R. v. C.A.P., 2020 BCPC 93

Citation: R. v. C.A.P. 2020 BCPC 93 Date: 20200311 File No: 66926-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.A.P. PUBLICATION BAN Pursuant to s. 486.4 (1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. YOUNG Counsel for the Crown: H. Waldock Counsel for the Accused: W.M. Finch, QC Place of Hearing: Chilliwack , B.C. Dates of Hearing: January 23 and February 13, 2020 Date of Sentence: March 11, 2020 [ 1 ] THE COURT: C.P. has pled guilty to the following charge, Count 2 on Information 66926-1:

...between the 1st of October 2016 and October 31st, 2017, at or near Chilliwack, in the Province of British Columbia, did for a sexual purpose touch directly or indirectly with a part of his body or with an object the body of H.P., a person under the age of 16 years, contrary to

Section 151 of the Criminal Code . INTRODUCTION [ 2 ] The Crown seeks a sentence of four years. Defence counsel seeks a sentence of six to 12 months with a three-year period of probation. The Crown seeks an ancillary order pursuant to s. 743.21 banning the accused from communicating with the complainant while he is in custody. The Crown submits that the court must impose a SOIRA order pursuant to s. 490.012(1) of the Criminal Code for a period of 20 years. The court must also impose a DNA order pursuant to s. 487.05(1) of the Code as the offence of sexual interference is a primary designated offence.

The Crown seeks a ban pursuant to s. 161 of the Code. The defence does not oppose the ancillary orders sought. FACTS [ 3 ] Counsel filed an Agreed Statement of Facts and I intend to refer to that in detail. [ 4 ] The complainant, H.P., was 11 when she complained of sexual acts. The accused is her father. The incident occurred when she was in Grades 5 and 6 and are considered to have occurred between October 21st, 2016 and October 31st, 2017.

There were about 10 incidents of sexual offending over a period of six to seven months, followed by a single incident in October 2017. [ 5 ] The incidents did not occur the same way. The complainant would sit on her father's lap. When she moved around on his lap he developed erections. He would then move his clothing to expose his erect penis while she sat on his lap. She would also lie on her bed in a nightie without wearing underwear.

He would cuddle his daughter with his erect penis between her legs. [ 6 ] There were also times when the complainant would be on her bed on her hands and knees with her naked posterior exposed. He would rub his erect penis on her buttocks. The accused understood that the complainant told the police that it sometimes hurt her. The accused conceded that the complainant might have felt pain. On occasion she pulled away but he would pull her by the hips back towards him. The accused masturbated to ejaculation in her room on one occasion.

He did this in a manner that he thought would prevent her from observing his behaviour. However, the complainant did see her father ejaculate. [ 7 ] On two occasions the accused put his fingers on the complainant's genitals for a few seconds. Although his penis or fingers did not penetrate his daughter, he conceded that she believed that there might have been slight penetration, about one or two centimetres, and that she did experience pain. He told the complainant that he should not be doing what he was doing.

He told her that if she told anyone he would get into trouble. [ 8 ] The accused worked away from home for extended periods of time. He understood that almost all of the sexual activity occurred between October 2016 and April 2017. After that he was away from home for many months. The last incident occurred in October 2017, shortly after he had returned home from working in Prince George. The police investigated his daughter's complaint in November 2017. REPORTS [ 9 ] Turning to the filed reports, there have been a number of documents which have been filed in this sentencing.

They are the pre- sentence report, the victim impact statement, the court-ordered forensic assessment prepared by Dr. Lax, as well as the defence psychological assessment prepared by Dr. Ley. In addition to the report prepared by Dr. Ley, there is an apology letter signed by the accused dated January 20, 2020. Also there is a letter from his counsellor at Chilliwack Counselling, and numerous reference letters prepared by family and friends. I intend to refer to some of those in my reasons. [ 10 ] Both counsel have filed written submissions on sentencing which I have had the opportunity of reading.

I intend to refer to some of the highlights in those submissions. [ 11 ] Counsel have also filed case law with respect to sentencing range, and it is my intention to refer to the authorities they have brought to my attention. I would like to start first with the victim impact statement. [ 12 ] The statement was prepared by the complainant's mother. She was also the accused's partner until these events unfolded. The statement indicates that the complainant, who was 11 years of age at the time, has resentment towards her sisters, which she understands is misplaced.

She also feels disconnected from her paternal grandparents. She feels guilty that her family has been torn apart as a result of this offence. [ 13 ] The complainant does not feel safe with boys her own age. She gets angry more easily. She is quicker to be emotional when she is challenged. The complainant's main concern is that her father will try to seek visits with her and try to explain his actions but not take full responsibility for them. The concern is that the complainant will carry this incident with her for the rest of her life and may not fully recover.

The complainant has contemplated self-harm and feels disgusted with herself. The complainant also mourns the time she and her sisters will never have with their father because he is to have no contact with them. She feels sorrow as she feels her father has, in essence, died, along with her childhood. [ 14 ] I want to turn to the pre-sentence report. [ 15 ] The accused is 35 years of age. He was born in Calgary. He has one sister with whom he is close. He maintains a close relationship with his extended family, as well as his children. [ 16 ] The accused is currently living with his parents in Chilliwack.

The residence has been approved by BC Corrections.

[ 17 ] The accused described his childhood in positive terms. [ 18 ] He has three children, being the complainant now 12, and two other daughters, age nine and six, with his ex partner A.C. The couple were in a relationship for approximately 12 years. They separated as a result of this offence approximately two years ago. The accused would ultimately like to have access to his children. He has had no such access since the time of his arrest. He has complied with the no-contact condition of his recognizance. [ 19 ] The accused confirms he considers his friends to be prosocial and a positive influence.

He graduated from [omitted for publication] Senior Secondary in [omitted for publication]. He has received many postsecondary certificates to run equipment and to do first aid. [ 20 ] The accused works with a contracting firm, in a specialized construction field. He completes large excavations. He is a junior foreman with the company. His co-workers describe the accused as being a valued employee who is honest and reliable. The accused makes about $100,000 per year and co-owns a house with his former partner, being the complainant's mother. The accused is in the process of signing the house over to her.

He pays the mortgage and child support and, according to his counsel, the accused hopes to be able to make these payments during the time he will be in custody based, I presume, on savings. [ 21 ] The accused indicates he has been seeing a counsellor, Ms. Petovello, for two years. He attends sessions between two and four times a month. The counsellor advises that the accused has been treatment engaged. His counsellor advises the accused is a good candidate for any future counselling due to his willingness to engage.

He has taken his counselling seriously. [ 22 ] The accused advised the report writer that he does not act or think impulsively. He demonstrated an inability to manage his emotions by choosing to meet his emotional needs through his sexually inappropriate interaction with the complainant. He advised that he viewed pornography about once per week. He described his sex drive as being in the low to normal range. His former partner described the accused's sex drive as healthy.

Both he and his former partner indicated that the accused showed no indication or any preference or emotional identification with children prior to this offence. The accused had no problems connecting with adults but advised that he likes spending about 50 percent of his time at social gatherings with children. [ 23 ] The accused reported no concerns about alcohol or illicit drugs. He denied being under the influence of substances including alcohol during the commission of the offence. [ 24 ] The report writer also included victim impact information.

The PSR advises that the complainant has been negatively impacted by the offence in a number of ways. For example, the complainant seems less patient with her sisters. The complainant has indicated she has safety concerns. The complainant has trouble expressing her emotions. The complainant is seeing a counsellor and her mother believes that her daughter will never fully heal. Her mother noted that the violation by a trusted person, being her father, has resulted in trust issues with other people in her life. The complainant, however, is a straight-A student.

Her mother seeks a no contact order with the complainant until the accused has been rehabilitated and professionals, such as social workers, deem renewed contact with the accused to be appropriate. The Crown seeks no contact for the time the accused is in custody, which would take the complainant potentially to the age of majority. Indeed, I am assuming there will be no contact with any of the daughters for a considerable period of time, at least until the accused has undergone a period of rehabilitation. [ 25 ] The accused has no prior record. [ 26 ] He has reported as directed while on bail.

He advised that he is willing to engage with the Forensic Sex Offender Program, as well as the Sex Offender Maintenance Program, should the court order counselling.

He did express a desire to have access to his children, but I sense he is now realizing that such contact will not be possible for a lengthy period of time, at least until his sentence concludes and he has undergone counselling. [ 27 ] Under "Attitude and Understanding of the Offence" the report writer stated the following at page 5 of the Pre-Sentence Report: The subject expresses some responsibility for the offence; however, his comments highlight several thinking errors that appear to support justification for his actions and minimization of his role as a trusted adult and the impact of the offence on the victim.

The subject insists he never tried to hurt or force the victim to engage in sexual activity. [ 28 ] The accused also advised the report writer that his marriage was in turmoil at the time of this offence. He advised that he and his partner were not engaged in an adequate amount of physical or emotional connection. The accused "demonstrated poor problem solving by substituting an intimate connection with the victim when his needs were not met through his age-appropriate partner." [ 29 ] The report writer continued to say the following on page 6 of the PSR: The subject states he should not have let anything happen.

However, he also appears to have focused on how the offence has negatively impacted him, stating the time away from his children has been the worst torture of his life and expressing sadness that his family is split up. He did not acknowledge the enormity of the violation of trust that has been exacted upon the victim through his actions.

Though he said he wants to apologize to the victim for allowing this to happen because he says our family had to go through it, these words reflect a passive role in the offence and focus on the impact to the family rather than the victim, his daughter. [ 30 ] The report writer went on to say: The subject's expressed minimizations, justifications and lack of insight into the effects on the victim suggest he would benefit from the Forensic Sex Offender Treatment Program and the Sex Offender Maintenance Program. [ 31 ] The PSR refers to the custodial programs, as well as the programs available in the community.

The PSR advised that if the accused received a sentence of two years less a day, he will be subject to classification that will assist in determining whether he is eligible to serve his sentence at Ford Mountain Correctional Centre. An inmate at Ford Mountain will be referred to the Forensic Sex

Offender Program. Also, if he is sentenced to a community order, which includes counselling, the probation officers will refer him for participation in the FSOP. [ 32 ] I want to turn to the expert reports, first of all, starting with Dr. Lax. [ 33 ] I have had the opportunity of reading the report of Dr. Lax, who is a psychiatrist with Forensic Psychiatric Service Commission. [ 34 ] In the

section of the report entitled "Mental Status Exam" on page 9, Dr. Lax states that the accused was tearful about how he missed seeing his children. However, he was reluctant to answer questions about what had motivated the offending behaviour. He said he could remember details. His answers were vague and sometimes contradictory. He had difficulty saying he took full responsibility for his actions. He denied any paranoid ideation. Dr. Lax indicated that the risk assessment was difficult to asses as the accused's account was vague. The accused was reluctant to discuss details. Dr.

Lax was unable to comment if there was an increase in frequency of the sexual contact, other than what the accused stated, which was 10 or fewer times. The accused told the complainant not to tell anyone so he would not get into trouble but he denied threatening her. [ 35 ] Dr. Lax stated there was significant concern about the accused's minimization and denial. The accused denied the extent of the offences as reported by the complainant. Dr.

Lax went on to say that it was concerning that, despite significant individual counselling since his arrest, the accused still appeared to believe that the complainant desired and initiated all of the contacts. He simply let her do it. The accused stated that the complainant presented as advanced for her age, suggesting to the doctor further cognitive distortion. The accused thought he engaged in sexual touching of his daughter because he was experiencing stress and his needs were not being met by his partner. Dr.

Lax concluded: It is difficult to comment on his awareness of his risk for reoffending, though, given his reluctance to discuss his thought process at the time of the offences. [ 36 ] The accused plans to continue with his counsellor and to do whatever was suggested by the professionals in terms of counselling. However, the accused did say that he wanted his daughters to live with him after he buys a house where his parents can also live. That plan suggested further evidence of minimizing the impact of his behaviour on the complainant and his other daughters. Dr.

Lax concluded at page 12, the following: However, while he presents as willing to attend treatment, he still presents with deficits in insight, cognitive distortions in how he perceived the victim, minimization and victim blaming. These may act as barriers to meaningfully benefitting from sex offender programming. [ 37 ] Under "Summary and Recommendations" Dr. Lax expressed a concern that the accused's deficit in insight into his behaviour may prove to be a barrier to his benefitting from sex offender programming and thus increase his risk. Dr. Lax stated that pedophilia is a possibility.

The report writer expressed that the accused would benefit from sex offender programming, and that he should not be alone or in a position of supervision of minors. [ 38 ] Dr. Lax concluded on page12 as follows: Whether he receives a custodial order, or a period of community supervision, he would benefit from attending a psychological assessment to determine his suitability for a sex offender group or other interventions to identify the environmental cues, thoughts, patterns and behaviours that may lead to reoffending.

It is certainly helpful for him to continue to work with his counsellor to improve his coping skills, but simply stating that he accepts responsibility for his actions while also stating that most or all of the actions were initiated by the victim points to impairment in insight that could increase his risk. [ 39 ] The Crown relies on Dr. Lax's report and urges the court to impose a federal sentence, partially based on the observations made by Dr. Lax. [ 40 ] I want to turn to Dr. Ley's report. [ 41 ] Dr. Ley is a clinical and forensic psychologist. He prepared the defence assessment.

He conducted a risk assessment of the accused as part of his overall assessment. He concluded that the accused accepts full responsibility for his misconduct, but that his recollection of the particulars of the acts that he committed with his daughter differ slightly compared to her version, which she provided to the police. [ 42 ] On page 2 of the report, there is reference to the accused’s advising Dr. Ley that it was within the context of emotional closeness that the accused's relationship with the complainant became sexualized, such that he began molesting her.

He recalled that his initial experience of sexual arousal with the complainant began when she was sitting on his lap and moving around while they were reading together. The accused would develop an erection in that situation. The accused advised Dr. Ley that when he lay in bed with his daughter that her nightie would ride up around her hips, exposing her buttocks. He would cuddle with her and placed his penis between her legs. The accused would also rub his erect penis upon her buttocks when she positioned herself on her hands and knees.

He denied attempting intercourse with her. [ 43 ] The accused acknowledged that when he was sexually aroused during the molestation of the complainant, he would move to a corner of her room and masturbate until he ejaculated. He believed his daughter did not witness this, but the complainant advised that she had done so on at least one occasion. [ 44 ] He was not under the influence of alcohol or drugs at the time of these incidents. [ 45 ] Dr. Ley found the accused to be guilt ridden, contrite and remorseful. Dr. Ley was aware that the accused has benefitted from counselling with Ms. Petovello. Dr.

Ley also opined that the accused lacks insight into the effects of childhood sexual abuse on children. Dr. Ley was of the view that the accused was clinically depressed and anxious.

[ 46 ] The accused's parents have been supportive of him, both emotionally and financially. Also, his parents' activities with his children have created a psychological link for the accused to his children, given that he is not able to see them at this time. The accused also did not appear to be hostile to his former partner. He regretted that their relationship was over. [ 47 ] On pages 19 and 20 of the report, Dr. Ley stated the following: However, at the time of Mr.

P.'s sexual abuse of his daughter, H., in 2017, he was experiencing high levels of dissatisfaction and unhappiness in his common-law relationship with Ms. C. In particular, and as I will elaborate below, Mr. P. felt very rejected by her. In fact, on most evenings when Mr. P. returned home from work, Ms. C. quickly departed from the family home. Mr. P. became suspicious and then concluded that she was seeing another man. It was within this psychological context and interpersonal dynamic that Mr.

P.'s strong emotional bond and exceedingly close relationship with his daughter H.P. shifted in a sexual direction. [ 48 ] The report also refers to the sexual anxiety that the accused had as a teen as a result of surgery. He also had other stressors that continued during the period of his offending. [ 49 ] Firstly, his own father was ill and the accused was providing a great deal of assistance to his father. [ 50 ] Secondly, the accused had some sexual anxieties which were exacerbated by the estrangement in the relationship between himself and his partner.

Also, his concerns were heightened in the aftermath of a 2013 work-related back injury which caused erectile dysfunction. [ 51 ] A third stressor was financial. He had to work for long periods of time out of town in order to make good money. However, the downside to his being out of town for work was that he missed his family, particularly his children. The family relied on his income, which was substantial. [ 52 ] The fourth stressor for him was a high level of conflict in his relationship with his partner. He felt rejected by her. [ 53 ] On page 22, Dr.

Ley stated the following regarding the risk assessment: In regard to Mr. P.’s risk for sexual crime recidivism, in my opinion his risk is very low. His clinical estimate is strongly influenced by my belief and opinion that Mr. P. is not a pedophile despite his engaging in sexual activities with his daughter, H. Although my opinion and Mr. P.’s sexual behaviour seems contradictory, the diagnosis of a pedophilic disorder requires that an individual has recurrent, intense sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a pre-teen child. Mr.

P. denies any such arousal or urges and seemingly, if they existed, then pedophilic behaviours would have been shown by Mr. P. at other times during his life; seemingly none have occurred. [ 54 ] Dr. Ley was of the view that the accused does not represent an undue risk to other pre-teen girls; that his attraction was specific to the complainant. As a result, concludes Dr. Ley, the accused is not a risk as a sexual predator towards other girls. I note that this conclusion is different from that of Dr. Lax. Dr.

Ley was also of the opinion that the accused's risk of recidivism was lowered by virtue of the psychological counselling in which he was engaged, and his development of improved coping skills. [ 55 ] Dr. Ley was of the opinion that the accused represented a good candidate for some type of community-based sentence. The accused has shown that he can adhere to his bail conditions. He does not represent an undue risk toward sexual crime recidivism with other children in the community. Dr.

Ley also recommended that the accused does not require the more intensive sexual offender treatment programs which exist in the prison system. He was of the view that the accused's ongoing treatment needs can be addressed by therapy with Ms. Petovello but could be supplemented as well with community-based sex offender treatment programs. [ 56 ] The accused hopes to reconcile with his daughters, including the complainant, and to resume parent-child relationships with them. Dr.

Ley was of the view that there is no need to restrict the accused from occasions or settings where children congregate, such as at schools or parks, as he does not represent a risk to children generally. Dr. Ley stated at page 26: The only slight risk that exists in terms of future sexual offending against a child would occur in the context of Mr. P.’s developing a long term, emotionally close, affectionate relationship and strong bond with a female child. Risk would increase then if Mr.

P. was overwhelmed by life stressors and coping poorly with them, while simultaneously being unhappy, frustrated and ungratified in his primary adult relationship. [ 57 ] Thus, Dr. Ley does conclude his report with a cautionary note regarding the accused. [ 58 ] There has been much made by both counsel about the contradictions between the expert reports regarding the accused. I am mindful of those differences in my analysis, but I am also mindful that both experts conclude that the accused is at a lower risk for sexual crime recidivism. However, I am also mindful of the caveats found in Dr.

Lax's assessment, that while the accused presents as willing to attend treatment, he still presents with deficits in insight, cognitive distortions and victim blaming. Dr. Lax concluded that pedophilia is a possibility and, as such, the accused needs to engage in sex offender programming. Also, his being alone or in a position of supervision of minors could raise risk issues. [ 59 ] I accept Dr. Lax's assessment in his

summary that for the accused to simply accept responsibility for his actions while also stating that most or all of the actions were initiated by his daughter, does point to impairment in insight that could increase risk. [ 60 ] I want to turn to the counsellor's letter. [ 61 ] The letter prepared by Ms. Petovello advises that the accused voluntarily sought out counselling shortly after his arrest in December of 2017. He was extremely distressed at the time and often not able to articulate the reason that he sought help.

She articulates on page 1 of her report that over the course of the past two years the accused has come to understand how the stressors in his life, coupled with his unmet emotional needs, led him to engage in a sexual relationship with H.P. She articulates that the accused has

not minimized his behaviours, nor has he blamed anyone or anything else for what he did. He has taken responsibility. He is aware of the sex offender treatment and maintenance programs and is agreeable to participate in them whether in custody or in the community. [ 62 ] I want to turn to the letters of reference. [ 63 ] The accused has filed 12 reference letters from family and friends, which letters I have had the opportunity of reading. He was described in those letters as a giving, caring, honest person. [ 64 ] His mother described his missing his children over the last two years.

She hopes that her son can reunite with his children. [ 65 ] His friends are very complimentary of him. The letter writers all knew of the offence with which the accused is dealing. Those worked with him described him as a reliable worker who takes pride in his work and is responsible on the job. He is also described as being devoted to his children and works hard to provide for them. [ 66 ] The accused has also written two letters expressing his remorse, one addressed to the court and the other to the complainant.

He stated in the letter addressed to the court that he has learned an important lesson, being what his inappropriate actions have done to his daughter and family. He stated he has learned a lot through the counselling he has received. He is concerned that his being in custody will mean that he is no longer able to support his children financially. He expressed remorse to his daughter in the letter addressed to her and expressed his willingness to accept the consequences of his conduct. He also expressed remorse today in court. I am mindful of that too.

SUBMISSIONS [ 67 ] I want to turn first to the Crown submissions. [ 68 ] The Crown seeks a sentence of four years. He has referred to a number of cases and relies primarily on R. v.

Worthington , 2012 BCCA 454 , to argue that it is not the specific facts, per se, which warrant a lengthy sentence in these types of cases but, rather, the breach of trust at the heart of the child-parent relationship, considering the extent to which that relationship was violated, the duration of that violation and the offender's appreciation of that violation as the behaviour continued. [ 69 ] In particular, the Crown has drawn my attention to paragraphs 34 and 35 of that decision.

Saunders, J.A. stated at paragraph 34 that: ... the range of sentences drawn from a former era may not reflect the appropriate balance of principles now required by the Criminal Code . She referred to s. 718.01 of the Criminal Code enacted in 2005. [ 70 ] At paragraph 32 she stated that s. 718.01 and the other augmented provisions for offences concerning abuse of children, as being an attempt by Parliament to reset the sentencing approach to offences against children. [ 71 ] In his submissions, the Crown relies heavily on this shift in sentencing analysis regarding offences against children.

I will return to that shift later in my reasons. [ 72 ] The Crown agrees that neither expert suggests that the accused poses a high risk for future offending. The defence psychologist has a more optimistic assessment of risk, whereas the forensic psychiatrist is more guarded. [ 73 ] As I have stated above, the Crown submits that Dr. Ley's report suffers flaws, being that some of the details are inaccurate. He ascribed to the accused greater insight than he actually has, and some of Dr.

Ley's analysis lacks support in the evidence and he omitted relevant information. [ 74 ] Both experts identified differences between the complainant's position and the accused's version of the events. The Crown calls into question the accuracy or objectivity of a portion of Dr. Ley's analysis. The Crown submits that the evidence tends to show that the accused does not take full responsibility, especially when one considers the differences in the accused's recounting of the events to the two experts.

The Crown has touched on those differences in his written submissions. [ 75 ] The Crown highlighted the concerns expressed by Dr. Lax at page 11 of his report, that the accused presented with deficits in insight into his behaviour, minimization of his offence and cognitive distortions about the victim. Dr. Lax was of the view that the accused's impairment in insight into the circumstances of the offence could increase his risk to reoffend. The Crown expressed concern that the accused's lack of insight observed by Dr.

Lax would not be expected of someone who had already taken some counselling. [ 76 ] The Crown also touched on what the accused told Dr. Ley conflicts with what the accused and his partner independently told police at the time of the investigation. [ 77 ] The Crown submits that Dr. Ley's conclusions are not well-supported by the evidence gathered by the police at the time, and that his conclusions seem to be relying on the accused's self-reporting. Furthermore, the accused seemed to cast blame on his former partner for his deviance. The Crown pointed out that Dr.

Ley did not know or report the accused's plan to buy a house which has enough rooms that all of his daughters could live with him as well as his parents. [ 78 ] Dr. Lax noted that the plan was unrealistic and, in essence, minimized the impact of the offending behaviour. [ 79 ] The Crown pointed out this plan was neither realistic nor reasonable. [ 80 ] The Crown submits that the flaws in Dr. Ley's report undermines its reliability and that the court should rely more heavily on the report of Dr. Lax.

[81] The Crown further submits that this offence had a significant impact on the complainant and her family, as evidenced by thecontents of the victim impact statement. [82] The Crown submits that at the time of the offence, s. 163.1(4) of the Criminal Code required the court to impose on theoffender "a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year," for offencesprosecuted by indictment. However, since that time the courts have determined that the mandatory minimum is unconstitutional, and thatis R. v.

Scofield, 2018 BCSC 91, affirmed 2019 BCCA 3. [83] Thus, the range of jail sentence lies between zero and 14 years. A conditional sentence is not available, nor is a discharge. [84] The Crown submits that in addition to the general principles of sentencing set out in s. 718, the court must apply specificstatutory principles.

The Crown specifically refers to s. 718.01, that the court shall give primary consideration to the objectives ofdenunciation and deterrence for an offence that involves the abuse of a person under the age of 18 years; and s. 718.2 that a court thatimposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to accountfor any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of theforegoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years; and (iii) evidence thatthe offender, in committing the offence, abused a position of trust or authority in relation to the victim; (iii.1) evidence that the offencehas significant impact on the victim, considering their age and personal circumstances, including their health and financial situation, shallbe deemed to be aggravating circumstances. [85] The Crown submits that s. 718.01 came into force in November 2005.

The Crown submits that sentencing decisions frombefore 2005 do not assist us in determining the appropriate range. He relies on R. v. Worthington at paragraphs 30 to 35 in his analysis. The Crown submits that the factors Saunders J.A. considered in R. v. Worthington in upholding a four-year sentence appear in this case,being as follows: (

a) parental responsibility; (b) 10 incidents of abuse over many months; and (

c) the accused's appreciation of the natureof his violation. [86] The accused warned his daughter not to tell anyone because he knew that he would get into trouble. [87] Given the facts here, and the recent development of the sentencing decisions in this area, the Crown focused more on therelationship between the parties and the duration more than the specific nature of the accused's offending behaviour. [88] The Crown agrees that there are mitigating factors such as the accused's admission to the police that he had sexual conduct withhis daughter; that he pled guilty on the date set for the preliminary hearing, albeit that plea was 15 months after his arrest; that he tookprivate counselling which may help him; and that he has continued to be the breadwinner for the family.

He has acknowledged that thefamily's financial situation will change post-incarceration as a result of the accused’s inability to support them. [89] The Crown has pointed out the aggravating factors, that the accused knew what he was doing was wrong and he so advised thecomplainant; that she was 11 years of age at the time and not sexually mature; that the accused was her natural father, and that s. 155,being the incest provisions of the Criminal Code, sets out the minimum penalty for incest with a child under 16 as being 5 years.

It isagreed that the accused does not face that minimum sentence but such minimum sentence does provide some guidance to the court withrespect to the gravity of the accused's conduct towards his biological daughter. Furthermore, the complainant was completely dependentupon her father and the offence has had a significant impact both on her and her family over the last two years and going forward. [90] The Crown points out the parity principle of sentencing set out in 718.2(

b) that requires the court to impose a sentence similar tothe sentences imposed on similar offenders who commit similar offences under similar circumstances. [91] So the Crown, as I have stated, relies on R. v. Worthington but also on R. v. R.E.L., 2010 BCCA 493; R. v. Wesley, 2014 BCCA321; and R. v. S.J.B., 2018 MBCA 62; and I have had the opportunity of reviewing those decisions. [92] I would like to turn to the defence submissions. [93] The defence relies on the following decisions: R. v. Scofield; R. v. W., 2004 BCCA 178; R. v. M., 2000 BCSC 683; R. v. R.,2011 BCPC 0037; R. v. Rennie, 2013 BCSC 909; R. v.

M.D.S., 2014 BCPC 56 , 2014 BCPC 0056; R. v. A.S., 2012 NLTD(G)80; and R. v.

M.L., 2016 ONSC 7082. [94] I note that two of these decisions predate the coming into force of s. 718.01, which sets out that the primary sentencingconsideration is denunciation and deterrence when the offence involves the abuse of a person under the age of 18 years. [95] I am mindful that the more recent decisions do provide greater assistance to the court when considering the range of sentence inthis matter. [96] The defence has done a careful analysis of those decisions at pages 20 to 23 of his written submissions. [97] The defence further submits that in the case of Worthington, the Court of Appeal qualified the use of pre-section 718.01 cases,but did not exclude their operation and merely characterized them as less helpful.

I am mindful of that caveat. [98] The accused seeks a period of incarceration in the range of six to 12 months. The defence is not opposed to a lengthy period ofprobation. The defence does not oppose the ancillary orders sought by the Crown. However, with respect to s. 161, the defence opposesitem (

f) which would limit the accused’s use of the internet. The accused also opposes a prohibition generally on having no contact withchildren under the age of 16. [99] The defence relies heavily on Dr. Ley's report. Dr. Ley supports the conclusion that the accused does not present a general riskto female children under the age of 16. Counsel submits that the report of Dr. Lax is of limited value, but that the forensic reportultimately supports the same general opinion as Dr. Ley on the question of risk. Both Dr. Lax and Dr. Ley agree that the accused is of

limited risk to reoffend. Also, the offender is receptive to counselling and, thus, his risk should remain low. The defence submits that the two reports, while conflicting and subject to criticism, arrive at more or less similar conclusions. [ 100 ] The defence sets out at pages 3 to 10 of his written submissions his criticism and, indeed, analysis in some depth of the two reports, and the difficulties they present. It is not my intention to do an in-depth comparison of the two expert reports. I simply acknowledge the differences to which counsel have referred and the defence position that Dr.

Lax's report is of limited value to the court. However, the two expert reports are not inconsistent in their ultimate conclusion as to risk. [ 101 ] Defence counsel has drawn the court's attention to page 26 of Dr. Ley's report that the accused does not present a general risk to female children under the age of 16, and that there is a slight risk of the accused's future sexual offence against a child in the context of the accused’s developing a long term, emotionally close, affectionate relationship with a female child.

The risk would increase then if the accused was overwhelmed by life stresses and coping poorly with them, while at the same time, being ungratified in a primary adult relationship. [ 102 ] Defence counsel submits that Dr. Ley spent more time with the accused than Dr. Lax. Dr. Ley also administered specific psychological tests that were not conducted by Dr. Lax. Dr. Ley found the accused to be a guilt-ridden, contrite and remorseful person, who was open in regard to discussing the offence.

The accused was also perplexed in the aftermath of his arrest as he could not comprehend how he could act in sexual ways towards his own daughter. Dr. Ley was of the view that the accused's counselling with Ms. Petovello had given him greater insight into his conduct. Dr. Ley also identified the accused’s having a robust work ethic and that he does not blame his daughter. Dr. Ley observed that the accused felt rejected by his partner and suspected his partner of adultery. The accused was also conscious of his own prolonged periods of working out of town in order to provide for the family. [ 103 ] Dr.

Ley concluded the following factors to be further stressors for the accused; being that his father had cancer issues; that the accused has sexual anxieties with respect to his former partner; that he had self-imposed pressure for financial performance; that he had a high level of conflict in his relationship with his partner; and that his partner was critical of him and berated him for not earning enough money. [ 104 ] Dr. Ley then concluded that the accused was clinically depressed at the time he became engaged in a sexual relationship with his daughter. He lost interest in his hobbies and other pursuits. Dr.

Ley did opine that the accused's sexual molestation of his daughter represents a classic incest pattern. However, Dr. Ley did conclude that the accused is at a low risk for sexual recidivism. He pointed out that the accused has experienced significant emotional and financial costs. For example, he has lost his family and his relationship with his children. The accused has also experienced public shame and a blow to his self-esteem. Friends, family and others in the Chilliwack community are aware of the offence.

He is, understandably, embarrassed by his behaviour. [ 105 ] I want to turn to the defence submissions with respect to the other reports. [ 106 ] The defence highlighted portions of Dr. Petovello's letter. She is a well known counsellor in this field. The accused hopes to continue his therapy with her once he has concluded his incarceration. The defence submits that further counselling is most important and should be the subject of a probation order. [ 107 ] The accused does not take issue with the general accuracy of statements in the pre-sentence report, and he clarified the amount of his mortgage debt.

He pays for the mortgage, all household bills and half of the children's special expenses for their activities. The accused submits that he would spend more time at social gatherings with children because of his own children being present. [ 108 ] I want to turn to the general background information presented by the defence. [ 109 ] The accused is 35 years old. He has no criminal record. He has a younger sister, and his parents live in Chilliwack. It is submitted that his family is very supportive of him as can be seen in the reference letters.

He graduated from the [omitted for publication] Senior Secondary School. He was a good student. He excelled in sports. He has a background in auto mechanics. Following high school he worked and then he was presented with the opportunity to work with a building construction company. He has built his work life with that company. He has received many qualifications specific to his work. [ 110 ] When the accused was 20 years of age he started a relationship with his former partner, Ms. C., which resulted in the pregnancy with H.P.

The couple moved in with one another in 2007, about nine months after the child’s birth. They had a second daughter born in [omitted for publication] and a third daughter born in [omitted for publication]. [ 111 ] From 2010 to 2017 the accused worked out of town at least six months of the year. He supported his family and paid all the bills. The accused suffered a workplace injury in 2013 to 2014 which resulted in his being off work. He had a back injury which has resulted in continued chronic pain.

This injury presented new challenges to the couple's relationship. [ 112 ] Over the years the accused felt stressed because of the uncertainty of what was happening at home. He believes he suffered from depression at the time. He was away from home for 17 out of 24 months working during the period prior to his arrest. He was not typically able to return home during his time away. This was the result of cost factors. He owes approximately $172,000 on a line of credit and his ongoing mortgage debt as well. [ 113 ] The accused also became concerned about the health of his father.

He has a close relationship with his parents and he had to support his parents emotionally during his father's health issues, while also supporting his own family. [ 114 ] The accused was arrested and spent 30 hours in custody before his release on a recognizance with many of the usual terms. He has complied with that recognizance which was entered into on November 25th, 2017. Then there was a further recognizance entered into on March 20th, 2018.

He has complied with the main terms of the recognizance, being that he have no contact with his children and his former partner, except his partner as approved by the bail supervisor, for the purpose of resolving matters of support and property division. He has also complied with the term that he not attend the family home in Chilliwack. He has successfully complied with the term that he abstain from the consumption or possession of alcohol and drugs. Accordingly, he has complied with the terms of the bail

order for the last two years, with the exception of one slip when he was helping a friend with children to move. [115] The accused is concerned about his ability to ensure that the family enjoy financial support during his incarceration andthereafter. There is also uncertainty about his long-term employability but he intends to do the necessary steps to find work after hisrelease in order to support his children. The accused is acutely aware that his family will suffer a financial disability as a result of hisincarceration. [116] As I have stated, he has provided the court with 12 reference letters.

They are positive and voice support for him. [117] The effect of the guilty plea is his loss of reputation in his employment and family communities, which loss will be hard torehabilitate. The accused reports being shunned by former friends and co-workers. He is unsure of how to present publicly, so he hasavoided social activities he formerly enjoyed. [118] The accused expressed concern about the statements referred to by Crown counsel in their written statements regardingstatements of the accused's former partner.

It is the submission of the defence that the Crown reference to comments made by theformer partner should be given little or no weight. The accused does not dispute that he has caused harm to his daughter. He expressesremorse both in writing and today, and wishes to support his daughter's recovery. The accused's former partner remains in the familyhome. She now has a new partner residing there with her and the children. [119] Now, I think we will take the break and I think I will be able to get through this.

I was concerned, as I say, at the outset but I amabout to turn to principles of sentencing so now perhaps is a good time for the break. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [120] THE COURT: I turn now to the principles of sentencing. [121] The defence is mindful of the purpose and principles of sentencing set out in s. 718 to 718.2 of the Code.

Counsel submits thatthe now operation of s. 718.01 does not serve to discount the court here considering the sentencing decisions before 2005 or indeed post-2005, if the facts in those decisions are similar to this matter. [122] The defence acknowledges that the offence here, by its very nature, is an aggravating factor. [123] The defence submits the following factors are mitigating factors, being the accused's remorse, post-offence conduct, compliancewith restrictive bail conditions, and no prior record.

Further factors include the stigma of the offence, previous good character, the guiltyplea, and the limited risk for reoffending. It is acknowledged that the collateral consequences to the accused, such as his employmentbeing compromised in future, are not a mitigating factor. However, it is acknowledged that the accused may not be able to support hisfamily financially and his inability will impose a burden on society. He will also be barred from entering the United States as a result ofthis conviction. [124] Defence counsel has drawn my attention to the decision of my brother Judge Gouge in R. v.

M.D.S., where he referred to similarmitigating factors such as the guilty plea, the expression of remorse, the lack of a persistent pattern of aberrant sexual behaviour, sparingthe victim the trauma associated with being a witness, and a willingness to seek counselling. [125] Counsel submits that the accused had a longstanding discussion with the Crown about the prospect of a guilty plea in advance ofthe preliminary hearing. The accused then entered the guilty plea on the morning of the preliminary inquiry, although it isacknowledged that the guilty plea was not entered at the first opportunity.

The accused also sought counselling on his own initiativefrom an early stage. [126] The defence submits that the primary aggravating factors are: (

a) the age of the complainant, being 11 years of age at the time;and (

b) the parent-child relationship and the resultant breach of trust. [127] Defence counsel submits that one of the principles of sentencing is that of parity. Defence has drawn my attention to R. v.Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, in which the Supreme Court of Canada reviewed the discretion available to ajudge in imposing a sentence, taking into account the principle of parity. At paragraphs 56 to 61 of that decision, Wagner J. reviewed theoperation of sentencing ranges.

At paragraph 58 the court stated the following: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. [128] The defence submits that the Crown's sentencing decisions are not particularly helpful to establish the sentencing range here. The defence submits that the actus reus in each of the Crown decisions was more grievous than in the case of the accused here.

TheCrown cases are, accordingly, distinguishable, it is submitted. [129] The defence submits that in R. v. Worthington there were approximately 36 incidents with a 14 to 15-year-old stepdaughter and,thus, that Worthington demonstrates a more grave set of circumstances. Also, defence counsel submits that in Worthington there was arequirement for a Gardiner hearing to determine the facts that there had been digital penetration and sexual intercourse.

[ 130 ] Accordingly, the defence submits that Worthington can be distinguished given the magnitude of the conduct, the lack of remorse and the fact that the accused refused to acknowledge the facts, thus requiring the complainant to testify. [ 131 ] The defence further submits that the Crown decision of R. v. Wesley can be distinguished, in that the accused in Wesley had a previous criminal history. The facts there were never fully described, and thus the case is of limited value. [ 132 ] The defence also distinguishes the Crown case of R. v.

S.J.B. , in that the accused there engaged in 10 to 12 episodes of unprotected sexual intercourse with a 17-year-old stepdaughter. [ 133 ] The defence submits that their authorities support the proposition that while a sentence in the range of six months is a low sentence in the circumstances, a sentence of six to 12 months is not unfit, and would not be inconsistent with the jurisprudence filed by the defence. [ 134 ] Each of those defence authorities can be distinguished, but perhaps the more persuasive of those decisions are the Provincial Court decisions of R. v. R. and R. v. M.

D.S. , which decisions did occur after the coming into effect of s. 718.01 . [ 135 ] I want to turn to the Crown reply. [ 136 ] The Crown filed written reply to defence submissions. I have had the opportunity of reviewing that reply. On page 2 of his reply, Crown counsel urges the court approach the defence critiques of Dr. Lax's opinion with caution. The Crown submits that while a trial judge may safely discount an expert opinion which relies upon unproved or inaccurate facts, it is not safe for a trial judge to second guess the expertise of an expert. On that point, the Crown refers to R. v.

Bornyk , 2015 BCCA 28 . The Crown further submits the defence attacks Dr. Lax's methods, but without expert guidance this court may fall into error by pretending to know more about risk assessment than Dr. Lax. [ 137 ] The Crown then set out a reply to the various critiques of Dr. Lax's opinion. I have considered those submissions by the Crown. [ 138 ] The Crown also submits that the accused's loss of reputation is not a mitigating factor. The Crown draws the court's attention to Epstein J.A. in R. v.

H.S. , 2014 ONCA 323 at paragraph 39 , where the court there stated the following: I also agree with the Crown that the sentencing judge erred by finding the stigma of the criminal proceedings and the respondent’s convictions to be a mitigating circumstance. [ 139 ] The Crown submits that in the sentencing hearing an accused does not enjoy a veto over evidence, nor does he determine facts. I find the Crown's argument in this regard to be persuasive. [ 140 ] Section 723(5) of the Code establishes that hearsay evidence is admissible in a sentencing hearing in proof of contested facts.

The hearsay evidence the Crown relies on are the statements of the accused and his wife to the police, made at the time of his arrest and most especially, as considered by the experts in arriving at their respective opinions. [ 141 ] The Crown submits that the accused's statement to police about his sex life provided two points: (

a) the accused gave Dr. Ley a different account of his sex life than he told the police; and (

b) despite having the police statement, Dr. Ley accepted the accused's new version without question. Furthermore, the Crown submits that the accused's partner's statement lends credibility to the version the accused originally gave to the police. To clarify, the accused told the police that he had a good sexual relationship with his wife, whereas he told Dr. Ley that he was dissatisfied in his relationship with her. As stated by Dr.

Ley at paragraph 20, it was within that psychosocial context and interpersonal dynamic that the accused's strong emotional bond and relationship with his daughter shifted in a sexual direction. [ 142 ] The Crown submits that the authorities referred to by the defence do not support the lower sentencing range sought by the defence. For example, in R. v. Scofield , the court imposed a 16-month CSO, but that decision does not assist the court in determining a fit sentence because there were exceptional circumstances in Scofield , being the accused's significant cognitive impairment. Also, Mr.

Scofield did not stand in local parentis with the complainant. [ 143 ] The Crown submits that R. v. W. does not assist the court in determining a fit sentence because it preceded the passage of s. 718.01 and accordingly does not refer to the primacy of denunciation and deterrence. [ 144 ] Also, R. v. M. can be distinguished because it preceded the passage of 718.01. The Crown submits that the judge in R. v. M. did not impose a sentence reflective of current sentencing principles post-2005. [ 145 ] The Crown submits that the accused in R. v. W. and R. v.

M. were stepfathers, not natural fathers and in that sense also the decisions can be distinguished. [ 146 ] The Crown submits that R. v. R. can be distinguished because the touching was less intrusive. The accused was a stepfather. Most of the sentencing cases relied on preceded s. 718.01, and the Crown only sought a sentence in the range of six to nine months. [ 147 ] In R. v. Rennie , the complainants were aged five and six.

The case provides some helpful analysis as to the case at bar because it refers to and applies "the somewhat more stringent approach currently to sentencing in cases of this kind." At paragraph 29, Fenlon J. considered 718.01. The court imposed a 22-month sentence in Rennie . The factors which made that case more serious were that it involved two victims, who were younger than is the case here. The factors that made that case less serious than the offence here are that (

a) the touching was less serious and (

b) there was an intermittent position of trust and authority, unlike here. The accused in Rennie was also not the natural father. [ 148 ] In R. v. M. D.S. , the court imposed two consecutive sentences of six months and thus, the Crown submits, the case does not support the accused's contention that six to nine months is appropriate in this case because there, Judge Gouge took pains to say that he

viewed the offences as less serious. There were only three incidents proved. The parties were clothed throughout and the touching occurred over the clothing, while the children were seated on the lap of the accused. Also, there were significant Gladue factors that diminished the accused's responsibility. The accused in M.D.S. did not stand in local parentis . [ 149 ] In R. v. A.S. , the Supreme Court of Newfoundland and Labrador imposed 12 months in addition to a two-year probation order.

However, there were significant distinguishing factors, being that the touching was not as intimate, and the touching was over and under clothing on numerous occasions. The incidents of sexual interference occurred over a five or six year period. The accused was a blood relative but not a parent, and so there was not a relationship of authority or dependency. The Crown sought a sentence in the range of nine to 12 months, and the defence submitted that nine months should be considered. [ 150 ] Lastly, the Ontario Superior Court of Justice decision in R. v. M.

L. does not support the suggestion that a fit sentence in this case is nine months. That decision logically suggests that the appropriate sentence for the accused here should exceed nine months. In R. v. M. L. , the accused touched a 15-year-old girl on the breast once. She was naked and in his bed. The accused in M.L. was in a position of trust but not in local parentis . The accused was, thus, not in a position of authority as is the case here. Also, the victim in M. L. was older, and the accused used his hand, not his penis.

However, the Crown also noted that the accused in M.L. did not plead guilty, as was the case here. ANALYSIS [ 151 ] Now, I want to turn to my analysis. [ 152 ] I am mindful of the purpose and principles of sentencing set out in 718 to 718.2 of the Criminal Code . [ 153 ]

Section 718.01 sets out that: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. That was the provision that came about in 2005. [ 154 ]

Section 718.1 sets out: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 155 ]

Section 718.2 sets out the following aggravating factors, and I have gone over those: (a)(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years. (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. All those aggravating factors are present in this matter. [ 156 ]

Section 718.2(

b) sets out that: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. And I am mindful that the accused here, of course, is not an Aboriginal offender. [ 157 ] But as stated in R. v. Worthington and R. v. Rennie , I must give primary consideration to the objectives of denunciation and deterrence of sexual conduct involving children as victims in light of 718.01 of the Code.

I must also consider the factors set out in 718, which include separating the offender from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, and an acknowledgement of the harm done to victims or to the community. [ 158 ] A sentence should be increased or decreased to account for the aggravating and mitigating circumstances which relate to the offence or the offender. I would like now to turn to those factors. [ 159 ] First, the mitigating factors I must consider. They are as follows: (

a) The accused pled guilty but on the day that the matter was set for a preliminary inquiry. That date was 15 months after his arrest. However, that is, nevertheless, a mitigating factor as there was no need for the complainant to testify, nor any other family members. (

b) The accused engaged in private counselling, which hopefully has assisted him and will assist him in the future. However, as the Crown has pointed out, there is, nevertheless, a concern as to whether the accused has developed the insight required to benefit from counselling in the future. The hope is that he will continue to work on that insight. (

c) The accused's ability to provide for his family financially is a factor. To his credit, the accused has continued with his

employment, and has contributed to the family financially both before and after his arrest. He hopes to be in a position to assist the family in the future. However, I tend to agree with the Crown position that the accused should not be granted a reduced sentence by reason of the former partner's financial dependency on him. (

d) The accused has provided 12 positive letters of reference from family, friends and fellow workers. It is clear that the accused has been a diligent worker and breadwinner. (

e) The accused has expressed remorse in his letter to the court, and in court today. It is also clear that he is haunted by the destruction of his relationship with his daughter, and the harm he has caused her. He states in his letter that he has learned "a lot through the counselling I have sought out and received about the stressors in my life that led to my actions with my daughter." The accused also wrote a separate letter of apology to the complainant which can be found at tab 2 of the Defence Book of Documents. In that letter he likewise expressed remorse to his daughter. (

f) The accused has moved to his parents' home and has continued to work constantly to support his family and to seek counselling. He has complied with all the bail conditions with the exception of an accidental slip when he helped a friend to move in the presence of children, in contravention of condition 13 of the bail order. The Crown has chosen not to proceed with a charge of breach laid in March of 2018. (

g) Furthermore, the accused has no prior criminal record. He has otherwise been a person of previous good character. (

h) Both Dr. Lax and Dr. Ley support the conclusion that there is a limited risk of the accused’s reoffending, and especially if he undertakes counselling. [ 160 ] Now I would like to turn to the aggravating factors: (

a) The accused knew that what he was doing was wrong. He told the complainant that he should not be doing what he was doing, and that if she told anyone, he would get into trouble. (

b) The complainant was 11 at the time and the accused was her natural father. The accused's behaviour with his daughter came as close as possible to the act of incest without his actually committing incest. He breached the position of parent-child trust. (

c) The complainant was completely dependent upon the accused, and the offence had a significant impact on the complainant and on her family, as set out in the victim impact statements. (

d) Section 155 of the Criminal Code sets out that the minimum penalty for incest with a child under 16 is five years. The accused does not face that sentence, but I agree with the Crown position that the minimum set in s. 155 does provide some sentencing guidance when considering the gravity of the offence. And I should say that is not an aggravating factor. That is simply a factor to be considered. [ 161 ] I have also had the benefit of reviewing the pre-sentence report and the two expert reports.

The probation officer who also wrote the PSR described how the accused demonstrated minimization and justification when discussing the offence. The accused demonstrated poor problem-solving skills when he suggested he was not getting his emotional and sexual needs met by his partner and, in essence, substituted that role with his sexual involvement with his daughter. The report writer also expressed concern that the accused had limited insight into how the offence might impact the complainant in the future. [ 162 ] On page 12 of his report, Dr.

Lax expressed the concern that while the accused presents as being willing to attend treatment "he still presents with deficits in insight, cognitive distortions in how he perceived the victim, minimization and victim blaming." [ 163 ] Dr. Lax stated that given there was no history of prior criminal charges or sexual interest in children, and no history of psychiatric illness, the accused may well be at a lower risk of reoffending. Both experts reinforced the need for the accused to engage in sex offender programming. Also, Dr.

Lax opined that the accused’s being alone with or in a position of supervision of minors could raise risk issues. I accept the cautionary note expressed by Dr. Lax. [ 164 ] Dr. Ley, the defence psychologist, concluded that the accused's risk for sexual crime recidivism is very low. Dr. Ley opined that the accused is not a pedophile despite his engaging in sexual activities with his daughter. [ 165 ] On page 23 of his report, Dr. Ley stated that the accused was not a risk as a sexual predator towards other girls. Dr.

Ley also concluded that his clinical risk estimate that the accused represents a low risk for sexual crime recidivism, is supported and strengthened by the testing which he conducted. The accused also experienced strong guilt feelings regarding his criminal behaviour. [ 166 ] I am mindful of the differences between those two reports, but it is the ultimate conclusion of both experts which I find to be of most assistance to this court, which is, the accused has a low risk for sexual crime recidivism. [ 167 ] I have found the case law filed by counsel to be of assistance.

However, I am bound by the decision of R. v. Worthington , which decision refers to the significance of s. 718.01 and that the cases pre-2005 are not overly helpful in settling the range for this type of offence. [ 168 ] The court in Worthington made reference to recent cases in this jurisdiction, such as R. v.

R.E.L. , referred to above. [ 169 ] In Worthington , Saunders J.A. stated the following at paragraph 41, mid paragraph, as follows: I would go so far as to say the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a case involving a breach of the trust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of that violation, and the offender’s appreciation of that violation as the behaviour continued.

We are here concerned with the offence of sexual assault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in the youth of

the complainant, over-laid with the breach of trust in the family relationship. [170] At paragraph 42 of her reasons, Saunders J.A. referred to R. v. J.L.S., 2006 SKCA 95, where the Saskatchewan Court of Appealupheld a three-year sentence for sexual assault of a daughter that did not include penetration. The court in J.L.S. at paragraph 24 statedthat the hold-over dividing line between rape and other incidents of abuse should not be over-emphasized. [171] That reasoning can also be found at paragraph 43 of Saunders J.A.'s reasons, where she referred to R. v. W.Q., (ON CA), 2006 213 O.A.C. 217.

In essence, the lack of penetration does not relegate sexual touching of a child to the lowerrange of sexual offences. The court must consider the aggravating factors of the abuse of trust, the number of victims, the frequency ofassaults and their impact on the victims. [172] The Court of Appeal in Worthington supported the sentence of four years imposed by the Provincial Court judge on one count ofsexual assault over 18 months between 2007 and 2008. The victim in Worthington was the accused's stepdaughter and she was age 14and 15 at the time of the offence. The accused initially pled not guilty.

The accused, one week before trial, pled guilty to a count ofsexual assault. Then the court entered into a Gardiner inquiry for the court to determine the facts relevant to the sentence, because theaccused denied some of the conduct upon which the Crown was relying. The complainant testified. [173] The facts found by the sentencing judge were more aggravating than those here. The facts there included masturbation, fellatio,oral sex, sexual touching and kissing, that occurred once or twice a month and that escalated over an 18-month period. [174] The accused in Worthington groomed and manipulated the complainant.

The Court of Appeal was required to determinewhether the sentence was unfit, only considering the allegations admitted by the accused, minus the disputed allegations. So there weresome difficulties with respect to the sentencing facts in Worthington. [175] Defence counsel sought a sentence of two years in Worthington. The Court of Appeal concluded that the four years imposed bythe Provincial Court was a fit sentence.

At paragraph 30, Saunders J.A. stated that what was most important in their conclusion was thenature of the offence, the relationship between the parties and the new provision, s. 718.01 of the Code. [176] Saunders J.A. at paragraph 30 then quoted a passage from R. v. O., 2012 BCCA 129, concerning the new provision. In R. v. O.,the Court of Appeal concluded that rehabilitation, while important, is given secondary status. The primary consideration must bedenunciation and deterrence of such conduct. [177] I conclude that the circumstances in R. v.

Worthington can be seen as more aggravating when considered as a whole, than thosehere. In the case at bar, there has been a clear admission of facts filed after a guilty plea. The complainant was not required to giveevidence in this matter, as was the case in Worthington. [178] There are two helpful expert reports which suggest the accused is at a low risk of recidivism. The expert opinions, whilesomewhat contradictory, have been helpful in this sentencing. Those factors were not present in R. v. Worthington. In that sense,Worthington can be distinguished. [179] I have also considered the case of R. v.

Wesley, referenced by the Crown. There the Court of Appeal upheld a five-year sentenceon one count of sexual assault against a young child. There were three occasions of sexual behaviour by the appellant to the childdescribed to the court. There was a pre-sentence report where the accused had broached the idea of sexually touching the child to hisgirlfriend, the child's aunt. The appellant was a member of the First Nations. He was 25 at the time of the offence and he had a criminalrecord. [180] The court had the assistance of reports and a Gladue report.

The defence proposed a sentence of 30 to 36 months, less timeserved. The Crown proposed a sentence of four years. The judge imposed a longer sentence than suggested by either counsel. Thepsychiatric report suggested that the accused was at a high risk of reoffending for a similar type of offence if given the opportunity. Thecourt also took into account other offences with which the accused was charged. The sentencing judge was clearly influenced by thehigh risk the accused presented of reoffending. In my view, R. v.

Wesley can be distinguished, given the concern that the accused inWesley was at a high risk of committing similar offences in the future. [181] I have also reflected on the decision in R. v. S.J.B., which was drawn to my attention by the Crown. The accused was 31 yearsold and the complainant was 17. Over the course of two months in 2015, the accused had sexual intercourse with the complainant about10 to 12 times. He pled guilty. He had no prior criminal record. The Crown there did seek a term of four years. The accused sought aterm of one to two years imprisonment to be followed by probation.

The Manitoba Court of Appeal allowed the appeal, and theaccused's sentence was varied from a term of 18 months imprisonment with probation, to a term of three years imprisonment. [182] There are some differing features in that decision in that the accused was a stepfather and the complainant was older than is thecase here. So again, that decision, while helpful, has some distinguishing features. [183] I have found this sentencing to be difficult.

There has been a considerable amount of material filed and counsel have spent timedealing with the mitigating and aggravating factors, as well as a careful analysis of the experts' reports. The accused has soughtcounselling, is clearly remorseful regarding his conduct and how his conduct has jeopardized his ability to support his family, as well asto have a meaningful relationship with his daughter going forward.

He clearly has the support of family and friends. [184] I am mindful of the purpose and principles of sentencing, the Agreed Statement of Facts, the mitigating and aggravating factors,the reports, the letters of reference, the submissions of counsel and the case law to which they have referred and, of course, the bindingauthority of R. v. Worthington on which the Crown has most relied. [185] But I am particularly mindful of s. 718.01 of the Code, that the court shall give primary consideration to the objectives ofdenunciation and deterrence of such conduct.

There is no question that there has been a change in the case law regarding sentencing insuch matters since the enactment of s. 718.01.

[ 186 ] So Mr. P., if you would stand. [ 187 ] Mr. P., I sentence you to three years. [ 188 ] There will also be the following ancillary orders. [ 189 ] I make an order in Form 5.03 under s. 487.051 authorizing the taking of a DNA sample, as the offence is a primary designated offence. [ 190 ] There is a 10-year firearms prohibition under s. 109(1) of the Criminal Code . [ 191 ] The next is mandatory. I order that you are to be registered on the Sex Offender Registry for 20 years, pursuant to s. 490.012(1) and s. 490.013(2) (

b) of the Criminal Code . [ 192 ] Under s. 743.21 you are prohibited during the period of your incarceration from communicating directly or indirectly with the complainant. [ 193 ] There is also an order pursuant to s. 161 that you are banned (

a) from being within 100 metres of any dwelling house where H.P. ordinarily resides for a period of three years; and (

b) seeking, obtaining, or continuing any employment whether or not remunerated, or being or becoming a volunteer in a capacity that involves being in a position of trust or authority towards female persons under the age of 16 years for a period of 10 years. (REASONS FOR SENTENCE CONCLUDED)