R. v. L.J.P., 2020 BCPC 270

Citation: R. v. L.J.P. 2020 BCPC 270 Date: 20201123 File No: 46623-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.J.P. BAN ON PUBLICATION s. 486.4(2.2) C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. KEYES Counsel for the Crown: R.W. Robinson Counsel for the Defendant: M. Reed Place of Hearing: [Omitted for publication] , B.C. Dates of Hearing: November 19, 20 & 22, 2019 Date of Judgment: November 23, 2020 [ 1 ] THE COURT: L.J.P. sexually assaulted D.R. on September 12, 2017, in [omitted for publication].

He pleaded guilty to sexually assaulting her on November 22, 2019, after D.R. testified at not one, but two Provincial Court trials. The first trial ended in a mistrial

after it came to light mid-trial that DNA implicating L.J.P. was located in samples taken from D.R.’s vagina. By that time, D.R. had gone through both examination in chief and cross-examination. L.J.P. pleaded guilty on the fourth day of the second trial after D.R. testified in chief. Today, he is to be sentenced. Circumstances of the Offence [ 2 ] L.J.P. and D.R. were friends. They had known one another for many years. She knew his family from [omitted for publication] where he grew up. She thought of him as a brother. She knew him by the name [omitted for publication].

She very frankly told me that she and L.J.P. were both alcoholics. She said they used to hang out together, go drinking, visit friends. That is what they were doing on the evening that this offence took place, visiting friends and drinking. [ 3 ] D.R. decided she had had enough and went home at about 10:00 or 11:00 p.m. before her husband started work at midnight. D.R. let L.J.P. come home with her because he had nowhere else to stay. D.R. gave L.J.P. a pillow and a blanket and he laid down on a couch in the living room in his clothes. She believed that he went to sleep.

She went to sleep on another couch in the living room where she always slept. She went to sleep in the clothes she was wearing when she came home and had a blanket pulled up around her. [ 4 ] D.R. awoke abruptly at around 2:00 a.m. to find her blanket pulled off, her jeans and underwear pulled down around her ankles, and her shirt pulled up. L.J.P. was on top of her. She threw him off her. She saw that his pants were down and she says she saw his penis was up and hard. She was not sure whether he had penetrated her vagina with his penis or not.

He said something to her to the effect that "she wanted it." She told him she was going to call the police. She chased him out of the house. Then she lay back down on the couch and cried herself to sleep. [ 5 ] She called the police the next morning. She was taken to the [omitted for publication] Hospital and a sexual assault examination was performed. Samples were taken from her vagina. L.J.P.’s DNA was identified in her vaginal sample. L.J.P. now admits the DNA was his, but states that it came from saliva; that is, he admits he wet his finger with saliva before penetrating D.R. with his finger.

He said he did not penetrate her vagina with his penis, although he admits his pants were down. [ 6 ] D.R. also testified that she saw L.J.P. a number of times around town after this offence was reported. He asked her repeatedly to drop the charges. Impact on the Victim [ 7 ] D.R. was devastated by this offence. She thought of L.J.P. as a good friend, someone she could trust when she was drinking. She trusted L.J.P. like a brother. She said, "I trusted him and gave him a warm place to sleep that night because he didn't have anywhere else to go and that's what he did to me." She felt utterly betrayed.

She became scared to go out in public or to carry on with her volunteer work for fear of running into L.J.P. The offence had a negative impact on her relationship with her husband. She had trouble sleeping after the offence and had to take sleeping medication. She began sleeping in a separate room with her door locked. She felt unable to trust anyone. Sadly, D.R. died this year not long before sentence submissions were made. She was 44. Circumstances of the Offender [ 8 ] L.J.P. comes from [omitted for publication], an Indigenous community about an hour from Fort St. James.

He is a member of the [omitted for publication] . L.J.P. is now 61 years old. He has four surviving siblings. He is closest to the two siblings who live in [omitted for publication]. He has not been involved in an intimate relationship for some years, but he had a committed relationship for about 20 years which produced four children. His eldest son committed suicide at age 20. He has only occasional contact with his three adult children and his grandchildren even though they live in the area. He said to Ms.

Epton, who prepared the presentence report, "I don't have time to see them." [ 9 ] Both of L.J.P.’s parents attended [omitted for publication] Residential School. L.J.P. attended [omitted for publication], as well, as the [omitted for publication] Reserve School, and he said it was a frightening experience because he got beat up by other kids and the teachers slapped and kicked the students. [ 10 ] L.J.P. denied any physical abuse or neglect by his parents when he was interviewed at the Forensic Psychiatric Services Clinic. However, L.J.P. told Ms.

Epton that he and his siblings suffered from severe abuse at the hands of their father growing up. He beat their mother and the children regularly. L.J.P. said, "When he would hit us with full fist, we would fly across the room." L.J.P.’s older sister, Ms. H. [phonetic], explained to Ms. Epton that their community had no road access in those days so they were unable to call the police for assistance. She said their mother would "hide us all in the bush when she became really afraid so he couldn't find us." She said their mother and the children suffered from numerous broken legs and arms.

L.J.P. said his father hated him because he thought L.J.P. was not his son and L.J.P. said, "He would beat the piss out of me." He learned to have a knife or a gun ready nearby for protection. He left home in his early teens. [ 11 ] L.J.P. told Ms. Epton he was sexually abused as a child beginning when he was 10 or 11 years old by three adult men including his older brother. He was visibly distressed and in tears when he said to Ms. Epton, "I'm 60 years old. I shouldn't be crying.

I should have gotten over this by now, but I'm not." His daughter believes the abuse occurred at residential school. [ 12 ] L.J.P. completed grade eight at the [omitted for publication] Reserve School in 1973, but although he enrolled in higher education to become a heavy-duty mechanic in 1977, he was unable to complete the upgrading required to begin. Many years later, L.J.P. successfully completed a 10-month carpentry course at the College of New Caledonia with his son, B. [phonetic], who is now employed full-time in the housing department of the [omitted for publication] Band office.

Unfortunately, although L.J.P. has worked on and off as a labourer for many years, he has been unable to keep long-term employment due to his substance misuse. In addition to receiving social assistance, he performs odd jobs to earn enough money to buy alcohol and cigarettes. [ 13 ] L.J.P. is homeless. He stays on the outskirts of the [omitted for publication] Reserve in [omitted for publication] going from home to home. He has a heart condition which requires him to be near a hospital. He requires heart surgery, but I was informed during

submissions that his alcohol abuse interferes with treatment. [ 14 ] L.J.P. is a severe alcoholic. He began drinking alcohol at eight years old and he has consumed daily ever since. I was told in submissions that he regularly consumed two 26ers per day and two packs of cigarettes per day. He expressed to me that he is afraid he will die of the DTs if he quits drinking all of a sudden which he believes will happen when he goes to jail. I adjourned this sentencing to give L.J.P. the opportunity to seek medical treatment to reduce his alcohol intake.

I am informed by counsel that he has proceeded some way along that and is consuming less than he used to. [ 15 ] L.J.P. has a very lengthy criminal record for property offences, impaired driving offences, weapons offences, breaches of court order, and significantly, a conviction for uttering threats and five convictions for assault and assault with a weapon. The last conviction occurred in 2013. His sister commented to Ms.

Epton that he was very violent with the women that he was with when he was drinking, although she never heard about him misbehaving sexually. [ 16 ] Luckily for L.J.P., the residential school experience did not destroy his connection with his Indigenous heritage. At one time, he loved being out in the bush. His mother and other family members took him hunting, fishing, trapping, and he is involved in Aboriginal painting and carving. Attitude Toward the Offence [ 17 ] L.J.P. denied committing the offence when he was interviewed by Ms. Epton. He said he pleaded guilty to "get it over with.

I have been back and forth to court for over two years and I want to give it up now. I'll die in the F'ing jail. I don't care anymore." Risk of Future Offending [ 18 ] Dr. Wiebe, the author of the psychological risk assessment, noted that L.J.P. did not appear for his psychological interview. However, L.J.P. did attend the psychosocial interview and he took psychological testing. Dr. Wiebe is of the opinion that L.J.P. presented himself in a deliberately negative light on various assessment tools in an attempt to feign or exaggerate mental health symptoms. Dr.

Wiebe assessed his risk to sexually reoffend as moderate and most likely to occur if he were drinking. The Position of the Crown and Defence on Sentence [ 19 ] The Crown seeks a sentence of 12 to 18 months' incarceration followed by two years' probation and ancillary DNA, firearms, and sex offender registry orders. The ancillary orders are not opposed by the defence. The defence submits that a 12-month sentence followed by lengthy probation would be appropriate. Principles of Sentencing [ 20 ]

Section 718 of the Criminal Code states: The fundamental purpose of sentencing is to protect society and 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: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 21 ] In R. v. B.M.W. , 2020 BCPC 9 , Judge Doulis provided a helpful explanation of another principle of sentencing, the proportionality principle. At paragraph 76, she said:

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: (

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

b) the harm or likely harm to society and its values … [ 22 ]

Section 718.2 of the Criminal Code directs the court to consider additional sentencing principles, specifically that the sentence should be increased or reduced to take into account aggravating or mitigating factors. I will go into detail regarding the specific aggravating factors applicable to this case later in these reasons -- I should say aggravating and mitigating factors.

Section 718.2 provides further as follows: (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[ 23 ]

Section 718.2(

e) requires the court to consider all available sanctions other than imprisonment that are reasonable with particular regard to the circumstances of aboriginal offenders. As Judge Doulis said in B.M.W. at paragraph 89 :

Section 718.2(

e) imposes on a sentencing judge a statutory duty to consider the unique systemic and background factors which may have played a

part in bringing a particular offender before the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular indigenous heritage. R. v. Gladue … and R. v. Ipeelee … establish the principles and framework for sentencing indigenous offenders. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentence judge.

Judges may take judicial notice of the broad systemic and background factors affecting indigenous people generally and case-specific information from the offender and the presentence reports. In R. v. Ipeelee , Lebel J. states at para. 60: To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples … [ 24 ]

Section 718.2(b), known as the parity principle, requires the court to impose similar sentences on similar offenders who have committed similar offences. A review of sentencing decision by other judges assist the court with that principle of sentencing. Range of Sentence Case Authorities Provided by the Crown 1. R. v. Wells , 2000 SCC 10 , in this case, the 18-year-old victim was asleep or unconscious due to alcohol intoxication. Mr. Wells sexually assaulted her causing abrasions to her vagina, although there was no evidence of penetration.

The victim suffered hurt and humiliation when she learned of the event the next morning. He was convicted after a trial. He was Aboriginal and so was the victim. Mr. Wells had prior convictions for assault, but not sexual assault. His sentence of 20 months was upheld by the Supreme Court of Canada as a fit sentence taking into account his particular circumstances as an Aboriginal offender. 2. R. v. French , 2015 BCPC 406 , Mr. French insinuated himself into the home of the suicidal young woman and inserted his hand into her vagina when she passed out from intoxication.

The sexual assault was interrupted when she was awakened by her parents knocking on the door to her home. Mr. French had two prior convictions for sexual assault. Mr. French pleaded guilty mid-trial. Both the victim and the offender were Aboriginal. The court found that a sentence in excess of two years would have been appropriate, but because the Crown proceeded summarily, the maximum sentence was limited to 18 months' incarceration. A sentence of 18 months' incarceration and two years' probation was imposed. 3. R. v.

Eustache , 2014 BCCA 337 , in this case the offender was a 51-year-old Aboriginal man who was a survivor of residential school. After an evening of drinking, he removed the bottoms of an unconscious 18-year-old female victim and was rubbing his genitals on hers when he was interrupted by the victim's cousin. He had a difficult childhood marked by sexual abuse, neglect, and presumably parental alcoholism. He had a dated criminal record for drunk driving offences and one for assault of the victim's mother when she refused to have sex with him.

The sentencing judge noted that his difficult childhood and residential school experience affected his overall moral culpability. The Court of Appeal upheld the sentence of one year followed by two years' probation imposed in that case, noting that the upper end of the sentencing range for that offence would have been three years. While this is similar to the case at bar with respect to its general circumstances, in my view, there are some pertinent distinguishing features which render the case at bar more serious both in terms of the circumstances of the offence and of the offender.

Unlike the Eustache case where there was no evidence of penetration, L.P.J. admits he did digitally penetrate the victim and, of course, L.P.J. has a lengthy criminal record. 4. R. v. Rosenthal , 2015 YKCA 1 , in this case the offender had no criminal record. He and the victim had been socializing and drinking. The victim asked to stay over and share his bed rather than go home late at night and he agreed. She later awoke to find his finger in her vagina. She moved away and told him she was not interested in having sex and he removed his hand.

The Court of Appeal noted that the range of sentence established in R. v. White , 2008, Y.K.S.C., was 12 to 30 months' imprisonment in cases involving non-consensual intercourse with a sleeping or unconscious victim. The court added: There is no logical basis on which to exclude assault by digital penetration from the range, it [is] a serious and invasive form of sexual assault, as recognized by the trial judge. The Yukon Court of Appeal, which is also the B.C. Court of Appeal, found that the range of sentence for digital penetration was 12 to 30 months' incarceration.

It overturned the suspended sentence imposed by the trial judge and imposed a sentence of 14 months' incarceration. The court also noted that the prevalence of sexual assaults on sleeping victims in the Yukon was one of the factors that led the judge to reject a conditional sentence and impose a 12-month custodial sentence in R. v. Netro , 2003 YKTC 80 "The difficulty" -- paragraph 22: The difficulty in considering a conditional sentence in this case arises from the circumstances not of the offender but of the offence. … the crime must be viewed in its community context.

Sexual assault on unconscious and helpless victims is, if my dockets are any indication, rampant in this jurisdiction and throughout the North. [ 25 ] In my view, sexual assaults on sleeping victims are equally prevalent in the communities served by this court. [ 26 ] I have also found the following cases to be of assistance to me and my deliberations, R. v. Richardson , 2017 NWTTC 19 . Mr. Richardson offered the 18-year-old victim a place to sleep for the night when she had no way to get home. She went to sleep fully clothed. She awakened to find him inserting his hand into her vagina.

The court noted the significant prevalence of sexual assaults on sleeping victims as well as sex assaults generally in the North which enhanced the need for denunciation and deterrence. The court in that case noted the remarks of Justice Shaner in R. v. Lepine , 2013 NWTSC 19 , that digital penetration and penile penetration are "equally

serious and equally harmful violations of the victim's sexual integrity." The court held that a conditional sentence as sought by the defence would not properly achieve denunciation and deterrence. Taking into account the offender's youth, 18 at the time of the offence, his guilty plea, and his Aboriginal heritage, the court imposed a sentence of nine months' incarceration. [ 27 ] R. v. West , 2020 BCSC 352 , the 32-year-old offender sexually touched two victims, an adult woman and her nine-year-old daughter when they were asleep after a party in their home to which he had been invited.

With respect to the child, the offender entered the room where she was sleeping and touched her on top of her vagina over and under her clothes. She told him no and pushed him away. He then went to the living room where her mother slept, pulled down her bottoms, pushed her legs apart, and performed oral sex and digitally penetrated her. [ 28 ] Mr. Justice Marchand took into account the Indigenous heritage of both the offender who was a member of the Takla First Nation and the victims. Mr.

Justice Marchand also took into account the offender's Gladue factors including a history of childhood dislocation and chaos, sexual abuse, his mother's suicide, and his cognitive impairment, as well as his claim to have suffered physical abuse while attending the Lejac Residential School, a claim which is very surprising since Lejac Residential School was razed to the ground in 1976, 12 years before that offender was born. He noted the offender's criminal record which included a prior sex assault conviction. Mr.

Justice Marchand endorsed the joint submission for concurrent sentences of 33.5 months less time served on each count which was 15.5 months' time served plus 18 months' new time followed by 18 months' probation. [ 29 ] I have also found assistance with R. v. Flowers , 2020 NLPC 1719 . Mr. Flowers invited the complainant to drink at his home. He asked if she would be his girlfriend and she said no. After she passed out, she awakened to find her pants and underpants pulled down to her ankles and Mr. Flowers had two of his fingers in her vagina and the other hand on her breast.

He was sentenced to 18 months' incarceration. He had a prior conviction for sexual assault for which he had received a nine-month conditional sentence order. Both the victim and the offender in that case were Indigenous persons. [ 30 ] In R. v. Berry , 2015 BCCA 210 , Mr. Berry digitally penetrated his common law spouse while she was unconscious. His behaviour came to light because he had made video recordings of the events and stored them on his computer. He appealed his sentence of two years for the sexual assault arguing that it should have been 12 months.

He did not appeal the nine-month consecutive sentence for the voyeurism. The court upheld the two-year sentence saying at paragraph 27: [27] The ultimate question for this court is whether the total sentence of two years and nine months was demonstrably unfit. The appellant contends that two years for the sexual assaults was demonstrably unfit, and that 12 months would be a fit sentence. I disagree. As Willcock J. (as he then was) observed in R. v.

Yamelst , 2013 BCSC 1689 at para. 26 , “[u]nfortunately, sexual assaults on sleeping and impaired or intoxicated women are so common that there are a considerable number of comparable cases” that can be considered. [28] In my opinion the respondent’s cases are of more assistance in determining the range of sentence for sexual assault in this case: Gauthier (3 years), Dycho (3 years), Wells (20 months), Goodliffe (27 months), and Rosenthal (14 months). [ 31 ] I also note R. v. Solowan , 2008 SCC 62 . In R. v.

Solowan , the Supreme Court of Canada held that a sentence should not be reduced or increased as a result of the Crown election. At paragraph 15, the court said: A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by

summary conviction. [ 32 ] I have also found great assistance in the recent decision of the Honourable Judge Doulis in R. v. B.M.W. , 2020 BCPC 9 . In B.M.W. , the Indigenous offender was sentenced for two sexual offences against the same victim, the first when she was 12 years old and the second when she was 27. Both the offender and the victim were Indigenous. [ 33 ] The first offence involved the offender, then aged 33, entering the victim's parents' home and making his way to her bedroom as the family slept and putting his hands up her shirt to feel her breasts.

The victim's parents awakened to find him standing in her room and wrestled him out of the house. In the second offence, 15 years later, the victim and several others were at the offender's home drinking when the victim passed out from intoxication. The offender kicked everyone else out and refused to let them take the victim home. She awakened to find him performing oral sex on her. She yelled at him and went home crying. His DNA was found in the interior crotch of her leggings. [ 34 ] B.M.W. pleaded guilty, although he claimed to have no memory of the events.

He received a sentence of 12 months for the sexual interference count and a consecutive sentence of 22 months for the sexual assault of the victim while she was unconscious after a reduction of each sentence by two months in recognition of the totality principle. [ 35 ] In R. v. Pete , 2019 BCCA 244 , a two-year sentence was imposed on appeal on a first-time offender who broke into the victim's home via a wood chute and sexually assaulted his 13-year-old cousin by kissing her and touching her breasts and vagina over her clothes.

Justice Butler for the appellate court wrote at paragraph 90: As I have indicated, I would impose a sentence of two years before taking time served into account. A sentence of this length appropriately gives effect to the principles of deterrence and denunciation, taking into account the aggravating factors and the risk the appellant poses to the community. This includes the need to acknowledge, denounce and deter the excessive sexual violence experienced by Indigenous women and girls: R. v. Barton , 2019 SCC 33 , paras. 198–200 . Further, it fairly accounts for the appellant’s personal circumstances.

These include his status as a first-time offender and the relevant Gladue factors.

Section 718.04, Offence Against a Vulnerable Victim [ 36 ]

Section 718.04 of the Criminal Code requires that:

When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 37 ] In this case, D.R. is an Indigenous female. I acknowledge that s. 718.04 was not yet enacted at the time that L.J.P. committed this offence. So it might be argued that s. 718.04 is of no application in the sentencing. However, as noted by Judge Doulis in R. v.

P.M.M. , 2019 BCPC 276 , at paragraph 38 , it has always been a principle of sentencing that the vulnerability of the victim is an aggravating factor on sentence. The vulnerability of Indigenous victims ought to have been and was a proper consideration in the sentencing process long before the enactment of s. 718.04 . In R. v. B.M.W. , Judge Doulis commented at paragraph 87: In R. v.

Barton , 2019 SCR 33 at paras 198-201, the Supreme Court of Canada recognizes that Indigenous females have been historically victimized, continue as victims of cultural and social biases that manifest in the justice system, and have endured high rates of sexual violence.

As indicated above, the BC Court of Appeal in Pete , recognized the need to acknowledge, denounce and deter the excessive sexual violence experienced by Indigenous females, as well as the Gladue factors relevant to the offender. [ 38 ] At paragraph 88: As set out above, the Courts on numerous occasions, have unequivocally condemned the act of sexually assaulting a child or a sleeping or unconscious complainant and, in doing so, has sent a strong message that sexually assaulting someone in a vulnerable position is an aggravating factor on sentencing.

In other words, notwithstanding the fact s. 718.04 was not in force at the time B.M.W. committed these offences on B.J., a victim’s vulnerability has always been a relevant factor in sentencing. [ 39 ] I would add that it is a principle of statutory

interpretation that any enactment should be read to have remedial intent. Had sentences previously imposed by the courts for offences inflicted upon Indigenous women and girls adequately addressed the need to protect Indigenous women and girls and to deter and denounce those who offend against them, there would have been no need to enact s. 718.014. I interpret s. 718.04 as an expression of the will of Parliament that sentences previously imposed on those who offend against Indigenous women have been inadequate to meet the objectives of denunciation and deterrence of the conduct which forms the basis of the offence. [ 40 ] This

section of the Criminal Code was enacted to address the concerns raised by the final report on the National Inquiry into Missing and Murdered Indigenous Women and Girls which concluded that Indigenous females are victimized at a rate far surpassing that of other women in our society. The particular circumstances of Indigenous women, who often live in isolated communities fraught with alcohol and substance abuse, make them particularly vulnerable to the violence and sexual abuse inflicted upon them by the men in their communities.

According to the report, in their communities, violence against females is both denied and normalized and community pressure on women and girls to remain silent in the face of abuse is oppressive. [ 41 ] The evidence contained in the report is entirely consistent with my own observations in my 20 years of experience as counsel and as a judge in the north of British Columbia. The sexual abuse of Indigenous women and girls in their home communities is ubiquitous.

These women and girls are typically under great pressure by their families, the offenders' families, and community members not to report their abusers and to suffer in silence as their mothers and grandmothers have suffered before them. Those women and girls who do report their abusers may find themselves or their families subject to retaliation by the accused or his family or even their own family members until they recant or leave the community.

It is thanks to initiatives such as the Missing and Murdered Women's Inquiry that Indigenous women and girls are gathering the courage to stand up and speak out against this abuse. [ 42 ] However, the Inquiry also called for a change to the indifference of government and justice institutions to the suffering of Indigenous females. Institutional indifference to the suffering of Indigenous women and girls can take many forms in the criminal justice system.

Sometimes it manifests in substandard investigation on the part of investigating bodies such as the police, but where a complaint is investigated and the matter is referred to the Crown for charge approval and prosecution, institutional indifference to the suffering of Indigenous women can take the form of inadequate charges, the choice of proceeding in a fashion that does not reflect the seriousness of the offence, or offering very lenient sentencing positions that do not acknowledge the seriousness of the offence, the need for public denunciation, the need for protection of the public, or the impact on the victim. [ 43 ] The court must recognize the vulnerability of these Indigenous victims and impose a sentence which will help protect Indigenous women and girls, denounce the longstanding abuse of Indigenous women and girls, and deter the men who abuse them from continuing this behaviour.

Aggravating Factors [ 44 ] L.J.P. was a guest in D.R.’s home when he sexually assaulted her. D.R. trusted L.J.P. like a brother. She trusted him so much that she let him sleep overnight in her home. L.J.P. violated that trust by sexually assaulting her in her home. I accept that L.J.P. was sexually abused himself by adult men including his older brother when he was a child. L.J.P. still feels the grief from that victimization which makes it all the more shocking that he would perpetrate that particular sort of betrayal upon D.R. He must have known what the effect of such an attack on her would be.

Sleeping Victim [ 45 ] Sleeping people are obviously particularly vulnerable no matter where they are sleeping, but as I have mentioned, D.R. was sound asleep in her own home when L.J.P. assaulted her. There is no suggestion that L.J.P. was not fully aware that D.R. was asleep when he undressed himself, pulled off her clothes, and sexually assaulted her. Penetrative Sexual Assault [ 46 ] L.J.P. put his finger up D.R.’s vagina. This is about as invasive as it gets. It is a horrible affront to her dignity and sexual integrity. An offence involving digital penetration is no less serious than penile penetration.

L.J.P. denies that there was any penile

penetration, but given that he had his pants down and was on top of D.R. when she awakened and pushed him off, I find that the lack of penile penetration is more a matter of timing than intention. Post-Offence Conduct [ 47 ] L.J.P. repeatedly approached the victim and asked that she drop the charges. This behaviour inflicted additional stress on the victim and resulted in her feeling that she could not go outside and attend to her usual activities in the community because of a fear that he would approach her again.

Criminal Record [ 48 ] L.J.P. has an extensive criminal record which includes multiple convictions for violent offences. Mitigating Factors Guilty Plea [ 49 ] L.J.P. pleaded guilty midway through the second trial of this matter. A guilty plea is always a mitigating circumstance because it is an acknowledgement of the responsibility for the offence. A guilty plea can have greater or lesser impact on sentence depending on when that guilty plea is entered. The earlier in the process that a guilty plea is entered, the greater the mitigating impact on sentence.

For instance, if a guilty plea were entered upon arraignment prior to the matter being set for trial, that would have a significant mitigating effect because it means the offender has acknowledged guilt right from the outset. It saves the victim from the fear and anxiety caused by the anticipation of having to testify in the future and it also reduces the community's speculation and censure that so often afflicts a complainant in a sexual assault matter until the trial -- until the outcome of the trial is known.

It also saves the public the time and expense of preparation for trial. [ 50 ] On the other hand, if a guilty plea amounts to nothing more than an acceptance of the inevitable, it has little mitigating effect. In this case, L.J.P. pleaded not guilty. The matter was set for trial, proceeded to trial, and carried on through the examination and cross- examination of D.R. A mistrial was declared as a result of DNA evidence becoming available. After the DNA evidence came to light, L.J.P. did not change his plea to guilty.

Instead, he carried on with a new trial forcing D.R. to go through her testimony in chief again while she was ill and distraught. It was only after all of that did L.J.P. enter a guilty plea. D.R. had to go through the trauma of reliving the offence repeatedly over a lengthy period of time. [ 51 ] I heard the trial. I am satisfied that L.J.P.’s guilty plea was a recognition of the inevitable. It appears from his comments to Ms. Epton that he did not genuinely accept responsibility for this offence. In these circumstances, the guilty plea has little mitigating effect.

L.J.P. told me on the last day in court that he was sorry that he did it, that he was not in his right mind because he was intoxicated. Again, I cannot give his comments much weight. If L.J.P. was genuinely sorry, he should have apologized to D.R. while she was alive to get some comfort from this. L.J.P.’s Status as an Indigenous Offender [ 52 ] L.J.P. clearly had a very unfortunate upbringing fraught with extreme violence and mistreatment. His home community was very isolated and there were few opportunities for him there.

His parents both attended residential school, but while his mother tried to protect her children from their father's hateful violent behaviour, she was not successful. L.J.P. attended residential school himself and was abused there. This sort of experience shared by so many Indigenous people often leads to lives marked by substance abuse and criminal offending. Certainly, L.J.P.’s lifelong addiction to alcohol has thwarted every effort he has made to lead a productive life and it is intimately connected with his criminal offending history including the offence at bar.

L.J.P.’s Health [ 53 ] L.J.P. has a serious heart condition which requires surgery which he has not been able to undergo because of his severe alcoholism. I have been told that L.J.P. fell and hurt his hip, but could not get the surgery required for the same reason. L.J.P. expressed to me that he was concerned the detoxification process that he expected to happen when he was imprisoned might kill him. I delayed the sentencing of this matter in the hope that L.J.P. would use that opportunity to obtain medical treatment to aid in that process. I certainly hope he has done so.

Decision [ 54 ] Based upon the case authorities noted above, I find the range of sentence applicable to this sort of offence is between one year and 33.5 months in jail followed by probation. Sentences at the lower end of that range involved offenders with little or no criminal record who pleaded guilty early on. Since the Crown proceeded summarily in this case, the maximum sentence that can be imposed is 18 months.

Taking into account all of the aggravating and mitigating circumstances in this case, I am of the view that a jail sentence of 17 to 22 months would have been appropriate, but of course I am limited to a maximum of 18 months by the Crown's decision to proceed summarily. [ 55 ] L.J.P., can you stand up now? [ 56 ] Okay. I sentence you to 17 months in jail followed by two years of probation. [ 57 ] Now you can have a seat for a moment because I need to speak to the lawyers for a minute. [DISCUSSION WITH COUNSEL RE CONDITIONS] [ 58 ] So the probation will two years, Madam Clerk, and the compulsory conditions.

[ 59 ] 2001, you must keep the peace and be of good behaviour, you must appear before the court when required to do so by the court, and you must notify the court or the probation officer -- well, the standard term says, "In advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation." [ 60 ] 2104, Madam Clerk.

You must report by telephone to a probation officer within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your officer. Your reporting by telephone -- counsel, do you have a submission with respect to what number? Like should he be reporting out here, should he be -- we do not know exactly where -- [ 61 ] MR. REED: Well, yes -- [ 62 ] THE COURT: -- L.J.P. will be. [ 63 ] MR.

REED: -- I was going to ask the court for a recommendation that my client serve his time at Ford Mountain, I believe, down south -- [ 64 ] THE COURT: Yes, it is in -- [ 65 ] MR. REED: -- near -- [ 66 ] THE COURT: -- it is in the Valley. So -- [ 67 ] MR. REED: Yes, but I think what is going to happen is, when he is released, he will come back to his home territory, [omitted for publication], so. [ 68 ] THE COURT: Right. Well, I am just -- I am going to put in the phone number for the local office, then. [ 69 ] MR. REED: Yes, that is a good idea. [ 70 ] THE COURT: All right.

So, Madam Clerk, the number will be 1-888-322-3310. Okay. [ 71 ] Then 2202, when first reporting to your probation officer, you must provide them with the address where you live and your phone number, and you must not change your address or phone number without notifying your officer immediately. Do you understand that, sir? Just let them know right away if you are going somewhere else. [ 72 ] All right, and then two-five -- actually, we will do 2502, having consented in court -- I am confirming with you, L.J.P., you consent to go to residential treatment if it becomes available? You are nodding yes. Okay.

Having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your probation officer. This may include programming or treatment for alcohol or drug addiction or sexual offending. [ 73 ] 2402, you must not possess or consume alcohol, except while inside your residence or while transporting it sealed directly to your residence. You must not be intoxicated in any public place. Okay? [ 74 ] Then, lastly, was there anything else on the probation order, counsel? [ 75 ] MR.

ROBINSON: Nothing from Crown. [ 76 ] THE COURT: Okay. [ 77 ] MR. REED: Nothing from defence, Your Honour, thank you. [ 78 ] THE COURT: All right. Then there will be a firearms prohibition under s. 110. Was that for five years, Mr. Robinson? [ 79 ] MR. ROBINSON: Yes, five years, Your Honour. [ 80 ] THE COURT: Okay. Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for five years from today. [ 81 ] Count 1 on this information is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. Have you ever had that done, L.J.P.? It is really simple. They will either take a little pinprick of blood from your finger or they will swab the inside of your cheek and it is not hard. [ 82 ] THE ACCUSED: Mm-hmm. [ 83 ] THE COURT: Okay, and then lastly, SOIRA .

Now, the SOIRA order is normally provided by the Crown in court, but we do not -- we do not have that today given the Crown is appearing remotely. So I will make the order. [ 84 ] THE CLERK: Sorry, I was advised that the registry does -- [ 85 ] THE COURT: The registry will do it? [ 86 ] THE CLERK: -- prepare that -- yes. [ 87 ] THE COURT: Okay. So, pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender

Information Registration Act for 10 years. So, L.J.P., you are going to receive a document, a copy of this order, from the registry and it will tell you what you have to do and your probation officer, when you get out of jail, will be able to assist you with where you need to go and what you need to do to register. [ 88 ] Okay? All right. Anything further? [ 89 ] MR. REED: No, Your Honour. [ 90 ] THE COURT: Thank you. [ 91 ] MR. ROBINSON: Nothing further, Your Honour. [ 92 ] THE COURT: All right. Good luck, L.J.P. (REASONS CONCLUDED)