R. v. V.W. Date:, 2011 BCPC 174

Citation: R. v. V.W. Date: 20110624 2011 BCPC 0174 File No: 55738-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. V.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: R. Edwards Counsel for the Defendant: C. Hatcher Place of Hearing: North Vancouver, B.C. Dates of Hearing: June 15, 16 and 24, 2011 Date of Judgment: June 24, 2011 [ 1 ] The accused has pled guilty to the offence of sexual touching of a person under the age of 16, contrary to

section 151 of the Criminal Code . The offence took place between June 1, 2008 and July 1, 2009. The complainant turned 14 in March 2008, the spring of her Grade 8 school year, and the defendant was her teacher. [ 2 ] The Crown seeks a sentence of 12 to 18 months; the defendant seeks a sentence of 90 days to be served intermittently. There is a minimum sentence of 45 days imprisonment.

Where within the applicable range the sentence should fall depends largely upon an assessment of the offender’s degree of culpability as compared with other similar offenders in prior reported cases. [ 3 ] The matter here is complicated by the fact that until May 1, 2008, the defendant would have been eligible for a conditional sentence, but that is no longer an option. Some of the cases cited either predate that change, or predate the enactment of the conditional sentence legislation. Our Court of Appeal in R. v .

B.C.M. , 2008 BCCA 365 held that the enactment of a minimum sentence by Parliament will have an inflationary effect on the applicable sentence but that the assessment is “still guided” by similar sentences imposed in the past on similar offenders. [ 4 ] The Court also held, at paragraph 34, that Parliament’s clear intent in enacting the 2005 amendments to the Code , which codified the aggravating factors of breach of authority and abuse of children under 18, was that “offenders who victimize young people receive longer sentences.” I will say more about the effects of the amendments when I consider the relevant cases.

Facts [ 5 ] Counsel arrived at an agreed statement of facts and I will not recite it in these reasons. A

summary of the offending behaviour, to place it in context in relation to other cases of sexual touching, follows.

[ 6 ] The complainant was vulnerable by virtue of her age, and a perceived lack of support from her parents, who were in the process of separating during the relevant time. The defendant befriended the complainant during her Grade 8 year. They became unusually close, in part because of the defendant’s own vulnerability due to a lifelong physical challenge, personality weaknesses, and what he perceived as an unsupportive marriage. [ 7 ] The defendant and complainant confided their vulnerability to each other. They shared their interest in music and literature.

They communicated at length in a web log in the summer of 2008, initially about their shared interests. In due course, in the blog, and also in emails, the defendant pursued a romantic relationship with the complainant. [ 8 ] Ultimately the relationship developed into a physical one. The complainant conveyed reluctance on some of the initial occasions. It progressed to regular meetings at the school where at least on some occasions they would hide in a utility closet and engage in sexual touching.

This was discovered and reported by a janitor. [ 9 ] The main physical portion of the events, apart from a hug at the end of the Grade 8 school year, occurred between the fall of 2008 and the summer of 2009. It progressed from kissing to French kissing, to the defendant nibbling on the complainant’s unclothed breasts, to having her fondle his unclothed penis, at least twice.

There was one reported incident on which the defendant inserted his fingers between the complainant’s labia, though she quickly rebuffed him. [ 10 ] It appears the majority of the more significant sexual conduct occurred between about January and May of 2009. The circumstances are aggravated by the fact that there was continued sexual contact after the defendant was aware that he was under police investigation. He resigned his position in April, in the face of scrutiny by the school board, and retired. The complainant was interviewed by the police but did not at that time admit to inappropriate contact.

Even after that, the defendant renewed the association. [ 11 ] There are references in the communications between the defendant and the complainant in the summer of 2008 to other teachers appearing to question the relationship early on.

The defendant refers to “those who expect life to follow ‘conventional’ patterns.” He goes on, “this connection, while still rooted (and rightly so) in a teacher-student relationship, has also surpassed that model ... in healthy ways” and he lists their common interests and desire to spend time together. [ 12 ] Later in the blog, which ends in July 2008, the defendant tells the complainant she is his favourite, and says that thanks to her care and devotion, his ability to be open and vulnerable has improved.

He gives her a number of substantial compliments including telling her that her attitude is “utterly attractive” and she is his source of inspiration. [ 13 ] By Christmas of 2008, as reflected in the defendant’s emails to the complainant, they were contriving to spend time together, he taking care to note the times when custodians would be present in the school. There is reference to a meeting in December 2008 in which the defendant warmed the complainant’s feet.

He refers to kissing them, and talks of their love for each other. [ 14 ] Counsel are at odds as to whether the defendant’s behaviour amounted to grooming. In articulate submissions Ms. Hatcher distinguished between situations where the sexual purpose precedes the bestowing of attention upon a young person, and that where sexual attraction develops solely because of the intimate nature of the relationship. [ 15 ] I accept that this scenario may more aptly be placed in the latter category.

The intense attraction appears to have been platonic at the start, and then to have developed into something of an obsession, resulting in physical attraction. [ 16 ] I would make the following observations about that, in terms of how relevant it may be to the assessment of the defendant’s criminal culpability. He is not a predator in the sense that one may say that of a paedophile who contrives serially to befriend children with the advance and perhaps single minded purpose of sexual contact. [ 17 ] However, the defendant was a teacher, and he had been a teacher for many years.

He must be taken to have been aware of the extreme vulnerability of a young adolescent female student in the early years of high school, seeking acceptance and validation, trying to find herself in the world. In addition to what he must be taken to have known about such young students in general, he was aware in particular of the complainant’s unstable family situation. He pursued, at some length, an intimate emotional connection with her. He must be taken to have been keenly aware of her vulnerability. [ 18 ] Mr. Edwards most aptly characterized the attentions of Mr.

W. as a “creeping emotional spider web” which ensnared the victim. It is perhaps also appropriately characterized as seduction. [ 19 ] What must be borne in mind in characterizing the degree of culpability, whether it is classified as grooming or seduction, is the extreme age disparity, and the extreme youth of the complainant. It was predictable that not only would the complainant be profoundly damaged by any sexual contact, but perhaps even more so by the immense emotional betrayal of falling headlong into a relationship that the defendant as a mature adult should have known could never have worked out.

He should have protected her from that, far from encouraging it. [ 20 ] Ms. Hatcher points out that the defendant didn’t set out to emotionally betray the complainant; he spoke of their being together, and only later came to his senses. I think it fair to say the defendant was obsessed, and his judgement overborne by his own romanticization and vulnerability. However, there were many turning points; opportunities for the defendant to recognize the absolute prohibition on crossing the line between friendship or mentoring, and romantic pursuit. That he was aware of these opportunities is evinced in his own writing.

And yet he made the absolute worst choice over and over, along the way. [ 21 ] Literature is rife with similar tales of falls from grace. The heady compulsion borne of mirrored attraction is a form of narcotic, and the defendant in this case was clearly addicted.

Nonetheless, as an adult he is assigned the responsibility of recognizing the total devastation that indulging in his obsession will inevitably cause, and to make a choice as to whether or not to accept those consequences. [ 22 ] The extremely tender age of this complainant and all of the frailties that go with that in my view distinguish this case from many in which the complainant is even just a few years older. One simply cannot talk of reciprocity or mutual attraction, in these

circumstances. This complainant was barely out of adolescence when the defendant engaged in completely and grossly inappropriate sexual contact with her. Whether or not it is characterized as grooming, the defendant has the sole responsibility for authoring this illicit, illegal and inevitably devastating set of circumstances. Victim Impact [ 23 ] In terms of victim impact, that devastation is evident and as I have said, inevitable. The complainant became anorexic and has caused herself permanent heart and liver damage.

Thankfully she has overcome her eating disorder; however, as she puts it, “after I lost the control that weight loss had given me, I began to cut my wrists. The bright clear pain left no room in my thoughts for anything else to come and haunt me.” At some point she cut off her hair in anger. [ 24 ] One further passage from her Victim Impact Statement will suffice to put her injury in perspective: Loss of trust in the school system or those in a position of authority: I believed that Mr. W. believed in my potential as a student. He assured me that the excess time we spent together was natural.

My parents were going through a divorce, and I was quite vulnerable during that time of my life. He justified his inappropriate actions towards me, and I wanted to believe him. He offered me comfort when I felt that I had no one to go to, and he encouraged me to engage in discussions about my favourite subjects. It was during a part of my life that I needed someone to be close to, and that made me blind to any other considerations. I now realize that his efforts were only a device to secure me as a sexual object. I do not feel able to connect with my teachers or receive their support.

My ability to enjoy my studies has been affected. [ 25 ] Defence counsel suggests that the complainant had frailties before the offence. I have already commented on the fact that the defendant must be taken to have been aware of those, and that some degree of frailty would be inherent, given her age. I would add that the defendant was a central figure in her life for the better part of two years, from ages 13 to 14.

It was his duty as a mentor to mitigate her frailties, not exacerbate them. [ 26 ] I see all of the consequences outlined in the Victim Impact Statement, including the way in which the complainant came to view the defendant’s attentions, as predictable and inevitable results of the actions of the defendant. [ 27 ] By all accounts, the complainant was a gifted, precocious, self assured, though vulnerable 13 year old when the defendant subjected her to his attentions. She came out highly troubled.

She continues on medication for sleep loss and depression. [ 28 ] The complainant’s mother has had to leave an executive position to support her. In her Victim Impact Statement, she says, “we will never get back those years, watching the complainant blossom naturally into a young woman.” [ 29 ] She also speaks of the inevitable guilt of a parent who did not recognize what was occurring. She trusted the defendant to maintain appropriate boundaries, as did the father.

Both had spoken to the defendant about his relationship with their daughter and trusted his assurances, believing that the relationship was appropriate and constructive for her. Because the defendant also befriended the complainant’s father, the father experienced his own sense of betrayal. Reports [ 30 ] I had the benefit of a Corrections Branch pre-sentence report and a psychological assessment from Forensic Services. Ms. Hatcher quite rightly points out these reports are based on one interview, as they generally are. The defendant also had his own therapist, Dr. Grams, produce a report. Mr.

W. went to see him initially in the fall of 2009 for couples counselling in an attempt to salvage his marriage, and then later after the criminal charges came to light, individually. The report was written in May 2010. [ 31 ] The author concludes that the charges served as a wakeup call for the defendant, and he realized the effects of his behaviour on the complainant. As a result he decided to take complete responsibility for his actions and his behaviour and to plead guilty to the charges. He told Dr.

Grams that only twice during the relationship did he realize that what he was doing was wrong, once during the summer of 2008 when he realized he was becoming personally involved, and again in the late fall when he wanted to spend more time with her. [ 32 ] Notably these are the times as I have noted when the communications between them appeared to acknowledge both impropriety and compelling attraction. Mr. W. acknowledges that he let his feelings override his judgement on both occasions. [ 33 ] Dr.

Grams and the Forensic Psychiatric report assess the defendant at a low risk for reoffending, and there is no reason to differ with that. He has a degree of insight, now, into how his actions have affected the victim. The pre-sentence report questions his empathy for the victim, and the psychological report says he downplayed the long term impact and minimized the sexual nature of the relationship, preferring to characterize it as romantic. [ 34 ] The latter remark is consistent with the assessment of Dr. Grams regarding the defendant’s being in love with the complainant.

In my view he has yet to accept that he is directly and completely responsible for the entirety of the effects chronicled in her victim impact statement. [ 35 ] The author of the Forensic report concluded that the six sessions Mr. W. has had with Dr. Grams “would be insufficient contact to address areas such as poor coping, problems with intimacy and limited insight” and recommended that he attend for sexual offender treatment. Although based on only one interview I do not see that conclusion as inconsistent with the observations of Dr. Grams.

[ 36 ] I will turn to an assessment of the aggravating and mitigating factors before reviewing the case law. Aggravated Factors [ 37 ] I have already made some observations about the defendant’s level of culpability in reviewing the facts and victim impact.

I would summarize that in addition to the obvious factor of a breach of a position of trust, which is common to the cases cited, the following are aggravating factors: the greater age disparity here than in some of the cases; the intimate awareness of the complainant’s emotional vulnerability; the continuation of the offence after being subjected to scrutiny; the implied or overt assurances to one or both of the parents that nothing inappropriate was occurring; and the attempts to convince the complainant that their relationship was not governed by normal societal values, and was “natural.” Mitigating Factors [ 38 ] There are a number of mitigating factors here, and an absence of some aggravating factors that are present in other cases.

The acts encompassed in the offence fall short of intercourse and oral sex, which serve to distinguish them from many of the cases cited. There is an absence of the aggravating factor of physical coercion; but the presence of psychological persuasion. [ 39 ] The defendant does not have a criminal record. He also has strong Christian values. He has the support of many persons who have written letters for him, including several former students.

He had led an exemplary life of service, again, not uncommon in the cases, and often, a factor contributing to the parents’ trust and the defendant’s continued access to the complainant. [ 40 ] The defendant has lost his career as a result of the offence; he resigned and then retired. These are natural consequences of electing to engage in the kind of conduct that he engaged in here. While defence counsel characterized it as a “huge personal loss,” he was over 60 at the time when he elected to retire, and I have not heard that he was denied a pension. [ 41 ] The defendant entered an early guilty plea.

He did not set the matter for trial nor subject the complainant to the suggestion that she would have to testify. That is a mitigating factor. It must be considered in light of the apparent strength of the case for the Crown, with supportive observations, and literature. There are cases in which without the plea there would not likely be a conviction where a plea is arguably more mitigating. [ 42 ] The defendant expresses deep remorse and accepts responsibility for his criminal behaviour. He is prepared to accept accountability to his family and the community.

He has demonstrated this by strict compliance with his bail terms. He has undertaken voluntary counselling, at his own cost, which Ms. Hatcher submits will assist with the issue of rehabilitation and personal deterrence. I have already noted the comments of the Forensic psychologist. [ 43 ] Ms. Hatcher points out that the defendant has experienced significant negative media attention and the stigma that goes with identification in his community as a sexual offender. He has lost his marriage, his career, his reputation, and been subjected to intense media scrutiny and community reprobation.

He lives with these effects every day, which, it is submitted, go a long way toward addressing the issues of denunciation and deterrence. In addition, he will have the consequence of registering as a sex offender registration and having a criminal record. [ 44 ] Finally, it is submitted that this is the type of offence that attracts negative attention from other inmates, and the defendant has a visible physical deformity that will make him stand out. At age 64, with his life experience, and naïveté, he is not equipped well for dealing with other inmates.

Being naive, meek and unassertive are not good qualities for an inmate in the prison system, it is submitted. [ 45 ] I accept that the defendant has experienced all of these somewhat predictable consequences of his behaviour and will likely experience more. Some are common to other cases of similar notoriety. Some are considerations for the correctional authorities and are not relevant to the sentencing process. In my view they are not such as to take the case outside the realm of what would otherwise be an appropriate sentence. Case Law [ 46 ] I will review the case law briefly.

I will say at the outset, however, that I do find the pre-1996 cases to be of less assistance, and agree with the Crown submission that the law has evolved since then in relation to the capacity of a child to consent or reciprocate, and the degree to which willing participation may be considered a mitigating circumstance.

In my view, with an age disparity like that here, and the circumstances as I have found them, cases in which the complainant’s willing participation has served to reduce the sentence have no relevance. [ 47 ] I also view the pre-amendment case law, particularly the older cases, with some degree of caution. The law does evolve, however slowly, in part as a response to public sentiment.

As I have said, the amendments to add a minimum sentence, and before that, to codify breach of authority and abuse of a child as aggravated factors, reflect a greater condemnation of these kinds of offences than may have existed in the past. [ 48 ] Furthermore, much of the argument between counsel before 1996 was directed to whether or not the offender should go to jail at all. After that, the issue was whether a conditional sentence order was appropriate as a substitute for a jail sentence.

The focus was necessarily different in those cases than in those that come after the option for a conditional sentence is removed.

[49] In addition, until 1996 there was some confusion about whether retribution was a proper aim of the sentencing process. That wasset straight in a Supreme Court of Canada case called R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, which confirmed thatretribution is one of the aims of sentencing. That sentiment has recently been reiterated in R. v. Ansari, 2009 BCCA 381. [50] And so with all due respect to the able submissions of defence counsel in this case, I do not find the older cases to be of as muchassistance as the more recent ones. [51] The later cases cited by defence start with R. v.

C.M., 2000 BCPC 64, a decision of Judge Bruce, as she then was, involvingintercourse between a 53 year old teacher and 17 year old student. Apparently the student only came several years later to realize theoffence was wrong. [52] The Court distinguished between grooming and opportunistic behaviour, based on the expert reports and found the offence to bespontaneous and opportunistic, consistent with the tenor of notes and cards exchanged between the two, and the complainant’sstatements.

The offender received a conditional sentence of eight months, arguably the equivalent of a four to six month jail sentence. [53] The facts of C.M., says defence counsel, are similar to this case, and it should be persuasive as to the appropriate term of thesentence. However, in my view the issue of reciprocity has more relevance where the complainant is over the statutory age of consent,which is now 16. The complainant in C.M. was 17. [54] The next case cited, R. v. Edwards, 2003 BCCA 214 also pre-dates the amendments. It involved the sexual exploitation by a 27year old dance instructor of a 15 year old.

The judge was said to have fallen into error in not considering whether the defendant couldhave received adequate rehabilitative counselling in a non-custodial setting, in over-emphasizing the breach of authority, and in failing toarticulate why general deterrence and denunciation could not be achieved without jail. The Court of Appeal substituted a 12 monthconditional sentence for a nine month jail sentence. This is one of the pre-amendment cases in which the focus was on an issue which isno longer relevant. In the absence of a conditional sentence as an option, it arguably supports a nine month jail sentence.

I note as wellthe case involved a less significant age disparity. [55] In R. v. G.F.B., 2007 BCPC 363 , 2007 BCPC 00363, Challenger PCJ dealt with what was termed a consensualrelationship between a 36 year old teacher and his Grade 12 student. The Crown proceeded summarily and counsel made a jointsubmission for the minimum 14 day sentence. The complainant intended to continue the relationship and was legally able to do so at thetime of sentencing which was within a year of the offence dates.

Judge Challenger expressed grave concerns about the adequacy of theminimum sentence but felt bound to accept the joint submission. [56] R. v. N.M., 2009 BCPC 281 involved a 27 year old female teacher who had two sexual encounters including one incident ofintercourse with a student in grade 11. It appears he would have been 16 or 17 at the time. The facts were aggravated by her having toldfriends of his about the encounter, and several other actions demonstrating self interest and a lack of insight. She received a six monthsentence.

As noted by Crown counsel, the teacher was very young, and the law had changed the day before the offence occurred. [57] In R. v. P.E.S., [2010] O.J. No. 1125 a 44 year old hockey coach engaged in a sexual relationship with a 17 year old player on histeam. There were similar acts of wooing to those here, he singled her out and gave her gifts, behaved romantically, and arranged a sickday at her school so they could be together. The offence involved oral sex by the offender.

The Court imposed a four month sentence. [58] Turning to those cited by the Crown, they are all dated 1996 or later, but none are more recent than 2006. Most are from out ofthe province. The cases cited start with R. v. G.R.F., 2006 NBCA 104, involving a younger teacher, with a 14 year old student, and moresignificant acts. The appeal court converted a conditional sentence to one of two years jail, noting that gratification was the defendant’sprimary aim. [59] R. v. Bedard, 2006 ONSCJ involved a teacher with a student similar in age to this complainant, some grooming, and lesssignificant sexual conduct.

One year was imposed. [60] In R. v. M.E.J., 1999 NWTSC, a stepfather offended against a blind victim, in one incident of a more significant nature sexually. That defendant had alcohol and drug problems and low insight. Counsel presented a joint submission for a sentence of two and a halfyears. [61] Finally, R. v. J.G.S., [2000] A.J. No. 709 involved a corrections officer supervising the complainant who used threats of jail tocoerce sexual acts which were on the low end in terms of significance. There were three incidents. He received a nine month sentence.

Conclusion [62] Sentences have increased in these kinds of offences since 1996, clearly. That is a reflection of society’s abhorrence andcondemnation of predatory offences on young persons. Those sentiments are behind the 2005 and 2007 amendments, and that must beconsidered in assessing the defendant’s criminality. The governing principles are general deterrence and denunciation, to a lesser extentspecific deterrence, and as well the offender’s rehabilitation. [63] I accept that this defendant is less predatory than a serial paedophile.

In some respects his criminal culpability is lower thansomeone with that disease; however, in some respects it is higher. Some paedophiles are incapable of empathy. This defendant shouldhave understood the serious harm he was causing. [64] Considering all the mitigating factors here, all of which I accept, and in light of the defendant’s degree of criminal culpability, Iconclude that a sentence in excess of that requested by the offender is required.

I am mindful that a longer sentence will permit thedefendant to participate in the Ford Mountain program, which in all the circumstances I see as necessary and appropriate. However, I

have not increased the sentence in order that he do so in a custodial setting. I have considered the cases cited; the circumstances of this offence; the need for denunciation, deterrence, retribution, and restraint; and the need for a balanced approach. [ 65 ] I conclude that a jail sentence of one year is necessary. The rehabilitative portion of the sentence will also include a two year probation order with the terms recommended in the pre-sentence report. The ancillary orders consist of registration under the Sex Offender Information Registration Act , an order for a DNA sample, a firearms prohibition under

section 109 of the Criminal Code , and the victim fine surcharge. It is recommended that the offender serve his sentence at Ford Mountain Correctional Centre. ________________________________ The Honourable Carol Baird Ellan Provincial Court Judge