R. v. Bolderson, 2021 BCPC 285

Citation: R. v. Bolderson 2021 BCPC 285 Date: 20211029 File No: 65934-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWARD GARY BOLDERSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. VANDOR Crown Counsel, appearing by videoconference: S. McCartan Counsel for the Accused, appearing by videoconference: L. Jung Appearing by videoconference: The Accused Place of Hearing: Richmond , B.C. Date of Hearing: October 29, 2021 Date of Judgment: October 29, 2021 Introduction [ 1 ] THE COURT: On October 18th, 2021, Edward Gary Bolderson pled guilty to the sole count in Information 65934-1 that

proceeded summarily: In August 12th, 2021, in Richmond, British Columbia, being a person bound by an order or prohibition made on October 30th, 2018, at Port Hardy by Judge Flewelling, prohibiting him from attending a public park where persons under the age of sixteen years are present or can reasonably be expected to be present, did fail to comply with the order by attending a public park at 15911 River Road, contrary to s. 161(4) of the Criminal Code . [ 2 ] Mr. Bolderson is before me for sentencing.

The s. 161(4) offence has a maximum period of incarceration of two years and no prescribed minimum sentence. [ 3 ] I heard sentencing submissions on October 18th, 2021. This is not a joint submission. The Crown is seeking a custodial sentence of three months or 90 days. Counsel for Mr.

Bolderson argues that a custodial sentence of up to two months, or 60 days, is appropriate in the circumstances. [ 4 ] I have considered in this sentencing decision counsels' submissions, the exhibits including the Reasons for Sentence of the Honourable Judge Flewelling on October 30th, 2018, and the case authorities that have been presented by counsel, all of which I have read but I will only refer to those authorities that I have found particularly helpful.

Determination of a Fit Sentence [ 5 ] A just sentence in this case is one that fits the particular circumstances of the offence, the particular circumstances of the offender, as well as any aggravating and mitigating factors. The overarching principle is the sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. [ 6 ] I now turn to the particular circumstances of this offence and this offender to determine what sentencing objectives apply in this case. Circumstances of the Offence [ 7 ] On August 12th, 2021, Mr. Bolderson drove to a park in Richmond.

He was sitting on a bench in an area of the park that contained a children's playground during a time of day when children can reasonably be expected to be present. Although he denied seeing a child that day, there is no dispute that he was in the vicinity of a child playing with a father. [ 8 ] Mr. Bolderson committed this offence while on a prohibition order that, among other things, prohibited him from attending a public park where persons under the age of 16 years are present or can reasonably be expected to be present. In doing so, he violated s. 161(4) of the Criminal Code .

It would be obvious to any person who is subject to such an order that such was its purpose and the conduct in which he engaged breached it. [ 9 ] I find that this was not a technical breach. I reject the defence's argument that suggests otherwise. [ 10 ] Mr. Bolderson explains that he was at the park, sitting on a bench, facing the river looking at tugboats and thinking of where to honour his dog, Cindy, who had recently passed away. He wanted to memorialize his dog with a plaque at that park, or even possibly scatter the remains of his dog there.

He acknowledges lingering but only because he was watching a tugboat. He says that he was not aware of the father and child and that he was sitting at a bench closer to the wharf, facing the river and not observing the child. [ 11 ] I have accorded less weight to Mr. Bolderson's explanation for his mistake, him being at the park, given his guilty plea. Through his guilty plea, Mr. Bolderson has admitted the essential elements of the offence.

He has provided no explanation for why he stepped foot into the park when he was prohibited from doing so. [ 12 ] Based on the evidence, I am unable to determine the proximity of that park to Mr. Bolderson's place of residence. However, I accept the submissions from Crown, which were uncontested, that there are other places around that park on River Road where Mr.

Bolderson could have parked his car to watch the tugboats and think about his dog in a way that complied with the s. 161 order. [ 13 ] As it informs the seriousness of the offending behaviour before the court in this matter, I will set out the circumstances relating to Mr. Bolderson's previous conviction. [ 14 ] On October 18th, 2018, Mr. Bolderson was sentenced, after pleading guilty, in Port Hardy by the Honourable Judge Flewelling for sexual touching of two girls under the age of 16 years. As part of that sentencing, counsel filed an Agreed Statement of Facts. Mr.

Bolderson admits that: • On multiple occasions, approximately 10 times over a period of approximately two years, he licked the vagina and belly of M.B., who would have been between the ages of six or seven and eight years old. M.B. often went to his residence and called him “Grandpa Gary”. She regarded him as a father figure, particularly as her own father had recently passed away. She often went to Mr. Bolderson's residence as he kept his house open to the kids in the neighbourhood. Mr. Bolderson provided her with pop, snacks, and any coins she found at his residence.

On at least one occasion he provided money to her and her friends. She never told her mother because she was afraid that her mother would be mad at her. • M.B. brought J.W. to Mr. Bolderson's residence between 2:00 p.m. and 6:00 p.m. on February 11th, 2018. M.B., J.W., and Mr. Bolderson were on the bed in his bedroom. Mr. Bolderson was trying to make them laugh and licked J.W.'s stomach. While J.W. was naked from the waist down, Mr. Bolderson licked her stomach and vagina. Afterwards, Mr. Bolderson got some food and played tagged. M.B. told J.W. not to tell anyone about what happened.

J.W. was nine years old at the time. [ 15 ] Mr. Bolderson was 79 years of age at the time of sentencing. Those convictions were entered in Port Hardy, and the Reasons for Sentence were entered an exhibit at the hearing before me.

[ 16 ] Mr. Bolderson was sentenced to 18 months' imprisonment after taking into account 12 months pre-sentence credit, followed by a period of probation for three years that began on October 22nd, 2019. Among other ancillary orders, Judge Flewelling also made a s. 490.012(1) SOIRA order for life and a s. 161 prohibition order for five years. [ 17 ] I find that the offence before me, which is a violation of the s. 161 prohibition order, is objectively serious: R. v. Munro , 2016 BCJ No. 1695 at para. 77 . Circumstances of the Offender [ 18 ] Mr. Bolderson has no other convictions. He is now 82 years old.

In addressing his character, counsel submits that Mr. Bolderson has made it into his 70s with very little contact with the police. He reports on probation. Although he has a criminal record, and the charges are serious, he has pled guilty to those. There are no convictions related to similar offences. He is otherwise compliant with the conditions and there have been no substantive offences since 2018. He also has ongoing health issues.

He had a heart attack in April or May of 2021, and surgery to remove has gallbladder in July 2021. [ 19 ] Notwithstanding his personal circumstances, I find that the moral culpability of Mr. Bolderson is high for the breach of the s. 161 prohibition order. My finding is based on the following evidence. The relevance of the following evidence is that the commission of the s. 161 breach offence shows that Mr.

Bolderson's history of denial of a psychological diagnosis continues to this day, and his failure to take his diagnosis seriously, and to take the prohibition order seriously, led him to committing the offence before the court. [ 20 ] One indication of Mr. Bolderson's history of denial came from the forensic psychologist who assessed him in advance of his sentencing in R. v. Bolderson , 2018 BCJ No. 3508 . At paragraph 23 of that sentencing judgment, Judge Flewelling notes that Mr. Bolderson was assessed as a “moderate” risk to reoffend based on the forensic psychological assessment conducted by Dr.

Darcangelo and a pre-sentence report : She assessed Mr. Bolderson as a moderate case priority - the degree of effort or intervention it will require to address the individual’s risk factors and prevent the person from committing sexual violence in the future. [ 21 ] The forensic psychologist diagnosed Mr. Bolderson with what “appears to be a Paedophilic Disorder”, despite Mr. Bolderson's denial that he was sexually attracted to young girls: R. v. Bolderson , 2018 BCJ No. 3508 , para. 22 . [ 22 ] Another indication of Mr.

Bolderson's denial came from the findings of fact made by Judge Flewelling in that sentencing judgment where she said: • Mr. Bolderson's attitude about these offences is troubling: para. 18. • Mr. Bolderson both minimized and justified his actions by suggesting that M.B. was also responsible for what happened. His explanation is extremely disturbing, given the fact that M.B. was a child between the ages of six to seven and eight, and J.W. was only nine years old at the time of the offences: paras. 19 to 20. • Mr. Bolderson has little, if any, insight into the consequences of his actions upon his victims.

The judge provided the following examples of Mr. Bolderson minimizing his actions and the harm that he has caused to these children. He indicated that M.B. was probably disappointed that she told on me. The offence against J.W. as a one-time deal and he did not think his actions affected M.B. because she enjoyed it: para. 21. • Although Mr. Bolderson has admitted the offences, it is clear that he holds the victims somewhat responsible: para. 22. [ 23 ] I have considered the fact that Mr. Bolderson has not yet participated in sex offender programming. The parties dispute what inference can be drawn from Mr.

Bolderson's failure to participate in sex offender programming. The Crown argues that Mr. Bolderson is a very high-risk offender because, among other things, he has not completed any sex offender rehabilitation and was expelled from such a program due to his attitude and victim blaming. Counsel for Mr. Bolderson argues that Mr. Bolderson is at moderate risk of reoffending and explains that Mr. Bolderson is willing to do sex offender counselling but his health issues and the COVID pandemic have made participation difficult.

Counsel says that he is currently on a waitlist to access such programming. [ 24 ] It is not clear from the evidence before me whether Mr. Bolderson was expelled from any such program and, if so, when that happened or the reasons for that expulsion. Notwithstanding, I have accorded less weight to Mr. Bolderson's explanation for why he has not yet accessed sex offending programing, given paragraph 24 of the sentencing decision: Mr. Bolderson was adamant that he does not need a sex offender program. Dr.

Darcangelo disagrees and advises that he would benefit from such a program to help him develop a better understanding of his risk factor and how to manage those. Until then, his contact with female children should be supervised. [ 25 ] Mr. Bolderson's failure to complete the counselling ordered by the court increases his risk of reoffending, particularly in light of his history of denial.

Furthermore, his explanations for not attending counselling appear to postdate the start of the COVID pandemic but do not appear to account for the time-period before its onset in March 2020. [ 26 ] I am persuaded that the risk of Mr. Bolderson reoffending is heightened by the fact that Mr. Bolderson has not yet attended sex offender counselling. Mr. Bolderson has had plenty of opportunity to complete his counselling. He has already served a lengthy custodial sentence and has been on probation for over two years. I note here that his probation order runs from October 22, 2019, to October 21, 2022.

Given these facts, I find that the risk is more than “moderate” but less than “very high”. Just and Fit Sentence [ 27 ] The fundamental purpose of sentencing, as expressed in s. 718 of the Criminal Code is to contribute to respect for the law, the

maintenance of a just, peaceful and safe society by imposing just sanctions that further one or more of these objectives: denunciation; deterring the offender and other persons from committing offences; separating offenders from society where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 28 ] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [ 29 ] Having considered the particular circumstances of this offence and the particular circumstances of this offender, I find that the predominant sentencing principles from s. 718 of the Criminal Code that control the disposition of cases involving a breach of a s. 161 order are general and specific deterrence and denunciation: R v.

Exell [2015] O.J. No. 5461 . [ 30 ] The focus here is on specific deterrence. That is the same principle that is addressed by the s. 161 prohibition order in the first place and is also the principle that needs to be addressed with respect to his breach. [ 31 ] I find that the need for specific deterrence weighs in favour of a longer custodial sentence than the one recommended by either counsel. I am not satisfied that Mr. Bolderson's experience with the justice system has had a strong deterrent effect on him. Mr.

Bolderson has already served a lengthy custodial sentence and was on a probation order when he breached the s. 161 prohibition order. [ 32 ] Pursuant to his guilty plea, he has admitted to the essential elements of the offence. The essential elements are that he was in a public park where children can reasonably be expected to be present. Mr.

Bolderson has provided explanations for why he was lingering in that park but these explanations do not reasonably account for why he was there in the park in the first place. [ 33 ] Given these facts, I do not accept that either a custodial sentence of 60 or 90 days is sufficient to deter Mr. Bolderson from attending a public park where persons under the age of 16 years are present or can reasonably be expected to be present. Aggravating Factors [ 34 ] There are aggravating factors in this case. Mr. Bolderson has a criminal history for sex offences and was bound by a probation order at the time of this offence.

His risk of reoffending -- that was addressed at his sentencing for the previous offence -- is still present. He has not made any real effort to address that risk. He appears to continue to deny his diagnosis of a paedophile and has yet to attend any treatment. In these circumstances, that risk is heightened by the fact that Mr. Bolderson has not attended any treatment. Mitigating Factors [ 35 ] There are also mitigating factors in this case. [ 36 ] The guilty plea is a mitigating factor. I have accorded the guilty plea less weight in the face of an overwhelming case on the facts: R v.

Friesen , 2020 SCC 9 at para. 154 . Typically, a guilty plea will carry the most weight when it comes early and is accompanied by an apology. While he acknowledges the mistake, I was given no indication that Mr. Bolderson regrets attending the park. He does not benefit from remorse as a mitigating factor. [ 37 ] Counsel for Mr. Bolderson argues that he has been in custody since August 12th and for the first two weeks of that he was in an induction unit for COVID which caused hardship because he was only allowed out one hour per day.

Counsel argues that this is more difficult for him, given his health conditions. [ 38 ] I acknowledge that Mr. Bolderson's advanced age and poor health may be mitigating. However, I have accorded less weight to his age and poor health given his moral culpability. [ 39 ] I have also considered the larger context of the COVID pandemic and the purpose of such induction units to help prevent the spread of COVID. Given his age and health conditions, Mr. Bolderson may have experienced hardship from being in an induction unit and from not being in an induction unit.

I am unable to conclude either way. [ 40 ] Counsel for Mr. Bolderson also refers to his character. Counsel argues that Mr. Bolderson has complied with his reporting conditions and has a good rapport with his probation officer. I find that the character evidence for Mr. Bolderson may be neutral but is not mitigating in the circumstances. An offender's good character usually suggests good prospects for rehabilitation. In this case, however, Mr. Bolderson has not taken the rehabilitative step of completing sex offender programming.

Principle of Parity [ 41 ] The Crown has referred me to sentencing decisions involving breaches of s. 161 orders to assist me in determining a just and fit sentence in this case: R. v. Excell , R. v. Munro , R. v. Rose 2019 MBCA 40 , and R. v. Depew 2012 ABPC 303 . The sentencing range in these cases is between six months for a first offence to two years. I have not been provided with any case authorities for breach of the s. 161 prohibition orders for the sentences imposed for less than six months. [ 42 ] I acknowledge that each of the cases can be distinguished on the facts.

I accept the submissions made by counsel for Mr. Bolderson in this regard. [ 43 ] For example, counsel distinguishes R. v. Munro where Mr. Munro received a six-month sentence consecutive to other counts on the objective seriousness of the offences. In that case, Mr. Munro's moral culpability was found to be “very high”.

He had the benefit of years of extensive sex offender treatment and experienced the punitive and deterrent force of a lengthy period of imprisonment and yet only eight months after the conclusion of a sentence he chose to again engage in an almost identical modus operandi of grooming another child from the moment the opportunity to do so presented itself: para. 70.

[ 44 ] Crown counsel acknowledges that the facts of R. v. Rose are not analogous. That offender in that case pled guilty to 19 offences, and received one year for each of the s. 161 breaches. In that case, Mr. Rose had an exceedingly high degree of moral blameworthiness, reflected in his planning, deliberation, grooming and manipulations. His offences were serious and involved repeated acts against extremely vulnerable victims. He continued to find ways to commit offences, including a procuring offence even when under the strict controls of jail. I accept that Mr. Bolderson is less blameworthy than Mr.

Rose in these circumstances. [ 45 ] Although Crown counsel is recommending three months, and counsel for Mr. Bolderson is recommending no more than two months, counsel have not provided case authority supporting their recommendations. Rather, they have distinguished the aforementioned cases, and others, on the facts in support of the recommended sentences that are between one third to one half of the lowest end of the range of six months to 12 months that has been provided. [ 46 ] The principle of parity is an expression of the principle of proportionality.

While I must consider parity in imposing a sentence, parity can never be applied with a one-size-fits-all approach. The ultimate goal is not giving the same sentence but following a consistent approach to sentencing: R. v. Christie , 2004 ABCA 28 at para. 52 . [ 47 ] Sentencing is an individualized process. As stated by the Supreme Court of Canada in R. v.

Lacasse , 2015 SCC 64 at para. 58 : There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. [ 48 ] I recognize that no two offences or offenders are the same. While I have distinguished these cases on the facts, R. v.

Munro provides some guidance on a range of a six-month custodial sentence. [ 49 ] I have taken into account that the objective seriousness of the offence committed by Mr. Bolderson is lower than Mr. Munro, notwithstanding my finding regarding Mr. Bolderson's moral culpability. [ 50 ] I have taken into consideration the aggravating and mitigating factors and the need for specific deterrence for this particular offender. [ 51 ] R v. Munro may be more aggravating in that Mr. Munro continued his predatory behaviour after having had taken counseling, but Mr.

Bolderson's failure to attend for any of the counselling in the three years since his conviction as ordered by Judge Flewelling is still aggravating in light of his earlier statements that he felt he did not need counselling, his minimization of his conduct, and his victim blaming. [ 52 ] I am persuaded to impose a sentence lower than the six month custody sentence in R v. Munro but not to the extent suggested by Crown counsel. The Crown acknowledges that their sentencing position of 90 days is extremely generous to Mr.

Bolderson. [ 53 ] In my view, this case calls for a custodial sentence that is higher than the one proposed by Crown. Those who are subject to s. 161 prohibition orders must realize that contravention comes at a price. In this case, the price shall be a sentence of imprisonment of four months. [ 54 ] On balance, I conclude that a custodial sentence of 120 days is a just and fit sentence because it is proportionate to the circumstances of the offence and the degree of responsibility to this offender. Disposition [ 55 ] Mr.

Bolderson, please stand. [ 56 ] I am sentencing you on Information 65934-1 and Count 1 to a term of imprisonment. The sentence I would have imposed is 120 days. You have served 79 days in custody. You are entitled to credit to 1.5 days for every day that you have been in custody. This amounts to 119 days of credit. The actual sentence is one day of new time. Victim Fine Surcharge [ 57 ] The defence is seeking a victim fine surcharge exemption under s. 737(2.1) of the Criminal Code on the grounds that it would cause financial hardship on Mr. Bolderson.

I can grant a surcharge exemption when the offender is in precarious financial circumstances or where it is disproportionate to the gravity of the offence and degree of offender responsibility. As I understand the submissions, the Crown takes no position on this application. [ 58 ] In these circumstances, I am waiving the victim fine surcharge based on financial hardship. Based on the submissions of his counsel, which were not contested, Mr. Bolderson is retired and it is not clear whether he has any income. I want Mr.

Bolderson to focus on his treatment and rehabilitation when he is released rather than having to find a way to come up with a fine. (REASONS FOR SENTENCE CONCLUDED)