R. v. Matthews Date:, 2016 BCPC 59

Citation: R. v. Matthews Date: 20160119 2016 BCPC 0059 File No: 60011-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD HAROLD MATTHEWS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(2) CCC; 486.5(1) CCC RESTRICTED ACCESS

Counsel for the Crown: B. MacFarlane Counsel for the Defendant: G.A. Paruk Place of Hearing: North Vancouver , B.C. Date of Hearing: January 19, 2016 Date of Judgment: January 19, 2016 [ 1 ] THE COURT: These are my reasons for sentence in the matter of Richard Harold Matthews. He was found guilty following a trial of having committed a sexual assault of E.H. arising September 8th, 2013, in North Vancouver. The accused is a lay counsellor and the victim was his client. Mr. Matthews massaged the victim's clitoris during exercises intended to assist her with orgasmic dysfunction.

I found that the victim did not consent and that Mr. Matthews did not take reasonable steps in the circumstances known to him at the time to ascertain her consent. Circumstances of the Offence [ 2 ] The evidence of the offence was set out in detail in my earlier reasons for conviction. I will summarize my findings of fact here. [ 3 ] Mr. Matthews is formally qualified only as a pastoral counsellor. He has no training or qualifications for providing counselling or treatment for sexual dysfunction.

He self-studied tantric teachings and practices and then introduced them to his lay counselling practice. [ 4 ] E.H. was 29 years of age. She made arrangements for an appointment and attended Mr. Matthews' home where he had an office. She was referred to the accused by her roommate and understood he had experience in the areas of grief and loss, healing touch, and sacred sexuality. During that first session, she advised she wanted assistance in dealing with the loss of a relationship and a possible move to Toronto. [ 5 ] The accused raised the issue of her sexuality.

She felt he turned the reasons she was attending for counselling around and steered the session towards sexual therapy. The victim was curious about what the accused described as "orgasmic dysfunction" and was interested in learning techniques to assist her. She had been raised in a Catholic family and felt she was sexually repressed. [ 6 ] The accused suggested he teach her Yoni or vaginal massage techniques and ecstasy or fire-breathing which are tantric practices. These practices involve breathing, imagery, massage, and "breaking boundaries," which the victim understood to be mental boundaries.

No further details as to what would be involved in learning these techniques were discussed, although some topical reading material was provided or suggested. [ 7 ] The second session occurred around a week later. Mr. Matthews, again, did not engage in discussions relating to the break-up of her relationship or her anticipated move. Rather, he was intent on dealing with her orgasmic dysfunction. He wanted her to achieve an orgasm before leaving for Ontario. At no time did the offender suggest this would occur during a counselling session. E.H. said it was never discussed that Mr.

Matthews would perform a Yoni massage on her. They did discuss how she could instruct a sexual partner to perform a Yoni massage for her and how to implement what she was learning with a partner at home. [ 8 ] E.H. consented to Mr. Matthews demonstrating a massage technique on the top of her mons pubis with his hand on top of her panties. The accused did not ask if he could touch her genitals and she did not consent to the accused touching her genitals. She made clear to him there was to be indirect stimulation only on her mons pubis. She also told him she did not want him to touch her breasts. Mr.

Matthews said that if she was uncomfortable about anything he did, she should tell him and he would stop. [ 9 ] E.H. lay on a massage table fully clothed with her shorts fastened. She engaged in breathing and rocking her pelvis as instructed. Mr. Matthews touched her stomach and her mons pubis over her panties while coaching her verbally. [ 10 ] The victim attended for her third and final session shortly after the second session. She started the session with questions about the reading materials. Her impression was that Mr. Matthews was in a hurry to continue the exercises they had engaged in previously.

He told her he wanted her to go further and she took this to be a reference to her breathing and mental state. [ 11 ] At the beginning of the third session, E.H. agreed she might consent to direct stimulation. However, Mr. Matthews was to confirm with her whether this could occur before proceeding to do so. He asked her if she wanted to remove her shorts and she said no. Once on the table, she began the breathing and rocking exercises again and said she was in a meditative state and was becoming sexually aroused. [ 12 ] Mr.

Matthews was massaging her stomach under her shirt and then began moving his hand down her body toward her genital area. His hands went under her panties and he began to directly touch her clitoris and was massaging it. He did not ask for her consent and she did not agree to this occurring. E.H. said she was in disbelief and that it took her a moment to react. She told him to stop and said, "Ow." [ 13 ] The offender told her he was touching her "trauma spot." He removed his hand briefly and again touched the side of her clitoris saying it was her trauma spot.

E.H. asked him what he meant by that and he asked her if she had a bad memory. She again told him no or stop. He then held his hand over her pubic area for which she estimates to have been 10 to 20 seconds. Mr. Matthews had placed his

other hand under her body as he was touching her genitals and she felt "stuck and scared." She did not want to do or say anything that might make him defensive as she was unsure how he might react. She believed he understood she was upset. He stopped and tried to hug her. At some point after he stopped, he asked, "Are we okay?" E.H. paid for the session and left. [ 14 ] As she was driving home, she was very upset and texted Mr. Matthews. They exchanged a number of texts thereafter in which she expressed her lack of consent and the offender expressed his regret.

Victim Impact [ 15 ] As a result of the offending conduct, E.H. has experienced significant emotional upset and depression. She lost confidence in herself and felt disempowered. As she is self-employed, the emotional consequences interfered with her ability to earn a living. Her relationships with male partners have caused her anxiety due to distrust. Antecedents of the Offender [ 16 ] Mr. Matthews is 67. As a result of this incident, he is no longer engaged in a counselling practice. In his early adult life, he worked as an electrician. He had issues with alcohol abuse, but has been sober for 34 years.

He obtained a BA in Psychology in the early 1990s followed by a diploma in pastoral counselling. Although not formally qualified, he has had a lengthy counselling career in the areas of drug and alcohol abuse, elder care, family and marital issues, and trauma. [ 17 ] He has no criminal history and has led a pro-social life. He has been self-supporting throughout his life. He was married until 2013 and has four children. He is now divorced and is estranged from his children and five grandchildren. He is close to his sister.

As he is no longer able to live in North Vancouver, he has a limited ability to access his social network and supports. [ 18 ] After separation, Mr. Matthews lived in a camper van for two years and has now moved into a trailer park in Gibsons. He has limited financial means from pensions. His sister is elderly and lives in Gibsons. She is contributing to his support in exchange for his assistance around her home and with her and her husband's needs. Mr. Matthews' assistance is required to allow them to continue to live independently in their home.

Aggravating and Mitigating Factors [ 19 ] This offence involves a breach of trust in a therapeutic relationship. The victim was emotionally vulnerable. The touching of the victim's genitalia was not brief or fleeting and continued after her protestations to stop. [ 20 ] Mr. Matthews is a mature person of otherwise good character with no criminal history. For over two years, he has been subjected to the process of being investigated, facing charges, a trial, and now sentencing for a serious criminal offence. Mr. Matthews has been stigmatized and has lost what was a modest source of income.

The offences have negatively impacted his relationship with his children and grandchildren. He is prepared to comply with the terms of any disposition the court imposes. Positions of Counsel [ 21 ] The Crown submits that a sentence in the range of nine to 12 months followed by probation is appropriate. They are also seeking a DNA sample, a SOIRA order, and a s. 109 firearms prohibition. [ 22 ] The Crown says the principles of denunciation and general deterrence must be given significant weight in offences involving a breach of trust by a person acting in the role of a therapist.

The penalty imposed should acknowledge the harm caused to the victim and serve to promote a sense of responsibility in this offender and encourage him to develop a greater understanding of the criminality of his conduct. [ 23 ] The offender submits that a conditional discharge would be appropriate. Through his counsel, he says that the assault was at the low end of the range of seriousness as the offending conduct was brief, there was no digital penetration, no violence or physical injury, no sexual gratification for the offender, and no threats respecting potential disclosure by the victim.

The victim was an adult who had willingly engaged in learning tantric sexual techniques which already involved a level of intimacy with the offender. The offender is of previous good character and his actions were misguided, but well-intentioned. Range of Sentence [ 24 ] The Crown proceeded summarily. The maximum sentence is 18 months and there is no mandatory minimum sentence. A conditional sentence is available. [ 25 ] The Crown relied on R. v. Anthony , [2014] B.C.J. No. 2786 ; R. v. Alasti , [2011] B.C.J. No. 1177 ; R. v. West , [2007] A.J. No. 192 ; and R. v. Poon , [2012] S.J. No. 482 .

The cases provided by the Crown are of limited assistance as they involved medical practitioners or therapists sexually offending against their patient or client for purposes of sexual gratification. The circumstances of the offences are also more aggravated than in this matter. The range of sentence is two-years-less-a-day incarceration in Anthony and Poon , 18 months in Alasti , and 12 months in West . [ 26 ] Counsel for Mr. Matthews referred to R. v. Chartrand, [1986] M.J. No. 469 , R. v. L.E.M. , 85 Nfld & P.E.I.R. 136, R. v. Reyes- Borgwardt , 2010 BCSC 1594 , R. v. B.R.E. , 2012 NSSC 253 , R. v.

Stout , 2003 BCPC 111 , R. v. Y.Y, [2003] O.J. No. 6000 , R. v. J.W. , 2010 NSPC 40 , R. v. Jayswal , 2011 ONCJ 33 , R. v. B.L. , 2011 BCPC 254 , R. v. T.J.H. , 2012 BCPC 115 , R. v. J.H., 2012 ONCJ 753 and R. v. Sun , 2013 BCPC 334 . [ 27 ] The case of Chartrand was decided in 1986. The Court of Appeal found that the sentence of a conditional discharge with probation for two years was at the low end of the range, but was not unfit and no error had been made.

The offence involved a stepfather removing the clothing of a 13-year-old female child, and laying on top of her for a few moments while he was fully clothed. He told her

this is what would happen if she continued to run away from home. The offender was highly intoxicated at the time of the offence. [28] In L.E.M., the facts are not stated, but the offence involved a stepfather and a 14-year-old female child. The trial judgeconsidered the principle of de minimis non curat lex and the superior court observed that, in the circumstances, the decision to pursue thecharge was a questionable exercise of prosecutorial discretion.

A conditional discharge was imposed. [29] Reyes-Borgwardt involves a number of intoxicated males photographing an unconscious male friend with his buttocks baredand the offender mimicking oral/anal sex. A conditional discharge was granted. [30] The offender in B.R.E. was the husband of the victim. They had not separated, but were no longer sharing a bed. The victimcame out of the shower with a towel on to deal with a lack of water. The offender caressed her breast and briefly put his mouth on hergenitals.

An absolute discharge was granted. [31] In Stout, the offence involved a brief fondling of a seven-year-old female and occurred 38 years before the sentencing. Theoffender had been in a position of trust to the victim. A conditional discharge was granted. [32] In Y.Y., the offence involved a brief touching of the genital area on top of the clothing of a female under the age of 14. Thetouching occurred during a hug.

A conditional discharge was granted. [33] I do not find the case of J.W. to be well reasoned and I find it is of no assistance. [34] In Jayswal, the offender was reading the palm of a 14-year-old female. He took hold of her to hug her and grabbed her breast. He was pushed away, but then took her head in his hands and kissed her cheek. He received a conditional discharge. [35] In B.L., the offender was the employer of a female adult. When the female employee went to his office, he put his arm aroundher and slid his hand up under her top and fondled her breasts.

He then tried to lower the zipper on her pants and was told to stop and didso. A conditional discharge was granted. [36] In T.J.H., the offender touched the fiancée of a friend in a persistent way on the outside of her clothing in an area of hergenitals. It was an opportunistic offence. A conditional discharge was granted. [37] J.H. involves the offender having consensual sex with a female without advising he was infected with genital herpes. [38] In Sun, the offender was an acupuncturist and massage therapist. The victim was his employee.

They had been out for dinneron two occasions which the victim said was platonic. He touched and bit her breast during a massage believing that she was interested ina sexual relationship. The reasons for convictions were provided to the court in part. The reasons for sentence are not available. Counsel for Mr. Matthews advised the court that the record reflects a conditional discharge was granted. [39] The cases provided by the defence in which a discharge was granted all involved persons of otherwise good character. Some ofthe offenders faced immigration consequences or were required to travel.

These cases are of limited assistance as they do not involve atherapist-client breach of trust. None of the cases deal with circumstances similar to those before the court in this matter. [40] I find that the circumstances of this offence are less serious than those involving a medical practitioner or a therapist whoengages in a sexual assault for their own gratification. Nevertheless, the authorities as a whole make clear that sexual assaults committedby someone acting as a therapist should attract sentences which express society's condemnation of the breach of trust.

Analysis and Conclusion [41] It is material that the victim did not believe or sense that Mr. Matthews engaged in the touching of her genitalia for his ownsexual gratification. [42] With respect to the degree of seriousness of the sexual offence, I do not accept the offender's submission that this was not aserious offence.

Although the victim willingly agreed to participate in learning a technique which involved the touching of her monspubis over her panties and attaining a level of sexual arousal in the presence of the offender, in the context of the therapeutic relationshipwhich existed, none of these circumstances served to reduce the seriousness of the breach of trust or the moral culpability of the offenderfor failing to obtain her consent. [43] It is the violation of the particularly intimate and trusting nature of the therapeutic relationship which existed in this matterwhich makes this a more serious offence.

The violation of that trust cannot be seen to be minor regardless of the relatively brief and non-invasive or non-physically injurious nature of the sexual touching. [44] The victim had placed her absolute trust in the offender to provide guidance in dealing with her sexual responsiveness. She wasin an utterly vulnerable and emotionally exposed state when she engaged in what the offender represented to be sexual therapy.

He thentook advantage of her vulnerability and acted in a manner that was contrary to the victim's understanding of what would occur andagainst the exercise of her own judgment. [45] A breach of trust involving the violation of a person's sexual autonomy and bodily integrity must be denounced. As was said bythe Supreme Court of Canada in R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, at paragraph 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

[ 46 ] A very strong message must be sent to those who engage in therapeutic practices of any nature that failure to obtain specific consent to the touching of a client's internal or external genitalia or secondary sexual characteristics by hand or with any object will be found by the court's to involve a high degree of moral blameworthiness and will result in significant criminal penalties.

This will be so regardless of the subjective good intentions of the practitioner involved or their otherwise good character. [ 47 ] Sexual assaults are inherently violent offences even where there is no physical violence beyond the touching of a person's intimate areas and where no physical injury is caused. Mr. Matthews' criminal conduct in failing to obtain the victim's consent caused significant and lasting psychological harm to the victim. As he was acting as a purported professional, it was incumbent on Mr. Matthews to obtain clear and unequivocal consent before engaging in the conduct he did.

In my view, consent to the touching of a person's genitals for any therapeutic or non-medical purpose and, in particular, in a sexualized context should be detailed as to the circumstances under which it may occur and evidenced in writing. [ 48 ] Mr. Matthews saw himself as a person with a skillset that allowed him to assist females to reach their full sexual potential. In his testimony, he evidenced a paternalistic attitude toward the victim. I find he believed his opinion about what issues the victim needed to address and what she should experience should prevail over the victim's understanding and judgment.

In the circumstances of the therapeutic relationship as a whole, he imposed his own agenda on the victim who was relying on his expertise as a purported professional counsellor to assist her with specific emotional issues unrelated to her sexuality. [ 49 ] In his testimony, Mr. Matthews opined that the victim overstepped her psychological boundaries by attempting to reach orgasm during the session with him. He suggested her accusation that he touched her without her consent was false and was the result of being overcome by guilt resulting from her Catholic upbringing.

During his interview with the preparer of the presentence report, he said he did not consider himself to be guilty of sexual assault, but rather of being guilty of stupidity or miscommunication. I find this offender's views of his criminal conduct and the reaction of the victim to that conduct reflect a lack of acceptance of responsibility and a lack of understanding of the seriousness of his offending behaviour and the consequences to the victim. [ 50 ] As a result of the offender giving up his counselling practice, I find his risk to reoffend is not an issue.

I find that he has been specifically deterred from engaging in conduct of this nature in the future. There is no need to incarcerate him to protect the public. I also find that Mr. Matthews' rehabilitation can be met by participating in sex offender treatment programs such as the CORE program offered by Community Corrections. [ 51 ] In all the circumstances, I find that it would not be in the public interest to grant a discharge.

I find that the principles of denunciation and general deterrence must be given the greatest weight and that a term of imprisonment is required to meet the principles of sentence set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code . I find that an appropriate term of imprisonment is four months. [ 52 ] As this is a matter where a conditional sentence is available, I must consider whether I am satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.

I have already found that Mr. Matthews does not present a danger to the community provided he is not providing counselling services. A conditional sentence is available for serious offences where the statutory prerequisites are satisfied. Furthermore, such sentences can provide a significant amount of denunciation and deterrence by way of punitive conditions such as house arrest and community work service. [ 53 ] In all the circumstances of this offence and this offender, I find that the imposition of a community-based disposition is appropriate.

I find that the length of sentence should be increased from that of a conventional jail sentence to six months. There will be a period of three years’ probation to follow that jail sentence to allow sufficient time for Mr. Matthews to complete the sex offender treatment program. [ 54 ] Mr. Matthews, if you will stand. [ 55 ] Mr. Matthews, I am imposing a six-month conditional sentence order followed by three years of probation. [ 56 ] You may be seated while we go through the terms of that order.

All right. [ 57 ] With respect to the conditional sentence, you must keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 58 ] You must notify the court or the supervisor in advance of any change in your name, address, or occupation. [ 59 ] You must remain with the Province of British Columbia unless written permission to go outside the province is obtained from the court or your supervisor. [ 60 ] You must report in person immediately after court today to a conditional sentence supervisor at 100, 233 West 1st Street in North Vancouver, and report thereafter as and where directed by your conditional sentence supervisor. [ 61 ] You will abide by a curfew of 10:00 p.m. to 6:00 a.m., seven days a week. [ 62 ] During your curfew hours, you must be continually inside your place of residence. [ 63 ] You must present yourself at the door of your residence upon a demand of any peace officer or your supervisor to determine compliance with the curfew condition of this order. [ 64 ] You will perform 30 hours of community work service under the direction of and to the satisfaction of your supervisor within the first four months of your conditional sentence. [ 65 ] You shall have no contact direct or indirect with E.H.

[ 66 ] You are not to attend any residence, place of employment, or place of education at which you know E.H. to reside, work, or attend. [ 67 ] You must not provide any counselling of any nature for any purpose. [ 68 ] You will attend for, accept, and complete any counselling or programming as directed by your supervisor to include, but not limited to, sex offender treatment. [ 69 ] You are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 70 ] The terms of the probation will be that you are to keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 71 ] You must report in person to a probation officer at 100, 233 West 1st Street in North Vancouver within 72 hours of the conclusion of your conditional sentence and report thereafter as and where directed (for the purposes of completing your sex offender treatment). [ 72 ] You must provide your current address to the probation officer and not change without their prior written permission. [ 73 ] You are to have no contact direct or indirect with E.H. [ 74 ] You are not to attend to any residence, place of employment, or place of education at which you know E.H. to reside, work, or attend. [ 75 ] You are not to provide any counselling of any nature for any purpose. [ 76 ] THE COURT: You will attend for, accept, and complete to the satisfaction of your probation officer any counselling to include, but not limited to, sex offender treatment. [ 77 ] You will provide a sample of your DNA to the North Vancouver RCMP on any Tuesday or Wednesday between 1:30 and 3:30 and you must do so by no later than Wednesday, February 10th, 2016. [ 78 ] You will be bound by an order under the Sex Offender Information Registration Act for a period of 10 years. [ 79 ] Pursuant to s. 109 of the Criminal Code , for a period of 10 years, you are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substances, or all such things and any related authorizations, licences, and registration certificates. [ 80 ] Any such items to surrender?

No? [ 81 ] All right. Any comments or concerns about any of those terms? [ 82 ] THE ACCUSED: Just in terms of where I was -- [ 83 ] MR. PARUK: No, Your Honour. [ 84 ] MR. MACFARLANE: Not from our perspective. [ 85 ] THE COURT: All right, thank you. [REASONS FOR SENTENCE CONCLUDED]