R. v. W.R.G. Date:, 2011 BCPC 330

Citation: R. v. W.R.G. Date: 20111125 2011 BCPC 0330 File No: 54114 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.R.G. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: R. Edwards Counsel for the Defendant: B. Coleman, Q.C. Place of Hearing: North Vancouver, B.C. Dates of Hearing: May 13, September 22, 2011 Date of Judgment: November 25, 2011 [ 1 ] In this case there is a ban on publication of the complainant’s name or identifying information, which will also apply to the name of the accused. [ 2 ] On May 13, 2011 Mr. G. pled guilty to touching E.L., his daughter, for a sexual purpose, contrary to section 153(1) (

a) of the Criminal Code . Some of the facts were disputed and E.L. testified. Part way through her testimony, counsel arrived at a set of agreed facts, and E.L. was not examined further nor cross-examined by Mr. G’s counsel. [ 3 ] The offence period specified in the count is September 1, 2001 to April 30, 2009. On November 1, 2005 the

section was amended to provide for a minimum sentence of 45 days when the Crown proceeds by indictment, as it has here. It is common ground that the minimum does not apply to this offence in light of the fact that it specifies dates that straddle the amendment date. Positions of Counsel [ 4 ] Crown counsel submits that the defendant should receive a sentence of two to three years imprisonment, followed if possible by probation. Defence counsel submits that a conditional sentence is appropriate. Facts [ 5 ] E.L. was born in 1995, and was 16 when she testified. She was just 14 at the end of the charging period.

She resides with her mother and two brothers. Until the offence came to light, the defendant resided with them. [ 6 ] The incidents all took place at the residence. E.L. recalled three specific incidents. The first occurred in the living room. Her recollection is that she was in Grade 1 at the time. It was pyjama day at her school, and she recalled her mother having bought her some “cool” pyjamas.

[ 7 ] In her testimony, E.L. said she was sitting in a chair in the living room, sleeping, when she awoke to find her father with his hand down her pants. She said she was in shock and in a panic, and pretended to be asleep. Nothing like that had happened before and she felt violated. As she recalled, everyone at her house had been partying and she saw an empty two litre bottle of Grower’s cider when she woke up that morning. [ 8 ] She said her father was leaning over her, trying to stick his fingers inside her but he did not succeed.

He did touch her genitals under her clothing. [ 9 ] It was after she testified about that incident that counsel reached the agreed position on the facts. Crown counsel then verbally alleged that E.L. recalled three distinct incidents, the first as she recounted in her testimony. The second occurred when she was on the couch in the living room, with her brothers asleep nearby. She was awakened by her father near her side. Similarly to the first incident, he was fondling her, and this time also “feeling her up”. Again there was no penetration.

E.L. did not recall how old she was on this occasion. [ 10 ] The third incident she recalled occurred in about April 2009. She and her mother had been watching TV. She fell asleep and awakened to find her father “dry humping” her. Her mother had apparently left the living room to go to bed. [ 11 ] Crown also alleged that E.L. had some “indistinct” memories of things occurring in her bedroom.

In all of the incidents, E.L. perceived that her father had been drinking, as she could smell alcohol on him. [ 12 ] E.L. described strategies to avoid these incidents: fleeing the residence to avoid her father; tucking blankets around herself tightly in bed; and sleeping in her brothers’ bedroom on the top bunk. Another tactic was to hide in her closet. As she grew older, and developed, it was no longer an option to sleep in her brothers’ room.

She would stay up late, sleep as little as possible, and eventually she took to leaving the residence and staying out late at friends’ houses or just running away. [ 13 ] E.L. did not say anything to her mother until November, 2009. She gave some of the classic reasons: not wanting to break up the family; her mother seemed happy in the relationship; her brothers needed a father. When she did complain, she was at the residence with her boyfriend. Her father and her mother, a cousin, and her brothers were present, and some or all of them were drinking. [ 14 ] A dispute arose between Mr.

G. and E.L.’s boyfriend, when Mr. G. discovered the boyfriend’s age and told him to leave. E.L. became very upset and tried to leave herself. She was prevented by her parents and told to go to her room and stay there. At that point, she disclosed to those present that her father had been touching her. The family confronted Mr. G., and took his reaction as an admission. [ 15 ] From that date until now, Mr. G. has had no contact with E.L., his sons, or their mother. Victim Impact [ 16 ] Crown counsel related that after one of the incidents, E.L. had some physical pain in her vaginal area.

Because she had not yet been able to disclose, she did not seek treatment for that. [ 17 ] As E.L. got older, she often came into conflict with her parents, in particular, her father. As I understood it, she had quite a troubled adolescence, at least until she disclosed. Some of this may have been routine teenage angst, but much of it was no doubt related to the miserable circumstances in which she found herself. [ 18 ] The victim impact statement establishes that E.L. has suffered significantly and continues to do so.

Luckily, she appears to be healing, and able to accept assistance, now that she can openly discuss the abuse. She expresses love for her father and a desire to forgive, but she says she will never forget. Offender [ 19 ] Mr. G. is 54. He is of aboriginal heritage, with connections to two bands; the Squamish First Nation and the Cowichan Tribes First Nation. He is an ironworker and most recently has worked installing rebar. He is employable and has had a series of temporary placements since the offence came to light, though some of these were out of province.

He intends to continue working and behave responsibly in relation to his family obligations. He is likely to have to go north or out of province to do so. [ 20 ] Mr. G’s criminal record consists of one dated domestic assault offence and a significant history of drunk-driving offences, but apart from an entry for public mischief in 2007, it ends in 1999. [ 21 ] After the offences came to light, Mr. G. took steps to curtail his drinking. He has also taken some substance abuse counselling programs through the Cowichan Tribes, including one

section of the program known as “Breaking the Cycle”, but when he arrived for a second part, they sent him away because of his outstanding charges. [ 22 ] Mr. G. has some issues with blood pressure and needs follow-up testing for diabetes. Certainly the reports that were filed indicated that he his not in the best of health. Mr. G’s background was further chronicled in the Pre-sentence and Psychological Reports filed with the Court, and I turn now to those. Pre-sentence, Psychological and Gladue Reports [ 23 ] The pre-sentence report provided a R. v. Gladue-type report of Mr.

G’s background, connections with his aboriginal heritage, and the resources available to him through his First Nations communities. As I have noted, he has also made his own inquiries and already participated in some programs that will assist him with the problems giving rise to this offence.

[ 24 ] Both reports relate a tumultuous childhood, marred by family dysfunction and violence. Mr. G. was born in Duncan and spent his early life in the Cowichan Valley. He was sent to residential school in Sechelt and spent seven or eight years in that and the Mission School, returning home only during school vacations. He returned to public school in his secondary years, where he exhibited some delinquent and violent behaviour, finding the transition quite difficult. [ 25 ] Mr. G was himself abused sexually in two separate incidents when he was very young, perhaps five.

He also witnessed abuse at the residential school, and on the reserve before that. He once walked in on his uncle abusing one of his sisters, but she did not complain about the incident. He believed that his mother was also sexually abused, as were her sisters, but his mother herself never told anyone. [ 26 ] In terms of his attitude toward the offence, Mr. G. told the author of the pre-sentence report that he pled guilty to spare his daughter but that most of what she alleged was fabricated. He reiterated these sentiments to the psychologist.

The authors conclude he is lacking in understanding regarding the effects of the incidents on his daughter and holds her somewhat responsible for his current circumstances. I do note that in his remarks at sentencing he exhibited better empathy, understanding and remorse than was perceived by the report authors. [ 27 ] The way it was put by Mr. Coleman, while Mr. G. always intended to plead guilty, he maintained something like a state of denial regarding the extent of his actions and the damage they have caused.

He did not entirely agree with the timing of the incidents, believing that they did not start as early as the complainant alleges. However, he was not in a position to deny E.L.’s allegations in light of the fact that he had a drinking problem at the time, and in some cases had little memory of things that may have occurred. After he heard her testify about the first incident, he instructed his counsel that he did not want to further traumatize his daughter by requiring her to continue. [ 28 ] The psychological report assesses Mr.

G. as a moderate risk to reoffend, but a risk that is manageable with counselling and abstinence. The report notes the absence of many indicators of recidivism. [ 29 ] Among other points made in the two reports is the fact that Mr. G. is said to have been frustrated with his marital relationship at the time of the offences. This is a recurring feature in some of cases; however, I see it as having no relevance whatsoever for an offence of this kind, whether proffered as an explanation or mitigating factor or for some other unfathomable purpose. Aggravating and Mitigating Factors [ 30 ] In comparing Mr.

G. with other similar offenders, it is important to take into account the mitigating and aggravating factors that feature in this case as compared with other cases. [ 31 ] On the mitigating side, I note the following. Mr. G. has complied with the strict conditions of his bail. He has been living with his brother and has not seen or attempted to see his children or his wife since the offence came to light. [ 32 ] It was apparent to me that Mr. G. is genuinely remorseful. He took steps to curtail his drinking right after the offence. As to the risk Mr.

G. poses, whether moderate or something less than that, I view it as situational. As suggested by the psychologist, it is able to be controlled with appropriate conditions. As I have noted, he has taken courses and counselling, including substance abuse management, and First Nations programs, and intends to do more. [ 33 ] Mr. G. did plead guilty, though he did not accept all of the details of the allegations his daughter had made. He ultimately decided he was unable to expose her to further distress and accepted that he would not be in a position to refute them.

This case may thus be distinguished from those in which the offender maintained a denial until a guilty verdict was handed down. It is also more mitigating in light of the fact that there were no corroborating witnesses. [ 34 ] Considering the effect of Mr. G’s attitude to the offence, I consider that his background, in particular the sexual abuse he experienced, may have resulted in a blurring of the boundaries that would otherwise naturally prevail in a parental relationship. This may explain why Mr.

G. has less ability to understand the effect of his actions toward his daughter than would an individual who had not himself been abused as a child. [ 35 ] Mr. G’s history of childhood abuse and neglect, relegation to a residential school for the entirety of his elementary school years, and childhood sexual abuse are unfortunately typical experiences for too many First Nations people. His experience reflects the many tragic and deplorable societal flaws that prevailed when he grew up, and may still do. Such a background has been accepted as a significant mitigating factor by 718.2(

e) of the Criminal Code and the case law following R. v . Gladue . [ 36 ] I also see Mr. G’s background as something of an explanation for his attitude toward his daughter and his situation, as documented in the reports. As indicated, he has displayed a different attitude in his remarks at sentencing. However, Mr. G. needs psychological treatment to understand the effects of his own childhood abuse before he will be able to understand the harm he has caused, completely.

Fortunately, there are sex offender programs available, both in and out of custody, and as well very good First Nations counselling and treatment programs in both Mr. G’s communities, which he intends to take. [ 37 ] The aggravating factors are those that arise in every case where the trust and innocence of a child are violated by a parent. The very person E.L. should have been able to expect would protect her from harm is the one that harmed her. Whether it was three incidents, or many more, her childhood was taken from her; irreparably marred.

She will require considerable therapy and understanding if she is to regain her wholeness. Fortunately it appears from her Victim Impact Statement that she has a great deal of maturity and spirituality that will assist her in coming to terms with the offence. [ 38 ] The length of time over which the incidents occurred and the age of the complainant when they started, whether six or even as old as 12, are also aggravating factors. [ 39 ] While I bear in mind Mr. G.’s own background, his attitude toward his daughter when she started acting out and his continued

predisposition to find fault with her before she disclosed, also aggravate the offence. E.L. must have felt very trapped in her situation andMr. G. held the key to unlocking her from that prison, but declined, for a time, to recognize that he was primarily responsible for hermisery; in fact, until she spoke out. Cases [40] Crown Counsel referred to the following cases: R. v. B. (T.L.) 2007 ABCA 61; R. v. Williams, 2010 BCCA 194; R. v. R.R.M.2009 BCCA 578; L.H. 2011 NLCA 4; Vital 2009 NWTSC 29; T. (S.G.) 2011 SKCA 4; S.E.A., 2008 BCPC 308 , 2008 BCPC0308; and R. v. N.V. 2010 BCPC. Defence counsel referred to R. v.

J.P.F., 2002 BCSC 756; R. v. R. N.S., 2000 SCC 7; R. v. J.D.M.,2001 BCSC 563; and R. v. P.A.T., 2008 BCPC 207. In particular, I found T.L.B, Williams, S.G.T. and S.E.A. cited by the Crown, and allof those cited by the defence, of assistance in setting the range of sentence. [41] I have also considered the case of R. v. W.G.G., 2003 BCPC 345; less in relation to the range of sentence than for its helpfulanalysis of the role of R. v. Gladue, R. v. Wells, [2001] 1 SCR 207, and

Section 718.2(

e) in sentencing on sexual offences for aboriginaloffenders. [42] The cases set a range of between one and two years imprisonment for acts of the kind that occurred in this case, as I read them. Those at the high end of that range or higher are reserved for situations where there is actual intercourse, which thankfully is not allegedhere. [43] They also support a conclusion that a conditional sentence is generally not adequate to satisfy the principles of denunciation anddeterrence in a case of this type. The issue is not whether Mr. G. poses a risk to the community.

The sentence must match those forsimilar offenders, having regard to the aggravating and mitigating factors that I have already considered. Sentence [44] Considering the sentences imposed in similar cases, and having particular regard to Mr. G’s background and the factors set out inthe cases of R. v. Gladue and R. v. Wells, I find that a conditional sentence will not adequately denounce and condemn Mr. G’s actionsand their effect on E.L. Those factors do however serve to mitigate the sentence, as do Mr. G’s guilty plea, efforts at rehabilitation andwillingness to undergo treatment.

The mitigating factors, particularly Mr. G.’s background, are such that I have determined that thesentence I would otherwise have imposed should be reduced by about half. [45] Mr. G., I find that a sentence of one year imprisonment is necessary and appropriate. It will not be conditional. It will befollowed by a probation order of three years duration, with terms I will fashion shortly, with the assistance of counsel. [46] You will also be required to provide a sample of your DNA while in custody. You will be subject to an order under the SexOffender Information Registry Act for the applicable period.

There will be a firearms prohibition under

section 109 of the CriminalCode for the periods required for a first offence. The victim fine surcharge will be waived. [Probation terms discussed.] _________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia