R. v. J.M.S. Date:, 2013 BCPC 141

Citation: R. v. J.M.S. Date: 20130313 2013 BCPC 0141 File No: 60868-3 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION Pursuant to S. 486.4(2) Criminal Code of Canada REGINA v. J.M.S. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: H. Sangha Appearing on their own behalf: The Applicant, J.M.S. Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: March 13, 2013 Date of Judgment: March 13, 2013 [ 1 ] THE COURT: This is an application by Mr. S. to terminate his registration under the Sex Offender Information Registration Act ( "SOIRA" ). [ 2 ] The circumstances are that on April 30th, 2001, he was convicted of sexual assault which proceeded by Indictment. At that time he pleaded guilty. He then was sentenced on September 13th, 2001 to a sentence of two years less a day plus probation for three years. [ 3 ] At that time, an application was made for a DNA order and that was not granted.

It was a discretionary request at the time. [ 4 ] Subsequently, with the introduction of the SOIRA provisions, he was served a notice to comply with the registration. The notice was dated February 23rd, 2005, approximately four years after the guilty plea was entered. [ 5 ] Mr. S. complied with the initial registration of that notice and has since been meeting the ongoing requirements of the SOIRA registration. [ 6 ] He has come to Court to apply pursuant to s. 490.026 to terminate his notice of obligation to comply. (I will note that he ticked the box under 490.02908. That was the incorrect

section and there is no objection to my considering his application under the proper section). [ 7 ] Mr. S.'s reasons, briefly stated on the application, were that it has been almost 12 years since his conviction. This application was filed January 31st, 2013. [ 8 ] A variety of materials have been reviewed by me in the course of the hearing this morning. These include the transcript of the reasons for sentence which are fairly brief, dated September 13th, 2001, and also the pre-sentence report that was dated July 11th, 2001 and prepared for the sentencing.

It was a fairly comprehensive pre-sentence report in comparison to what we often see and gave a lot of detail and background as to what was occurring in Mr. S.'s life and the life of the complainant and all of the surrounding circumstances. [ 9 ] This was a serious sexual assault and involved full assaultive behaviour against a young teenager who was the daughter of his partner at that time.

The relationship had been deteriorating with the mother and the behaviour is described in both my reasons at sentence and in the pre-sentence report as having been grooming behaviour as opposed to predatory or stranger assaultive behaviour. It is clear that it also fits within a trust relationship which is an aggravating circumstance. [ 10 ] Mr.

S. had only one previous very minor conviction from 1976 for a theft under, so in the scheme of records or history, there is really no record of significance. [ 11 ] The recommendation was that he was to serve the sentence at Stave Lake which was at that time the provincial institution that provided sex offender treatment. [ 12 ] Mr. S., according to a letter prepared by his probation officer dated February 15th, 2005, completed his sentence and was granted early parole on May 14th, 2002. The sentence expiry date was September 11th, 2003 and the probation order was then scheduled to expire September 10th, 2006.

This letter was written in support of an application by Mr. S. that he made March 21st, 2005 for early termination of his probation. [ 13 ] It was noted in the letter prepared by his probation officer that he had attended two different sex offender cognitive psychology groups: one while in custody at Stave Lake Correctional Centre, the other on a voluntary basis following his release in the community. In both groups Mr. S. participated well, addressed his offending behaviour, and was considered to be a positive member of the group. She continues: Throughout community supervision Mr.

S. has fully complied with all conditions of his order and has been consistently cooperative, open, and honest with writer. He takes full responsibility for the offence. He has learned to manage his stress level and emotional needs which contributed to his offending behaviour. He has completely resolved outstanding business and marital matters in his life and has built a new life that is positive and supportive.

The writer supports early termination of his order. [ 14 ] That early termination was granted in March of 2005. [ 15 ] I note as well that the application even for the early termination was prepared on Mr. S.'s behalf by his probation officer which is unusual and demonstrative of the degree of support that he had received from his probation officer. [ 16 ] I note as well that the notice for SOIRA registration post-dates the application for early termination but is just before the early termination is granted so he came within a few weeks of having the sentence terminated at that point. [ 17 ] In any event, Mr.

S. registered and he has complied with the registration requirements with the annual reporting. He has told the Court today with respect to the reporting which he in fairness describes as not in itself particularly onerous, that there are some side issues to it that have been deeply concerning for him. In particular, those are the visits at his home from time to time by the officers who have the duty of enforcing and managing the SOIRA registrations. Those are random appearances at his residence to confirm the residence because that is part of his requirement and to confirm his compliance with these conditions.

[ 18 ] From Mr. S.'s perspective, he is asking that this be terminated for several reasons. Some of those are more pertinent than others although they all are realistic observations of what life on a SOIRA registration is like.

He described the reporting as being minor, but he has an ongoing concern with respect to the maintenance of the confidentiality of the registration and registration information, simply that – and this applies not just to him but to any other person that would be required to report – there is a concern that confidential information becomes known whether by malfeasance, misbehaviour or by accident. [ 19 ] It is a routine matter unfortunately these days that the information people believe to be confidential ends up being faxed to the wrong number or discarded at a garbage dump and somebody finds confidential medical records or all sorts of other records that are very distressing if and when they are made public.

Of course there is a stigma attached to sex offending and were this information to be made more broadly public that would be of significant concern for Mr. S. and would have a substantial impact on his life. [ 20 ] He has been employed in the field in which he was trained and had experience before his conviction and has been working for the same employer for the past ten years. He has a supervisory position within that company in a position of substantial responsibility. [ 21 ] He has been in the same relationship for the past four-and-a-half years with a woman who is age appropriate. She has adult children.

There are no local grandchildren or small children that are around that are of any concern. [ 22 ] He acknowledged frankly that he has had other relationships since his release from prison and that in most of those cases he advised the women of his history and that was devastating to the relationships. He has not mentioned this to his current partner for just that reason, I gather. [ 23 ] He spoke at some length about the counselling and treatment that he received while at Stave Lake. His description of it makes it clear that the impact on him was very substantial.

He gained insight into his offending behaviour, insight into the causes and stressors that caused him to offend, and describes it as an ongoing lesson of learning or progression of learning. He has taken very much to heart the lessons learned from the counselling and the programming, and values what he has learned from them. [ 24 ] In my words, what he has described has been life altering for him.

He has gone from what was I think a very dark time both in his life generally but certainly in his offending life as set out in the pre-sentence report to where his life is much clearer and he is much freer within himself psychologically. He has moved beyond where he was at the time of the offending behaviour some 15-20 years ago and moved very substantially away from that. [ 25 ] The Criminal Code provides for the application to terminate a SOIRA order in the case of a person charged as Mr. S. has been once ten years has elapsed since his sentence.

The SOIRA order for him would have had an ordinary duration of 20 years. [ 26 ] He is now somewhat past the ten years and has made the application he says in fact at the encouragement of the SOIRA officer to whom he has been reporting and with whom he has developed what could be described as a trusting relationship. He has not been resistant to his meetings with this person and they have been able to communicate well.

It is not an embarrassment to him to meet him casually in the community which has occurred from time to time but at this point in his life he wants to be able to move forward away from the restrictions and away from the risk of disclosure of this history to those in his life: his intimate partners, employers, and other persons with whom he has dealings in his life. [ 27 ] The test that is described for early termination is set out in s. 490.027 of the Criminal Code which says:

(1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act. [ 28 ] The Court is required to give reasons for its decision and these are those reasons. [ 29 ] The reasons are also significant because if a person applies and is refused, they have to wait another five years before they can apply again, so there is a substantial negative impact if the application is refused. [ 30 ] Crown was opposing the making of the termination order on the basis that the cases that are available suggest that the test of grossly disproportionate must be looked at in comparison to all others who are in a similar circumstance, that is, required to be registered and report and that the public interest in having registration is a fixed and very substantial interest. [ 31 ] If a court is to review these reasons, it will be helpful to review the discussion we have had this morning because we have gone back and forth in our discussion with respect to the meaning of these different sections. [ 32 ] One of the drawbacks for the Court is that there is almost nothing in the way of jurisprudence that describes the use of the term "grossly disproportionate" when applying for termination.

Most of the cases which have been referred to me use the same wording of gross disproportionality for whether or not to grant the exemption at the time the application is made for the SOIRA registration. [ 33 ] The one case that refers to termination does not provide very much in the way of analysis and simply refuses the application. That case is R. v. Keltner , 2011 ONSC 2831 . Simply put, it is a recital of the background of the sections and it is a very brief decision. In fact, it is done by way of endorsement as opposed to an actual judgment and says: [14] I am not satisfied that Mr.

Keltner has satisfied the onus on him as set out in the Criminal Code of Canada . The Parliament of Canada has shown quite clearly that it will deal rather severely with sexual predators when it involves young people or by people in a position of trust.

[15] Mr. Keltner is now 75 years of age and has had no further criminal record. He has not shown that the reporting

section of the Actis causing undue hardship. [16] Therefore, his application is denied. [34] So there is a result but I do not know that I would call those reasons. [35] The other cases to which I have been referred are as follows and I will simply recite them in chronological order: R. v. B.T.Y.,2006 BCCA 331 a decision of the British Columbia Court of Appeal; R. v. S.S.C., 2008 BCCA 262, also a decision of the BritishColumbia Court of Appeal; R. v. Debidin, 2008 ONCA 868, a decision of the Ontario Court of Appeal; and R. v. R.A.M., 2009 BCPC169, a decision of The Honourable Judge Tweedale.

Those all are applications for exemptions. [36] Some of them also fit into the situation before the legislation changed where exemptions I think may have been easier to get.

They are now pretty much impossible to get in terms of registration. [37] Exemptions have now been removed from the legislation. [38] The cases set an extraordinarily high standard and even in the cases where they discuss the meaning of grossly disproportionate,they reject a whole lot of different things as not being grossly disproportionate without really providing any suggestion as to what couldbe considered to be grossly disproportionate. [39] In Debidin, supra, it reviews a number of other cases including British Columbia cases.

There does seem to be someconsideration to the test being looked at subjectively and objectively, the objective test being that the public interest and protectingsociety through the effective prevention or investigation of crimes is paramount, however, there does seem to be at least someacknowledgement that the offender's circumstances which I recall is the subjective aspect of the test can be considered. [40] In fact, in para. 69 of Debidin, supra, which is quoting from R. v. S.S.C., (2008), 2008 BCCA 262 , 234 C.C.C. (3d)365 from the British Columbia Court of Appeal, it is noted that the B.C.

Court of Appeal considered the nature of the offence, the risk tore-offend, the offender's criminal record, other matters personal to the offender's circumstances, as relevant circumstances of the offenderto be taken into account in determining whether an exception should be made. There again I emphasize we are talking about exception,not about termination. [41] With those factors in mind, however, in considering termination and considering that Parliament has provided for the possibilityof termination with the

section making it mandatory that it shall be terminated if certain circumstances are met. These are that theregistrant has shown -- and I am taking that to be on a balance of probabilities -- that the impact on them of continuing the obligationincluding on their privacy and liberty would be grossly disproportionate to the public interest as it has been set out.

As such I amsatisfied that there is at least some basis for finding gross disproportionality. [42] Although the wording is the same for the initial exemption, I am inclined to think the factors may be somewhat differentinevitably because of the ten-year, in this case requirement before one is even eligible to apply for termination. Surely the behaviourduring that ten years must be contemplated as being appropriately taken into account. [43] It is challenging because there really is no case that analyses the factors specifically directed at termination other than all thecases that say these do not count.

It seems illogical to me given that s. 490.027 exists and that it requires the making of the order incertain circumstances as set out, that there must be some possibility of in fact attaining that level of gross disproportionality whenlooking at the individual who is before the Court. [44] In this case, Mr.

S. has certainly presented from the materials that pre-date this application the pre-sentence report whichshowed him to be in some denial and making some attempt at minimizing although that was less than what he had been at the sentencinghearing; the acceptance of his behaviour and then in the letter sent out by his probation officer in 2005 describing that he really had cometo understand and accept his behaviour and learn from the counselling and treatment that was provided to him; that his remarks todaysupport that that has been an ongoing and continuing growth process for him. [45] He does not come to the Court as an angry, resentful person which is very interesting.

Mr. S. has been here on several occasionsto get this hearing underway. Even in the way he described the impact of the sentence and of the treatment and his time since thenalthough he has not used these words, I get the strong impression from him that he is grateful for what he has learned.

However difficultand challenging the experience was, it turned his life around in a very, very good way and that he has seen the benefit for himself withinhis life as these matters have all come to a conclusion. [46] It is certainly common among judges to say jail is not a rehabilitative institution but it seems to have had a remarkably positiveimpact on Mr.

S. in all the best ways that one could hope it would have and that ultimately is what in my view protects the publicinterest. [47] In terms of prevention or investigation of crimes which is one of the primary reasons for having the registration, I am satisfiedthat given everything that Mr. S. has done, his response to the sentence, his response to the treatment, his response to the supervision byway of the registration has been such that in fact society is well protected at this point. One can never make a guarantee of humanbehaviour, but I would be astonished to find Mr.

S. before the Court for any new reason at this point. He seems to have embraced this ina rather unique way. He has also been living a responsible, tax-paying kind of life. Society has benefitted well from his efforts and hisenergy. [48] To risk disclosure at this time so that he would risk losing employment or risk losing what is valuable to him in his private life Ido not see as benefitting the public or protecting society. So for all of those reasons, I am terminating the SOIRA order as of today.

[ 49 ] I do not know what precedents will be established in the future, but at this point I certainly find that it has been established that the impact of his continuing to be required to meet the requirements of that legislation under that registration is grossly disproportionate relative to the protection of society and the interests of protecting society for all the reasons given. [ 50 ] That is it, Mr. S. Thank you very much. Mr. Sangha, as I say I do appreciate the time you have taken to really go through all of this. It helped me enormously. (ORAL REASONS FOR JUDGMENT CONCLUDED)