R. v. P.A.C., 2020 BCPC 284

Citation: R. v. P.A.C. 2020 BCPC 284 Date: 20201123 File No: 46895-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.A.C. BAN ON PUBLICATION 486.4(3) 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 S. KEYES Counsel for the Crown: R.W. Robinson Counsel for the Defendant: R. Hendery Place of Hearing: Fort St. James , B.C.

Date of Hearing: February 25, 2020 Date of Judgment: November 23, 2020 [ 1 ] THE COURT: On June 9, 2018, P.A.C. sexually assaulted his sister-in-law, S.W. The information charging him with that offence was sworn August 17, 2018. On the date set for the trial of the charges, June 11, 2019, after S.W. attended court to testify, P.A.C. pleaded guilty. A presentence report was ordered and a Gladue report was ordered, which were both available to the Court in the fall of 2019. The matter came before me for sentencing on February 25, 2020. After submissions from Counsel, the matter was reserved for decision.

Counsel fixed July 16, 2020, for the delivery of the decision. After that date was fixed, the COVID-19 pandemic caused many changes to the scheduling of court matters with the result that the sentencing of this matter was adjourned to November 23, 2020. In the intervening time, Counsel for the Defence has sent me additional case authorities and, on November 9, 2020, provided additional information to the Court about events occurring in his client’s life since February of 2020. This is my decision.

CIRCUMSTANCES OF THE OFFENCE [ 2 ] The events occurred in [omitted for publication], a First Nations community, where P.A.C. and the victim, S.W., both reside. S.W. is the same-sex common law spouse of P.A.C.’s sister. On the evening in question, P.A.C. and various relatives of his, including his sister and S.W., were involved in an evening of drinking and socializing. S.W. decided she had had enough to drink wanted to go to bed. She went home to her own residence where she lived with her spouse, P.A.C.’s sister, M.C.

She went to bed in her bedroom, got under the covers, wearing pants and a shirt, and went to sleep. [ 3 ] She awakened some time later to find P.A.C. standing over her penetrating her vagina with his hand. She yelled at P.A.C., calling him a pervert, told him that she was calling the police, and chased him out of her house. He was seen by an independent witness, C.B., leaving S.W.’s bedroom and putting on his clothes as he fled the residence, running to his own home a short distance away.

S.W. noticed that, although she had left her bedroom door open when she went to bed, it was closed when she found P.A.C. in her room sexually assaulting her and he had to open it in order to flee. S.W. called the police to complain at 1:10 a.m. immediately after the incident. [ 4 ] When the police attended at P.A.C.’s residence shortly thereafter, he had freshly showered and cut his fingernails in an apparent effort to avoid the discovery of DNA evidence that might implicate him. CIRCUMSTANCES OF THE OFFENDER [ 5 ] P.A.C. is an Indigenous man who is a member of the [omitted for publication] First Nation.

He is 45 years old. He resides in [omitted for publication] where his extended family also resides. [ 6 ] I have the benefit of a presentence report and a Gladue report regarding P.A.C. At the commencement of the sentencing hearing, P.A.C. brought an application, which I denied, to excise certain portions of the presentence report which dealt with his attitude toward the offence.

In that portion, the author wrote that P.A.C. said regarding the guilty plea that he was “tired of the bullshit and he just wanted to get this over and done with” and was “not saying he did or didn’t do this.” [ 7 ] P.A.C. does not deny making those remarks. However, P.A.C. expressed the concern that the Court might infer from those remarks, without explanation, that P.A.C. was not, in fact, accepting responsibility for the offence despite his guilty plea.

P.A.C. gave evidence at the sentence hearing that the day he had the interview with the author of the presentence report, it was the anniversary of a death in his family and he was distracted by that. He assured me that he pleaded guilty because he was, in fact, responsible for the offence and he wanted to spare S.W. the necessity of testifying.

I accept that P.A.C. admits responsibility for this offence. [ 8 ] That said, there is nothing contained within the presentence report, nor in anything P.A.C. told me, which tells me anything about P.A.C.’s attitude toward the offence, his reasons for committing it, nor his understanding of the impact it had on S.W., nor is there any indication that he feels any remorse for having committed it. He did tell me in court that he was remorseful and had owned up to what he did. [ 9 ] P.A.C. was raised in [omitted for publication] where the offence occurred.

He told the report writer that he had a positive supportive relationship with both of his parents until his father’s death when P.A.C. was 20. However, he also says he was emotionally and physically abused by his family members for disciplinary reasons. His mother advised the report writer that she and her husband were severe alcoholics when the children were growing up and violence was commonplace in the home. P.A.C. and his siblings were taken into foster care for two months as a result. [ 10 ] P.A.C. was the victim of sexual abuse by relatives when he was a small child.

His mother confirmed that he contracted gonorrhea from this abuse and MCFD became involved, but no one was charged. [ 11 ] P.A.C. dropped out of school in grade 11 due to his consumption of drugs and alcohol as well as fighting. He has certifications in Heavy Equipment Operating, Power Saw Safety, Fire Suppression, First Aid, and Hunting/Guiding. He works casually for [omitted for publication]. He reported he is a “borderline” diabetic and he says he has had a “few” heart attacks. [ 12 ] P.A.C. had six siblings, but one sister died of a drug overdose in 2011.

His brother, P.C., is currently in custody charged with murder and attempted murder which has a negative impact on P.A.C.’s family's standing in the community. P.A.C. had four sons. His younger sons, aged 14, 10, and four, are mothered by his current common law spouse. His older son, C., was 21 when the presentence report was written in August 2019. The report indicates that P.A.C. had limited contact with him.

P.A.C.’s counsel informed me in recent submissions that C. had died in October this year, but that P.A.C. does not know the details of how it happened. [ 13 ] P.A.C. has a criminal record, mostly for breaches of court orders, but he also has five convictions for assault and he was convicted of assault causing bodily harm.

[ 14 ] P.A.C.’s family is concerned that he misuses alcohol, but P.A.C. disagrees; he told the report writer that he does not struggle with alcoholism and that he is “not much of a drinker”. P.A.C. has attended residential treatment centres in 2003 and 2008. He maintained that he did not go to those facilities due to a substance misuse issue; rather, he went to “see what treatment had to offer”. He told the report writer he talks with R.A., the drug and alcohol counsellor in [omitted for publication], whenever he wishes to, but R.A. reported that he has not met with P.A.C. in several years.

R.A. reported that P.A.C.’s attendance at treatment programs has occurred only after he got into trouble with the law. P.A.C. mentioned to the report writer that, although he might be willing to go to treatment again, he added that, “No one will make him go, he'll go when he's ready.” After the initial sentence submissions on this matter were made in February 2020, P.A.C. attended the Round Lake Treatment Centre again. P.A.C. asserts that he has been entirely sober since he committed this offence. VICTIM IMPACT [ 15 ] S.W. spoke to the author of the presentence report about the impact of this offence on her.

S.W. has suffered ongoing emotional trauma. She told the report writer that she is still quite fearful of P.A.C. and would feel more comfortable if he did not live in [omitted for publication] given the small size of the community. She still feels nervous, intimidated, and uncomfortable when she sees him in public and she has flashbacks of the offence when he and or the incident are brought up in conversation. She has avoided community events as she is fearful of incidental contact with P.A.C.

She suffered from anxiety and distress and sleeplessness following the offence, but “since his conviction she finds some small comfort in knowing that he is being held accountable for his behaviour.” [ 16 ] I note that I was provided with a note which was faxed to the Crown Office by M.C., the spouse of the victim and sister of P.A.C. The note is not admissible as a victim impact statement because it says nothing about victim impact and rather seeks to direct the Court as to what the sentence should be imposed.

It reads: To whom it may concern, I [S.W.] would like to see [P.A.C.] seek help, attend counselling, treatment facilities. I don’t think jail would be beneficial at all in this case. I would rather see [P.A.C.] get the help he needs that would be available in treatment that would not be available in jail. Counselling, treatment, probation, and to leave my presence upon my request. [ 17 ] I note the signature is in a different hand than the body of the letter. POSITION OF CROWN AND DEFENCE ON SENTENCE [ 18 ] The Crown is seeking a jail sentence of 12 months followed by 24 months' probation.

The defence seeks a conditional sentence. PRINCIPLES OF SENTENCING [ 19 ]

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. [ 20 ] In R. v. B.M.W. , 2020 BCPC 9 , Judge Doulis provided a helpful explanation of another principle of sentencing, the proportionality principle, quoting from paragraph 76 of her decision: [76]

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 … [77] In R. v. Ipeelee , 2012 SCC 13 , LeBel, J., states in para. 37, in part: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction.

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system … Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one [which] reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 21 ]

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 statutorily aggravating factors applicable to this case later in the reasons, but one which appears to apply to these circumstances is s.

718.2 (a), that the offence was inflicted on a member of the offender’s family. [ 22 ]

Section 718.2 further provides 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 in the circumstances. 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 decisions by other judges assists the Court with that principle of sentencing. RANGE OF SENTENCE Case Authorities Provided by the Crown [ 25 ] 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. She was Aboriginal as was Mr. Wells. 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 a 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 and the offence occurred in the same First Nation as the case at bar. 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.

Micula , 2016 ONCJ 467 , Mr. Micula was convicted after a trial of sexually assaulting the victim by performing oral sex on her after she passed out in his apartment. His saliva was identified by DNA analysis. The offence had a lasting and pervasive traumatic effect on the victim. The offender sought a conditional sentence.

The court held that a conditional sentence would not meet the objectives of denunciation and deterrence and pointed out that decisions in which such sentences were imposed were dated and: … written in an era in which the need for denunciation of this type of offence through a jail sentence had not been enunciated so clearly by the higher courts. The court imposed a sentence of 12 months' incarceration followed by three years' probation. Nothing in this decision indicates whether the accused or the victim were Indigenous. 4. 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. 5. R. v.

Tuffs , 2012 SKCA 6 , the Saskatchewan Court of Appeal set aside the sentence imposed by the trial judge (a suspended sentence with probation) and substituted a sentence of incarceration for one year on an offender with no criminal record who was a pillar

of his community. The victim, who was a guest in the home of a mutual friend, awakened to find Mr. Tuffs on her bed with his handdown her pants touching her vagina. He grabbed her hair and forced her head around in an attempt to kiss her, saying, “You say no, but Iknow you want it.” She resisted and was able to push him off, at which point, he desisted and left. The whole incident took about 30seconds.

The Court said, at para 13: We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and theimmediate reaction of the respondent that he had gone too far, a sentence of one year incarceration satisfies the sentencing principles and,in particular, does not offend the principle of parity. 6. R. v. Ince, NBQB, 324, the offender in that case sexually assaulted the victim as she slept. There was no penetration and theoffender stopped as soon as the victim told him to.

There was no detail provided in the case report as to what the sexual touching actuallywas. The trial judge found that a conditional sentence would not be appropriate given the nature of the offence, but imposed a sentenceof nine months' incarceration which was upheld on appeal. Case Authorities Provided by the Defence [26] 1. R. v. Muhammad, 2004 BCCA 396 , [2004] B.C.J. No. 1561, in this case, a sentence of five years was imposed on theoffender for a prolonged sexual assault with a weapon against a sex trade worker. Obviously, the circumstances of that case are entirelydistinguishable from this one.

The case stands for the proposition that a lack of remorse must not be treated as an aggravating factor onsentence. 2. R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R 206, in this case, the Supreme Court of Canada held that a sentencingcourt may take into account egregious state or police misconduct in order to craft a fit sentence. In the case at bar, there is not thesmallest suggestion of any state or police misconduct. However, at paragraph 44, the Court said the following: The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. 3. R. v. Hans, [2016] B.C.J. No. 1608, in that case, the victim was having a night out with friends, having hired a babysitter to lookafter her children. She and her friends encountered Mr. Hans during the evening. At the end of the evening, the victim and a friend wenthome. Mr. Hans was not with them. After her friend left, she took a sleeping pill and went to sleep. At some point in the night, sheawakened to find Mr. Hans having sexual intercourse with her.

She pushed him off, told him he was not invited and to leave. He did. Inthe morning, he returned while she slept, picked up some clothing he had left behind. The matter originally proceeded by indictment, butin advance of the guilty plea, prior to the preliminary hearing, the Crown elected to proceed summarily instead which limited theavailable sentence to 18 months' incarceration.

After considering the early guilty plea, the genuine remorse, shame and guilt expressed by the offender, and that he participated fully inaddressing his underlying issues by engaging in intensive counselling and therapy, his dated and limited criminal record, and hiscooperation with the police, MCFD, bail supervisors, and the authors of the presentence and psychiatric reports, his low risk to reoffend,as well as his Aboriginal heritage, the Court imposed an 18-month conditional sentence order followed by a probation order. 4. R. v. Kain, 2004 ABCA 127 , [2004] A.J.

No. 447, the victim and the offender had been drinking at a bar and thenattended a party at a friend's place. The victim passed out and Mr. Kain carried her to a bedroom and put her on the bed. Later in theevening, she awakened to find him having sexual intercourse with her. She jumped out of bed, crouched in a corner until he went tosleep, and then told her friends who took her home. A sentence of two-years-less-a-day conditional sentence order was upheld by theAlberta Court of Appeal. 5. R. v. Reid, [2017] B.C.J. No. 2358, Mr.

Reid, a 35-year-old married man with children, was convicted after a trial of sexuallyassaulting his 16-year-old co-worker. He had entered the bathroom where she was changing, pulled down her leggings and underwear,and kissed her buttocks. She told him no. She told him to leave and he did. He had no criminal record, maintained steady employment,and accepted responsibility for the offence (albeit after the trial) and was a good father. A six-month conditional sentence was imposed. 6. R. v. R.M., [2012] B.C.J.

No. 2978, in this case, a father pleaded guilty to stroking his eight-year-old daughter’s vagina on severaloccasions. The offender and his family were immigrants from Colombia. The sentencing judge took into account that the offender wasthe sole support of the family and, without his income, the family would lose their home. If he were given a sentence greater than sixmonths' incarceration, he would be deported. The Court held that a conditional sentence order was not appropriate given the offender’slack of compliance with court orders. A 90-day intermittent sentence was imposed. 7. R. v. Tompouba, [2020] B.C.J.

No. 330 (B.C.C.A.), the offender and the victim had met for a first date. They flirted and danced.She became intoxicated. He drove her home to her parents' house. They ate snacks and then went to bed, stripping down to underwearand kissing and cuddling. The victim did not want to have sex with Mr. Tompouba, but the Court found that he had an honest butmistaken belief that she did. However, he later engaged in intercourse with her when he believed she was asleep without taking any stepsto ascertain whether she was, in fact, consenting.

The Court imposed a 90-day intermittent sentence primarily on the basis that to impose a sentence in the ordinary range would meandeportation to Cameroon for Mr. Tompouba with horrendous consequences for his family and children. The Court noted that thecircumstances in the Tompouba case were less serious than any of the case authorities that had been presented to the Court in that case,

which included some in which suspended sentences (R. v. Tuffs), conditional sentences, or intermittent sentences were imposed forobjectively more serious offences. It is unfortunate that Mr. Justice Marchand was apparently unaware that the suspended sentence andprobation imposed by the trial judge in R. v. Tuffs (noted above) was found unfit on appeal and replaced with a one-year jail sentence. 8. R. v. White, 2008 ABCA 328 , [2008] A.J. No. 1078, Mr. White sexually assaulted his wife’s niece by putting his penisin her mouth over her objections while she was incapacitated by a drug.

It is apparent from the facts that the victim had not ingested thedrug knowingly and the offender knew she was incapacitated. The appellate court upheld the two-year conditional sentence as not clearlyunfit. The court noted the following at paragraph 35: The determination of the range of sentences for a particular crime is, in our opinion, closely linked to and predicated upon the deferenceaccorded [to] trial judges who are intimately familiar with the prevalence of crime in their communities and who are better able to gaugethe need for denunciation and deterrence.

On the other hand, appellate judges who, in Alberta, sit only in Edmonton and Calgary, whoare confined to the written record and who pronounce months after the fact, may not accurately measure the local community’s needs forhealing and reconciliation. All such matters are best left to local judges whose decisions over time provide the best measure of the rangeof sentences for a particular crime that comports with the principles of sentencing articulated in the Criminal Code. [27] Many of the case authorities provided by counsel were quite dated or were distinguishable on their facts.

In an effort to findsentencing cases which could assist me with crafting a fit sentence in these circumstances, I have also found assistance in the followingauthorities: [28] First, R. v. McMillan, 2009 BCPC 416, a 12-year sentence was imposed on 33-year-old man who broke into a home intending torob the place, but who sexually assaulted a woman he found inside the home.

The circumstances in that case were more aggravated thanthe case at bar in the sense that the sexual assault was prolonged and degrading and the offender used an imitation gun to intimidate thevictim, but on the other hand, the circumstances of the offender were less serious as he had only a minor criminal record and was clearlyvery remorseful. However, he was unable to say why he committed the offence and claimed he had no memory of it. In that regard,Judge Gulbransen's remarks at paragraph 20 through 21 are particularly apposite: [20] Secondly, I must consider protection of the public.

Now, I say that because McMillan does not know why he did this. I do notexpect that he should right now, but he does not know why. He has trouble facing up to what he has done, other than pleading guilty, butactually talking about it or coming to terms with what he has done. He cannot say how this urge to commit this horrible crime arose. Itwas clearly spontaneous and impulsive. The very fact that he was able to commit such a crime means he could do it again. Moderate riskor not, that is an obvious point.

He has no way of knowing when or where he might do it. [21] So he must be incarcerated for a period of time to protect the public. In the state he is in now, not knowing why he could do thisand when it could occur again, he is a danger to all women, so that requires a lengthy prison sentence. [29] Second, R. v. Flowers, 2020 NLPC 1719, Mr. Flowers invited the complainant to drink in his home. He asked if she would be hisgirlfriend and she said no. After she passed out, she awakened to find her pants and underpants pulled down to her ankles andMr.

Flowers had two of his fingers in her vagina and his other hand on her breast. He was sentenced to 18 months' incarceration. He hada prior conviction for sexual assault for which he had received a conditional sentence order. Both the offender and the victim wereIndigenous persons. [30] R. v. Berry, 2015 BCCA 210, Mr. Berry digitally penetrated his common law spouse while she was unconscious. His behaviourcame to light because he had made video recordings of the events and stored them on his computer. He appealed his sentence of twoyears for sexual assault, arguing that it should have been 12 months.

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

Yamelst, 2013 BCSC 1689 at para. 26, “[u]nfortunately, sexual assaults on sleeping andimpaired 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).

The circumstances of theoffence and the offender are more serious here than in Rosenthal, where the victim, in a lone incident, woke up to discover the offenderhad digitally penetrated her, whereupon she removed his hand and left the room. … [31] In R. v. G.M., 2015 BCCA 165 the court noted that range for sexual assault involving intercourse was 2-6 years. [31] Next, we have R. v. Rosenthal, 2015 YKCA 1, in this case, the offender had no criminal record. He and the victim had beensocializing and drinking. The victim asked to stay over and share his bed rather than go home late at night and he agreed.

She awokelater 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. TheCourt 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 casesinvolving 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 being a serious and invasive form of sexualassault, as recognized by the trial judge. [32] The Yukon Court of Appeal (which is also the B.C.

Court of Appeal) found that the range of sentence for digital penetration was12 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 ledthe judge to reject a conditional sentence and impose a 12-month custodial sentence in R. v. Netro, 2003, Y.K.T.C.: [22] The difficulty in considering a conditional sentence in this case arises from the circumstances not of the offender but of the

offence. … [T]he crime must be viewed in its community context. Sexual assault on unconscious and helpless victims is … rampant in this jurisdiction and throughout the North. [ 33 ] In my view, sexual assaults on sleeping victims are equally prevalent in the communities served by this court. [ 34 ] Next, R. v. Wesley 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 house party to which he had been invited.

With respect to the child, he 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 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. [ 35 ] Mr. Justice Marchand took into account the Indigenous heritage of both the offender (who was a member of the [omitted for publication] First Nation) and the victims. Mr.

Justice Marchand 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 he attended Lejac Residential School, which was surprising since it 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 sexual assault conviction. Mr.

Justice Marchand endorsed the joint submission for concurrent sentences of 33.5 months less time served on each count concurrent; that was 15.5 months' time served plus 18 months' new time followed by 18 months' probation. [ 36 ] Next, R. v. Solowan , 2008 SCC 62 , in R. v. Solowan , the Supreme Court of Canada held a sentence should not be reduced or increased as a result of a 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. [ 37 ] I have found invaluable 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 victim and the offender were Indigenous. The first offence involved the offender, then aged 33, entering the victim’s parents' home, 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. [ 38 ] 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. [ 39 ] 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 regarding the child 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. [ 40 ] In her decision, Judge Doulis provided an extensive canvassing of pertinent cases which is of great assistance to those of us who struggle with the difficult task of imposing a fit sentence in circumstances involving the sexual assault of sleeping or unconscious victims, particularly where the victim and the offender are Indigenous and the offences take place in remote Indigenous communities.

Some of these decisions have already been mentioned in this decision or were canvassed in the French decision noted earlier in these reasons . The following is a

summary of the sentences imposed in cases canvassed by Judge Doulis involving Indigenous offenders and victims: - R. v. Wells , mentioned previously, 20 months' incarceration imposed for sexual touching without penetration of unconscious victim. - R. v. Williams , 2011 BCCA 194 , a two-year federal sentence plus three years' probation for sexual assault of an unconscious 14- year-old girl. - R. v. Yamelst , 2013 BCSC 1689 , 18 months' incarceration with 18 months' probation for sexual intercourse with unconscious victim. - R v.

R.R.G.S. , 2014 BCPC 170 , a 90-day jail sentence imposed on an offender who entered the home of his 14-year-old niece as she slept, hugged her, kissed her, and moved her legs apart before she awakened and told him to stop. He stopped and left, texting the following day to say he was sorry. - R. v. Eustache , 2014 BCCA 337 , a sentence of one-year incarceration plus two years' probation imposed on a 51-year-old offender who removed the bottoms of an unconscious 18-year-old victim and was rubbing his genitals on hers when he was interrupted by her cousin. - R. v.

McLean , 2014 BCSC 1293 , a sentence of three years' incarceration less time served was imposed on an offender who was found to have performed anal sex on an unconscious victim. - R. v. E.M.Q. , 2015 BCSC 201 , a 13-month sentence of incarceration was imposed on the offender who awakened the 14-year-old babysitter by trying to kiss her and touch her breasts and vagina. He managed to touch her vaginal area over her clothes. - R. v.

Casimer , 2016 BCSC 665 , a 12-month sentence of incarceration was imposed on a man who had sexual intercourse with an unconscious 13-year-old girl who had been put to bed by her friend. The Court found that circumstances warranted a two to four-year

sentence, but the Court found there were exceptional circumstances that justified a lower sentence including that, during an inexplicable six-year delay in bring the matter forward, the offender had engaged in remarkable rehabilitation. - R. v. Hackett , 2016 BCSC 1424 , a jail sentence of two years less one day was imposed on an offender who had been given permission to sleep on a foamy by the victim while she went to sleep on her boyfriend’s bed. She was intoxicated. She awakened to find the offender beginning to penetrate her vagina with his penis.

She was very angry and forced him out of the apartment. - R. v Narcisse , 2017 BCSC 2485 , the offender in that case had been told to leave the intoxicated victim alone when she was put to bed . A friend went to check on her and he discovered Mr. Narcisse engaged in intercourse with her while she was unconscious. He refused to stop when the friend demanded he leave, pushed the friend out, and slammed the door, leaving only when the friend returned confronting him with a knife.

The Court imposed a sentence of two years less one day followed by probation, commenting that this sentence was at the bottom end of the range for such an offence. - Lastly, 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: 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 [ 41 ]

Section 718.04 of the Criminal Code requires that when the Court imposes 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. In this case, S.W. is an Indigenous female. [ 42 ] I acknowledge that s. 718.04 was not yet enacted at the time that P.A.C. committed this offence so it may be argued that s. 718.04 is of no application in this 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 an Indigenous victim 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: [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. [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. [ 43 ] I also point out 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. 718.04 . 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. [ 44 ] 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. [ 45 ] 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 their complaint or leave their community. [ 46 ] 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.

However, the Inquiry also called for change to the indifference of the government and justice institutions to the suffering of Indigenous females. [ 47 ] Institutional indifference to the suffering of Indigenous women and girls can take many forms in the criminal justice system. Sometimes it manifests in substandard investigations 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 to proceed in a fashion that does not reflect the seriousness of the offence (such as proceeding summarily instead of by indictment) or by 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. [ 48 ] For example, in a case in which the offender entered into the victim’s home uninvited and committed a sexual assault, the circumstances would have justified a charge of break and enter and commit sexual assault for which the maximum sentence is life imprisonment .

Section 348.1 of the Criminal Code applies to such cases, known as “home invasions,” providing that such a circumstance is a statutorily aggravating circumstance deserving of a higher sentence. The range of sentence for home invasions is from 4.5 years to 14 years, depending on the circumstances: R. v. Lebrun , 2011 BCCA 42 . For home invasions involving the sexual assault of a victim, a sentence range of 12 to 15 years may be appropriate: R. v.

McMillan , 2009 BCPC 416 . [ 49 ] The range of sentence for sexual assaults also varies considerably depending on the seriousness of a sexual assault and the criminal history of the offender. For serious sexual assaults (which would include offences involving penetration), the Crown would normally proceed by indictment, in which case, the maximum sentence would be 10 years' imprisonment. The bottom of the range of sentence for a serious sexual assault involving sexual intercourse starts at two years, R. v. B.S.B. , 2010 BCCA 40 .

For minor sexual assaults such as, say, a groping over the clothes, the Crown may proceed summarily, in which case, the maximum sentence at the time the offence at bar was committed was 18 months' imprisonment. [ 50 ] If the Crown chooses to proceed summarily in a serious case, limiting the range of sentence to a maximum of 18 months in circumstances which would justify a sentence of several years, such a decision may be a manifestation of institutional indifference to the suffering of Indigenous women. [ 51 ] The Court must recognise 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 [ 52 ] P.A.C. entered S.W.’s home and sexually assaulted her. It is clear that P.A.C. was not invited into S.W.’s home or bedroom and had no permission to enter. Although he was not charged with break and enter of an occupied dwelling house, which I have referred to as “home invasion,” I take into account that P.A.C. did, in fact, enter an occupied dwelling house to which he was not invited where he sexually assaulted a woman in her own bed. Offences which involve an invasion of the privacy and security of a person’s own home are rightly considered to be more serious than those which do not.

If a person cannot be safe to go to sleep in her own bed, in her own home, there is nowhere on earth she can be safe, ever. For that reason, offences that involve uninvited entry into the home of another as part of the commission of an offence normally attract higher sentences than offences which do not. Sentences for home invasions involving sexual assault of a resident can range from two to 14 years' imprisonment.

Sleeping Victim [ 53 ] Sleeping people are obviously particularly vulnerable, no matter where they are sleeping, but as I have mentioned, S.W. was sound asleep in her own bed when P.A.C. assaulted her. P.A.C. had attended the same social event that she had attended and knew she had gone home to go to bed. I infer that P.A.C. went to her house to sexually assault her because he expected her to be asleep and therefore unable to defend herself.

There is no suggestion that P.A.C. was not fully aware that S.W. was asleep when he took care to shut the door to her bedroom before undressing himself and sexually assaulting her. Penetrative Sexual Assault [ 54 ] P.A.C. stuck his hand up S.W.’s vagina. This is about as invasive as it gets. It is a horrible affront to her dignity and her sexual integrity. An offence involving digital penetration is no less serious than penile penetration and certainly more serious, say, than a groping over the clothes. Abuse of a Family Member [ 55 ] S.W. was P.A.C.’s sister-in-law, his sister’s spouse.

In choosing to sexually assault S.W., P.A.C. violated the trust that is, or should be, inherent in family relationships. Abuse of a family member necessarily means that the offence inflicts hurt and distress on more than the victim alone. It inflicts harm on the whole family.

While it is possible that an offender may lose the support of the family, it is clear from the Report of the Missing and Murdered Women’s Inquiry that in Indigenous communities it is more often the victim who is rejected from the warmth of family or the community. [ 56 ] The family relationship may make it more difficult for the victim to come forward to the police with her complaint and may make it more difficult to carry on and proceed to trial in the face of family disapproval. It may cause rifts in the family with family members torn as to whether they should support the victim or the offender.

It is clear that P.A.C. retains the support of a number of his family members, including his mother, despite his behaviour. It is not apparent that S.W. or her spouse have the same benefit. For example, since the offence was committed, S.W. now avoids attending community events for fear of encountering P.A.C., not the other way around. Criminal Record [ 57 ] P.A.C. has a criminal record which includes five convictions for assault and a conviction for assault causing bodily harm, nine convictions for breaching court orders, and a conviction for impaired driving.

All of the convictions are quite dated, except the impaired driving. Mitigating Circumstances

Guilty Plea [ 58 ] P.A.C. pleaded guilty to this offence. A guilty plea is always a mitigating circumstance because it is an acknowledgement of responsibility for the offence. A guilty plea can have a 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. [ 59 ] For instance, if a guilty plea were entered upon arraignment prior to the matter being set for trial, that would have 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 speculation and censure that so often afflicts a complainant in a sexual assault matter until the outcome of the trial is known. It also saves the public the time and expense of preparation for trial. [ 60 ] However, in this case, P.A.C. pleaded not guilty. The matter was set for trial and then he changed his plea to guilty on the morning of the first day of the trial, approximately a year later.

S.W. (and her spouse, P.A.C.’s sister) had to go through a year knowing that S.W. would have to testify against her brother-in-law. S.W. had to meet with Crown counsel to prepare for trial and to relive the details of the offence during that preparation. She had to attend court on the morning of trial expecting to have to testify against her brother-in-law to her enormous distress. It was only after she attended court to testify that P.A.C. took responsibility for this offence by entering a guilty plea.

In this circumstance, the guilty plea, while still a mitigating factor, has less weight than a guilty plea entered early on.

Section 718.2(e), the Circumstances of P.A.C. as an Indigenous Offender [ 61 ] P.A.C. is an Indigenous offender and I am satisfied that he has been impacted by the same problems that afflict many Indigenous people in this country. I acknowledge that life in a remote community involves disadvantages of many kinds including a lack of educational and employment opportunities. It is clear that he grew up in an alcoholic household and suffered from sexual abuse in his childhood inflicted by his relatives.

He has suffered losses of close relatives in his life, including his father who was killed in a motor vehicle crash and his sister, B., of a drug overdose and very recently his son, C., from unknown causes. [ 62 ] P.A.C. has low levels of educational achievement and dropped out of school due to his alcohol and substance abuse, although since then he has received “plenty” of vocational training and has been able to maintain an adequate level of employment. Although he denies that he abuses alcohol, I accept that he does, in fact, abuse alcohol and that was a factor in the commission of this offence.

Attitude Toward the Offence and Toward the Victim [ 63 ] If the Court is satisfied that the offender has a true understanding of the impact his offence has had on his victim and is genuinely sorry and desires to make amends, that is a powerfully mitigating factor because it indicates the offender is already partway down the road to rehabilitation. I am not satisfied that is the case with P.A.C. [ 64 ] In his remarks to the Court, P.A.C. told me that he pleaded guilty in order to spare the victim having to relive the experience in court. He said he was remorseful, explaining that he “owned up to it”.

I accept that he means what he says, to a degree. He chose to plead guilty rather than inflict additional harm on the victim by making her relive the offence in court. It is not lost on me that his guilty plea also spared P.A.C. from having his relatives and others in the community hear about the details of his offence during a trial. However, choosing not to inflict additional harm (by sparing her from testifying) is not quite the same thing as genuinely understanding and regretting the harm already inflicted.

P.A.C. certainly did not express any remorse or the smallest indication of empathy for the victim during his interview with Ms. Gibson; in fact, when he was asked about how his offence may have impacted S.W., he refused to answer. ANALYSIS [ 65 ] Of the sentencing cases provided by the defence, only R. v. Hans involved an Indigenous offender with facts anything similar to the case at bar.

The other cases referred to by the defence are either entirely distinguishable upon their facts, so dated that they fall outside the general sentencing range currently acceptable, or, in the cases of R.M. and Tompouba, appear to be anomalous decisions wildly outside of the generally accepted sentence range for the circumstances, which appear to have been imposed out of a concern for the collateral consequence of deportation upon the offender and his family. They are of no assistance to me in crafting a fit sentence for P.A.C. [ 66 ] With respect to R. v. Hans , it, too, appears to be quite anomalous.

The Court’s hands were tied when it comes to the length of the sentence; 18 months was the maximum permitted when the Crown proceeds summarily. However, for an offence involving sexual intercourse on an unconscious victim after breaking into her home, the imposition of a conditional sentence is highly unusual. I note that the Court in Hans (and all of the other authorities dated prior to 2019) did not have the benefit of the B.C. Court of Appeal decision in R. v. Pete , 2019 BCCA 244 , in which the Court imposed a two-year jail sentence on a young Aboriginal offender who had no criminal record (unlike Mr.

Hans) where the sexual touching was simply groping over the clothes. [ 67 ] Having considered the case authorities noted above, I find that the range of sentence appropriate to the case at bar to be between 20 months to three years' incarceration. [ 68 ] However, because the Crown proceeded summarily in this case, the maximum sentence that can be imposed for this offence is 18 months.

Availability of a Conditional Sentence [ 69 ] If the Court finds that a sentence of less than two years is appropriate, then the Court may consider, under s. 742.1, whether a jail sentence in the community, otherwise known as a conditional sentence, is appropriate. If the Court finds that a fit sentence would be greater than two years, then a conditional sentence is not available regardless of whether the offender has presentence custody which would reduce the length of sentence to serve, R. v. Fice , 2005 SCC 32 . If a fit sentence would be less than two years, then the Court may

impose a conditional sentence if the Court is satisfied that the service of the sentence in the community would not endanger the community and would be consistent with the fundamental purposes of sentencing set out in ss. 718 to 718.2. [ 70 ] I have no idea why P.A.C. decided to commit this offence. It involved sexually assaulting a woman sleeping in her own home in the community she shared with P.A.C. Other woman sleep in their beds in that community, too. They are just as vulnerable as S.W.

Since P.A.C. has chosen to express nothing about his reasons for committing the offence, I have no way to know if or when he may choose to do the same thing to some other sleeping woman. Even if I were to find that a conditional sentence were otherwise appropriate, I am not satisfied that it would not endanger the safety of the community. [ 71 ] I have considered the circumstances of this offence which involved the entry into his sister-in-law’s home uninvited and sexually assaulting her by penetrating her vagina with his hand while she slept in her own bed in her own home.

This was a gross violation of her sexual integrity and her personal dignity. This offence involved the abuse of an extended family member. I have considered that P.A.C. has a criminal record that includes other convictions for violence, albeit a number of years ago. I have considered that P.A.C. pleaded guilty and is an Indigenous offender.

I have considered the fact that S.W. is a vulnerable Indigenous woman which requires me to give primary consideration to the sentencing objectives of denunciation and deterrence. [ 72 ] I have also considered the sentencing objectives of rehabilitation, reparation to victims or the community, and the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims. P.A.C. has not demonstrated an acknowledgement of the harm done to S.W. There is no evidence that he has undertaken any sort of reparations.

I acknowledge that P.A.C. has again attended an alcohol treatment program, as he has done previously when in trouble with the law. While sobriety may assist P.A.C. in many ways, it does not address his motivation or risk for committing sexual offences. [ 73 ] In light of those considerations, I find that a conditional sentence will not serve the primary sentencing objectives of denunciation and deterrence or the protection of the community. [ 74 ] I have considered that the Crown in this case sought only a 12-month sentence followed by probation.

As I have found earlier in these reasons, a 12-month sentence is well below the appropriate range of sentence for this offence taking into account all of the circumstances.

I am concerned that the Crown position in no way reflects the seriousness of this offence or the applicable sentencing principles including S.W.’s vulnerability as an Indigenous female. [ 75 ] P.A.C., I will ask you to stand up now. [ 76 ] I sentence you to 18 months' imprisonment to be followed by two years' probation. [ 77 ] You can have a seat while I read the probation terms to you. [ 78 ] You must comply with a probation order for 24 months. [ 79 ] The conditions are, firstly, this is after you finish your jail, you must keep the peace and be of good behaviour - it is 2001, Madam Clerk - you must appear before the Court when required to do so by the Court.

You must notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the officer of any change of employment or occupation. [ 80 ] 2002-1, you must not have any contact or communication with S.W., except with her prior consent and only if she is sober. If she becomes intoxicated in your presence, you must leave her presence immediately and not return to her presence unless she contacts you and satisfies you that she is sober.

You must immediately stop all contact and communication with S.W. and leave her presence upon her request or the request of a peace officer. If the request is made, you must have no further contact or communication with her without an order of this court. [ 81 ] 2401, you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. [ 82 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for alcohol or drug addiction and sexual offence prevention. [ 83 ] 2610, you must not possess, directly or indirectly any weapon as defined by the Criminal Code . [ 84 ] There will be some ancillary orders. [ 85 ]

Section 110, a firearms prohibition. 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. [ 86 ] Then DNA, Count 1 on the information is a primary designated offence, and 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. [ 87 ] Lastly, there is the sex offender information registry.

Mr. Robinson, I do not know whether you have prepared and provided to the Court the written version of the order. I can pronounce it, but normally it is presented and signed in court. [ 88 ] MR. ROBINSON: Your Honour, I had inquired about that and I believe it may be done by the registry now. I certainly can prepare the paperwork after Your Honour pronounces that, but it is my understanding that the registry addresses that. [ 89 ] THE COURT: All right. [ 90 ] THE CLERK: I do know, Your Honour, that it is a document that normally would be signed in court submitted by Crown, but -- unless something has changed.

[ 91 ] THE COURT: Well, it does not matter. The order is the order. [ 92 ] THE CLERK: Yes. [ 93 ] THE COURT: All right. Pursuant to s. 490.12 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 10 years. So that is that order. [ 94 ] Anything else, Counsel? [ 95 ] MR. ROBINSON: Nothing further from the Crown. [ 96 ] THE COURT: All right. [ 97 ] MR. HENDERY: One thing, Your Honour, and that is Your Honour's consideration that P.A.C. has not consumed a drop of alcohol since the offence. [ 98 ] THE COURT: My decision has been made, Mr. Hendery. [ 99 ] MR.

HENDERY: All right. [ 100 ] THE COURT: All right, thank you. [ 101 ] Okay, good luck to you, P.A.C. (REASONS CONCLUDED)