R. v. A.P.M., 2019 BCPC 165

Citation: R. v. A.P.M. 2019 BCPC 165 Date: 20190621 File No: 67361-2 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. A.P.M. PUBLICATION BAN Pursuant to s. 486.4(2.2) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: G. Lindsey Counsel for the Accused: D. Schultz Place of Hearing: Chilliwack , B.C. Dates of Hearing: April 12, 23; May 10 & 30, 2019 Date of Sentence: June 21, 2019 Facts

[ 1 ] Mr. M. has entered a guilty plea to one count of sexually assaulting M.M. between January 2012 and February 2018. With the consent of Mr. M., the Crown has elected to proceed summarily on this charge. [ 2 ] M.M. was born in December 2001. Her mother entered a relationship with Mr. M. approximately four years after she was born. M.M. grew up knowing Mr. M. as her father. Mr. M. and M.M.'s mother separated in 2013. However, Mr.

M. shared parenting time with M.M. after the separation and it was principally during that time that the sexual abuse occurred. [ 3 ] In late February 2018, M.M. reported to police that Mr. M. had been sexually abusing her. This began in 2013 when she was approximately 11 years old. From the outset, Mr. M. made clear to M.M. that the abuse was a form of punishment for things like texting a boy or sneaking out of the house at night. Mr.

M. extorted sexual acts by threatening M.M. that he would tell her mother about her transgressions and that her mother would "take everything from her". [ 4 ] On the first of these instances, Mr. M. required M.M. to take all of her clothes off in front of him, which she did. When she showered afterwards, he took a picture of M.M. It is unclear whether that picture has been recovered. [ 5 ] Between 2013 and 2018, M.M. estimates that there were more than 20 occasions, Crown estimates up to two dozen, when Mr. M. imposed this kind of sexual humiliation as punishment on her.

For one year during this time, the abuse did not happen at all. At times, Mr. M. would have M.M. remove her clothes and stand against a wall, walk around, perform stretches or do jumping jacks. He required her to shower in front of him. [ 6 ] He required her to remove some of her clothes while in the car over some protest in a parking lot. On this occasion, he grabbed her ankle and pulled her legs apart.

He told M.M. that the experience was not supposed to be fun or easy because it was punishment for her misbehaviour. [ 7 ] On one occasion, he required her to cover her face with something when she was crying so that he would not feel as bad. On another occasion, he asked her to stop crying for the same reason. [ 8 ] When M.M. asked if she could be spanked instead of performing these sexual acts as punishment, Mr. M. did not stop, saying that he did not want to leave marks on her. [ 9 ] Mr. M.'s conduct scared M.M. and pitted her against her mother. Since Mr.

M. would secure her compliance in the sexual acts by threatening that her mother would "ruin her life" if he told her about M.M.'s misbehaviour. [ 10 ] The conduct escalated to Mr. M. "punishing" M.M. by having her lie naked on the bed, exposing her genitals. Mr. M. told M.M. that she had to think of things to do to fulfil her punishment and she masturbated in front of him. [ 11 ] In the weeks leading up to her disclosure, the abuse happened frequently, sometimes twice a day. The touching that forms the evidentiary foundation of the sexual assault charge occurred on two discrete occasions in the course of Mr.

M. having M.M. perform these rituals he had groomed her to believe were punishments. They occurred in the weeks leading up to her disclosure in February 2018. M.M. was 16 years old at this time. [ 12 ] The touching included handling her vaginal area, flicking her clitoris and what M.M. described as "really hard" digital penetration of her vagina. The touching also included violence. On one occasion, Mr. M. twisted her nipples and he hit her genitals with the back of his hand and hit her genitals and breasts with a lanyard multiple times.

Principles of Sentencing [ 13 ] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence but also the specific circumstances of the offender. I must consider all the principles of sentencing set out in the Criminal Code . [ 14 ] The purpose of sentencing is to protect the public.

Section 718 of the Criminal Code says this is to be achieved, where necessary, by separating offenders from society, by denouncing unlawful conduct, general deterrence, rehabilitation and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 15 ]

Section 718.2(

b) states that: ...a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This provision requires an analysis of what is commonly referred to as the range of sentence for a specific offence. [ 16 ] The fundamental principle of sentencing is found at s. 718.1, which states that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ] In R. v.

Ipeelee , 2012 SCC 13 , the Supreme Court of Canada noted that this fundamental principle of a proportionality is tied to the purpose of sentencing, which is: ...the maintenance of a just, peaceful and safe society through the imposition of just sanctions. [ 18 ] The proportionality principle ensures justice for victims and offenders, the former by requiring that a sentence reflects the gravity of the offence and denounces unlawful conduct and ensures public confidence in the justice system.

The proportionality principle also acts as a restraint to ensure justice for the offender by ensuring that the sentence does not exceed what is appropriate given the moral blameworthiness of the offender. In the words of the Supreme Court in Ipeelee : In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one

at the expense of the other. Circumstances of the Offender [ 19 ] Mr. M. is 37 years old. He comes before this court with no criminal record. He has been compliant with bail conditions and community supervision. Mr. M. graduated from high school and has maintained employment throughout his adult life, working for telecommunications companies in sales and as an IT technician. He is currently employed by a home renovation company. [ 20 ] Mr. M. commenced his relationship with M.M.'s mother in 2005.

There are two male children of that marriage, aged nine and twelve, who currently live with their mother. [ 21 ] Since 2014, Mr. M. has been in a relationship with his current spouse and they married in 2018. She is aware of these proceedings and has been supportive of Mr. M. She has two male children of her own, aged nine and eleven, who live with them. [ 22 ] Mr. M. has a good relationship with his mother and with his siblings, who are also aware of this offence. [ 23 ] Mr. M., himself, grew up in a strict, religious home and he experienced physical, emotional and sexual abuse as a child.

He has struggled with anger and anxiety in his life ever since. He reports that stress, anxiety, depression and sleep deprivation led to him taking months off work for medical reasons in 2014. [ 24 ] In 2017 and 2018, he received counselling for anger management. These issues have led to some degree of social isolation for Mr. M. and difficulties in his relationships. [ 25 ] More recently, since his arrest for this offence, Mr. M. has undertaken counselling to address depression and anxiety. The pre- sentence report-writer noted that he participated in counselling from March to June of 2018. Mr.

M. found the therapy helpful. The counsellor reported that Mr. M. "tended to minimize the offence and, when challenged on his inconsistencies, he did not return for further counselling with her". Defence counsel points out that the therapist is not an expert in this regard and I do not have the kind of detail before me to assess her comment about minimizing the offence. [ 26 ] The psychologist, on the other hand, who interviewed Mr. M. for the assessment found him to be genuinely remorseful, noting that he does now recognize and take responsibility for the fact that he terrified and humiliated M.M.

His acknowledgment that he took advantage of her "whenever he wanted" and that his control and degradation of her were to satisfy his own sexual desire are important first steps in taking responsibility for the harm that he has caused. This kind of understanding and frank disclosure to the report-writer gives real substance to Mr. M.'s expressions of remorse. [ 27 ] Mr. M. has pointed to his own sexual compulsion and deviance as factors underlying the offence and he has taken steps to deal with those issues through community supports. The reports disclose Mr.

M.'s acceptance that he has been incapable of solving these problems on his own and, in his own words to the psychologist, "Whatever you decide is best works; my judgment is obviously skewed." [ 28 ] Mr. M.'s current spouse reports that in the years since the offence was reported, Mr. M. has made significant progress, addressing some of the underlying causes of his offending. She describes him as "a completely different person". [ 29 ] The psychological assessment states that Mr. M.'s acknowledgment of major difficulties in his life is a favourable prognostic sign, as is his motivation to engage in therapy.

However, it is also noted that some of Mr. M.'s clinical symptoms may "interfere with his treatment progress". [ 30 ] The psychologist identifies a number of factors that increase and decrease Mr. M.'s risk of future offending. While counsel have emphasized his low risk of sexual re-offending, the psychologist's ultimate opinion is that he likely represents a low risk for future sexual offending.

However, that opinion is conditional on "his obtaining treatment and maintaining abstinence from problematic sexual behaviours". [ 31 ] The psychologist goes through those factors in more detail in the report, which I need not repeat here, other than to say that it is not certain and it is not necessarily in Mr. M.'s control whether these conditions precedent to the psychologist's assessment of low risk will remain in place. [ 32 ] At times in his adult life, Mr. M. has misused substances. At one point, his abuse of alcohol interfered with his employment and he has not consumed it since 2014.

Of particular note, he used marihuana heavily, on a daily basis, during the time period of this offence. Mr. M. gave inconsistent information to the psychologist regarding his self-reported abstinence from marihuana since his arrest, which makes me unsure as to whether he has, in fact, stopped using this drug. This is relevant to Mr. M.'s risk of re-offending, although the psychologist considers his present risk of lapsing into drug addiction to be low. [ 33 ] While he has sought out community supports, Mr.

M. has not attended structured programming or treatment for substance abuse management and he does not feel that it is necessary. Circumstances of the Offence Aggravating Factors [ 34 ] I have taken into account the following aggravating factors in this case. Firstly, Mr. M.'s abuse of M.M. was premeditated and calculated; it was not a momentary lapse in judgment. The sexual abuse and grooming that facilitated the assaults spanned more than five years. The humiliation and degradation of M.M. included elements of sadistic cruelty.

It persisted in the face of manifest evidence of her suffering such as her crying or attempts to negotiate different punishment. I can infer from the facts that Mr. M. was well aware of the harm that he was causing. In one incident, he told M.M. that he felt like a monster. Before the offences were reported, Mr. M. burdened

M.M. with the responsibility for his actions, telling her that he trusted her because he could go to jail for his conduct. Mr. M.'s moralblameworthiness for this offence is high. [35]

Section 718.2 of the Criminal Code includes three statutorily-aggravating factors, which apply in this case. [36] The first is that, in committing this offence, Mr. M. abused a person under the age of 18 years. [37] The second is that Mr. M. was, in committing this offence, abusing a position of trust and authority in relation to the victim. Inparticular, as somebody in loco parentis, Mr. M. violated the sanctity of the parent-child relationship and exploited the regular accessthat a parent has to his child. In this case, M.M. was all the more vulnerable given Mr. M.'s separation from her mother.

It is furtheraggravating that these offences mostly took place in what was a home to M.M. where she was entitled to feel safe. [38] The third is that this offence has had a significant impact on the victim, considering her age and other personal circumstances.While M.M. was not the youngest of victims, the abuse spanned years that included the very outset of her sexual development. [39] M.M.'s victim impact statement has been filed as an exhibit on this sentencing and I will read from a portion of it. She wrote: I feel used, manipulated, hopeless, ashamed. I'm scared of being alone.

I feel like I'm being watched or spied on. I do not feelcomfortable around male adults including teachers. I am constantly distracted and triggered in school. I have to lie to my friends whenthey ask about the changes in my family situation. My brothers and I have lost family members that haven't spoken to me since mystatement. I have no idea who I can or can't trust or what people's motives are. I feel empty inside and it's difficult to find happiness. The victim impact statement goes on to report that she physically harmed herself, including attempting suicide.

She has received therapyand has been prescribed medication as a result of this offence. At the time of the victim impact statement, she disclosed an ongoing fearof Mr. M., saying he knows where I live, work, where I attend school, where my boyfriend and friends live. She expressed a fear that hewould breach his conditions by attending one of these places. [40] Our appellate courts have made strong statements when it comes to the principles of sentencing where children are abused bysomeone in a position of trust or authority. For example, R. v.

R.M.D., 2014 BCCA 56, at paragraph 14, the court said that these types ofcases should attract a significant sentence: The cases are replete with statements that offences of this class will attract a heavy sentence. [41] Our Court of Appeal explained what it means that Parliament has codified these aggravating factors when it says that trialjudges may consider the rehabilitation of the offender but in cases such as this, rehabilitation will never be the principal concern. See R.v.

B.C.M., 2008 BCCA 365 , [2008] 238 C.C.C. (3d) 174: Thus the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims. [42] In

summary, when these aggravating circumstances are present, the rehabilitation of the offender is of secondary importance tothe principles of denunciation and deterrence. Failing to do this would be an error of law. R. v. Allen, 2012 BCCA 377. Mitigating Circumstances [43] There are also mitigating circumstances in this case that I have considered. The first is Mr. M.'s guilty plea and this is asignificant demonstration of his remorse. It means that M.M. has not had to endure a trial and a preliminary inquiry. I accept Mr.

M.'scomments to this court and his early cooperation with police as further expressions of his remorse. Mr. M. was forthright with the report-writers making statements that were contrary to his interests such as the fact that he would likely not have stopped the sexual assaults butfor M.M.'s report to the police. The full calibre of his motivation would not have been known if Mr. M. had not revealed it. [44] It is mitigating that Mr. M. is amenable to rehabilitation. As the Crown points out, the reason for considering Mr.

M.'srehabilitation is not simply because I must; it is because it is a viable prospect. [45] Mr. M. demonstrated a willingness and an ability to engage with counselling while he has been on bail. The psychologicalassessment reports that he has good insight into the factors that contributed to this offence and he appears motivated to manage his riskfactors. [46] Mr. M. recognizes that his conduct was wrong, he is ashamed and he finds what he has done abhorrent. [47] Finally, this is Mr. M.'s first and only criminal conviction.

Sentencing Ranges [48] Counsels submit that the range for sexual assault, generally speaking, is broad and I agree. The Crown submits that while thegrooming that occurred when M.M. was between 11 and 16 years old is aggravating, the sexual touching that forms the basis of the pleaoccurred when she was 16 and, therefore, the maximum penalty for this offence is 18 months' incarceration. In cases with differentaggravating and mitigating factors, non-custodial or conditional sentence orders have been imposed. [49] In my view, some of the defining features of the offence committed by Mr.

M. are the persistence, premeditation andpronounced impact that it had on a young victim, who was his dependent. These first two factors distinguish this case from the primarycase relied on by counsel of R. v. P.A.S., 2009 BCCA 360, as does the fact that the offender in P.A.S. was noted to lack any signs ofsexual deviance. [50] In R. v. Ralph, 2014 BCSC 467, at paragraph 53, Justice Romilly wrote:

It is noteworthy that sentences related to the sexual abuse of children are rising as courts become more familiar with the horrificconsequences for victims. [51] In the Ralph decision at paragraph 59, Romilly J. goes on to review appellate decisions in B.C. and Ontario, citing the followingas authority: ...that adult offenders in a position of trust who sexually abuse children over a substantial period of time can expect to receive mid toupper single digit penitentiary terms. Those are R. v. D.D., (ON CA), [2002] 58 OR (3d) 788, R. v. D.M., 2012 ONCA 520 and R. v. S.H., 2011 ONCA215. [52] In R. v.

D.M., supra, at paragraph 44, the court wrote: ...where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimumsentence will be five or six years in the penitentiary. [53] In R. v. O.M., 2009 BCCA 287, at paragraph 11, our Court of Appeal wrote: Prolonged sexual abuse of a child requires a denunciatory sentence. The cases in the range of four to seven years reflect this. [54] In R. v. R.A.J., 2010 BCCA 304, our Court of Appeal did clarify at paragraph 26 that the range in R. v.

O.M.: ...does not set the high end of the range for cases of this nature. [55] This line of authorities was further developed by Justice Moldaver sitting in the Ontario Court of Appeal in R. v. Woodward,2011 ONCA 610. This case has been relied upon by our Court of Appeal in R. v. E.S., 2017 BCCA 354. There is some similaritybetween the Woodward case and the case at bar because in that case the invasive sexual assault of a 12-year-old child occurred on onediscrete occasion in circumstances where the child had been extorted for a period of time to comply.

The aggravating factors included thepsychological manipulation of the victim, who had been lured and bribed to perform sexual acts. In that case, six and a half years in jailwas upheld as a sentence. [56] I am not suggesting that the facts of Mr. M.'s case are as aggravated as that one or even that the specific facts of this case matchthe appellate authorities I have reviewed.

What is significant is that our highest courts have recognized the harm caused by theseoffences and the sentencing ranges have increased, including in cases where the abuse has not necessarily been occurring for years.Those principles were summarized by Justice Moldaver in the Woodward case at paragraph 72, and I want to put some emphasis on themhere, as I conclude my comments about the sentencing range:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they makeeasy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends,heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (

i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation,general and specific deterrence and the need to separate offenders from society must take precedence over the other recognizedobjectives of sentencing.

The Joint Submission [57] The joint submission recommended by counsel is one year incarceration and 18 months' probation followed by ancillary orders.I indicated earlier that I had concerns about the joint submission and I have heard further submissions about the plea negotiation, thefactual issues and the relevant sentencing authorities. Circumstances of the Plea [58] Counsel have advised that the quid pro quo in this plea negotiation was that Mr. M. would enter a guilty plea in exchange forthe Crown agreeing to proceed summarily on what had initially been laid as an indictable charge. As a

summary proceeding offence, thecharge of sexual assault carries a maximum penalty of 18 months' incarceration where it does not involve a child under the age of 16years. Proceeding in this fashion also means that the court is not bound by a mandatory minimum sentence and this opens up thepossibility of a conditional sentence order as an available sentence. [59] Crown further agreed that in exchange for Mr. M.'s guilty plea, it would seek a sentence of one year in jail and 18 months'

probation. The benefits of this arrangement were characterized by Crown counsel as being not unique but not insignificant.

They are,first, the certainty and efficiency in securing a conviction and, secondly, the fact that the complainant would not have to testify. [60] Defence counsel advised that the length of the sentence was the subject of extensive negotiation and it was clearly part of thejoint submission. [61] Counsel advised on the first day of sentencing that the exact terms of the probation order were not part of the joint submissionbut a joint submission does not need to cover all aspects of the sentence. [62] I find that this is still a case where the principles in R. v.

Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, apply.This was a considered submission of senior counsel and there is deference due for all the reasons laid out in R. v. Anthony-Cook to theirposition. Their decision was principled and guided by case law. [63] I find that the joint submission, as recommended, was perhaps not the most finely-tuned but that does not make it exempt fromthe factors in Anthony-Cook. It is not a situation where the Crown has offered a particularly lenient sentence because of frailties in theCrown case. In fact, I am told that Mr.

M. fully confessed to this offence in the course of the investigation. [64] I am mindful of cases where courts have found that joint submissions carry less weight in circumstances where the offender hasadmitted the offence: R. v. Weenusk, 2003 MBCA 79. [65] R. v. Anthony-Cook specifically mentioned this type of situation in paragraph 53, where it recognized that the public interest testwill have different results in different circumstances.

The Supreme Court used the example that a very lenient sentence might not becontrary to the public interest where there are significant frailties in the Crown case, or if the offender is agreeing to assist with anongoing investigation. The court writes: On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentencemight cause the public to lose confidence in the criminal justice system. [66] R. v.

Anthony-Cook explains why it is that trial judges must approach joint submissions with such deference and why the legaltest for rejecting them is onerous. Plea negotiations are not only commonplace in the criminal justice system, they are essential. Properlyconducted, they permit the system to function smoothly and efficiently. In order for joint submissions to work properly both for victimsand for offenders, counsel need to rely on a certain degree of certainty in the result.

They must rely on judges to not lightly set jointsubmissions aside. [67] The test established in Anthony-Cook, which I have applied here, is that a joint submission shall not be rejected unless theproposed sentence would be contrary to the public interest. This is a higher test than finding that a sentence is unfit or even demonstrablyunfit.

In explaining what the public interest test actually means, the Supreme Court explains that a joint submission will: ...be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “"markedly out of linewith the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system". ...trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of thecourts".

A sentence that is contrary to the public interest is one that is: ...so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons,aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that theproper functioning of the justice system had broken down. [68] The question here is not what I think the sentence should be but whether the sentence being proposed is contrary to the publicinterest.

In this case I find that the joint submission is contrary to the public interest and I am rejecting it for the following reasons. [69] First, with respect to the term of incarceration, I find that in the specific circumstances of this plea negotiation, a one-year jailsentence, cannot be reconciled with the principles and ranges of sentence established in the appellate authorities. The totality of thecircumstances here put Mr.

M. in a substantially different range of sentence than counsel has submitted, resulting not only in an unfitsentence but one that is contrary to the public interest. [70] The cases that were provided last day lack the defining aggravating features of this case, which are: first, that the offender wasin loco parentis; second, the fact that the sexual touching was facilitated by years of abuse, which has led to an amplified impact on thevictim; third, the focused intention and planning; and, fourth, the humiliation and violence, both physical and psychological, that goesbeyond what is inherent in the commission of the offence itself. [71] I have not been provided with cases that assist on how the aggravating circumstances put forward as part of the facts of this caseaffect the applicable range of sentence but, in fairness, these circumstances are thankfully unique and not easily comparable to othercases. [72] In my view, the nature of this offence and the aggravating factors bring this case into the line of authorities I have reviewedearlier that stress the need for deterrence and denunciation where offenders in loco parentis abuse children for an extended period oftime.

The invasive sexual touching may have only happened on two discrete occasions but the abuse itself spanned years and the meansby which it was accomplished and the impact it has had, bring these circumstances into line with the principles that are articulated in R.v. Woodward, supra.

[ 73 ] I find this is a case where the degree of the sexual assault is also distinguishable from the cases relied upon by counsel. The abuse Mr. M. inflicted was called punishment, it was intended to humiliate and degrade and it was accomplished by threats and coercion. It involved hitting her breasts and genitals.

There is no suggestion that this was with force sufficient to cause injury, but it cannot be said that violence is absent from this offence. [ 74 ] In my view, the range of sentence for this offence is defined by the cases I have outlined earlier where the emphasis on denunciation and deterrence has led to sentences in excess of two years. While the sentence here needs to include the rehabilitation of Mr. M., that objective cannot take priority over general deterrence and denunciation in a case such as this.

The Probation Order [ 75 ] I find that the 18-month probation order is contrary to the public interest for the following reasons. [ 76 ] First, with respect to the need for protective conditions for the victim. M.M.'s victim impact statement indicates an ongoing fear of the offender despite his compliance with bail. She is not yet an adult. She has been subjected to the confusing experience of having a person she loves as a parent inflict harm on her.

Imposing a maximum period of probation with protective conditions would take the complainant further into adulthood when she may be better able to manage her relationship or lack thereof with Mr. M. without a court order. [ 77 ] I also find that the 18-month probation order is not adequate to meet the rehabilitative function of the probation order. Counsel have emphasized in their submissions the importance of rehabilitation for Mr. M. and I do not disagree with that.

Since his arrest, he has demonstrated an ability to engage with counselling without a court order; however, the psychological assessment highlights some areas of concern when it comes to his ability to follow through with the programming. [ 78 ] While the assessment suggests he is at low risk for future sexual offending, this is conditional on him maintaining stability in his life and abstaining from certain behaviour. This could be addressed by the supervision and restrictive conditions counsel have recommended.

But this case is distinguishable from some of the authorities I have been provided where the offenders have demonstrated through years of prosocial living post-offence that they are not a danger to the community. Mr. M.'s offending is recent, the conduct requiring rehabilitation persisted over a lengthy period of time and the abuse was only cut short when M.M. made her complaint to authorities. [ 79 ] While Mr.

M.'s rehabilitation is an integral part of a fit sentence, for all these reasons, the probation order must be longer than 18 months. [ 80 ] In conclusion, I find that that this particular joint submission is contrary to the public interest because it fails to give sufficient weight to the principles of general denunciation and deterrence, it does not adequately protect a vulnerable complainant and it does not provide sufficient supervision over Mr. M.'s rehabilitation. [ 81 ] Counsel has suggested that increasing the jail term by six months is akin to the kind of tinkering that Anthony-Cook is meant to address.

In my view, the sentence I am imposing is not a minor variation to the joint submission. These are the only tools that the court has available to craft a fit sentence given the

summary nature of these proceedings. [ 82 ] Stand up, Mr. M.

Your sentence is 18 months' incarceration. [ 83 ] I am making an order under s. 743.21 that you are not to have any contact with M.M. while you are in custody. [ 84 ] Your term of incarceration will be followed by three years of probation and I am going to go through those conditions now. [ 85 ] You must keep the peace and be of good behaviour. [ 86 ] You must appear before the court when required to do so by the court and you must notify your probation officer in advance of any change of name or address and promptly notify your probation officer of any change of employment or occupation. [ 87 ] You must have no contact or communication, directly or indirectly, with M.M., except you may have indirect contact with her on one occasion in the form of an apology letter should you choose to write one, which will be provided to and approved by your probation officer. [ 88 ] You must not go to or be within 100 metres of any residence, school or workplace of M.M. [ 89 ] You must not go to any other place where M.M. could reasonably expect to be present, including the residence of her friends or boyfriend. [ 90 ] You must report in person to a probation officer at Chilliwack Community Corrections, the address will be inserted in the order, within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 91 ] You must reside at a residence approved in advance by the probation officer and you must provide your probation officer with your phone number. You must not change your residence or phone number without written permission from your probation officer. [ 92 ] You must provide your probation officer with the particulars of your relationship status. I will pause to say that, by that, I mean telling your probation officer about any person you are in a romantic relationship with, either dating or married or living with.

You must provide the contact information for any such partner to your probation officer. You must inform your probation officer within two business days of any change in your relationship status. You must advise your probation officer if any person you are in a romantic relationship with has children so that she can be notified about these conditions.

[ 93 ] You must not go to any public park, public swimming area or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, including any daycare centre, school ground or playground. The exception is if you are in the immediate presence of another adult and only after he or she has been informed by your probation officer of this order and your history, as described in these proceedings.

I will also make an exception if you have the written permission of your probation officer. [ 94 ] You must have no contact or communication, directly or indirectly, with nor be alone in the presence of any person who reasonably appears to be under the age of 16 years except: one, if they are your children or the children of your spouse and then only with the permission of your spouse or if such permission is not granted, in accordance with a family court order where the judge has been informed of the circumstances of this conviction and these conditions; two, you may have contact with other persons under the age of 16 years if you are in the presence of a sober adult aware of this court order, who has been informed of these charges by your probation officer; and, third, you may communicate with a person who appears to be under the age of 16 years if in the course of legitimate retail transactions and then only while in public and such communication will be limited to that retail transaction. [ 95 ] You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. [ 96 ] You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer and, having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling or treatment program, as provided through Forensic Psychiatric Services. [ 97 ] I am imposing a weapons prohibition given this offence is inherently violent and was committed against a young person.

That is, you must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code or any related authorizations, licences or registration certificates. [ 98 ] You must not possess any pornographic material or access any pornographic material by electronic means. [ 99 ] You must not use any device capable of accessing the internet unless you consent to the inspection of the device by your probation officer or a peace officer and you must not delete the history of internet use from the device. [ 100 ] You must not possess any device capable of storing digital images unless you consent to inspection of the storage device by your probation officer or a peace officer.

Having consented, you must provide the device and any password used to lock the device to your probation officer or peace officer, upon their request, in order for him or her to monitor your compliance with this order. [ 101 ] Those are all the conditions of the probation order. [ 102 ] With respect to the ancillary orders, this is a primary designated offence under s. 487.051(1) of the Criminal Code so I am making an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank.

The samples will be taken from you while you are in jail and you must submit to the taking of those samples. [ 103 ] Furthermore, pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registration Act for a period 10 years. [ 104 ] I have considered whether a discretionary weapons prohibition is appropriate under s. 110 and I am declining to make that order given that Mr. M. will be bound by a weapons prohibition for the term of the probation order. [ 105 ] I am going to further order, unless counsel have any submissions on it, that the psychological assessment be released to Mr.

M.'s probation officer so that it can assist with supervision and rehabilitation. Anything? (DISCUSSION WITH COUNSEL) [ 106 ] I am declining to add M.M.'s mom to the no contact provisions in the probation order, given that they do need to be tied to the circumstances of the offence and given the objectives of that order to protect the victim of the offence or any potential victims.

I do not see that as something I have jurisdiction to make today based on the circumstances that are in front of me. [ 107 ] With respect to the request to add further names to the s. 743.21 order, I will add the same provision that I have added in the probation order, which is as follows, that you will not have contact with any children or children of your spouse except with the permission of your spouse, or, if such permission is not granted, in accordance with a family court order where the judge has been informed of the circumstances of this conviction. [ 108 ] MR.

LINDSEY: Can we put the names of the children in? [ 109 ] THE COURT: For clarity, the names of the children are? [ 110 ] MR. LINDSEY: D., [omitted for publication] and D., [omitted for publication] M. [ 111 ] THE COURT: Yes, I will make that order. [ 112 ] MR. LINDSEY: Thank you. [ 113 ] THE COURT: Good luck, Mr. M. [ 114 ] MR. LINDSEY: Direct a stay of proceedings on the outstanding counts, 2 and 3, on the dash 1 Information. [ 115 ] THE COURT: Thank you.

(REASONS FOR SENTENCE CONCLUDED) _____________________________ The Honourable Judge A. Ormiston Provincial Court of British Columbia