R. v. J.R.B., 2022 BCPC 43

Citation: R. v. J.R.B. 2022 BCPC 43 Date: 20220324 File No: 67407 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J. R. B. A publication ban has been mandatorily imposed under ss.486.4 & 486.5 of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Fogel and K. Fast Counsel for the Defendant: W. Smart and N.

Gilewicz Place of Hearing: North Vancouver , B.C. Dates of Hearing: May 31, Jun 1-3, 30, Oct 6, 2021; Feb 16, 2022 Date of Judgment: March 24, 2022 [ 1 ] J.R.B. was found guilty after trial on one count of sexual assault contrary to s. 271 of the Criminal Code . The offence occurred on July 15 th of 2019. The trial concluded in late June of 2021 and he was found guilty on October 6 th 2021. The reasons for conviction

are reported as R. v. J.R.B. 2021 BCPC 242 . [ 2 ] The Crown submitted that a period of incarceration between 12 to15 months would be a fit and proper sentence. Counsel for the offender took the position that a one year jail sentence is sufficient to serve the need for denunciation and general deterrence which are the principles of sentence to be given primary weight in sexual offences. [ 3 ] The Crown proceeded summarily. The maximum sentence permitted is 18 months. CIRCUMSTANCES OF THE OFFENCE [ 4 ] The offender and the victim were employed as officers at a municipal police department.

The offence occurred in the context of a work related golf tournament. The offender and victim did not know each other prior to the night of the offence. [ 5 ] The victim was invited by another officer, who was a close colleague and friend, to come to the resort for the evening as there was a spare bed in his suite. She decided to attend at the last minute and arrived at the hotel around 8 p.m. Various officers were in the suite socializing and consuming alcohol and food.

The offender met the victim there briefly before he and some others went out for dinner and then rejoined the victim and others back at the room later in the evening. [ 6 ] The room emptied out around midnight as people wanted to go out into the resort. They went to a bar in the hotel for a drink. The group left the hotel but were unsuccessful in getting into a nightclub and so returned to the hotel bar. By this time, both the offender and the victim had been drinking continuously over several hours and continued to consume hard liquor.

The victim’s friend overconsumed to the point of vomiting in the bar and left to go back to his room. [ 7 ] After last call, the victim and the offender went to the offender’s suite in a nearby hotel. One officer was already there asleep. The other officers who were staying in that suite joined them. They continued to drink and socialize there for around an hour. [ 8 ] The victim became ill and vomited in the bathroom. The offender was not made aware she had become sick. However, after she left the bathroom the offender invited her to lie down on the fold out couch in the living area where he was to sleep.

The only reason for suggesting this occur was because she was apparently unable to make it back to her friend’s hotel room due to her level of intoxication. She took off her shoes, got into the bed and fell asleep. [ 9 ] She was awoken by the offender performing cunnilingus. She had snippets of memory of some events consistent with sexualized contact which preceded her reaching full consciousness. As soon as she realized what was happening she told the offender to stop and he complied. One of her pant legs and one side of her underwear was off one leg. [ 10 ] She immediately got out of the bed and left the suite.

VICTIM IMPACT [ 11 ] The victim has been profoundly traumatized by the offence. [ 12 ] She believes she should have been safe in the company of the offender as he was not only a colleague but, given his occupation, should have been trustworthy. [ 13 ] She will forever be uncertain about the extent of the sexual contact he perpetrated against her. [ 14 ] She has suffered emotional and psychological damage which has negatively impacted her own mental health, her marriage and her relationship with her children. [ 15 ] She feels her employer has not been supportive and that by coming forward with her complaint her career has been irreparably damaged.

ANTECEDENTS OF THE OFFENDER [ 16 ] The offender, age 53, is of previous good character. He has been married for 27 years and there are three children of the marriage. Letters were filed which speak to the offenders many positive qualities as a family person, colleague and friend. [ 17 ] The offender filed a letter he wrote to the Court expressing his acceptance of responsibility for the circumstances which led to the commission of the offence.

He spoke to the loss of a 28 year career as a well regarded police officer, an occupation he greatly enjoyed, his regret for the pain and shame he has caused his family and friends and the steps he has taken to address his risk factors. [ 18 ] The offender does not accept the verdict of the Court and maintains that the victim consented. This is a neutral factor in determining an appropriate term of incarceration.

Nevertheless, the offender is prepared to participate in any treatment or programming as directed by the Court. [ 19 ] A psychological assessment was before the Court which found him to present a low risk to re-offend. It was recommended that the offender participate in sex offender programming to ensure he continues to present a low risk over time. The offender acknowledged a long standing alcohol abuse issue which contributed to the offence. He has taken steps to abstain except for the very occasional “two drinks” when socializing. THE LAW [ 20 ] The principles of sentence are set out in ss. 718 to 718.21.

I have considered them carefully. [ 21 ] In R. v. Pommer 2008 BCSC 737 the court provided a concise

summary of the purposes, objectives and principles of sentence.

[42] The “normative” principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Criminal Code (see. R. v. L.M., 2008SCC 31).

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 ofthe Criminal Code: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separateoffenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to thecommunity; and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to thecommunity. [43]

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating ormitigating circumstances relating to the offence or the offender, evidence that the offender in committing the offence abused theoffender’s spouse or a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictivesanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered. [22] I find the oft cited passages from R. v.

M. (C.A.) (SCC), [1996] 1 S.C.R. 500 at paragraphs 79 to 81 where thecourt addressed the concepts underlying our understanding of denunciation and retribution to be apposite and worth repetition in parthere: 79 Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, inaddition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moralculpability of the offender.

In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law throughthe fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound beliefthat retribution represents an important unifying principle of our penal law by offering an essential conceptual link between theattribution of criminal liability and the imposition of criminal sanctions.

With regard to the attribution of criminal liability, I haverepeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if anaccused possesses a minimum "culpable mental state" in respect of the ingredients of the alleged offence….. It is this mental state whichgives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminalsentence.

I submit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantumof punishment for a convicted offender as a "just sanction". …..it is a recognized principle of our justice system that "punishment bemeted out with regard to the level of moral blameworthiness of the offender" …. 80 However, the meaning of retribution is deserving of some clarification.

The legitimacy of retribution as a principle ofsentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance…..But it should beclear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retributionas a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilizedsystem of sentencing.

Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated byemotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, representsan objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of theoffender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requiresthe imposition of a just and appropriate punishment, and nothing more. 81 Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires thata judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that asentence should also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatoryelement represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basiccode of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated "society, through the courts, must showits abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

Therelevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vastsystem of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear incommitting an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply themeans by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour,judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadiansas expressed by the Criminal Code. RANGE OF SENTENCE [23] The Crown provided the Court with a number of authorities which support the range of sentence of 12 to 15 monthsimprisonment: R. v Mikula 2016 ONCJ 467; R. v. M.W. 2020 ONSC 3513; R. v. Webber 2021 BCSC 1194; R. v. Sinocco 2017 ONCJ359. Counsel for the offender provided the Court with R. v.

C.R.R. 2010 BCPC 315. [24] These authorities involve violations of the sexual integrity of unconscious or sleeping victims. Although they involve differentsexual acts committed by offenders whose circumstances are distinguishable from the offender before the Court, they support thesubmissions of counsel. AGGRAVATING AND MITIGATING CIRCUMSTANCES [25] This offence involves a breach of trust as between colleagues. The offender took advantage of a person who was in a vulnerablestate, due to intoxication and being asleep, in order to satisfy his sexual wants.

The extent of the sexual violation he perpetrated isunknown to the victim. The nature of the sexual interference she is aware of was intrusive. The offender bears a high degree of moralblameworthiness: R. v. Martin-Clemens 2014 BCPC 87 at paragraph 16.

[26] The primary mitigating circumstances are the offender’s previous good character and that he presents with a low risk to re-offend. He continues to have the support of his family and members of the community. Any period of incarceration will be spent inprotective custody which, even though for his own protection, will result in a much more punitive custodial experience: M.W. atparagraph 49. ANALYSIS AND CONCLUSION [27] The collateral consequences experienced by this offender are those which any person of good character who commits a crime ofmoral turpitude can properly expect to face.

He has been publicly vilified in the media. He has lost his employment. He has beenshamed and has brought shame to his former employer, a police force. These factors do not mitigate the seriousness of the offence. However, such factors do form part of the matrix of circumstances which must be considered in determining a proportional sentence: R.v. Sood 2019 BCPC 82. [28] The stigma of an investigation and prosecution for a sexual offence, the loss of a career and one’s standing in the community canalso be seen to constitute punishment: R. v. D.E.S.M. (BC CA), [1993] B.C.J.

No. 702. [29] However, regardless of one’s previous position as a person of trust or good standing in the community or the shame and disgracesuch an offender may have experienced, there remains a pressing need to impose a sentence which speaks to retribution and our society’sabhorrence of sexual offences which constitute a serious violation of our communal values: R. v. Robinson 2012 BCSC 1134. [30] The over consumption of alcohol explains why this offender acted as he did. It does not in any way justify or excuse hisconduct.

We can only hope that others will pay heed to the circumstances of this offence, serving as it does to clearly illustrate the perilsof abusing alcohol. Too often we see people of otherwise good character who, after over consuming alcohol and in the course of a fewminutes, commit a serious offence which changes the course of a victim’s and their own lives irrevocably. [31] There is no need to separate this offender in order to protect the public. I accept that he has been specifically deterred.

Hisrehabilitation is already well established and can be further effected through programming which can be completed in under a year. [32] The narrow question is what period of incarceration is necessary to deter similar offenders from committing similar offences, toclearly denounce any interference with another person’s sexual integrity and to condemn this offender’s conduct. [33] I must balance the need for general deterrence and denunciation against the principal of restraint.

Any sentence imposed must beproportional to the gravity of the offence and the degree of responsibility of the offender. [34] In all the circumstance of this offence and this offender, I find that a sentence of a one year in prison meets the need for generaldeterrence and denunciation. I agree with counsel that there is no need for a probationary term to follow due to this offender’s alreadywell established reformation. [35] Mr. J.R.B. please stand. I impose a term of incarceration of twelve months. ____________________________ The Honourable Judge Challenger Provincial Court of British Columbia