R. v. C.V.B., 2020 BCPC 198

Citation: R. v. C.V.B. 2020 BCPC 198 Date: 20200220 File No: 72549-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.V.B. PUBLICATION BAN 486.4(1) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. LEVEN Counsel for the Crown: E. Sukkau Counsel for the Defendant: K. Jones Place of Hearing: Prince George , B.C. Date of Hearing: February 20, 2020 Date of Judgment: February 20, 2020

[ 1 ] This is my decision on sentence for C.V.B. on court file number 72549-1. [ 2 ] C.V.B. had entered a guilty plea previously to Count 2 in the Information that between the 21st of June of 1997 and the 21st of June, 2002 inclusive, that he did for a sexual purpose touch, directly or indirectly, with a part of his body or with an object, the body of N.B., a person under the age of 14, contrary to s. 151 of the Criminal Code . [ 3 ] An agreed statement of facts was filed and I am going to make some reference to the agreed statement of facts.

I will read certain of those facts into the record because they are the foundation of what is before me here today. [ 4 ] C.V.B. was the father of N.B. N.B. was born on [omitted for publication]. This made him during the time of the Information -- there was a range of age 9 to 14. C.V.B. was born [omitted for publication]. During the relevant time on the Information he was 37 to 42 years of age.

During the relevant time C.V.B. and N.B. lived in Prince George, in two different locations, either a condominium, or there was another residence where they lived. [ 5 ] C.V.B. was the father of N.B. and, therefore, in a position of trust.

On many occasions during the time period covered in the Information, C.V.B. touched N.B. for a sexual purpose by touching N.B.'s genitals, massaging N.B.'s back and buttocks, rubbing his genitals against and between N.B.'s buttocks, and having N.B. sit on his lap while C.V.B.'s penis was erect, and flexing or thrusting his pelvis against N.B.'s buttocks. [ 6 ] The sexual abuse took place on numerous and frequent occasions and included, but was not limited to, the following specific incidents:

a) C.V.B. fondled N.B.'s penis and testicles when N.B. was approximately 9 years old, under the guise of making sure N.B.'s body was properly developing through puberty;

b) C.V.B. would pull N.B. on to his lap when C.V.B. had an erection, and would flex his pelvic muscles, or thrust against N.B.'s buttocks. C.V.B. would do this three times, which resembled the B. family's customs of squeezing three times while holding a family member's hand to say I love you.

c) At bedtime, C.V.B. would massage N.B.'s bare back and buttocks when N.B. was approximately 12 or 13 years old. C.V.B. would straddle N.B. during the massage wearing nothing but a bath robe. N.B. could feel C.V.B.' genitals against his body, and could not move, because C.V.B. was sitting on him. On some occasions when this happened, C.V.B. would have an erection.

d) On one occasion when C.V.B. was straddling and massaging N.B. he began to rub his penis on and between N.B.'s buttocks, C.V.B. did so until he ejaculated on N.B.'s buttocks and back. C.V.B. then got up, apologized briefly, and left.

e) When N.B. was between 12 and 14, he and C.V.B. slept in a tent in their basement, that night C.V.B. exposed his naked body to N.B., and when N.B. attempted not to look, C.V.B. told him to do so over and over. C.V.B. attempted to convince N.B. to engage in sexual acts that night, but did not use any specific terms.

f) When N.B. was between 14 and 16, C.V.B. would make comments about purchasing sex toys for N.B., and helping him use these sex toys while masturbating; and,

g) When N.B. was between 14 and 16, C.V.B. would watch N.B. when he was getting dressed. [ 7 ] C.V.B. would describe these sexual acts to N.B. as being normal, and a part of a loving father and son relationship, he often referred to the sexual acts by using terms like "being intimate". [ 8 ] C.V.B., while engaging in the sexual acts would sometimes ask N.B. if it was okay, on some occasions N.B. would respond in the affirmative, as he wanted to get it over with as quickly as possible. [ 9 ] C.V.B. would leave homosexual pornography in N.B.'s room for N.B.

On the pornography C.V.B. would write notes encouraging N.B. to masturbate and offering to buy N.B. sex toys. [ 10 ] The sexual abuse took place for six or seven years from when N.B. was 9 years old until he was approximately 16 years old. On at least two occasions N.B. confronted C.V.B. about the abuse. C.V.B. denied any wrongdoing.

C.V.B. told N.B. that he had consented to the sexual acts. [ 11 ] On October 24, 2018, N.B. called the Prince George RCMP and reported the historical sexual abuse. [ 12 ] On November 1, 2018, N.B. provided a statement to the RCMP in Manitoba. [ 13 ] On January the 16th, C.V.B. provided a statement out of custody to the Saskatoon police. In that statement he admitted the following:

a) when asked what type of person commits a sexual assault, C.V.B. stated it would be someone seeking control of some kind on the subconscious level, or someone upset or feels out of control or angry about something.

b) He did not think it would come to this, and did not think his son would call police before communicating with him first.

c) He admitted that the sexual assault happened.

d) He admitted that he did not understand why N.B. would speak to the police rather than talk to him in a personal approach.

e) When asked if he sexually assaulted N.B., C.V.B. said in the technical term, like in the dictionary term, yes. To his recollection the assaults took place between the time that N.B. was 10 to 14. He remembered those sexual assaults as events being in the new home only.

f) On one occasion C.V.B. and N.B. were tenting in the backyard, C.V.B. asked N.B. to take off his clothes. N.B. refused and kept his underwear on. C.V.B. then got into the sleeping bag with N.B. and snuggled with him. C.V.B.'s front was to N.B.'s back, and he was aroused on this occasion.

g) He admitted that he would rub N.B.'s back and bum, and that he moved his hands to N.B.'s scrotum and massaged.

h) He had asked N.B. to pull his pants and underwear down, which he stated was in order to see if N.B.'s scrotum had dropped, and that he touched N.B.'s scrotum. He thought this happened twice.

i) He admitted he would crouch over N.B. in his underwear or housecoat and rub N.B.'s lower back and bum under his clothes, and would rub his genitals against N.B. And that on one occasion he became aroused and ejaculated on N.B.'s buttocks.

j) On one occasion C.V.B. had N.B. crouch on all fours, and C.V.B. sat behind N.B., pulled his buttocks apart and blew on his anus, asked if N.B. liked it.

k) That he felt N.B. had made a grave error telling Mrs. B. about the sexual abuse, and that he feels that N.B. had put a horrible burden on Mrs. B. by doing so.

l) That he had written a letter to N.B. apologizing and telling N.B. he did not hold him responsible.

m) He vaguely remembered N.B. telling him that the sexual abuse needed to stop at the age of 14, 15, or 16. That he probably told N.B. not to tell anybody about the sexual abuse; and,

n) That there was lots he could not recall due to the passage of time. [ 14 ] C.V.B. was charged on June the 18th, and was arrested pursuant to a warrant that was issued on June the 21st. He was released on June the 22nd on an undertaking given to a judge. [ 15 ] On September 11, 2019, C.V.B. entered a guilty plea to the charge that I have referred to on the Information. C.V.B. has no outstanding breach charges, and C.V.B. does not have a criminal record. [ 16 ] Those are the facts admitted by both the Crown and defence for the purpose of sentencing.

The statements that I referred to that relate to C.V.B.' statement were extracted from a warned statement which was also attached to the back of the agreed statement of facts. I have reviewed that briefly and agree with counsel that it is a relevant representation of what C.V.B. had said in the circumstances. [ 17 ] There have been two reports prepared.

There was a presentence report prepared and filed in these proceedings on November 21, 2019, and there was also a psychiatric, psychological assessment prepared and filed, it looks like November 22, 2019, based on the copy that I have. [ 18 ] The presentence report, and I will return back to some of the comments in the report later, when I deal with aggravating and mitigating factors, but the presentence report seems to indicate that during the relevant time C.V.B. was suffering a severe personal crisis, that he had some marriage difficulties, that he had some employment difficulties, and the report also indicates that -- and it has been submitted and I accept -- that C.V.B. had sought out some counselling, has attended some counselling sessions, that he issued an apology to N.B., and I have been referred more specifically to the contents of that apology.

The presentence report also identifies that perhaps C.V.B. holds some anger towards his son; that is addressed specifically in relation to C.V.B. having lost his employment, and C.V.B. suspecting that was as a result of his son contacting his employer. [ 19 ] I also have the psychiatric report, which was prepared by Dr. Beauchemin, and by the B.C. Mental Health Forensic Psychiatric Services Commission, and again I will refer back to this a little bit later, but the report summarizes at the end that C.V.B. has a minimum to moderate risk to reoffend in a sexual way.

It identifies that among the most salient risk factors were his extreme minimizations, his partial insight, and his personality features, specifically at page 6 of the report, starting at page 5 at the bottom, the writer, under a headline of "Psychological adjustment," and has a heading "Extreme minimization or denial of sexual violence," indicates that this risk factor measured a positive for C.V.B. That C.V.B. tended to blame others.

And I was pointed out that this was a typo, that the indication here is "wife seemed completely out of control," it makes good sense to me that that might have been "life," so I do not consider that, that there is any blaming of others, but what I do consider there is that statements by C.V.B. apparently that the victim had asked for a back rub, snuggled and cuddled, and did not move away, so that seems to suggest some level of blaming.

At the same time, C.V.B. had told the report writer that he does take full responsibility and that his behaviours were very ugly. [ 20 ] I certainly accept that there is an acceptance of responsibility here, there was a guilty plea, there was no denial of the behaviour, there was a very lengthy and detailed statement, which was given to the RCMP, which contained some information that I am not even sure N.B. provided, that information came from C.V.B., so all of that certainly suggests that there is an acceptance of responsibility.

Perhaps the insights are limited, but there is certainly some insight here, and that, as I will explain later, I consider that a mitigating factor. I do not think Crown takes issue with that. [ 21 ] The question becomes what is the appropriate sentence. The Crown is seeking a sentence of five years' incarceration, and with a number of ancillary orders. None of the ancillary orders are contested.

The defence is seeking a sentence of a conditional sentence order, and a three-year probation order to follow. [ 22 ] It is important that I consider the law as it existed at the time, so from June 1997 until June 2002, is the time period that I have to consider for what the law at that time said. There are many additions to the Criminal Code , s. 718 and the sections thereafter, that have

since then expanded on sentencing factors, identified mitigating and aggravating sentencing factors, created mandatory minimumsentences, things of that nature, none of that I can consider, I have to consider what the law was at the time. [23] At the relevant time, there was no minimum punishment for this offence, and that because the Crown proceeded by indictmenton this charge, the maximum sentence is one of 10 years. I should consider s. 742.1 of the Criminal Code, as it existed at that time, andMr.

Jones argues, and Crown does not disagree, that a conditional sentence order at that time was available, provided that certainpreconditions were met. The first of those preconditions was that I would have to be convinced that a sentence of imprisonment of lessthan two years was the appropriate sentence, so I will return to that. [24] The Crown is opposed to a Conditional Sentence and is seeking a sentence of five years of imprisonment. [25] N.B. addressed the court.

N.B. filed and read out a victim impact statement which was filed as Exhibit 1 in the proceedings, and Iam not going to go through that entire statement, but I wish to read certain portions of that into the record, because it is without questionthat this offence has had a great impact on N.B. He writes and expressed in court, under emotional impact, the following: The things that were done to me should never be done to anyone, let alone a child. I spent much of my childhood afraid and feelingunwanted and unsafe, and wishing I could disappear.

The damage that is done to a child when the trust of a primary caregiver is brokenis perceived as life-threatening to that child. Kids are dependent on their caregivers to get all they need to survive. What I got was abuse.And because of that I have lost an immeasurable amount of time wishing I was dead, instead of being a kid. Further on, N.B. writes: Because of the impacts of trauma I didn’t truly know who I was until I was 30 years old, and a year and a half into therapy. I was finallyable to start moving into who I was meant to be. It made me feel like used up garbage that should be thrown away.

It has made me feellike an object to be used, it made me feel broken, damaged, unlovable and unworthy of good. It has made me feel completely worthless. Further on: The impact of sexual assault and rape are immeasurable, trauma is debilitating; childhood abuse from my primary caregiver isunthinkable. Yet with all I've said, I can say this, I don’t want my dad in prison; that is not a commentary on sentencing, what I mean tosay is that a child should never have to be put in this position with their parent. It is devastating.

In conclusion N.B. writes: This statement was immensely difficult to write, I put it off for far too long, but I needed to write it. I need C.V.B. to hear how he hasimpacted the world. I have suffered unimaginably because of the abuse he perpetrated and the unsafe home he made. But I know this, Ihave survived. I am beginning to thrive. The worst is over. Nothing I can endure is harder than what I have already been through. This issomething that should never have happened to anybody. People are sacred, people are inherently beautiful, people are inherently worthyof dignity, love and goodness.

It is our humanity that makes those issues true. C.V.B. stole my humanity for a time, and I have taken itback, I am breaking the cycles of abuse and trauma, and raising my boys differently. Whatever happened to C.V.B. to make him this wayis not something I need to worry about, except to say that the buck stops here, it's over, the cycles of abuse are done, I have survived andI will thrive. [26] Crown counsel has directed me to a number of decisions, and I have reviewed those decisions. I have been referred to thedecision of R. v.

C.A.S., 2015 BCPC 241, and it is a decision of our court, of the Regional Administrative Judge Brecknell, here in PrinceGeorge, and at paragraph 88 of that decision, Regional Administrative Judge Brecknell quotes from a case of R. v. D.(D.), of the OntarioCourt of Appeal reported at (ON CA), 2002 58 OR (3d) 788. The court there, and Judge Brecknell in R. v. C.A.S.,were addressing a circumstance where an adult person was being sentenced for sexual abuse against a child or children, and atparagraphs 34, 35, and 44 of R. v.

D.(D.), which Judge Brecknell adopts, the court said the following: [34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk tosatisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code, 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. [35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are atonce our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defendingthemselves against predators like the appellant and, as such, they make easy prey.

People like the appellant know this only too well andthey exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. … [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. [27] In R. v. C.A.S., Judge Brecknell also quotes the case of R. v.

Stuckless, (ON CA), 1998 127 CCC (3d) 225, adecision of the Ontario Court of Appeal, where Justice Abella, as she was then, says the following: [42] The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences.There is no question that "additional force", "collateral crimes" and penetration are aggravating factors. But their absence does notthereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust,

the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were, individually and collectively, unconscionable… [ 28 ] Obviously there were different factors that came about in Judge Brecknell's and Madam Justice Abella's sentencings, but the message remains the same.

When considering other historical cases, it is evident that, despite recent changes to the Criminal Code , the sentencing principles have not greatly changed. [ 29 ] In this case, I need also consider mitigating and aggravating factors, and then apply those to C.V.B.'s situation and to the offence at hand. I do agree with the Crown that there are a number of aggravating factors here, and that they are as follows. There were different types of sexual contact, there were many different incidents of such contact, and the offending behavior went on for a number of years.

There was a breach of trust, C.V.B. was N.B.'s father, and was also one of his primary caregivers. N.B. was as young as 9 when these offences started. I consider the impact on N.B., and his powerful victim impact statement, and the great impact on N.B. [ 30 ] I also consider that there was some grooming behaviour involved here. There was some showing of pornography normalizing this behaviour, I consider that to be premeditating and grooming behaviour. There is psychological manipulation, C.V.B. told N.B. not to tell others. He also told N.B., when confronted by N.B., that N.B. had consented to these acts.

Some of the sexual assaults occurred in N.B.'s own bedroom. If a child cannot feel safe in their own house and in their own bedroom, there is no place in the world they could possibly feel safe. [ 31 ] The lack of insight is also a factor I consider. While C.V.B. does indicate some remorse, there is certainly a lack of insight, and some level of either minimizing or deflecting the responsibility from himself onto N.B. in that he says N.B. agreed, or did not object, to some of what happed. [ 32 ] On the other hand, there are also mitigating factors.

I consider that C.V.B. is almost 60 years of age; he does not have a criminal record; and, as I have said previously, he was cooperative. Not only did he enter a guilty plea, but he gave a statement, which was not just a general statement of culpability, it was a statement in which he admitted and went into quite some detail about what had occurred. He also, as his counsel read out, sent an email apologizing to N.B. He did so prior to being charged, but after N.B.’s disclosures to his mother. Nevertheless, I do consider that the email was an expression of remorse.

C.V.B. has sought out counselling, again after the allegations were brought to light, and before he was charged, but he sought out counselling and attended a number of counselling sessions. [ 33 ] The Psychiatric assessment filed puts him at a low to moderate risk to reoffend. I consider that more of a neutral factor. [ 34 ] I have been provided with a number of sentencing cases and will refer to some of them: [ 35 ] In R. v. S.L.D. , 2017 BCPC 349 , the offender was the father of a female victim. He pled guilty of abusing her over a period of time, for about five years, from ages 6 to 10.

This involved fondling, oral sex by the victim on him, and on one occasion she was naked on top of him. There was a plea to sexual inference. The court considered the breach of trust, the age of the complainant, the duration of the offending and grooming behavior. The mitigating factors in that case were an early guilty plea; that the offender was remorseful; lacked a criminal record, and had gainful employment. The court imposed a five-year penitentiary sentence. [ 36 ] In R. v. B.A.S. , 2019 BCPC 47 , the offender was 61 years old at the time of sentencing.

The victim was an adopted daughter who was young when the offending started. The offences were historical and occurred at least 20 years prior to sentencing over a period of eight or nine years. He was given a low risk to reoffend. There was a joint submission by Crown and defence for three years, and the court accepted that. [ 37 ] In R. v. D.H. , 2018 BCPC 203 , the offender was the foster dad to the victim, and was convicted of sexual interference for abusing her over a four-year period from when she was aged 10 to 14. The behavior involved intercourse and oral sex. There were some mitigating factors.

The offender was deeply remorseful and had taken some significant efforts towards treatment. In this case, the court considered a conditional sentence order, found that it would be unfit, and imposed a sentence of four years imprisonment. [ 38 ] In R. v. K.J.M. , 2016 BCPC 306 , the offender pled guilty to sexual interference of a stepdaughter, when she was between the ages of seven and thirteen. There was oral sex, and intercourse, and it seems to have involved her being held down. She was pregnant and gave birth to the offender's child. The Court imposed an eight-year period of imprisonment.

I consider those facts significantly more aggravating than what we have here. [ 39 ] In R. v. R.M.D , 2014 BCCA 56 , a 51-year-old offender was convicted after a trial. This was a sentence appeal and The B.C. Court of Appeal, lowered his sentence to eight years. The case involved multiple victims and a conviction for incest. I do not consider this case to be particularly helpful, but there were some statements in there about ranges of sentence. [ 40 ] In R. v.

Vautour , 2016 BCCA 497 , the offender was 50 years old, he pled guilty to a sexual interference, where he had sexually abused his stepdaughter, starting when she was 5 years old. The incidents were historical having happened at lest 20 years prior. The behaviour consisted of touching the vagina, digital penetration, making her touch his penis, and once he put his mouth on her vagina. There was a low risk of sexual recidivism and no criminal record.

This was a sentence appeal from a conditional sentence and the Court of Appeal allowed the appeal and imposed a period of imprisonment for a period for 30 months. [ 41 ] Finally, in R. v. T.D.F. , 2016 BCSC 984 , the offender pled guilty to sexual interference of a common law spouse's daughter over a five-year period. There was not an early guilty plea but the offender pled guilty after the victim had testified.

The offender had exhibited some genuine remorse, and was sentenced to 30 months incarceration. [ 42 ] Under the circumstances, I have gone over what I consider to be the aggravating and the mitigating factors. I give weight to the fact that C.V.B. has not required N.B. to testify, without a doubt that saved N.B. some further trauma. I consider from N.B.'s statements that he is in a very, very difficult position being here. I consider what he said in his victim impact statement he does not wish his father any ill will.

This has had a great impact on him however, and just having taken the step to bring the matter to this point has been very

difficult for him. [ 43 ] In all of those circumstances I consider it very mitigating that there is a guilty plea. I also consider it mitigating that C.V.B. had very quickly and frankly, in my view, disclosed honestly and as much as he possibly could about what occurred here. As I have said previously, some of the things that found their way into the statement seemed to be unique and were things that N.B. had not even said.

On the other hand, he denies some of the things that N.B. said, but I do not find that he purposely misled anyone about his involvement in all of this. [ 44 ] I need to consider whether it is appropriate here to impose a conditional sentence order. And the first thing I have to consider under s. 742.1 of the Criminal Code , as it read then, was whether I should impose a sentence of imprisonment of less than two years in this case. I have considered all of the cases, and I find that I would not impose a sentence of less than two years.

I will not be imposing a conditional sentence order. [ 45 ] The question then becomes what should I be imposing, in terms of a sentence. [ 46 ] I keep in mind the decisions that I have reviewed here, and the aggravating and the mitigating circumstances, and I find that the appropriate sentence in this case is one of 48 months, or four years imprisonment. [ 47 ] That is the sentence I impose on Count 2. [ 48 ] I was tempted to go even higher than that but for the mitigating factors that I have cited here, and that is only because the case law supports that and that is what the cases say I should be doing. [ 49 ] Count 2 on Information number 72549-1 is a primary designated offence.

Pursuant to s. 487.051 of the Criminal Code , I authorize the taking of samples of bodily substance from you, these samples will be taken from you while you are in custody, and you must submit to the taking of these samples. [ 50 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registry for 20 years. [ 51 ] I will also be making an order under s. 161, for a period of ten years.

You are prohibited for ten years from the date that you are released from prison, from (a), attending a public park or swimming area where persons under the age of 16 years are present, or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre; (a), being within two kilometres of any residence, school or workplace of N.B., and, specifically, any dwelling house where N.B. ordinarily resides, or any other school or workplace where N.B. attends, and (b), seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16. [ 52 ] I make an order under s. 743.21, that you are not to have any communication directly or indirectly with N.B. while you are in custody. [ 53 ] There will be a discretionary firearms prohibition for ten years: Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition or explosive substance, for ten years from today's date. _________________ G.

Leven, PCJ Provincial Court of British Columbia