R. v. T.J.H. Date:, 2012 BCPC 115

Citation: R. v. T.J.H. Date: 20120330 2012 BCPC 0115 File No: 56259-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.J.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: L. Ostry Counsel for the Defendant: B. Anderson Place of Hearing: North Vancouver , B.C. Date of Judgment: March 30, 2012

[ 1 ] THE COURT: Mr. H. pled guilty some time ago to the offence of sexual assault in relation to the named complainant for whom there is a ban on publication of her name, so I will not revictimize her by naming her here. She is present in court and listened throughout the proceedings. Facts [ 2 ] As I understand what unfolded on the date in question, which was January 22nd, 2011, Mr. H., because of a number of things that were operating in his life at that time, acted completely inappropriately with respect to the fiancée of a friend of his, who is known as M.

It was not a lengthy encounter, but a rather persistent one, one that Mr. H. continued after the complainant made it clear that she did not welcome his advances and said no, "No, no, no, no, no" I think is the way Mr. H. put it in his statement to the police. [ 3 ] Nonetheless he did persist and he touched her in a sexual way outside the clothing on her genitals and before that he did some other acts that also qualify as a sexual assault. It was without the consent of the complainant and therefore it is a criminal offence.

Victim Impact [ 4 ] Now, it needs to be put into context in considering the whole of the circumstances, both of Mr. H. and those of the complainant, and I will say this in terms of the seriousness of the offence to start with. It is unfortunate that this had some very significant effects on the complainant and Mr. H. has looked at her victim impact statement, I am told, and been taken through it. It had some significant effects on her. She had some emotional effects and physical effects and it lingers with her to some extent. Aggravating Features [ 5 ] As well, it is serious because I agree with Ms.

Ostry, it is a betrayal on Mr. H.'s part of his friend, M., as well as the complainant by trying to take advantage of her in the circumstances. So for that reason, the circumstances are serious. Mitigating Factors [ 6 ] There are some what we call mitigating features; and that means some other aspects of it that point toward the court taking a lenient approach. One of the main things is a guilty plea. That indicates that Mr. H. has accepted his responsibility. And he did so right at the beginning, right from the outset.

He always acknowledged and agreed that he had done something he ought not to have done, "crossed the line" is the way it was put, and it clearly was well across the line. [ 7 ] So he has acknowledged that also by his guilty plea and not required the complainant to testify or anyone else to testify in court, so it spared them that additional victimization and also spared the court time that that would have taken. Those are factors the court always takes into consideration in deciding what the appropriate sentence will be.

Offender’s Background [ 8 ] There are three very helpful reports before the court that I have had the opportunity to read and they outline Mr. H.'s background. He is a unique person as an offender. He has some unique challenges. Every case needs to be considered on its facts and, for Mr. H., he has had bigger challenges than some other people. [ 9 ] He has what I would say would be less culpability than someone who set out to find someone to offend against or was what I would call predatory. Mr. H. was not like that. He was an opportunist.

He found himself in a situation where the opportunity arose and he acted inappropriately in that, but he did not go looking for a victim and he is not the kind of person who would do that, go looking for a victim. [ 10 ] If I were to characterize it, I would say he was perhaps a little, maybe, obsessed. He believed perhaps that he loved the complainant and that she is, and he said she was, beautiful, and he could not stop thinking about that.

So he found himself in the opportunity or in the circumstances where he could not control his impulses and he, I suppose one might say, tried to see if he could get away with it, and he could not. It was not going to work because the complainant was engaged to another person and she was not welcoming to Mr. H.'s advances. [ 11 ] Mr. H. is a person who would like to be in a relationship and I hope sincerely that that will come for him.

He needs to learn the appropriate way to do that and how to behave with people of the opposite sex and how to make advances without them being in circumstances when they are not welcome, and to understand that. [ 12 ] There are some suggestions in the materials as to how that might be dealt with for Mr. H. so that he will not be a person who comes back to court. I am quite convinced that if I impose the conditions that are suggested in the reports that I have got that Mr. H. is not going to offend against anyone else in the future. [ 13 ] I think he has learned his lesson in this particular set of circumstances.

I think he has been a little bit, probably, cut off from

some of his friends because of what happened and I am quite satisfied that he will be much, much more careful in future about whether his advances are being welcomed or not. Analysis [ 14 ] In terms of whether a discharge is appropriate, I indicated quite early on in Mr. Anderson's submissions and having heard from the Crown that I believed a discharge was appropriate in the circumstances.

It is unusual for the Court to grant what is not a conviction in an offence of sexual assault, but the question is whether it is in the best interests of the offender and also whether it is not contrary to the public interest. [ 15 ] So one of the things the Court looks at is, do I need to send a message to other people in similar circumstances to those of Mr. H. that this kind of behaviour is not to be accepted or condoned, and that is where maybe a criminal record might enter into it. Mr. H. is a unique offender.

It is a unique set of circumstances and, in my view, it is not necessary that the message go out in this particular case to other offenders, because there are so few who would be in these circumstances and like Mr. H. [ 16 ] In terms of the difference between a discharge and a suspended sentence, for all other purposes, they are almost the same. The terms would be the same, the consequences of a breach would be the same. The only difference here would be does Mr. H. deserve or need a criminal record in order to address the principles of sentencing that I need to address.

So my view of it is that he does not need a criminal record. It is not either in his best interests, and it would be contrary to the public interest for him to receive a conviction. [ 17 ] I am mindful, also, of the fact that he is employed. His employers speak well of him, but a conviction could affect his ability to be employed in future and/or continue in the same employment. It certainly would likely affect his ability to travel, more so than would a discharge, although that is not without difficulty. [ 18 ] So for all of those reasons, I am persuaded that a conditional discharge is appropriate.

Sentence [ 19 ] So I will have you stand up for that sentence, Mr. H. [ 20 ] I am going to impose upon you a conditional discharge which will be a probation order for a period of -- I think the Crown suggested 18 months? [ 21 ] MS. OSTRY: Yes, given the nature of the follow-up suggested. [ 22 ] THE COURT: I agree, 18 months probation. [ 23 ] So have a seat. We will talk about the terms of probation in a minute and I am going to go through those in the report.

Sex Offender Information Registration Act [ 24 ] I am going to turn firstly to the issue of the application of the Sexual Offender Registry Act and whether it is necessary for Mr. H., having now been discharged conditionally, to report under the terms of that Act . There is conflicting authority with respect to that question, whether the Act applies to someone who has a discharge, and I have read through the authorities.

I am more persuaded by the authorities that find that the provisions of the Act do not apply where a discharge is granted than I am by the authorities that find that it does. [ 25 ] I am mindful of the fact that the higher of the authorities or the highest, I suppose, is that of K.(D.) , a Quebec Court of Appeal decision from 2009, and that authority finds that the provisions of the Act do apply to a person who was discharged.

I have looked at the analysis there, as I note did the judge in the case of Jayswal , and I have a little difficulty with the analysis. [ 26 ] I would not go as far as saying I differ with the opinion because it is binding in a sense. It is higher authority, but what the court does in D.K. , 2009 QCCA 9987 , is look at the difference between the English and the French versions of s. 490.012 and conclude that the lowest common denominator or, I suppose, the “lightest” version of the Act should apply and I differ with that analysis. The English version says, "Sentencing" in 490.012.

The French version says, "Conviction and Sentencing," and the court went on to apply the version that says only, "Sentencing," I think on the assumption that that would be more favourable somehow to the accused, because my understanding of statutory

interpretation is that the

interpretation more favourable to the accused should be imposed. [ 27 ] One of the other statutory principles referred to in the case is that the less ambiguous provision should prevail and, again, I would think that would be the one that says, "Conviction and Sentencing" rather than the one that just says, "Sentencing." [ 28 ] So I had a little difficulty with D.K. and, setting that aside, one of the other cases that seems to be in favour of the provisions applying where there is a discharge is that of J.W. , 2010 NSPC 43 .

In that case, the reference that the judge relied upon in holding that the Act makes it clear that it applies to discharges was, as pointed out by Ms. Ostry in her able submissions, a reference to a

section that actually related to people who are found not criminally responsible, and that is in paragraph 6 of that decision. [ 29 ] So setting that aside, as well, I took some time to read through Jayswal. The learned judge in that case, Justice Lloyd Dean in Ontario, in an equivalent court to this level, went through a complete analysis as to the wording not only of the section, but of the literature that was published at the time the

section was enacted in Crown policy manuals and all kinds of literature. It seems that what

the judge held was that it has consistently been referred to as a set of provisions that apply to “convicted” sex offenders, and a conviction does not include a discharge.

That is basically the conclusion Justice Lloyd Dean comes to, that the Sexual Offender Registry Act does not apply where a discharge is imposed. [ 30 ] There is also the case in this province, Reyes-Borgwardt , by Justice Grauer, where it is not as in-depth an analysis, but it is, in my view, and with respect, a considered analysis in the sense that the judge turned his mind to the issue and decided that the provisions did not apply where a discharge is granted.

It was before the amendment that removed from the court any discretion as to whether to impose an order, but this is a separate decision made by the judge in that case. [ 31 ] So that would appear, also, to be binding on me in the circumstances, although again, it predates the amendment.

The amendments that occurred in April 2011 remove from the Court the discretion to consider whether an order under the Sex Offender Registry is grossly disproportionate to the circumstances of the offence and the offender, and I have had occasion to consider that in the past. [ 32 ] There is some suggestion on the authorities that where a discharge is granted, the presumption being that a person will never come back to court again because it is an isolated incident, it would be disproportionate to have them report for 10 years or whatever the requirement is under the Act . [ 33 ] I do not need to consider that, but I do wonder whether the amendments in April of 2011 might cast some question on the reasoning of the cases that predate the amendments, that decide that the Act does apply where discharges are imposed. [ 34 ] Now, the Court has no discretion not to have a person report if they are convicted, and it would seem to me the courts might want to revisit whether in those particular circumstances, absent the discretion, a person who is discharged must of necessity report under the Act .

My holding is that that is not the case, that a person who is discharged does not need to report and that it is not mandatory and, actually, the Act simply does not apply because of largely the reasoning that I find persuasive in the Jayswal decision. [ 35 ] So that is all very long and technical, but they are my reasons for not making you report as a sex offender. My view is that it applies to people who have convictions and I have just said that you are not going to have a conviction.

So I am not making that order. [ 36 ] I will say one further thing, that the Form 52 actually says, "Convicted," not "Sentenced” and it is the prescribed form under the Criminal Code done by the same people who drafted the section, as I understand the way that these things work. Therefore, I could not sign it because it does not say what I am doing here and that is my view. Terms [ 37 ] So in terms of the conditions on the discharge. They will be these. You are required to keep the peace and be of good behaviour. [ 38 ] You are required to report within two working days of your -- of -- I am going to do this.

Can I have him come back and sign it on Monday? Yes? Yes? Can he do that? [ 39 ] MR. ANDERSON: Sure. [ 40 ] THE COURT: Because we have run out of time with the registry. There is no point having him wait today, okay? [ 41 ] MR. ANDERSON: That is fine. [ 42 ] THE COURT: Okay. So I am going to say as a maybe, I guess, a condition of the order that Mr. H. is directed to return to the Court Registry on Monday, April 2nd, before 4:00 p.m. to enter into the terms of his -- or to sign the terms of his order. [ 43 ] The order takes effect from right now.

So you will need to remember what I tell you, but it will be all written down for you on Monday. [ 44 ] You will be reporting, then, by April 4th at 4:00 to the probation office at 100, 233 West 1st Street, North Vancouver, B.C., and thereafter as and when directed. Do not worry about that address. It will be in the order when you come and get it on Monday. [ 45 ] You will reside as directed by your probation officer and do not change your residence without the prior written authorization of your probation officer, and you are residing at home, I think, with dad right now. So that is fine.

Okay. [ 46 ] You are to have no contact directly or indirectly with the named complainant, same name as in the Information - you will insert that for me, Madam Registrar - and I am going to make an exception because I would -- and I will say except for the purpose of providing a written apology. [ 47 ] Then the next condition will be that you will prepare a written apology to the satisfaction of and with the assistance of your probation officer addressed to the complainant and that must be done by May 31st, 2012. Now, what happens with that is the letter goes to the Crown, Ms.

Ostry, and she will convey it -- or whoever in the Crown Office, right? [ 48 ] MS. OSTRY: Actually, the probation officer will forward it. [ 49 ] THE COURT: Okay. [ 50 ] MS. OSTRY: I do not know that it comes to the Crown.

[ 51 ] THE COURT: All right. That is how I have always done it – [ 52 ] MS. OSTRY: Oh. [ 53 ] THE COURT: -- is to have it go to the Crown because the Crown is in touch usually with the witness; however, I am going to have the probation officer deliver it. It is not for you to deliver. That is what I am saying, okay? However they want to do that, and that is to be done and given to your probation officer by the end of May, and Ms. -- the complainant may decide she does not want it.

That is up to her, but I want you to write it and I would like to see a copy of it, okay? [ 54 ] THE ACCUSED: Mm-hmm. [ 55 ] You will not attend any residence or school or place of employment of the complainant of which you are aware, okay? [ 56 ] You will attend and participate in Forensic Psychiatric or psychological assessments or other counselling or educational programming as may be directed by and to the satisfaction of your probation officer. [ 57 ] This wording comes directly from the presentence report which will be in the file, and having consented in court -- and he does consent, Mr.

Anderson? [ 58 ] MR. ANDERSON: He does. [ 59 ] THE COURT: This is the sex offender program, okay. To attend, participate in, and complete individual and/or group therapy/counselling and/or programs for sex offenders as directed by and to the satisfaction of a probation officer.

Again, that comes directly from the presentence report, but I am going to add my own wording after that and it will say, "Bearing in mind the recommendations contained in the psychiatric report" because there are specific parameters in that, as well, and I want the probation officer to be aware of that. [ 60 ] Will the probation officer have access to the psychiatric report as a matter of course? [ 61 ] MS. OSTRY: I know in Youth Court, you have to actually ask that that be provided to them. [ 62 ] THE COURT: And your client would consent to that, I assume, Mr. Anderson? [ 63 ] MR.

ANDERSON: Yes, he is fine with that, Your Honour. [ 64 ] THE COURT: Okay, I am just going to put in the order that Mr. H. consents to a copy of the psychiatric reports being provided to the probation officer, and that should just be in one of the conditions. I will just check for further conditions, and I wonder if they have explored the local brain injury support system? [DISCUSSION RE BRAIN INJURY SUPPORT GROUPS] [ 65 ] THE COURT: I will also say make reasonable efforts to maintain contact with any local brain injury support -- support, I do not know, enterprise?

What is it called? [DISCUSSION RE BRAIN INJURY SUPPORT GROUPS CONTINUING] [ 66 ] THE COURT: I will say local brain injury support group affiliated with the British Columbia Brain Injury Association.

Okay, and that is just kind of a reminder that that resource is there for him. [ 67 ] I am going to also say make reasonable efforts to obtain and maintain suitable employment because he is continuing to be employed and that is good. [ 68 ] I know I have done the Forensic reporting, but I also just say attend for counselling as directed to include Respectful Relationships, and that is a good course to take about relationships, and I am going to add also a recommendation for anger management. Okay. I think there is some reference to that. [ 69 ] So that is lots of things to take.

I think that is it for terms or did you have something else? [ 70 ] MS. OSTRY: Just two things. The fiancé would like to be included in the no-contact order, as well. [ 71 ] THE COURT: Oh right, of course, and his name I had, but M.? [ 72 ] MS. OSTRY: A. [ 73 ] THE COURT: A., right. So include that in the two orders of no-contact and non-attendance, please. [ 74 ] MS. OSTRY: And I had not made any submissions in particular with respect to s. 110, but if Your Honour is declining to – [ 75 ] THE COURT: Right, yes, I just want to finish the terms on probation while I am thinking of it. I wonder -- I would include

Mr. A. in the apology letter; is that something – [ 76 ] MS. OSTRY: Yes. [ 77 ] THE COURT: Yes, okay. So add his name to the apology condition, as well. [ 78 ] MS. OSTRY: And just so Your Honour can consider whether to impose any sort of condition vis-à-vis weapons. There were none used here – [ 79 ] THE COURT: Right. [ 80 ] MS. OSTRY: -- or threatened, but – [ 81 ] THE COURT: Yes, I have considered.

I do not think a weapons provision on the probation is required and I do not see a s. 110 order as appropriate in the circumstances, or required. [ 82 ] The victim fine surcharge is probably appropriate and that is $50 that Mr. H. should pay. It is an automatic assessment unless he were not employed and so he can pay that in three months, so June 30th for the victim fine surcharge. [ 83 ] MS. OSTRY: And just the reporting condition to the court registry here is in North Vancouver and that is Monday, April 2nd? [ 84 ] THE COURT: 2nd – [ 85 ] MS. OSTRY: Thank you. [ 86 ] THE COURT: -- by 4:00 p.m. [ 87 ] MS.

OSTRY: Thank you. Your Honour is declining to make the SOIRA . The DNA order? [ 88 ] THE COURT: Yes, and DNA is mandatory and I am not going to go into any analysis about that. It will be taken and he needs to attend on a Wednesday -- every courtroom is different. [ 89 ] THE CLERK: Your Honour, is that a primary or secondary? [ 90 ] THE COURT: Primary. Wednesday at 1:30 - I think it is Wednesday, maybe Tuesday and Wednesday - North Van RCMP. [ 91 ] THE CLERK: It is a – [ 92 ] MR.

ANDERSON: I think somebody has a chart there. [ 93 ] THE CLERK: Yes, Your Honour, it is Tuesday and Wednesday between 1:30 and 3:30. [ 94 ] THE COURT: Okay, so pick a date. I have to put a date in. [DISCUSSION RE DNA REPORTING CONDITION] [ 95 ] THE COURT: April 3rd, then, between 1:30 and three o'clock for the DNA sample to be taken. Okay. I think that that is it, then. [ 96 ] All right, Mr. H., good luck to you. I know we will not see you back in court again. [REASONS FOR SENTENCE CONCLUDED ]