R. v. K.L.L. Date:, 2012 BCPC 273

Citation: R. v. K.L.L. Date: 20120620 2012 BCPC 0273 File No: 57859-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.L.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: G. Oh Counsel for the Defendant: A. Wolf Place of Hearing: North Vancouver , B.C. Date of Judgment: June 20, 2012 [ 1 ] THE COURT: On April 10th, 2012, K.L. pleaded guilty to one count of sexual touching of S.L. and C.L. contrary to s. 151 of

[ 1 ] THE COURT: On April 10th, 2012, K.L. pleaded guilty to one count of sexual touching of S.L. and C.L. contrary to s. 151 of the Code . The incidents occurred in the Squamish area between May 31 st , 2008, and March 23 rd , 2012. The Crown proceeded by indictment. He also pled guilty to one count of failing to comply with probation by failing to report. These reasons relate primarily to the incidents of sexual touching. [ 2 ] The more recent incident was reported almost immediately and the accused has now been in custody since March 26.

It was as a result of the disclosure of the recent incident that the earlier incident came to light. S.L. was 10 years old and C.L. was nine years old at the time of the offences against them. The accused was 20 when he offended against S.L. and 24 when he offended against C.L. [ 3 ] Both of the victims and the accused are family members. They all reside on or very near a small First Nations reserve. Almost everyone who resides on this reserve is related. [ 4 ] On March 21 st of this year, S.L. was sleeping over at the home of the accused and his mother. There were a number of other children there. Mr.

L. returned home under the influence of alcohol. He entered the room where the children were sleeping and lay down beside the victim and began to touch her genital area overtop of her pyjamas. She told him to stop. He pushed her over and said, "Just go with it. It will be okay." The victim screamed and pushed him off and went and told an adult female what had happened.

She was very upset when she reported the incident and remained distraught for some time. [ 5 ] When S.L. heard about what had happened to C.L., she reported that in 2008 she was sleeping on a couch and awoke to find the accused rubbing his penis against her buttocks. He had not exposed his penis and had not removed her clothing. He then sat down on the couch and the victim pretended to have just woken and asked him what time it was. [ 6 ] S.L. reported this incident to her mother at the time, but nothing further was done as they then moved away from the reserve.

Over time, S.L. and her mother re-established a relationship with their extended family and S.L., who is now 14, had reached a point where she felt able to forgive the accused. As a result, she feels great remorse that she did not take further action which might have prevented her cousin being assaulted. [ 7 ] These offences have caused significant distress and turmoil for the victims, the entire family and community.

C.L. has had to move off the reserve due to child protection concerns. [ 8 ] The family and community members are divided about what the legal consequences should be and how the accused should be dealt with by the community when he is released. Some take the position that he should never be permitted to return to or reside in the community. There is concern for his personal safety should that occur. [ 9 ] Both victims have been traumatized by the offences. C.L. is reluctant to go to school, has nightmares, and is fearful of being alone or going to the reserve.

She has had to give statements to the police and attend for medical checkups and counselling. S.L. had dealt with the immediate impact, but is now in therapy and, although she is not in any way responsible for what happened to C.L., she is dealing with guilt and remorse for not taking steps earlier to report the accused. Of course, the long-term emotional and psychological effects on the victims have yet to materialize but will doubtless be significantly painful and ongoing. [ 10 ] A Pre-Sentence Report and psychological report were prepared. The accused has one previous conviction for assault on a partner.

He was sentenced to one year of probation on August 24 th , 2010. He did not complete any counselling and consistently missed his probation appointments. [ 11 ] Mr. L.'s early upbringing was unstable. He does not know his father. His mother had issues with alcohol abuse but has now been sober for many years. As a young child, he was placed in foster care and was also sexually abused by a male family member. He was returned to his mother's care at age six.

He recalls drinking parties at the family home and spending time with extended family. [ 12 ] There is some suspicion he has been impacted by his mother's abuse of alcohol while she was pregnant. There are also concerns that he may have some degree of Attention Deficit Disorder. [ 13 ] He had been living in his mother's home for several years up until his recent arrest. Some of his siblings also live in the home with their female children. He is no longer able to live in that home or those children may be apprehended.

He does have an uncle who lives two doors away and who does not have children in his home and who is willing to have him reside there and to offer him employment in logging. [ 14 ] Mr. L. has a child himself who is two and a half. The child is in care and he does not have contact with him, although he has a provision for access. [ 15 ] Mr. L. has a Grade 11 education and finished a one-year culinary arts program. He has been employed seasonally doing labour and logging. [ 16 ] He has spent almost his entire life living on the reserve where the offences occurred.

He wishes to return to live there as soon as he is released. For reasons which are unclear, he does not have a social insurance number which has limited his employment opportunities. [ 17 ] The accused reports using marihuana. In the Pre-Sentence Report it says he uses the substance five times per week but in the psychological report it indicated he uses it five times per day.

I do not know which version is correct, but I do not draw any conclusion other than that one of the reports is in error and the accused, in any event, uses marihuana to excess. [ 18 ] He says he consumes alcohol to the point of intoxication once per month. He reports that both of these offences occurred when he was highly intoxicated. He wants to stop using drugs and alcohol and is amenable to residential treatment. [ 19 ] The Pre-Sentence Report indicates that he shows empathy for the victims and remorse for his offences. He is ashamed and

accepts that he needs counselling. However, he appears to lack insight into his behaviour as he sees it resulting from the abuse ofalcohol alone. In my view, this is of concern in that both victims were of a similar age and unmistakably children. [20] The psychological report is based entirely on self-reporting which limits the reliability of the conclusions drawn. Mr. L. said hehas had several age-appropriate female sexual partners including the mother of his child. He reported that he feels no attraction toprepubescent females.

With respect to the most recent offence, he says that he was intoxicated and confused and thought he was with themother of his child. [21] He has experienced trauma over his lifetime including the sexual abuse he suffered as a child. He lost a significant elder someyears ago and, more recently, a former girlfriend to suicide. He has not had the benefit of any counselling to address these losses and hasexperienced some depression.

The report finds that he is at a moderate risk to reoffend should he continue to drink and be leftunsupervised around children. [22] It does not appear that sexual deviance, a personality disorder, or mental illness were factors in his offending. Rather, the reportsuggests that his sexual offending was due to a number of factors, being intoxication, poor strategies for coping with stress, problemswith intimacy, poor planning, and low self-awareness. [23] The psychological report comments on Mr.

L.'s close ties to and need for support from his family and community and that heshould return to live there for his emotional well-being and survival. He must, however, be abstinent from alcohol and participate incounselling including sexual offender treatment. Vocational training or counselling is also recommended. [24] The aggravating factors are the age of the victims and the position of trust the accused held as an adult in the family. Thevictims should have been able to look to him for protection. There are two distinct offences over four years.

The accused knew of hispast deviant behaviour and yet placed himself in a situation where he could and did act out again. [25] In mitigation, Mr. L. pled guilty at a very early stage in the proceedings. The Crown, in their submission and the psychologicalreport both characterize the conduct of the accused as opportunistic as opposed to predatory. There are only two offences over fouryears. On each occasion, he stopped when the victims awoke or protested.

There was no use of force or threats. [26] Although all sexual touching or interference offences are serious, the touching by this accused is at the low end of the spectrumof seriousness. There are clear prospects for his rehabilitation if he is able to abstain from the use of drugs and alcohol. The reports andsubmission of counsel say that he is remorseful, empathetic and ashamed. He wishes to pursue counselling and treatment. [27] The Crown suggests that an appropriate sentence is one year in prison with a lengthy period of probation to follow. Theminimum sentence is 45 days.

They argue that denunciation and general deterrence are the principles which must be given significantweight when imposing sentences for sexual offences against children. [28] They say that these principles must be given primary weight even though the accused is a person who has been impacted by thesystemic factors referred to in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and rely on R. v.

Wells, 2001 SCC 207, forthe proposition that First Nations children and their families deserve protection from the often devastating effects of sexual interference. [29] Defence counsel takes the position that the time the accused has spent in custody to date, a period of just under 90 days, is asufficient custodial consequence and that society as a whole, the community, and accused would be better served by placing him on alengthy period of probation and requiring him to attend a lengthy residential treatment program to be followed by sexual offendertreatment. [30] He has found a placement in a reputable treatment centre that has a program which is sensitive to the issues of First Nationspeople.

It is suggested that these programs would require the accused to be out of the community for a further six months or so, at whichpoint his return to the community could be revisited. [31] It is now widely accepted that the negative effects of sexual interference and assaults on the victims is profound. Those aroundthe victim are also damaged. They feel responsible. They feel they should have known. They feel they failed in their duty to protect thevictim. In many cases where the offence is committed by a family member or close friend, the damage radiates out like rings from astone dropped in a pond.

However, the damage does not simply fade away. It is insidious and often leaves scars and for some, woundsthat never completely heal; see R. v. J.L.C., 2012 BCSC 623. [32] There is no question in my mind but that sexual interference with children and sexual assault of adults serves to perpetuate thecycle of alcohol and substance abuse, attachment issues, low self-esteem, lack of personal and sexual boundaries and violence whichcontinue to afflict our First Nations people. Indeed, these are the areas of concern identified in the psychological report prepared in thismatter.

Those who are sexually abused are more likely to have emotional issues which cause them to turn to alcohol and othersubstances to cope with their pain. Those who abuse alcohol and substances are more likely to act out their pain by abusing others. [33] R. v. Gladue and, more recently, R. v. Ipeelee, 2012 SCC 13, provide guidance to the court when sentencing First Nationsoffenders.

The incidence of over-representation of Native people in our jails continues. [34] It is the responsibility of courts such as this to ensure that all possible alternatives to incarceration are considered and thatrehabilitation, reintegration, restoration and reparation are given weight. We are tasked with collecting information about the specificcommunity and the resources available for any potential community-based disposition which may be appropriate and which willincorporate First Nations cultural values and perspectives. [35] The Pre-Sentence Report in this matter is not a thorough Gladue report.

It is typical of the reports this court receives when sucha report is requested. Frankly, it is of concern that so little is done by Community Corrections to assist the court in its responsibilities asset out by s. 718(2)(

e) of the Code and the Supreme Court of Canada in Gladue, Wells, and Ipeelee.

[ 36 ] It sets out a very brief history of the Squamish Nation and provides little information as to the resources available. It makes reference to the "Long House", which is a sacred and spiritual program which promotes cultural practices as well as abstinence and health, but does not provide any information as to whether this program could be accessed by this accused as part of the restorative aspect of any sentence imposed.

It does not address the resources available in the Squamish Nation as a whole and does not address any First Nations resources available outside the Squamish Nation. [ 37 ] The court is aware that there is a committee of elders in Squamish who deal with extrajudicial sanctions and incorporate a restorative approach based on cultural values. I was advised by the local integrated police squad officer that they are not equipped to deal with offenders serving sentences for sexually interfering with children.

I am left with only my general knowledge of the resources available locally and from the Pre-Sentence Report that there are "talking circles" and substance abuse counselling which also provides referrals for First Nations treatment centres. [ 38 ] Defence counsel is also well-versed in the resources available, but through no fault of his own was unable to provide the court with any alternatives except those I have referred to above. [ 39 ] I agree that attending a residential alcohol and drug treatment or recovery program and participating in sex offender treatment are important for the long-term protection of the public and the specific deterrence, rehabilitation, and reintegration of this offender into society at large. [ 40 ] What the court has not been given is a plan for cleansing or healing or a meaningful and culturally sensitive path for these First Nations people to take to restore peace to their extended family and community.

They need to come to the point where they can forgive this offender and feel safe again with him which might then allow him to return to them. The offender needs to stand before his community without shame and accept responsibility. He must prove to them that he will not cause any more damage. He must accept the teachings of his elders and pursue a spiritual life. He must make reparations. [ 41 ] Regretfully, at this time, it is not possible to craft a sentence which would allow for his return in the near future.

The needs of the victims and the safety of the entire community must be considered and in my view outweigh the emotional and psychological needs of the offender to live near his mother and immediate family. However, it is my hope that those who care for him and the offender himself will seek to address these issues.

The court can only encourage those efforts by imposing probationary terms which will provide structure and, hopefully, some supports in order to achieve this. [ 42 ] The case law makes clear that when dealing with offences involving the sexual exploitation of children, the court must bear in mind the need for general deterrence and denunciation. These concepts were addressed by the Supreme Court of Canada in R. v .

M.C.A. , 1 S.C.R. 500, at paragraphs 79 to 81 : 79 Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed [must] be "just and appropriate" under the circumstances.

Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. With regard to the attribution of criminal liability, I have repeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if an accused possesses a minimum "culpable mental state" in respect of the ingredients of the alleged offence. See Martineau [cite following] ... See, similarly, Re B.C.

Motor Vehicle Act [cite following, and] ... R. v. Vaillancourt [cite following] ... It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminal sentence. See Martineau ... I submit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantum of punishment for a convicted offender as a "just sanction".

As I noted in Martineau in discussing the sentencing scheme for manslaughter under the Code , it is a recognized principle of our justice system that "punishment be meted out with regard to the level of moral blameworthiness of the offender" ... 80 However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. See ... R. v. Hinch and Salanski [cite following and] ... R. v. Calder [site following] ...

But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. See Ruby, Sentencing ... Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R.

Cross has noted in The English Sentencing System [cite following] "The retributivist insists that the punishment must not be disproportionate to the offender's deserts." 81 Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant [cite following] ... "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to

undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [ 43 ] These concepts are enshrined as principles of sentence in our criminal law. They are a reflection of the human need for justice and fairness tempered by reason and compassion and mercy. They are as important to First Nations people as they are to all humans. [ 44 ] Mr. L. is a relatively youthful adult offender with one prior unrelated conviction and so I must also consider the importance of his rehabilitation.

It is clear that he takes responsibility for his behaviour and his early guilty plea is clear evidence of this. I accept that he is remorseful and that he sincerely wishes to improve himself to ensure that he never acts out in such a reprehensible manner again. All of these principles must be balanced in determining an appropriate sentence. [ 45 ] It is also clear that Mr.

L. has been impacted by the negative systemic effects of colonization and the resulting intergenerational trauma experienced by our Native people, and I find his moral culpability is mitigated by this unique background. [ 46 ] The range of sentence for such an offence is broad depending on all of the circumstances of the offence and the offender. Counsel for the Crown have relied on the cases of R. v . J.L.C. , supra , R. v . Moses [sic], 2011 BCCA 194 , and R. v . Humchitt , 2011 BCPC 391 .

I am familiar with many other cases and find that the circumstances justifying a non-custodial sentence would be unusual. [ 47 ] Sentences of six or nine or 12 months for a first offence at the low end of the range of seriousness and where the offender has pleaded guilty are commonly imposed.

Sentences which are in the mid to high provincial range usually involve offenders who do not have the benefit of the mitigation of a guilty plea or have prior related criminal histories or have engaged in more egregious forms of contact or coercion. [ 48 ] I find that the circumstances of this very serious offence and taking into account this offender's circumstances including his youth, his guilty plea, and his reduced moral culpability should attract a penalty at the low end of the range.

This is not a case in which a non-custodial sentence is appropriate as there were two separate incidents some years apart and given this offender's prior conviction for assault. [ 49 ] In my view, a sentence of six months will serve to balance all of the principles of sentence. I will credit Mr. L. with three months time served. I have not heard argument as to whether or not he should receive enhanced credit, but had I granted that his sentence would be equivalent to one of seven and one half months. [ 50 ] I will then place Mr. L. on probation for a period of three years.

I will hear from counsel as to the terms to best assist in providing the assistance he needs to foster his rehabilitation and reintegration. [ 51 ] With respect to the breach of his probation for failing to report, I impose a concurrent sentence of one day. [ 52 ] I also have to deal now, counsel, with the SOIRA, the DNA, s. 161, and the victim fine surcharge. [ 53 ] I take it you are asking the victim fine surcharge be waived? [ 54 ] MR. WOLF: That is it, Your Honour. [ 55 ] THE COURT: And any submissions with respect to the DNA? [ 56 ] MR. WOLF: No. [ 57 ] THE COURT: All right.

So a DNA will be ordered, Madam Clerk, on 57859-C-2. So that is the sentence, just for your purposes, Madam Clerk, of six months, credit for three months time served; actual time served three months, further time, three months. [ 58 ] The SOIRA is now done at the registry, or do you have that there? [ 59 ] MS. OH: I have that. [ 60 ] THE COURT: You have got that there, okay. We will deal with that. [ 61 ] THE CLERK: Sorry, Your Honour. Is the DNA primary or secondary? [ 62 ] THE COURT: It is primary on this matter, is it? [ 63 ] MS. OH: It is. [ 64 ] THE COURT: All right. So Mr.

L. will have to sign the order as well. So with respect to the s. 161 – [ 65 ] MS. OH: Yes, Your Honour. [ 66 ] THE COURT: -- how long are we -- what is Crown asking for? [ 67 ] MS. OH: I believe that the Crown had suggested that five years – [ 68 ] THE COURT: Five years? [ 69 ] MS. OH: -- is something to consider, Your Honour.

[ 70 ] THE COURT: Mr. Wolf? [ 71 ] MR. WOLF: No issues, Your Honour. [ 72 ] THE COURT: Okay. So pursuant to s. 161, there will be an order of prohibition requiring that Mr.

L. not attend at a public park or a public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or a community centre; from seeking, obtaining, or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority toward persons under the age of 16 years. [ 73 ] Do we need the use of computer, Ms. Oh? [ 74 ] MS.

OH: No, Crown is not seeking that condition. [ 75 ] THE COURT: All right, and if I did not say so, that is for a period of five years. [ 76 ] Now, with respect to the probation, obviously I will be including terms of attend to treatment, residential treatment and recovery, sex offender treatment, counselling, but I am not familiar enough with the structure of the community or the resources or whether there is any way for some form of, I will call it victim-offender reconciliation. [ 77 ] Mr. Wolf, do you want an opportunity to see whether or not – [ 78 ] MR.

WOLF: No, I think just putting it in those terms might allow of the options that are available, whether it is going to be a member of the community that assists with something like that or the Native pro-worker or even just through our main provincial probation services programs. They do have the ability to facilitate so it is really just a question of as time goes on which medium or tool might be best suited for it. [ 79 ] There is a concept which I raised, you know, mostly in fairness to the detailed points that Your Honour made, both for the safety of Mr.

L. and the satisfaction of the community perhaps, until he completes his sex offender program, you might have pretty limited access to go back up into the community. That will at least allow everyone to know that he has received some professional assistance for any problems that he might have and, hopefully that will help lessen the pain of a long-term integration. [ 80 ] THE COURT: Ms. Oh? [SUBMISSIONS ON SENTENCE] [ 81 ] THE COURT: So the probation will be for a period of three years.

The terms of that probation will be that he is to keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 82 ] He must to report in person within 72 hours of his release from custody in person to a probation officer at 100, 233 West 1 st Street in North Vancouver and thereafter as and when directed by the probation officer. [ 83 ] You are to reside as directed by the probation officer.

Do not change that address without the prior written permission of the probation officer. [ 84 ] You must attend for, accept, and complete to the satisfaction of your probation officer any residential treatment or recovery programs. [ 85 ] When residing at any residential treatment or recovery programs, you will obey all the rules and regulations including any curfew. [ 86 ] You will attend for, accept and complete to the satisfaction of your probation officer any sexual offender treatment program. [ 87 ] You will attend for, accept and complete to the satisfaction of your probation officer any counselling to include but not limited to psychological counselling and/or substance abuse counselling. [ 88 ] You will attend as directed by your probation officer to any Forensic Psychiatric Outpatient Clinic for any treatment or counselling. [ 89 ] You will participate in a culturally sensitive restorative justice or a victim-offender reconciliation program as directed by your probation officer and with the consent of the victims or their immediate family. [ 90 ] You must not attend to the [name redacted] reserve or [name redacted] except with the prior permission of your probation officer or the court. [ 91 ] You are not to attend any residence, place of employment, or school of which you know S.L., C.L., D.L., A.L., or M.C. to reside, work, or attend. [ 92 ] You are to have no contact direct or indirect except for the purposes of a restorative justice or victim-offender reconciliation program with C.L., S.L., D.L., A.L., or M.C. [ 93 ] You will abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage

prescribed. [ 94 ] You are not to be found in the presence of any female under the age of 16 except in the presence of another adult person, and I think that -- is that everything, then, Ms. Oh, that the Crown was seeking? [ 95 ] MS. OH: Yes, yes, Your Honour, thank you. [ 96 ] THE COURT: Okay. Mr. Wolf, any comments or concerns? [ 97 ] MR. WOLF: No. None, Your Honour. Thank you. [ 98 ] THE CLERK: Sorry, Your Honour, how do you spell that – [ 99 ] THE COURT: [reserve’s name redacted]. [ 100 ] THE CLERK: Thank you, and sorry, and 161 – [ 101 ] MS. OH: The Crown directs a -- sorry. [ 102 ] THE CLERK: -- is for the -- (1)(

a) and (1)(b), but computer is fine? [ 103 ] THE COURT: Yes. [ 104 ] THE CLERK: Thank you. [ 105 ] MS. OH: The Crown directs a stay on any outstanding counts. [REASONS FOR SENTENCE CONCLUDED]