R. v. Smith Date:, 2017 BCPC 265

Citation: R. v. Smith Date: 20170721 2017 BCPC 265 File No: 62286-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHAD JEREMY SMITH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS

Counsel for the Crown: R. Edwards Counsel for the Defendant: C. Hatcher Place of Hearing: North Vancouver , B.C. Date of Hearing: July 21, 2017 Date of Judgment: July 21, 2017 [ 1 ] THE COURT: Chad Jeremy Smith pleaded guilty to an offence contrary to s. 153 of the Criminal Code . He was a high school teacher who engaged in sexual relations with a female student. The offence occurred between the fall of 2012 and the fall of 2014 in North Vancouver. The student was in Grade 10 and turned 16 in the fall of 2012. She was 18 when the criminal conduct was disclosed.

The offender was 37 when the criminal conduct commenced. [ 2 ] The Crown proceeded summarily. The offence carries a minimum sentence of 90 days and a maximum sentence of 18 months. A conditional sentence order is not available. The plea was entered on April 18th, 2016. A presentence report and psychological assessment were prepared to assist the court in the determination of sentence. [ 3 ] Much of the delay to the time of sentencing hearing and decision was due to lack of court time. I am indebted to Mr. Edwards, for the Crown, and Ms. Hatcher, counsel for Mr.

Smith, for their thorough, well-reasoned and helpful submissions. Circumstances [ 4 ] Mr. Smith was a music teacher who helped rejuvenate the band program at a high school where he had taught for 10 years. He was highly respected by the students, their parents and his colleagues, many of whom have provided letters of support in these proceedings. [ 5 ] The victim and her parents were very involved in the band program and developed a friendly and trusting relationship with the offender. As a result, the victim began spending her spare time at school in the band room.

This was also due to her feeling distanced from her friends. [ 6 ] Over the summer break of 2012, the offender and victim continued contacting each other through social media. The email communications from the offender to the victim reveal the offender considered their relationship to be intimate in nature and his awareness it was professionally impermissible. One email references her attaining the age of consent from which it can be inferred that the offender was also cognizant that any sexual contact would be a criminal offence. [ 7 ] At one point, the victim communicated to Mr.

Smith that she had been sexually assaulted on public transit while on holiday overseas. The story was false and the victim later admitted she had done this to evoke sympathy from the offender and was successful in doing so. [ 8 ] After the commencement of the fall school term Mr. Smith continued to pursue an intimate relationship with the victim and in mid-October of 2012 they kissed for the first time. This was the victim's first sexual kiss. It occurred after school in the offender's classroom. [ 9 ] Over the school year they continued to meet and engaged in kissing and other sexual contact.

Eventually, in the spring of 2013, the offender engaged in sexual intercourse with the victim at her home when her parents were away. This was the victim's first act of intercourse. The offender went on to engage in intercourse with the victim approximately six times. These acts occurred at her home, in his vehicle, and in his office at the school. There were also many other incidents of sexual contact. [ 10 ] In the late fall of 2014, the victim began trying to extricate herself from the relationship. The last act of intercourse occurred in December of 2014.

She stopped visiting him during school hours and most of their contact was limited to social media. [ 11 ] In June of 2015, she communicated to him that she no longer wanted to have contact with him. The offender refused to accept this and persisted in pursuing a relationship with the victim. The communications he sent to the victim and her mother reveal the offender was obsessed with the victim.

He also began to hold the victim responsible for his emotional condition and for the consequences of his decisions and actions, both professionally and personally. [ 12 ] The offence was reported to the police in July of 2015. The police used the victim's email to establish contact with the offender posing as the victim. The substance of his communications at that time was consistent with those sent in June. Victim Impact [ 13 ] The conduct of the offender caused the victim to be anxious and depressed. She felt isolated from her peers and parents because of the need to be secretive.

She was unable to talk to anyone about what was happening to her and experienced intense feelings of guilt. She felt confused and engaged in self-harming behaviours. [ 14 ] In the fall of 2012 she fainted and suffered a concussion. She then began experiencing migraine headaches. Her general health was negatively impacted as over time she lost weight and became anemic. She has had difficulty sleeping and nightmares. She was also fearful the offender would attempt to make contact with her after she disclosed the offence.

[ 15 ] Starting in the fall of 2012 the victim's parents watched their healthy, happy daughter decline mentally and physically for no apparent reason. They pursued counselling and other forms of treatment for her throughout the time the offence was occurring. [ 16 ] The impact of the betrayal of their trust by the offender was devastating. They feel they somehow failed to protect their daughter by failing to detect the offence. They are fearful the offender will retaliate against them, and have curtailed their musical involvement in the community as a result.

They are seeking $5,600 in restitution for healthcare expenditures for the victim which have not otherwise been covered by insurance or the Victims of Crime Assistance Program. Circumstances of the Offender [ 17 ] Mr. Smith is now 41 years of age. He has no criminal history. He was raised in the Lower Mainland. His parents separated when he was in elementary school and thereafter he and his two siblings were raised by their mother. His father was largely absent from their lives. For a period of time the family faced significant financial hardships.

He is close to his mother and siblings and they continue to be a support for him in the community. [ 18 ] Mr. Smith was married in 2005 and there are two children of the marriage. He and his wife separated after the offence was disclosed. Mr. Smith and his former spouse are in the process of working out a co-parenting arrangement. [ 19 ] Mr. Smith graduated with his teaching certificate and commenced employment with the school in question in 2005. He has now lost his certificate and is retraining as an electrician.

He is getting by on student loans and some income from employment. [ 20 ] The offender has enjoyed good health except for periodic episodes of diverticulitis. He has struggled with anxiety for the past six years and has addressed this with cognitive behavioural therapy, pastoral counselling and medication. He does not abuse alcohol or drugs. [ 21 ] The psychological report reflects that Mr. Smith continues to self-protect by maintaining that his primary intent, when he became involved with the victim, was to console her as he believed she was struggling emotionally.

However, the conclusion of the psychologist, which I accept as correct, is that his primary motivation was to meet his own sexual and emotional needs. There is nothing in his antecedents which serves to explain the ongoing failures in his professional and personal judgment which resulted in his offending conduct. He faced only the usual stresses of life similar to those which all teachers must cope with. [ 22 ] His risk to reoffend is low but it is recommended that he be required to attend for sex offender treatment. [ 23 ] Mr.

Smith now recognizes that he exercised very poor judgment in pursuing a sexual relationship with the victim. I find he is sincerely remorseful and accepts full responsibility as he was an adult and in a position of authority over the victim, who was a child and his student. Positions of Counsel [ 24 ] Crown counsel submits the court should consider a sentence in the range of 15 to 18 months' incarceration to be followed by a three-year probation order.

The offence attracts a mandatory DNA order, a s. 110 firearms prohibition, and an order that the offender be subject to the provisions of the Sex Offender Information Registry Act for 10 years. The Crown also asked the court to order restitution to the victim in the amount of $5,600 for medical and counselling expenses incurred which have not been covered. [ 25 ] Counsel for Mr. Smith submits the court should consider a sentence in the range of six to nine months with a lengthy period of probation to follow.

Aggravating and Mitigating Factors [ 26 ] The aggravating factors as codified in s. 718.02 (a) (2.1) , (3) and (3.1) of the Criminal Code are that the offender abused a person under the age of 18, while in a position of trust and authority to that person and caused a significant impact on the psychological and emotional health of the victim. [ 27 ] The first two codified factors comprise elements of the offence and I am mindful that I must not take these into account "twice to the detriment of the offender." (See infra Holt at paragraph 59 and Roberts at paragraphs 103 to 111). [ 28 ] The offender also breached the trust of the parents of the victim as he held himself out as a friend to them and as someone who they could trust to act only in the best interests of their child.

Although not of weight in the determination of sentence, I think it important to observe that Mr. Smith also breached the trust of his colleagues, the students and the parents at the school. [ 29 ] It is further aggravating that the unprofessional relationship continued over a period of two years, with the sexually exploitive conduct occurring over 18 months. [ 30 ] The mitigating factors are that the offender entered a guilty plea. He has no criminal history and is of otherwise good character and continues to enjoy great support in the community.

The offence was not predatory in nature in the sense that he did not identify the victim and thereafter set about grooming or seducing her. [ 31 ] He has lost his career as a teacher. His marriage ended and he now has limited parenting time with his children. He has lost his reputation as a person of good character and has been publicly denounced as a result of the media coverage of his offending behaviour.

His entire family has suffered shame and embarrassment. [ 32 ] He will have the stigma of a criminal conviction for a crime of moral turpitude which will limit his future employment, residential and travel opportunities. [ 33 ] He has been bound by somewhat onerous conditions of bail for just under two years while this matter was resolved.

Principles and Range of Sentence [34] I have considered all the principles of sentence set out in s. 718, 718.1 and 718.2 of the Code. Pursuant to s. 718.01, the court isrequired to give primary consideration to the principles of denunciation and general deterrence in offences of this nature. [35] The rehabilitative prospects for this offender are positive.

I accept that he has been specifically deterred from engaging in anysimilar illegal or inappropriate sexual relationships in the future. [36] In considering the overarching principle of proportionality I have considered the oft-cited passage from the Supreme Court ofCanada decision in R. v.

M.(C.A.), (SCC), 1996 105 CCC (3d) 327 at paras. 80 and 81 (quoted in part): Retribution in a criminal context... represents an objective, reasoned and measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates aprinciple of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more ...

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law ...

The relevance of both retribution and denunciation as goals of sentencingunderscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmfulconduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system ofvalues. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition toattaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positivelyinstills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [37] The cases argued by counsel establish a broad range of sentence, from 90 days intermittent to 18 months' incarceration,respecting similar offences and similar offenders. [38] Those authorities are: R. v. McLaren, 61 B.C.A.C., 307; R. v. P.G., [2005] O.J. 4620; R. v.

Victor David Wiens, unreported,North Vancouver Registry No. 55738-2-C, date of judgment June 24th, 2011, Baird Ellan P.C.J.; R. v. Biss, 2012, ONCJ 604; R. v. C.(M.), 2000 BCPC 64; R. v. C.S., 2014 ONCJ 371; R. v. Edwards, 2003 BCCA 214; R. v. Fraser, 2010 NSSC 194; R. v. J.J.O, 2016ONCJ 549; R. v. N.M., 2009 BCPC 281, the Queen v. Porter, unreported, Nanaimo Registry, C.R. 4334, B.C. Supreme Court, January17th, 1992, Oppal J.; R. v. Roberts, 2015 BCPC 266 , 2015 BCPC 0266. [39] Ms. Hatcher for the defence also referred the court to R. v. Holt, 2014 BCSC 2170, and R. v.

Nasogaluak, 2010 SCC 6 for thebasic principles set out in those cases. [40] I am unable to identify specific factors in these authorities, or the authorities considered within them, which contribute to asentence in the higher or lower end of the range. The authorities most on point involve offenders of previously good character who wereteachers or instructors, or who were teachers who went on to act as foster parents. One authority involves an employer.

They all failedto observe the boundary between their position of trust or authority toward a student or foster child or employee and then having crossedthat line, engaged in sexual exploitation of them. [41] Each of the offenders had positive prospects for rehabilitation. All of the offences were under s. 153, save for Wiens, which wasa charge under s. 151. [42] Some offenders were male and some female. Some of the offenders had mental health issues, or health challenges, but not to theextent where it impacted their ability to carry out their duties. Some of the cases involved 10-year age differences and some 40.

In somecases intercourse occurred or was attempted, and in others the sexual acts were serious but did not involve intercourse. In some theexploitation occurred over a few months and in others went on for up to two years. There was no suggestion of the use of force, coercionor threats in any of the cases. In all of the cases except Fraser and J.J.O., it appears guilty pleas were entered. [43] To illustrate the lack of clear guidance in the authorities I will set out the circumstances of two of the more recent cases.

InC.S., the court imposed an intermittent sentence and three years' probation due to "unusual circumstances" being the health andemotional challenges faced by a female offender. [44] She was a teacher in her late 40s who took on the role of a foster parent to a 16-year-old male victim. The exploitation involvedintercourse occurring over a period of two years. [45] In Biss, a male teacher, age 53, engaged in a six-month relationship with a female student, age 16, which did not involveintercourse.

That offender received a sentence of 14 months' incarceration and probation for three years. [46] In my view, the circumstances of the C.S. case are far more egregious than those in Biss, and the "unusual circumstances" inC.S. did not appear to have contributed to the commission of the offence. [47] In my view, sentences should be higher for victims who are younger and where the offender is in an elevated position ofauthority or trust, such as when they act as foster parents in addition to, or after their role as an educator.

Taking advantage of anyparticular vulnerabilities of the victim should also be considered. Clearly, any use of force, coercion or threats should also increase thelength of sentence. The nature of the sexual acts should also be considered as well as the length of time over which the victim wasexploited. [48] I find the increases to the minimum sentence should contribute to more severe sentences being imposed for offences of sexual

exploitation. See Roberts at paragraphs 143 to 157. I note, however, that two of the cases in which sentences of 15 months wereimposed, placing them at the upper end of the range, were from 1995 and 2005, prior to the amendments.

Analysis [49] As was summarized in Biss at paragraphs 71 to 78, the courts have long held that the position of a teacher is one "of the mostsacred in our society" as they are the "trustees of the most precious possession of the community and must be held strictly accountablefor any breach of trust." Due to the nature of their position, teachers act as role models who have great influence over their students. [50] The fact the victim willingly participated in the development of a non-professional relationship with her teacher, or that thesexual contact was not coerced, does not in any way diminish the seriousness of the offender's conduct.

Mr. Smith is entirely responsiblefor his offending conduct. [51] The state of our law in this regard reflects our shared societal values based on what we now know to be the still developing,psychological, emotional and rational capacities of persons under the age of 18 and the extreme negative impact which results fromsexual exploitation of them by adults to whom they look for protection, guidance and support during their adolescent years. [52] The degree of moral blameworthiness of this offender is high. Mr. Smith had every opportunity to reflect upon and take steps toaddress his feelings and behaviour.

I find he willingly approached and then crossed the line from appropriate interactions with thevictim to an utterly unprofessional and ultimately criminal relationship with her. He did so to satisfy his own sexual and emotional needswithout regard for the profound emotional harm he was causing to the victim. [53] A number of the mitigating circumstances set out above are consequences which would have been foreseeable to the offenderfrom the moment he chose to pursue an intimate relationship with the victim and are the "natural" and "predictable consequences" of hisactions.

This includes the loss of his employment and reputation and the media attention which resulted in notoriety for him and shamefor his family. See Roberts at paragraphs 85 to 89. [54] Mr. Smith appreciated throughout that his sexual relations with the victim were criminal in nature and might well result inprosecution and the stigma of a conviction for a sexual offence involving a young person. [55] The strength of the case for the Crown can only be described as overwhelming.

I find I am unable to give significant weight tothese mitigating factors in the circumstances of this offence and this offender. [56] In this matter I find I must determine the appropriate sentence based primarily on first principles but bearing in mind the rangeof sentence in the authorities. The court must give paramountcy to the principles of general deterrence and denunciation and therehabilitative interests of Mr. Smith must be given lesser weight.

The sentence I impose must be one which clearly communicates oursociety's condemnation of conduct involving the sexual exploitation of students by teachers. [57] Given the background checks necessary and the public nature of their profession, teachers who engage in sexual exploitationare people of otherwise good character.

Furthermore, regardless of their personal challenges, if they are able to carry out their dutiesthey are functioning intellectually and emotionally at a high level. [58] Despite the collateral consequences which will ensue from engaging in sexually exploitive behaviour, it must be made clear thatteachers who breach the trust of their students will face a significant criminal sanction. [59] I must, of course, ensure that any sentence I impose is one which observes the principle of restraint and is not unduly lengthy, assentences which are seen to be excessively harsh are also detrimental to our shared values. [60] In this matter, the victim was a young person between the age of 16 and 18.

There was no force or threats used although theoffender's conduct at the time the victim attempted to terminate her contact with him was coercive in nature. The offender exploited thevictim for a very lengthy period of time. The nature of the sexual contact was intimate and presented the risk of pregnancy. [61] Mr. Smith, if you will stand. [62] Having weighed all of the circumstances of your offence, your antecedents and circumstances, the principles of sentence andthe authorities, I find a period of incarceration of 14 months must be imposed.

That will be followed by a period of probation for twoyears. [63] You may be seated. [64] I turn now to the issue of the Crown's application for restitution. Crown is seeking an order under s. 738 in the amount of$5,600. [65] I have considered the cases provided, being R. v. Yates, 2002 BCCA 583 , [2002] B.C.J. 2415; R. v. Sandhu, [2015]B.C.J. 782; R. v. Nanos, [2013] B.C.J. 2079, and R. v. B.J.H., [2000] O.J. 6003. [66] In particular I have considered the

summary of the factors which should be considered set out at paragraph 11 of the Yatesdecision. These cases make clear that restitution is a part of punishment and when considering whether to order it the totality of thesentence must be considered. I must also consider Mr. Smith's ability to pay. He currently has little ability to pay as he is training as anapprentice electrician.

He has child support obligations and is dealing with personal insolvency by way of a consumer proposal. [67] In this matter I must balance the length of the sentence I have just imposed and consider that I am not depriving this accused ofthe fruits of criminal conduct. That must be balanced against his future ability to pay, which is likely, and the impact this will have onhis rehabilitation, which I find to be minimal as the amount sought is not overly onerous.

[ 68 ] In all the circumstances, taking into account the length of sentence just imposed and all the other factors, I find that the order should be made. [ 69 ] I will entertain an application, if desired, by counsel for Mr. Smith to have a hearing with evidence on the issue of whether or not those expenses are readily ascertainable. I do, however, observe that in the Victim Impact Statements the proposition that these are due entirely to the conduct of Mr. Smith is supported, and that the amount sought reflects, in any event, only a portion of the actual expenditures. [ 70 ] Following Mr.

Smith's term of incarceration he will be, as noted, on a period of probation for two years.

The terms of that probation will be that he is to keep the peace and be of good behaviour. [ 71 ] He must report, within 72 hours of his release from custody, in person, to a probation officer at 100 - 233 West 1st Street in North Vancouver, and report thereafter as and when directed. [ 72 ] You must have no contact, direct or indirect, with M.L., or any member of her immediate family. [ 73 ] Not to attend any residence, place of employment, or place of education at which he knows M.L., or any member of her immediate family, to reside, work or attend. [ 74 ] You will reside at a place approved of by a probation officer and not change that residence without the prior written permission of the probation officer. [ 75 ] He shall not seek or obtain employment, or seek to act as a volunteer in any capacity that places him in a position of trust in relationship to any person under the age of 18 years. [ 76 ] You will attend for, accept and complete any counselling, to include, but not limited to, sex offender treatment. [ 77 ] Mr.

Edwards, are you seeking any other terms on the probation? [ 78 ] MR. EDWARDS: Just looking for my copy of the PSR, which I seem to have perhaps left in my office in Vancouver. [ 79 ] THE COURT: I have it, and I have covered the suggested terms. [ 80 ] MR. EDWARDS: Yes, then there's nothing else arising. [ 81 ] THE COURT: Ms. Hatcher -- [ 82 ] MS. HATCHER: No, I think -- [ 83 ] THE COURT: -- anything further? [ 84 ] MS. HATCHER: -- that's it. [ 85 ] THE COURT: And, Mr. Smith will provide a sample of his DNA, and it is a primary ground, I believe. [ 86 ] MR. EDWARDS: Yes. [ 87 ] THE COURT: Yes.

Pursuant to -- he will also be registered under the Sex Offender Information Registration Act for a period of 10 years. [ 88 ] And there will be a s. 110 firearms prohibition for a period of 10 years. All right, so you must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or firearm, or any related authorizations, licences or registration certificates for a period of 10 years. (REASONS AT SENTENCE CONCLUDED)