel agree with the assessment and prefer that of Dr. Nichols. Weeks before the incident, Mr. Friesen exhibited unusual behaviour.

The behaviour was so unusual that the probation officer opined that he was decompensating in the community and tried to get assistance. During the trial and at many of his appearances on this matter, he made unusual comments, consistent with someone who is suffering from some sort of mental illness. The adult witnesses that were present at the park that day also commented on Mr. Friesen's unusual demeanour. [ 15 ] Counsel concede, and I agree, that Mr. Friesen's bipolar disorder did play a role in his offending behaviour. [ 16 ] Mr. Friesen continues to maintain his innocence.

He is unapologetic and blames the child for lying. It is unclear, however,

whether his denial and lack of remorse are a product of his mental illness. [ 17 ] His plans for the future are to continue seeing a psychiatrist and to purchase a puppy to replace his affection for young children. He again, as I stated, says that with God's help and electronic supervision, he will be safe in the community. Primary objectives and principles of sentencing [ 18 ] Protection of the public is the overall goal of sentencing. Traditionally, the primary objectives of sentence in a case like this would be specific and general deterrence, denunciation, and separation from society.

Rehabilitation is also important, but the optimism of the court is waning. Mr. Friesen has been under the care of a psychiatrist for 12 years. At the time of his offending behaviour, he was, as Crown counsel describes, well set up with resources in the community. [ 19 ] I say that traditionally specific and general deterrence are important objectives in a case like this, but when dealing with a person who is suffering with mental illness, they can be more difficult to achieve. [ 20 ] Because Mr. Friesen is being sentenced for multiple offences, I must also apply the principle of totality.

The aggravating and mitigating factors Aggravating factors 1. The fact that the offending behaviour involved a child is a statutory aggravating factor. I am also required by law to emphasize the objective of denunciation. 2. The location of the offence. It is tragically ironic and highly aggravating that the offence was committed at the [omitted for publication], a small park designed solely for children with an intended purpose to teach them how to be safe and navigate their way through childhood. 3. Impact on victim.

As Crown counsel pointed out, it is difficult to determine what kind of impact this offence will have on the child. Currently there is no indication that the child is suffering from any emotional harm or damage. That might or might not change. At a minimum, though, I suspect and foresee that the child, when he gets to adulthood, will have difficulty having any confidence that his own children will be safe alone in parks or playgrounds and will always be looking over his shoulder. The community has also been impacted by this crime.

One could sense the feeling of guilt that the Crown witness had in leaving the children alone with Mr. Friesen in the park that day. The incident has also had a chilling effect on parents of children in our own community. 4. Planning and premeditation. This was not an impulsive act. Mr. Friesen deliberately drove to the park, knowing that he was prohibited from doing so, and spent time befriending the children and waited for the adults to leave before exposing himself. 5. Bound by a probation order. Because he is also being sentenced for breaching his probation order, I am not considering the fact that Mr.

Friesen was on probation as an aggravating factor with respect to the indecent act. However, because the conditions that were breached were so fundamental to the management of Mr. Friesen in the community and the protection of the public, the nature of the conditions themselves is a highly aggravating factor in determining an appropriate sentence for the breach of probation. 6. Criminal record. Mr. Friesen's criminal record demonstrates a proclivity and inability to abide by court orders. Mr. Friesen was convicted of a very serious assault in 2009; the victim was a vulnerable child.

His actions on that date demonstrates his potential for violence and irrational behaviour when unwell. 7. On other occasions, including this one, he demonstrated an inability to abide by the simplest of conditions, like staying away from beaches or parks. The photographs that he took of the children on the beach can also be characterized as engaging in the victimization of children. However, I must keep in mind that he has already been sentenced and punished for those crimes. 8. Traditionally, mental illness mitigates the sentence imposed. In this case, although Mr.

Friesen's mental illness does reduce his moral culpability, on the other hand, it also heightens his risk to reoffend and emphasizes a greater need to protect the public. He presents a high risk of harmful recidivism. Mr. Friesen has had several years to develop management strategies to deal with his illness but has been unsuccessful. Mitigating Factors 1. Concerning mitigating factors, the only one is, again, Mr. Friesen's mental illness which does diminish his moral culpability to some extent but, as I pointed out, is also an aggravating factor because it heightens his degree of risk.

Sentence range [ 21 ] Despite the fact that public exposure can cause considerable harm to victims, especially children, who are forced without warning to contribute to someone else's sexual gratification, where the Crown proceeds summarily, the maximum sentence the court can impose for the offence of indecent exposure is six months in jail. [ 22 ] There are not many sentencing cases involving s. 173(2). Prior to 2010, the offence could only be prosecuted summarily and carried a maximum sentence of six months with no minimum. As a result, the range was necessarily limited.

It has since become a hybrid offence with a maximum sentence of two years if prosecuted by indictment. In 2012, minimum penalties were added of 30 days if prosecuted summarily and 90 days if by indictment. Although it is now hybrid, it is still very common, as in this case, for the Crown to proceed summarily. Because the maximum sentence is so low, it is not uncommon for courts to impose the maximum where there has been a history of similar offending. [ 23 ] The maximum sentence for breach of probation where the Crown proceeds summarily is 18 months. Although relatively

common, breach of probation offences produce few reported decisions. It is, like this case, frequently prosecuted and punished alongwith substantive offences. However, custodial sentences are not uncommon. [24] In cases where the offender has committed an indecent act in conjunction with breaching terms of an order that have a solepurpose of protecting the public, the sentence for the breach can be substantial. I have found a few, but not many examples. In R. v. Haug(2002), 2002 SKCA 49 , 219 Sask.

R. 276 (Saskatchewan Court of Appeal), the accused was subject to a probationary termforbidding him from being in the company of a child under 14, which suggests he had a prior related record. He was sentenced to 12months. [25] In this case, the role of the conditions Mr. Friesen breached were central to the management of the risk of recidivism, and ismuch more serious than it would be if the role of the condition was an ancillary aid to the management of that risk. In this contextbreaching the probation order is not dissimilar to breaching a term of a s. 161 order. In R. v.

Exell, 2015 ONCA 704, the accused hadbeen convicted of sexual interference and sentenced to two years less one day and a s. 161 order. The term of the order prohibited himfrom attending any school ground. About four years later, he attended a spa with his church at a secondary school. The sentencing judgeimposed a conditional discharge, referring to the offence as technical in nature. [26] The Ontario Court of Appeal did not agree. The court said that those who are subject to such an order must realizecontravention will come at a heavy price. The price for Mr.

Exell was six months' jail and a further three years of probation. [27] It is rare to find police, sheriffs, prosecutors, defence lawyers, probation officers, prison officials, and judges all on the samepage, but across the criminal justice spectrum there is a clear and strong consensus that something has gone painfully awry and that wehave lost our way. Canadian jails, and British Columbia is no exception, have become mental health facilities, a role for which they areill equipped. [28] Decades ago, few prisons provided any form of mental health treatment.

All do now, but nowhere near enough in quantity andquality for the staggering number of prisoners with serious mental illness. [29] Although dated and I suspect currently even higher, according to 2009 numbers from Correctional Services of Canada, at leastone in 10 men and nearly one in three women held in the federal institutions have mental health problems.

In 2009 that numberrepresented a near doubling in the total proportion of inmates with mental illness from 10 years earlier. [30] Having been involved with the criminal justice system for as long as I have, and knowing that our provincial institutions are thefirst entry point for people charged, the numbers are even higher in those institutions. [31] Understaffing, insufficient specialized facilities, and limited programs leave prisoners without the treatment they need. In thecase of Mr. Friesen, he has been in custody for almost a year now.

Although he has been given his medications on a regular basis, he hasnot received any other form of treatment. [32] Jail can be a terrifying place, even for someone who is not suffering from a mental illness. Untreated or under treated mentallyill prisoners suffer more than others. They rant and rave, huddle silently in their cells, some talk to invisible companions and live inworlds constructed of hallucinations. They can react without provocation and often refuse to obey prison orders.

Some beat their headsagainst cell walls, cover themselves with feces, and mutilate themselves until their bodies are riddled with scars. Many attempt suicideand some even succeed. [33] So why is it that we are warehousing our most vulnerable? Why is that jailing the mentally ill is perceived as more humanethan hospitalizing them? [34] Several decades ago, there was a process of deinstitutionalization which freed mentally ill men and women from the poor livingconditions of our mental hospitals in which they had been dumped.

Unfortunately, the system of community-based mental healthservices envisioned by those behind the deinstitutionalization never seemed to materialize to the extent it should have. Today,community mental health services are stretched to the limit. Psychiatric hospital beds are a precious commodity. [35] People living with mental illness, especially if they are poor and homeless, have substance abuse problems and find it nearlyimpossible to obtain help.

Untreated, they can find themselves in the margins of society, deteriorate psychiatrically to the point that theyrequire hospitalization, but with limited bed space and limited legal options to keep them hospitalized, they ultimately find themselvesback on the streets breaking the law. [36] Tragically for some of the mentally ill, jail or prison may be the first time that they have ever received any mental healthservices, but the more common experience of the mentally ill behind bars is to receive little or no meaningful treatment. [37] Prisons were not initially designed to treat the mentally ill.

This is what hospitals and psychiatric wards are for. [38] The mentally ill find it difficult to abide by the formal and informal rules that govern prison life. Other prisoners end upexploiting and victimizing the mentally ill while they are in jail. Some will break down completely into acute psychosis, have to be takento hospital for intensive psychiatric treatment. Once stabilized, they are returned to jail where the cycle of deterioration repeats itself. Thesituation is no different on our streets.

With the closure of psychiatric hospitals, reduction of bed space for the mentally ill, thecorrectional system has become the institution of last resort. [39] Unfortunately, I am left with Hobson's choice. Although firmly convinced Mr. Friesen needs to be institutionalized in apsychiatric hospital for his benefit and the benefit of the community, I am not vested with such powers to make such an order. Instead, Iam left with the singular option of warehousing Mr. Friesen in an effort to ensure the public remain safe. Even in that regard, my optionsare limited.

I must apply the law and I am bound to follow previous decisions from our higher courts. I must ensure that any jail sentenceI impose is proportional to the gravity of the offence, and Mr. Friesen’s moral responsibility.

Sentence [ 40 ] Concerning Count Number 1 I am satisfied that the maximum sentence must be imposed. That sentence is 180 days. Mr. Friesen has been in custody for 256 days. He is entitled to enhanced credit of 394 days, and I am giving him credit of 179 days and impose a sentence of one day. On Count Number 2, the sentence will be identical, 180 days, credit of 179 days, for a sentence of one day.

On Count Number 4, the sentence that I would have imposed would have been a sentence of 12 months for the breach, but I must apply the principle of totality and I have determined that a sentence of nine months is appropriate, or 270 days. Applying the remaining credit of 205 days, the sentence is 65 days. The sentence will be concurrent with Count Number 5, but consecutive to Count Number 1 and 2.

Count Number 5 will be the same sentence as Count Number 4, the sentence I wold have imposed on Count Number 5 is 270 days less credit of 205 days, for a sentence of 65 days concurrent, for a total sentence of 66 days remaining. [ 41 ] I am hopeful that the additional time in custody can give the various organizations time to find suitable housing for Mr. Friesen. [ 42 ] I am placing you on probation for a period of three years, sir. I am going to place you on a 24-hour house arrest curfew.

I am hopeful, sir, that once you find suitable accommodation, that an application to amend the order can be made and that perhaps some additional liberty can be given to you by way of an electronic bracelet, but at this point I do not have the power to impose electronic supervision. [ 43 ] I will also urge the institution, solely a recommendation, Madam Clerk, that should go on the warrant of committal, that you be placed in an institution that has the most favourable psychiatric options.

Albeit it will only be for a short time, I think it is important that you be placed in an institution that has the most favourable psychiatric options to assist you in managing your illness. [ 44 ] The terms of the order are as follows: 2104 -- are you ready, Madam Clerk? [ 45 ] THE CLERK: Yes. [ 46 ] THE COURT: You must report within two business days after your release from custody, unless you have obtained, prior to release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 47 ] You can convey to probation, Ms.

Devji, that it is my hope that there is no lag time between his release from custody and his reporting, and that they try to give him directions before his release with respect to that reporting, but if that does not happen, he has two business days. [ 48 ] 2105, if at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to the probation officer within two business days from your release from custody, and I will also add the words, "or upon completion of the sentence". [ 49 ] 2201, when first reporting to the probation officer, you must inform him or her of your residential address and phone number, and you must not change your residence or phone number without written permission from your probation officer. [ 50 ] 2203, you must reside at a residence approved in advance by the probation officer.

You must provide your probation officer with your phone number and you must not change your residence or your phone number without written permission from your probation officer. [ 51 ] 2205, you must obey all the rules -- I will not put 2205 in place. [ 52 ] 2209, for the duration of this order, you must remain inside your residence under house arrest, 24 hours per day, each day. In doing so, I am mindful that probation orders can be amended, and I would certainly encourage an amendment if suitable alternatives arise.

I did not -- that is not part of the condition, though, Madam Clerk, I apologize. [ 53 ] You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with the house arrest condition of this order. You may be away from your residence during the house arrest hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons.

You must carry the written permission when you are outside the residence during the house arrest hours. [ 54 ] 2305, you must not engage in activities, volunteer work, or employment that could bring you in contact with persons under the age of 16 years without written permission of your probation officer, and when so engaged you must carry the permission. [ 55 ] 2306, you must not date or enter into a marriage or common law relationship that has the care or access to children under the age of 16 years, until you have identified to your probation officer the person with whom you propose to enter into such a relationship and your probation officer has informed that person of your history or described in your criminal record, presentence report, if any, and the reasons for judgment. [ 56 ] 2303, you must not go to any public park, public swimming area, or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, or daycare centre, school ground, or playground.

I will include the exception: (

a) except with the written permission of your probation officer and you must carry the written permission when you are in the prohibited area. [ 57 ] 2304, you must have no contact or communication, directly or indirectly, with nor be alone in the presence of any person you know to be or who reasonably appears to be under the age of 16. [ 58 ] 2501, you must attend, participate, and successfully complete -- I am assuming he is consenting to treatment, is that correct?

[ 59 ] MR. PENNINGTON: Yes. [ 60 ] THE COURT: 2502, having consented, you must attend, participate, and successfully complete any intake, assessment, counselling, program, treatment, or residential treatment program as directed by your probation officer. [ 61 ] As an aside, it does seem somewhat remarkable that I do require Mr. Friesen's consent before being able to order him to undergo treatment or take his medication in a case like this, but I do. [ 62 ] Is he also consenting to a Rogers order? [ 63 ] MR.

PENNINGTON: Yes. [ 64 ] THE COURT: 2507, having consented, you must do the following: At the direction of your probation officer, report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment: (2) attend all scheduled appointments with your doctor, psychiatrist, and counsellor; (3) take all medications prescribed to you; (4) give your doctor, psychiatrist, and counsellor a copy of this order; (5) you must provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor; (6) you must tell your doctor, psychiatrist, and counsellor that if you do not follow any terms of this order, he or she is to inform your probation officer.

If you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer. [ 65 ] 2508, you must sign any waiver of confidentiality or release of information forms as well, as will enable your probation officer, counsellor, or treatment providers to monitor your attendance and completion of any intake, assessment, counselling, or treatment programs and to collaboratively discuss your treatment needs. [ 66 ] 2002, you must have no contact or communication, directly or indirectly, with A.S. [ 67 ] 2005, you must not go to any residence, school, or work place of A.S. [ 68 ] With respect to 2303, Madam Clerk, I am going to include the word "school", as well.

If Mr. Friesen ends up finding that he is going to be attending some educational facility, his probation officer can give him permission to do that, but I think that school is to be included in that. [ 69 ] I have also thought, sir, about your intentions of getting a puppy. At this point, I am concerned about that, given your misguided views of what appropriate affections is, and your expressed desire to get a puppy to replace your affection for children, I do not think it is a good idea. I could be completely wrong about that and your treating psychiatrist might disagree.

If your treating psychiatrist does disagree, I would encourage you to come back and request an amendment of the order. I am going to put another condition in, Madam Clerk, and it will read that you are also prohibited from possessing animals, period. [ 70 ] I will put in the exception, except with the written permission of your probation officer, so that might not necessarily require you to come back.

If the treatment providers determine that owning a puppy is a good idea, then they can give you that permission, but at this point I am not. [ 71 ] Next, with respect to Counts 1 and 2, they are primary designated offences and I am ordering that you provide a sample of your DNA. [ 72 ] Pursuant to s. 490.012, you have been found guilty, sir, of more than one designated offence and pursuant to s. 490.013(2.1), you are required to comply with the Sex Offender Information Registration Act for life. Did I get that correct, Ms. Devji? [ 73 ] MS.

DEVJI: Yes. [ 74 ] THE COURT: Next, pursuant to s. 161 of the Criminal Code , you are prohibited for life from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre; (

b) being within two kilometres of any residence, school, or workplace of A.S.; (

c) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16 years, except in the following circumstances: (iii) as approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. [ 75 ] Anything else, counsel? [ 76 ] MS.

DEVJI: No, I believe that's everything, Your Honour. [ 77 ] THE COURT: Mr. Pennington? [ 78 ] MR. PENNINGTON: No. [ 79 ] THE COURT: No. Okay, thank you. (REASONS CONCLUDED)