R. v. S.A.D. Date:, 2015 BCPC 334

Citation: R. v. S.A.D. Date: 20151118 2015 BCPC 0334 File Nos: 38486-C-2, 386486-3-A, 38486-4-A Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.A.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Goddard Counsel for the Defendant: B. Dybwad Place of Hearing: Campbell River , B.C. Date of Hearing: November 10, 2015 Date of Judgment: November 18, 2015

[ 1 ] I am required to sentence Mr. D for three offences: (

i) the sexual assault of his 8 year-old niece; (ii) a breach of his bail conditions by contacting his spouse; (iii) a later breach of his bail conditions by failing to reside where directed by his bail supervisor. The Offences [ 2 ] Mr. D committed the substantive offence on March 29, 2014. He returned to his sister-in-law’s apartment in the early hours of the morning after a night of drinking. He was severely intoxicated, so much so that he has no recollection of the events which occurred after he returned to the apartment. His wife was sleeping in a bedroom and his niece in the living room.

His wife was awoken by sounds from the living room. She entered the living room and observed Mr. D under a blanket on the floor of the living room, lying on top of his niece. The movements of the blanket were consistent with sexual intercourse. When Mr. D’s wife pulled off the blanket, she observed that both Mr. D and the niece were naked from the waist down. When the niece was examined by doctors at the emergency ward, no significant signs of injury were observed. The evidence is insufficient to establish that penetration occurred. Mr. Dybwad, counsel for Mr.

D, concedes that the assault would probably have continued, and become much more serious, if Mr. D’s wife had not intervened. [ 3 ] Mr. D was arrested on March 29, 2014 and released on bail the next day. One of the terms of his bail was to have no contact with his wife. On April 26, 2014, Mr. D’s wife rented a hotel room in Campbell River and invited him to join her for the night. He did so, and was arrested on that day for breach of bail. He was released the next day on the same bail. [ 4 ] Mr. D’s bail required him to reside where directed by his bail supervisor.

By February, 2015, he was no longer welcome at the address approved by his bail supervisor because he had no money with which to pay his share of household expenses, so he left. He was arrested on February 13, 2015 for failing to comply with that term of his bail. [ 5 ] On February 13, 2015, His Honour Judge Doherty of this court granted Mr. D new bail, the terms of which required either a $1500 cash deposit or a $5000 surety. Mr.

D was unable to provide either, and so remained in custody until July 8, 2015, when I amended his bail conditions to allow his release without deposit or surety on the condition that he proceed directly to, and reside at, the “New Visions Recovery House” on the Lower Mainland. Mr. D was released and proceeded to the “New Visions” facility. He says that he was dissatisfied with the standards of hygiene which he found there, and left for that reason. On August 15, 2015, he was arrested under the authority of a warrant issued under

section 524 of the Criminal Code , and has been held in custody since that time. Mr. D [ 6 ] Mr. D is 32 years of age. He was 31 when he committed the substantive offence. He is a member of the [omitted for publishing] First Nation, whose ancestral lands are on [omitted for publication] Island, British Columbia. [omitted for publication] Island is a remote place, without an economic base. Poverty and substance abuse are common. There are few social services or community resources for the residents. The community has no restorative or alternative justice program.

Many members of the [omitted for publication] First Nation are residential school survivors, including Mr. D’s father, paternal grandmother and paternal great- grandfather. Like so many residential school survivors, his parents suffered from poverty and alcohol addiction. When he was very young, Mr. D suffered an incident of sexual touching by an adult female guest at one of his parents’ drinking parties. [ 7 ] Mr. D began using cocaine, marijuana and alcohol at age 15.

He describes himself as a binge drinker, who is frequently unable to recall the events which occurred during his binges. [ 8 ] Despite his many challenges, Mr. D successfully completed grade 12 and a two-year post-secondary program in the performing arts. Most recently, he has worked in the construction industry in the Cowichan Valley. He is an active and engaged member of his First Nation, and participates in its ceremonies, most prominently as a skilled dancer. [ 9 ] Mr.

D’s previous criminal record consists of one conviction, for mischief, in 2011, for which he received a suspended sentence and 9 months’ probation. [ 10 ] Mr. D’s expressions of remorse are equivocal. During presentencing interviews with probation officers and psychologists, Mr. D said that he could not believe himself capable of such an assault, and expressed concern that the victim might have been coached to give evidence against him. He seems unpersuaded by the evidence of his wife, who witnessed the assault.

He says that, if he did that of which he has been convicted, he understands that it must have been very traumatic for the victim and that he is sincerely sorry. [ 11 ] The psychologists who assessed Mr. D for the purpose of sentencing opine that his “… level of risk for sexually re-offending in the community is estimated to be in the moderate range …”, because of “… [p]roblems with substance abuse, extreme minimization/denial of sexual offending and problems with self-awareness …”. They advise that the information available to them is insufficient to support a diagnosis of paedophilia. [ 12 ] Mr.

D and his wife are the parents of two children, ages 4 and 5. Victim Impact [ 13 ] In a victim impact statement dated July 20, 2015, the victim’s mother reports that the victim was traumatized by her physical examination at the hospital after the assault. She describes the sequelae in the following terms: A month after the assault, I had to take her to the doctor for treatment of abdominal pain and genital warts. … [She] couldn’t go to school for 2 weeks after the attack. She didn’t even want to go outside. Her report card has not been as good as other years.

At first, she wouldn’t leave my side, but after a few weeks she started locking herself in her room - pushing her mattress up against the door so I couldn’t get in - I was scared for her. She wouldn’t let anyone help her. She had trouble sleeping and still has not gone back to her regular sleep schedule. [She] is often emotional and angry. She told me that “she doesn’t want to live anymore” - this is hard for me to

hear. [The victim] is just now starting to see a counsellor. It has affected our whole family because sometimes [the victim’s] behaviour is hardto manage. [The victim] and I have had nightmares about seeing [Mr. D] when he is released from jail. I don’t ever want to see him again. The victim and her mother live in Campbell River. I will address their concern about future contact with Mr. D when I consider a termof probation to follow the jail sentence which I am obliged to impose. Sentence for Sexual Assault [14] The minimum sentence for this offence is one year in jail: Criminal Code,

section 271. [15] Mr. D committed this offence while grossly intoxicated. He is an alcoholic primarily because he grew up the home ofalcoholics, and suffered accordingly. The alcoholic history of his family derives primarily from the family’s residential schoolexperiences. Thus, it may be said that Mr. D is less morally culpable than another person with a more fortunate personal history whocommits a similar offence: R vs Ipeelee 2012 SCC 13 , [2012] 1 SCR 433. However, Mr. D’s personal history does not mitigatethe impact of his assault upon the victim.

She suffered a grievous insult to her psyche and her bodily integrity at the hands of a familymember whom she knew and trusted. From her perspective, nothing else is relevant. [16] In seeking to do justice as between those competing factors, I think that I should be guided primarily by the sentences imposedby other judges in cases of similar assaults by offenders with personal histories similar to that of Mr. D: Criminal Code, section718.2(b). A sentence imposed in conformity with that principle will ensure that Mr.

D’s sentence reflects a consensus of judicialopinion, rather than the views of an individual judge. [17] I begin with an observation of general importance. In R vs Worthington 2012 BCCA 454 , [2012] BCJ No. 2646; 2012BCCA 454, Justice Saunders said @ paragraph 41: … the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a case involving a breach of the trust atthe heart of the child-parent relationship is the extent to which that relationship was violated, the duration of that violation, and theoffender’s appreciation of that violation as the behaviour continued ….

In that case, the court was concerned with a series of assaults by a father on his daughter over a period of years. However, JusticeSaunders’ remarks apply also in this case. Although not the father of the victim, Mr. D was a close relative, a person known to andtrusted by the victim. An assault by such a person shatters the victim’s faith in the safety and security of her home and family. It is thebreach of trust, as much as the physical contact, which causes harm. [18] I have looked for previous sentencing decisions in cases of adult offenders who suffered, as does Mr.

D, from theintergenerational effects of residential schools, and who committed sexual assaults similar to that committed by Mr. D. The reader willfind a discussion of the applicable sentencing principles in those decisions. a. In R vs Williams [2011] BCJ No. 777; 2011 BCCA 194, the physical assault was slightly more serious than the assault in issuehere. The offender was not related to the 14 year-old victim. The Court of Appeal upheld a 2-year sentence. b.

In R vs Wesley [2014] BCJ No. 2106; 2014 BCCA 321, the offender was the boyfriend of the aunt of the 7 – 8 year-old victim,and so bore to her a relationship similar to that of Mr. D to the victim in this case. Mr. Wesley had a criminal record including threeconvictions for violent offences. He was convicted of sexually touching the victim on three occasions. The Court of Appeal upheld a 5-year sentence. c. In R vs J.T. [2011] OJ No. 5879; 2011 ONSC 7275, the accused was the boyfriend of the victim’s mother, and was found tohave stood in loco parentis to the victim.

He sexually touched the 5 to 7 year-old victim on several occasions, and induced the victim tomasturbate him. After giving credit for 4 months of pre-trial custody, the court imposed a sentence of two years less a day, with theresult that the total sentence was 28 months. d. In R vs Kelly [2014] NWTJ 77; 2014 NWTSC 67, Mr. Kelly committed an assault on an adult woman which was very similarto the assault committed by Mr. D. The court imposed a sentence of 22 months. e.

In R vs Roberts [2013] YJ No. 77; 2013 YKSC 75, the court imposed a sentence of 3 ½ years for a sexual assault by Mr.Roberts on the daughter of his common-law wife. The judgment does not disclose the age of the victim or the particulars of the assault. f. In R vs Z.J.S. [2015] SJ No. 49; 2015 SKPC 19, the 11 year-old victim invited the offender to have intercourse with her, whichhe did. Although not related to the victim, the offender was babysitting her for the evening at the request of her parents. The courtimposed a sentence of 40 months. g.

In R vs Charles [2015] SJ No. 517; 2015 SKQB, the court imposed a 22 month sentence for an assault on a 15 year-old whichwas similar to the assault committed by Mr. D. h. In R vs Nippi [2015] SJ No. 164; 2015 SKQB 90, the offender was more directly and more seriously impacted by theresidential school experience than was Mr. D. He committed a similar assault on an adult woman to whom he was not related.

The courtimposed a sentence of two years less a day. [19] There are also cases in which much less onerous sentences have been imposed for similar offences on offenders with personaland family histories similar to those of Mr. D. For example, an 18 month conditional sentence was imposed in R vs S.D.R. [2012] BCJ

No. 2446; 2012 BCPC 414 for a similar assault on a 13 year-old, and a 90 day sentence was imposed for a similar assault on a 14 year-old in R vs R.R.G.S. [2014] BCJ No. 1993; 2014 BCPC 170. However: a. The offences in those cases were committed before Parliament enacted a one year minimum sentence for sexual assaults onchildren under age 16. The precedential value of those cases may be limited by the principles discussed in R vs Guha 2012 BCCA 423, [2012] BCJ No. 2204; 2012 BCCA 423 and in R vs Lloyd 2014 BCCA 224 , [2014] BCJ No. 1212; 014 BCCA 224at paragraphs 48 – 58. b.

I think that those cases fail to reflect a broad judicial consensus that a sentence of 20 to 40 months is appropriate for the kind ofoffence committed by Mr. D, after taking into account all of his personal circumstances. [20] In this case, Crown counsel sought a sentence of 18 to 24 months. I conclude that a fit sentence for the substantive offence inthis case is 2 years less one day, and I impose that sentence Credit for Time Served. [21] Mr.

D was held in custody for : a. one day after his initial arrest; b. one day after his arrest for his first breach of bail; c. 147 days, from February 13 to July 8, 2015 because he was unable to perfect the bail granted by Judge Doherty; d. 95 days, from August 15, 2015 to today. [22] The question is whether the circumstances justify enhanced credit for some or all of Mr. D’s time in custody: Criminal Code,section 719(3.1). It is clear that enhanced credit may not be given for Mr.

D’s time in custody since August 15, 2015, because he wasdetained on August 15 under the authority of section 524(4) of the Criminal Code. Mr. Goddard submits that Mr. D should not receiveenhanced credit for his time in custody between February 13 and July 8, 2015 because he was arrested and detained on February 13 byreason of a breach of his previous bail. I disagree, for the following reasons: a. Mr. D was not detained (in the sense of refused bail) on February 13, as he was on August 15. As a result, section 524(4) doesnot apply.

On the contrary, Judge Doherty granted him bail, which he was unable to perfect. b. In R vs Summers 2014 SCC 26 , [2014] 1 SCR 575, Justice Karakatsanis said that there are two reasons to giveenhanced credit for time in pre-trial custody: (

i) Offenders serving a sentence after conviction are generally eligible for release after serving two-thirds of their sentence. So,two similar offenders, convicted of similar offences and receiving identical sentences, one of whom was granted and the other refusedbail, would be treated differently if enhanced credit for pre-trial custody were not given to the latter. (ii) Fewer services and amenities are generally available in pre-trial detention centres than in long-term incarceration facilities.

Pre-trial detention is significantly harsher than long-term jail. [23] In my view, the first of the reasons identified by Justice Karakatsanis requires that Mr. D receive enhanced credit for his pre-trial custody between February 13 and July 8. A person of means in Mr. D’s position would have posted the required cash deposit andbeen released on February 13. Mr. D was detained only because he is poor. He should not serve more time, in total, for his offence thana wealthy person who committed the same offence. Mr. D’s time in custody after August 15 is governed by a different principle.

Hewas then detained, in the sense of refused bail, because he had thrice breached his bail conditions. A wealthy person in the samecircumstances would also have been refused bail. In section 719(3.1), Parliament has enacted that a person who is detained for thatreason forfeits his right to enhanced credit. [24] At paragraphs 70 – 71 of Summers, Justice Karakatsanis said: In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant.While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged.

Judges shouldcontinue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions ofdetention are not particularly harsh, and parole is unlikely.

Of course, a lower rate may be appropriate when detention was a result of theoffender's bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s.719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is aresult of the offence for which the offender is being sentenced. [25] I conclude that Mr.

D is entitled to enhanced credit, at the rate of 1.5 to 1, for 149 days in pre-trial custody, and to credit at therate of 1 to 1 for 95 days, for total credit for pre-trial custody of 318 days, leaving him 411days left to serve. Probation [26] Mr. Dybwad says that Mr. D recognizes his need for professional assistance in addressing his addiction to alcohol. I observethat he has not been successful in his efforts thus far in relation to that subject, and that his record of non-compliance with bail conditionsis not encouraging. For that reason, I think that a lengthy period of probation is necessary.

[ 27 ] I impose a term of 3 years’ probation, on the following conditions. Mr.

D must: a. keep the peace, be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer within 72 hours of his release from custody, and report thereafter as and when directed by his probation officer; c. reside at a place approved by his probation officer, and not change that place of residence without the prior written permission of his probation officer; d. not be found within the city limits of the City of Campbell River except when travelling on Highway #19; e. have no contact, directly or indirectly, with the victim or her mother (who shall be named in the probation order), except with the written permission of his probation officer, and then only in compliance with such terms as the probation officer may impose; f. not possess or consume any alcohol; g. not be found on any business premises where alcohol is the primary commodity for sale; h. not possess or consume any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with the terms of a valid medical prescription; i. attend, participate in and successfully complete any counselling program to which he may be referred by his probation officer, including a full-time attendance program if he is referred to one; j. not be in the presence of any person under the age of 16 years, except: i. in a public place in which other adults are present; ii. under circumstances, and in strict compliance with conditions, specified in writing by his probation officer; or iii. when visiting his own children under the terms of a family court order, but only under circumstances, and in strict compliance with conditions, specified in writing by the Ministry of Children & Family Development of British Columbia. k. if Mr.

D applies for a family court order in relation to parenting or contact time with any child, he must provide a copy of these reasons for judgment to the judge who hears the application. Ancillary Orders [ 28 ] Mr. Goddard also seeks an order under

section 161 of the Criminal Code . I do not think that such an order should be made in this case. Mr. D has no previous history of sexual offences. An order under

section 161 would be a serious impediment to his rehabilitation, particularly as it would prevent him from having contact with his own children. I think that the risk can, and should, be managed by the probation conditions which I have imposed. [ 29 ] There will be orders: a. under section 515(12) of the Criminal Code , that Mr. D have no contact directly or indirectly with the victim or her mother while he is in custody; b. in Form 5.03 of the Criminal Code , for Mr. D to provide a DNA sample; and c. in Form 52 of the Criminal Code , requiring Mr.

D to comply with the Sex Offender Information Registration Act for the remainder of his lifetime. Sentences for Breaches of Bail [ 30 ] Mr. Goddard concedes that the two breaches of bail were less serious than many others commonly encountered in this court. I agree with that observation. I am, however, troubled by them because they indicate an unwillingness or inability on the part of Mr. D to comply with court-imposed conditions. Such compliance will be necessary if Mr. D is to successfully complete the period of probation which I have imposed.

Successful completion of that period of probation will be essential, both for Mr. D’s rehabilitation and for the protection of the public while that rehabilitation is in progress. For those reasons, I think it important to make it clear to Mr D now that compliance with court-imposed conditions is required, and that non-compliance will have serious consequences. Sentences of 5 days for the first breach and 10 days for the second breach will serve that purpose, and I impose those sentences. Those sentences will be consecutive to each other and to the sentence which I have imposed for the substantive offence.

November 18, 2015 _____________________________ T. Gouge, PCJ