R. v. A.J.J., 2021 BCPC 174

Citation: R. v. A.J.J. 2021 BCPC 174 Date: 20210607 File Nos: 101181 and 101181-2-A Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.J.J. BAN ON PUBLICATION Pursuant to

Section 486.4(2) Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. BROWN Counsel for the Crown: K. Fast Counsel for the Defendant: M. Vayeghan Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: March 31 and April 28, 2021 Date of Sentence: June 7, 2021

A Corrigendum was released by the Court on July 12, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction [ 1 ] On October 16, 2020, after a five day trial, I found Mr. J. guilty on counts 1 and 2 for sexually touching Z.J. (“Z.”) and J.J. (“J.”), contrary to

section 151 of the Criminal Code . I also found him guilty of counts 3 and 4, for sexually assaulting Z. and J., for which conditional stays of proceedings were entered pursuant to the Kienapple principle against multiple convictions. The circumstances of the offences, which took place on December 4, 2018, are set out in my Reasons and I will not repeat them here. [ 2 ] A pre-sentence report and psychological assessment were ordered and sentencing adjourned to allow time for their preparation. [ 3 ] On February 5, 2021, a warrant was issued for Mr.

J.’s arrest, alleging that he had breached his release order by failing to report. Mr. J. turned himself in and has consented to remain in custody. As of today, June 7, Mr. J. has been in custody for 118 days. [ 4 ] On March 31, at the commencement of the sentencing hearing, Mr. J. entered a guilty plea on Information 101181-2-A for failing to attend court on July 22, 2020, which was midway through the trial. Counsel’s Sentencing Positions [ 5 ] The offence of sexual touching a person under the age of 16 is set out at s. 151 of the Criminal Code and attracts a maximum sentence of 14 years.

The mandatory minimum one year sentence of imprisonment is no longer in force. [ 6 ]

Section 718.3(7)(

b) requires that sentences of imprisonment for sexual offences committed against more than one child be served consecutively. [ 7 ] The Crown submits that Mr. J. ought to be sentenced to a total period of incarceration of two years less a day, followed by two years’ probation. The Crown also applies for ancillary orders, including a 10 year prohibition order under s. 161. For the failure to attend court, the Crown proposes a sentence of 14 days, concurrent. [ 8 ] On Mr. J.’s behalf, Mr. Vayeghan says a fit sentence would be nine months incarceration, followed by 30 months’ probation.

He takes issue with some of the s. 161 terms proposed by Crown and their duration. As for the failing to attend court, Mr. Vayeghan says a fit sentence is one day time served, to run concurrently. Mr. J.’s Circumstances [ 9 ] Mr. J. is currently 39 years old and before the Court without a criminal record. Mr. J.’s personal circumstance as set out in the pre-sentence report (“PSR”) are based on his self-report. Ms. Beamish who wrote the report also interviewed Mr. J.’s long-time friend Mr. A., but was unable to reach Mr. J.’s mother to verify the family history.

The PSR was completed in early December 2020. [ 10 ] Mr. J. was born in Calgary and spent his early years there. His mother still lives in Calgary and they remain in touch. According to the PSR, Mr. J. had a difficult childhood with a father he described as strict and authoritarian and who regularly beat him. He described his childhood as hell. He ran away from home at a young age, lived on the streets for a while and also spent time in foster care. Ms. Beamish attempted to follow-up with the Alberta Ministry of Child Protection who would only confirm that Mr. J. had “quite a bit of history” with them. Mr.

J. reported that his father committed suicide about four years ago. [ 11 ] Mr. J. has been living in Vancouver for about seven years and has two young daughters. As a result of these charges, there is a protection order in place, prohibiting Mr. J. from having contact with his daughters. [ 12 ] According to the PSR, Mr. A. described Mr. J. as charming, smart, manipulative, self-centred and with a big ego. He said Mr. J. had always been a “fly by the seat of his pants” kind of guy, often relying on family or friends for housing or work. He also described Mr.

J. as always having been paranoid, which seemed to have increased and become out of control in the previous six months. Mr. A. reported visiting Mr. J. in a psychiatric ward during that time frame. Mr. A. expressed concern about Mr. J.’s crystal meth use which he suspected was impacting his mental health. [ 13 ] Mr. J. on the other hand, told Ms. Beamish he does not have a problem with substances, including cocaine and crystal meth, and that he did not like how they made him feel. Based on what Mr. A. told her and her review of the psychological assessment, Ms. Beamish believed Mr.

J. was minimizing his substance use. [ 14 ] What Mr. J. told Ms. Beamish about his substance use is also at odds with his evidence at trial. Mr. J. testified that prior to arriving at his brother’s house on December 3, 2018, he was just coming off three days and nights of partying which he called a bender. Mr. J. said he had been using alcohol, crystal meth and marijuana. [ 15 ] Mr. A. told Ms. Beamish that he had employed Mr. J. with his moving company but had to let him go after several frightening road rage incidents. Mr. J. had been living with Mr. A. until about two months prior to her interview. He told Ms.

Beamish he kicked Mr. J. out due to his disruptive and erratic behaviour. Mr. A. said he made the decision to get Mr. J. out of his life until he addresses his substance use and mental health. [ 16 ] Because Mr. J. lost his housing with Mr. A., for a while he was living in his car. He reported that he had to give up his car due to towing and impound fees. [ 17 ] At the time of Ms. Beamish’s interview with Mr. J., he was apparently certified under the Mental Health Act and in the community on an extended leave certificate. The

summary of Mr. J.’s psychiatric history in the PSR was based on his self-report to Ms

Beamish, as well as her review of Dr. Williams’ psychological assessment. Ms. Beamish noted discrepancies between the psychological assessment and what Mr. J. disclosed to her and queried whether this minimizing was his attempt to manage her impression of him. [ 18 ] In the

section on attitude and receptiveness to previous and proposed interventions, Ms Beamish noted that Mr. J. maintained regular contact with his bail supervisor even during his hospitalization. He expressed a willingness to comply with any sentence and appeared to grasp the importance of court-ordered conditions, but also said he feels it is unfair and he is being “railroaded”. Ms. Beamish was unable to comment on Mr. J.’s attitude toward the offences since he denies committing them and claims they are part of his brother’s plan to secure their father’s estate. I note there was no evidence of such a plan at trial.

Mr. J. told Ms. Beamish that was why he “walked out” of his trial, because he could not believe all the lies he was hearing. [ 19 ] In the

summary and proposed interventions section, Ms. Beamish described Mr. J. as disorganized, barely functioning, with no job or housing, someone who has relied on family and friends and in turn has alienated most of the people who have supported him. Because Mr. J. sees himself as the victim, Ms. Beamish believes that intervening and assisting him will be difficult. Psychological Assessment [ 20 ] Dr. Williams’ assessment is based only on psychometric testing conducted on November 17, 2020, and collateral documentation and psychological test results that were on file as of December 3, 2020. This is because Mr.

J. failed to attend for his clinical interview. [ 21 ] Dr. Williams reviewed records from Vancouver General Hospital indicating that for periods of time between October 2019 and November 2020, Mr. J. received both emergency and in-patient services. [ 22 ] Between October 17 and November 22, 2019, Mr. J. was certified under the Mental Health Act and received in-patient treatment. Mr. J. reported that he had earlier received services in 2015 and 2016 from the Richmond Mental Health Outpatient Services. Mr.

J. was found to be “…labile in his mood, tangential and delusional in his thinking and to have poor insight and impaired judgment”. The primary diagnosis was unspecified psychosis, with a differential diagnosis of substance-induced psychosis. The reports indicated that Mr. J. had a history of marijuana use and “everything else”. At discharge on November 22, 2019, Mr. J. expressed an understanding that non-prescription drugs affected his mental health. He was taking anti-psychotic medication and described as alert, well-settled and amicable. [ 23 ] Mr. J. was re-admitted to VGH on October 19, 2020.

This was three days after my decision finding him guilty of these offences. Concerns noted at the time were grandiosity and bizarre behaviour. Mr. J. was assessed as having limited insight, poor judgment and being an unreliable historian. At discharge on October 28, 2020, Mr. J. was described as calm, polite and cooperative, although again, his reliability was questioned. His insight and judgment were deemed to be limited. He refused a low-dose anti-psychotic and was to be followed by the Vancouver South Mental Health Team. Dr. Williams noted that as of the December 5 2020 date of his assessment, Mr.

J.’s contact with the Team had been sporadic since his discharge. [ 24 ] When Mr. J. attended for psychometric testing, he told the clinician he had no mental health history and that his first hospitalization in 2019 was because he was being threatened and in need of safety. Mr. J.’s version to Ms. Beamish was that his brother had put a hit out on him to gain control of their father’s estate and that these charges are part of that plan. [ 25 ] In relation to his second hospitalization in 2020, Mr. J. told the clinician he was homeless and had nowhere else to go. According to the PSR, Mr.

J. had a breakdown due to stress and his living situation in the context of these charges, which brought him into hospital. [ 26 ] In Dr. William’s

summary and recommendations section, it was noted that a comprehensive assessment of Mr. J.’s risk factors was not possible since he did not attend for his interview. As far as the psychometric testing was concerned while no major psychological or personality abnormalities were detected, there were concerns about the validity of the results given what was described as Mr. J. being significantly defensive and presenting himself as free of any problems or short-comings common to most people. This defensiveness was noted as consistent with other reports about Mr.

J.’s propensity to be an unreliable historian, especially in relation to his past mental health. [ 27 ] Dr. Williams concluded that: Although on an actuarial basis, [Mr. J.’s] baseline or longer-term sexual recidivistic risk was rated as being in the low range…when he is unmonitored, untreated and using substances he is susceptible to a significant increase him in instability and unpredictability, rendering him at greater risk for generalized acting-out inclusive of sexualized misconduct. [ 28 ] Dr. Williams said that Mr.

J. would benefit from specialized monitoring and treatment from an agency such as the Forensic Services Psychiatric Commission. His further recommendations included a lengthy period of community supervision, ideally by a probation officer with expertise in managing sex offenders, a referral to the Forensic Sex Offender Treatment Program on an in-custody or community basis and that Mr. J. not have unsupervised involvement with children under the age of sixteen, which he described as imprudent. Sentencing Objectives and Principles and Sexual Offences against Children [ 29 ] Criminal Code

section 718.01 requires that primary consideration be given to the objectives of denunciation and deterrence, in offences such as this, involving the abuse of persons under the age of 18. [ 30 ] Under

section 718.1, a sentence must be proportionate to the seriousness of the offence balanced against the degree of responsibility of the offender. As the Supreme Court of Canada noted in R. v. Ipeelee , 2012 SCC 13 at para 37 : The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of

proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system… [ 31 ] Here, proportionality must be considered in the context of sexual offences committed against children. The Supreme Court of Canada, in R. v.

Friesen , 2020 SCC 9 , recently provided renewed direction to sentencing judges to convey the: …strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Sentences for these crimes must increase .

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender… (para. 5) (emphasis added) [ 32 ] Also in Friesen , the Court explained at para. 75 that when considering proportionality, the wrongfulness and harmfulness of sexual offences against children must be taken into account. Wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Harms include actual and potential long-term harms. [ 33 ] The Court of Appeal in R. v.

Williams , 2019 BCCA 295 said: If the principle of proportionality is at the heart of sentencing, then the secondary principles of parity and individualization are the arteries that ensure its proper application. They are essential factors to consider in order to arrive at a proportionate sentence. (para. 51) [ 34 ] Individualization requires an assessment of the circumstances of the offence and the circumstances of the offender, to determine their moral blameworthiness.

This includes consideration of mitigating and aggravating factors and any collateral consequences. [ 35 ] All of these considerations must be balanced with the principles of restraint codified at ss. 718.2 (c), (

d) and (

e) and the direction that a sentencing judge treat imprisonment as a sanction of last resort and limit any custodial period imposed to the lightest term reasonable in the circumstances ( R. v. Bosco , 2016 BCCA 55 at para. 35 ). Mitigating Factors [ 36 ] Mr. J. is before the Court without a criminal record. [ 37 ] Mr. J. had a difficult childhood, with family violence and dysfunction that led to him being in care for some time as a youth and also living on the streets.

While in some instances, this type of disadvantage may be found to impact an offender’s moral compass and decrease their moral culpability, I do not find Mr. J.’s background to be mitigating. This is because he appears to have overcome his difficult youth by leading a generally pro-social life up until the time of these offences, which he committed in his late 30’s. In my view, by committing these offences, Mr. J. saw an opportunity and seized on it, just as he has seized on other opportunities, relying on his charm and ego, to get what he wants from family and his friend Mr. A. [ 38 ] It is in Mr.

J.’s favour that the PSR and psychological assessment are generally positive. [ 39 ] Since the time of his initial undertaking on March 20, 2019, Mr. J. has been largely compliant with his bail conditions. In particular, there is no suggestion he has made any contact with J., Z. or their parents. I find it noteworthy that Mr. J. even reported to his bail supervisor while he was hospitalized. This history of compliance shows that despite his personal challenges, even during times that he is in a mental health crisis, Mr.

J. has an ability and willingness to obey court orders. [ 40 ] Despite his lack of insight into the serious nature of the offences and failure to take responsibility for the harm he has caused, Mr. J.’s past compliance with court conditions provides a strong indication that when he is released from custody and under community supervision, he can and will follow court orders intended to protect the public, in particular vulnerable young people, and to support his on-going rehabilitation. [ 41 ] Bearing in mind the caveats attached to Dr. Williams’ assessment, it is also in Mr.

J.’s favour that he was found to be a relatively low risk to sexually re-offend, provided he has proper monitoring and mental health supports after his release. Mr. J.’s Mental Health and Moral Blameworthiness [ 42 ] Mr. Vayeghan argues that Mr. J.’s moral blameworthiness is lessened because of his mental health which was aggravated by his substance use. [ 43 ] Reference was made to the decision of R. v.

Badhesa , 2019 BCCA 70 , where the appellant argued that the sentencing judge failed to attach sufficient weight to his depressive mental disorder in assessing moral culpability and over-emphasized the principles of deterrence and denunciation. [ 44 ] The Court of Appeal in Badhesa said at para. 40 : Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offender’s moral culpability… … Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted with ordinary, fully accountable offenders for sentencing purposes. [ 45 ] The Court of Appeal went on to say at para. 42: When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated.

And at para 44: When assessing a fit sentence, the judge should attribute a degree of moral culpability to the offender commensurate with the magnitude of the mental illness and its overall role in the commission of the offence. [ 46 ] One of the distinguishing features between Mr. J.’s case and Badhesa is that there a forensic psychiatrist provided expert evidence as to the accused’s mental state when he beat his mother to death and assaulted his wife. Mr. Badhesa was found to have been heavily intoxicated and suffering from severe psychotic depression at the time.

This is very different from the evidence before me. [ 47 ] Dr. Williams stated that it appears that Mr. J. has a mental disorder, made and/or triggered by substance use, and that in the past, he has had periods of psychosis, in which he exhibited paranoia, generalized instability and aggressiveness. Near the bottom of page 9/10, Dr. Williams writes about Mr.

J: His apparent mental status immediately following the index offence, as best as could be construed from the transcript of his statements to the police, did not indicate that he was psychotic at that time, although it is not possible to definitely establish his mental state around the time of the offence merely from a review of the file material. [ 48 ] I have no evidence of Mr. J.’s mental state at the time he committed the offences. While it did not appear to Dr. Williams that Mr.

J. was psychotic at that time, he was careful to note he could not make any definitive statements based solely on a file review. [ 49 ] Although Mr. J. appears to have sought assistance for his mental health in 2015 and 2016 and then again in 2019, there is no evidence that he was having similar problems in 2018 and in particular in and around December 2018. [ 50 ] Neither Mr. J.’s brother nor sister-in-law testified about witnessing any behaviour that caused them concern about having Mr. J. in their home. Mr.

J. had stayed with the family for an extended period of time earlier that summer, and had also come over from time to time for family dinners or parties and I accept they knew him well. It is highly unlikely that Mr. J.’s brother and sister-in-law would have welcomed him back into their home on December 3 and discussed renting him their basement suite if he was displaying aggression or paranoia or the other symptoms of concern described by Mr. A and the medical professionals when Mr. J. was experiencing mental health crisis. If anything, Mr. J.’s brother and sister-in-law testified to the opposite. They said Mr.

J. was not his usually bubbly self and was quiet and seemed down or sad. They attributed that to him having problems with his girlfriend and not having anywhere to stay. [ 51 ] In his evidence, Mr. J. disagreed with his brother and sister-in-law’s observations and said he was trying to be extra happy and was in a good mood because he felt he was in a safe place. He said he was tired from partying. Mr.

J. denied that he was under the influence of any drugs or feeling any of the after-effects from partying the days and nights before he got to his brother’s home. [ 52 ] The evidence at trial of each of the witnesses and Mr. J. of the events leading up to the commission of the offences were consistent: a largely quiet evening together, including a shared dinner, decorating the Christmas tree and the two brothers making plans regarding Mr. J. moving in. [ 53 ] The arresting officer did not testify to anything about Mr. J.’s behaviour that gave her concerns about his mental health.

She described him as incredibly calm. Both his brother and sister-in-law described Mr. J. as casual, and having no visible reaction to being arrested. This is in sharp contrast to how Mr. J. presented in October 2019, when he underwent the emergency assessment in response to his roommate’s complaint that he was agitated and aggressive and had used a hammer to punch a hole in a door. Mr. J.’s evidence both on direct and in cross-examination was adamant that other than being tired, he was completely himself while at his brother’s home. There was no evidence to suggest that Mr.

J. was having any sort of mental health crisis at that time. [ 54 ] I find there is no evidence linking Mr. J.’s mental health to the commission of the offences that would lessen his moral culpability. Aggravating Factors [ 55 ]

Section 718.2(a)(ii.1) deems the abuse of a person under the age of 18 to be an aggravating factor. [ 56 ] Also deemed to be a statutory aggravating factor under s. 718.2(a)(iii.1) is where an offence has had a significant impact on a victim, considering their age and other personal circumstances. Although no victim impact statements were filed, it was obvious from their testimony that J. and Z. were and continue to be, significantly impacted by what their uncle did to them.

They expressed fear, confusion and for Z., shame and even self-blame. [ 57 ] As the Supreme Court of Canada in Friesen noted, at sentencing, the potential long-term harms and actual harms associated with sexual violence against children must be considered. Moreover, at para. 82, the Court emphasized the need to reject the belief that there is no serious harm to children where there is no evidence of additional physical violence. Here, there was no physical violence, aside from the inherently violent nature of the sexual acts Mr. J. committed against J. and Z.

I accept that serious harm was done to J. and Z. and that they have been significantly impacted. [ 58 ] I also find Mr. J.’s lack of insight into the wrongfulness of his actions and that he sees himself as the victim are aggravating. • Breach of Trust [ 59 ] The Crown submits that one of the statutory aggravating factors the Court must take into account is s. 718.2(a) (iii), that as J. and Z.’s uncle, Mr. J. abused his position of trust or authority. Mr. Vayeghan disagrees and says the Crown has not discharged its burden of establishing this factor beyond a reasonable doubt. He argues that even though Mr.

J. was the girls’ uncle, he was not particularly close to them – this despite the fact that he felt close enough to climb into bed with them. Mr. Vayeghan says that simply the fact that Mr. J. is their uncle does not establish the trust relationship and there must be something more.

[60] Mr. Vayeghan referenced the BCSC decision in R. v. Poncelet, 2008 BCSC 202 in which the Court considered the meaning of“position of trust” and its application in cases other than those said to be presumptive positions of trust such as teacher, parent orreligious adviser. In those instances, the Court explained the presumption arises from an inherent power of dependency based on thesocial role entrusted to certain positions by society. [61] The Court in Poncelet turned to what the Supreme Court of Canada in R. v.

Audet, (SCC), [1996] 2 SCR 171has to say about the meaning of position of trust: ¶38 It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of therelationship between a young person and an accused, whether the accused was in a position of trust or authority towards the youngperson … at the time of the offence. [62] Mr. Vayeghan submits Mr.

J. was not in a position of trust or authority in relation to J. and Z. because: i. he did not have the capacity to decide their future or destiny; ii. he had minimal involvement in their lives; other than the blood relationship, they were not close; he only saw his niecessporadically over the years and was largely absent from their lives; iii. the girls did not look up to him; they did not depend on him for advice or guidance; iv. Mr.

J. never instructed or taught them. [63] It is not in dispute that who can be characterized as a person in a position of trust or authority is not a closed category and isdependent on the circumstances. As the Court pointed out in R. v. Friesen at para. 125, trust relationships arise in a variety ofcircumstances and should not all be treated alike. [64] At para. 126 the Court explained that: Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.

As Saunders J.A. reasoned in D.R.W.,the focus in such cases should be on “the extent to which [the] relationship [of trust] was violated” (para. 41). The spectrum ofrelationships of trust is relevant to determining the degree of harm.

A child will likely suffer more harm from sexual violence where thereis a closer relationship and a higher degree of trust between the child and the offender… This is likely to be the case in what might bedescribed as classic breach of trust situations, such as those involving family members, caregivers, teachers and doctors to mention a few. [65] Further, at para. 129 the Court said: The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility.

An offender who stands ina position of trust in relation to a child owes a duty to protect and care for the child that is not owed a stranger… The abuse of a positionof trust also exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy. [66] At para. 130 the Court emphasized that “…an offender who abuses a position of trust to commit a sexual offence against a childshould receive a lengthier sentence than an offender who is a stranger to the child.” [67] The Crown submits that Mr. J. was far from a stranger to J. and Z.

He had been in and out of their lives for years, includingvisiting their home with his own children and taking

part in family celebrations. In the summer before the incident, Mr. J. lived with thefamily for about six weeks. When his brother and sister-in-law invited Mr. J. back into their home on December 3, when he had nowhereto stay, they set him up in a small room downstairs, adjacent to Z.’s bedroom. Mr. J. and his brother had even made plans for him tomove into the basement suite and they talked about celebrating Christmas together. J. and Z.’s parents testified that they had never hadany concerns about Mr. J.

It was clear they considered him a family member and trusted him. [68] There was evidence at trial from all the witnesses and Mr. J. about an argument that took place on December 3 or 4, because hewas angry that J. had called him by his first name and not uncle. He said “call me fucking uncle”. As noted at para. 16 of my Decision,Mr. J. testified that he valued the relationship with his nieces, that he tried to be a good uncle and he acknowledged that the girls trustedhim.

He also testified that while in bed with the girls, he told them he knew he had not been the greatest uncle lately because he had notbeen around much. When he was challenged on cross-examination about being in bed with his nieces wearing only a bathrobe and tanktop, Mr. J. said they were all family and he wanted to have a “personal intimate” conversation with the girls. He also disagreed that thegirls’ parents would have had a problem with him being in bed with the girls. [69] I find that the evidence clearly established beyond a reasonable doubt the aggravating factor that Mr.

J. was in a position of trustin relation to J. and Z. It was important to him that the girls acknowledge him as their uncle and this was obvious to the girls as well byhis outburst. The girls’ evidence was clear that they liked their uncle and considered him part of their family. It is because of their familyrelationship that Mr. J. was able to get into the girls’ bed with them in the first place. They were not afraid because they did not expect hewould harm them because he was their uncle and they trusted him. Mr. J. took advantage of that trusting relationship. Mr.

J., on the otherhand, testified that he felt it was the family who betrayed him. Collateral Consequence [70] Although not raised by his counsel, I am mindful that Mr. J. has been, at various times since July 2020, held in pre-trial custodyduring the Covid pandemic. Therefore, Mr. J. has been subject to especially restrictive conditions to protect himself, other inmates andstaff from infection. As a collateral consequence, this is not mitigating or aggravating because it does not relate to the gravity of theoffence or Mr. J.’s level of responsibility. It is however relevant to his personal circumstances.

Range of Sentence

[71] The parity principle, codified at s. 718.2(b), states that similar sentences should be imposed on similar offenders for similaroffences, committed in similar circumstances. [72] One of the tools to assist a sentencing judge in achieving the parity principle is to consider sentencing ranges established by ourCourts for similar cases. As has been frequently stated, sentencing ranges are not a straitjacket and do not set out minimum andmaximum sentences.

Instead, they provide “historical portraits” for a judge to draw from to ensure a sentence is tethered to other similarcases (Williams at para. 59). [73] It goes without saying that considering and applying a sentencing range is fraught with difficulty since each case is fact specificand the circumstances of each offender are unique. The challenge for a sentencing judge is to consider the most similar cases and drawfrom their conclusions and to contrast those that are very different, but that also help lead to an appropriate sentence for a particularoffender. [74] Mr.

Vayeghan submits that the sentencing range for sexual interference that has been established in British Columbia falls within9-18 months for sexual touching and up to three years where there is intercourse or more invasive sexual activity. In making thatsubmission, he relies on our Court of Appeal in R. v. Scofield and R. v. Williams.

The Supreme Court of Canada in Friesen, however wascritical of that line of authority and said this: [111] We … express our concern about sentencing ranges based on precedents that appear to restrict sentencing judges’ discretion, forexample, by imposing a cap of three to five years on sentences that can only be exceeded in exceptional circumstances. For instance, theBritish Columbia Court of Appeal has set a range for sexual interference of one to three years and has suggested that only in “rarecircumstances” would a sentence above three years be justified (R v Williams)….

And: [112] It is inappropriate to artificially constrain sentencing judges’ ability to impose a proportionate sentence in this manner…. And: [119] …[W]e would direct appellate courts not to discount sexual interference in comparison to sexual assault. The British ColumbiaCourt of Appeal appears to have done this by setting a range of two to six years for “sexual assault involving intercourse” in casesinvolving child victims while setting a range of one to three years for sexual interference.

And: [120] It is an error of law to treat sexual interference as less serious than sexual assault. …Parliament has established the samemaximum sentences for both sexual interference and sexual assault of a person under the age of 16. The elements of the offence are alsosimilar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the samefactual foundation. [75] For these reasons, I do not find the cases that Mr.

Vayeghan has referenced in support of the 9-18 month range established byScofield and Williams as having much authoritative value (for example, R. v. Savage, 2011 ONCA 107 and R. v. AB, 2013 SKQB 56.Moreover the facts of those cases are significantly distinguishable from this case and in particular, they pre-date Friesen. Even if I wereto accept this as the correct approach, Mr. Vayeghan has not explained how the nine month jail sentence he says is appropriate takes intoaccount the requirements of s. 718.3(7)(

b) given that here there are two complainants. [76] Mr. Vayeghan included the recent decision of my brother Judge Gove in R. v. J.M.H.K., 2021 BCPC 50. In J.M.H.K., theaccused was convicted of sexually touching his young daughter. The Crown proceeded summarily, as opposed to by indictment as in Mr.J.’s case. The complainant said that it happened at least ten times and included her father telling her to take her clothes off, that heexposed his penis, lay on top of her and moved up and down on top of her, without penetrating her. [77] The accused was 37 years old and before the Court without a record. Like Mr.

J., he denied committing the offences. He hadbeen compliant on bail. Mr. K. was under the care of a psychiatrist for ADHD who described him as well-adjusted and honest and with asupportive family. A Forensic Psychological Evaluation found Mr. K. to be at low risk to re-offend. [78] The Crown sought 15 months jail, followed by 18 months probation and the defence position was 90 days jail, also followed by18 months probation. [79] Judge Gove considered Friesen and the later decision of our Court of Appeal in R. v. Plehanov, 2020 BCCA 249 ,[2020] BCJ No 1473 and then applied the Friesen principles in sentencing Mr.

K. The Court found that for a

summary conviction, thecase law supported a jail sentence in the range of 3 to 12 months, followed by probation. Mr. K. was sentenced to six months jailfollowed by 18 months probation. [80] Mr. Vayeghan urged me to follow a similar approach. He submits that the principles of denunciation and deterrence can beachieved through the imposition of a shorter jail sentence followed by a lengthy probation order.

He made reference to the Court ofAppeal decision in Voong, 2015 BCCA 285 as authority for the deterrent aspect of a probation order, and that because it is like a“sword” hanging over the offender’s head, it can also have a punitive effect. [81] In Voong, which was a dial-a-dope case, the question was whether and under what circumstances, a suspended sentence asopposed to actual jail, could achieve the purposes and principles of sentencing.

The Court of Appeal noted that while a probation order isprimarily rehabilitative in its objective, it is clearly not limited in that regard, given that the statutory terms refer to the purposes of“protecting society” and “reintegration into the community”. [82] The “sword” the Court of Appeal referred to in Voong, was in the context of a suspended sentence, not a sentence comprised of a

period of incarceration with probation to follow. What the Court in Voong said is this: … A suspended sentence has been found to have a deterrent effect in some cases.

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “ Sword of Damocles” hanging over the offender’s head. [ 83 ] A suspended sentence imposed in lieu of actual jail will typically include punitive and restrictive conditions in order to achieve the principles of denunciation and deterrence, for example a strict curfew and other non-custodial restrictions on the offender’s liberty and activities.

Given that the offender has been spared jail, the “sword” hanging over their head in the event of a breach, and thus the deterrent effect of a probation order in the context of a suspended sentence is in my view, very different from a period of probation following jail, where the primary objective is rehabilitation. [ 84 ] In his book of authorities, Mr. Vayeghan included the November 2019 decision of my sister Judge Dorey in R. v. R.L.K. , 2019 BCPC 260 . There, the 68-year old Mr.

K. was convicted of sexual assault and sexual interference of the daughter of his close friend and neighbour who was 15 years old at the time. The Crown proceeded summarily. [ 85 ] The circumstances were that after attending a house party, the complainant M.C., her parents, the accused Mr. K. and others returned to her home. Initially Mr. K. was outside with M.C.’s father and then came into her room where she was on her bed. Judge Dorey found that Mr. K. had touched M.C.’s breasts for a sexual purpose with his hands and at least one of her breasts with his mouth. Mr.

K. was under the influence of alcohol and other medications at the time. [ 86 ] In R.L.K. , the sentence proposed by the Crown of 9-12 months imprisonment followed by probation is similar to what Mr. Vayeghan submits is fit for Mr. J. Defence counsel in R.L.K. challenged the constitutionality of the 90 day mandatory minimum jail sentence that was in force at the time and argued that a 12 month conditional sentence order followed by 18 months’ probation was a fit sentence. [ 87 ] At para. 129, Judge Dorey found Mr.

K.’s offence to be a single, brief, impulsive and opportunistic act that occurred in the complainant’s bedroom, a place where she was entitled to feel safe and secure. In committing the offence, Mr. K. took advantage of his friendship with the complainant’s family. These circumstances are very much in alignment with the circumstances of the offences committed by Mr. J. in this case. [ 88 ] Like Mr. J., Mr. K. had no criminal record and had been on bail without any issues.

He denied the offence, did not take responsibility and blamed the complainant, suggesting to the psychologist who prepared his assessment, that like Mr. J., he was the victim of some sort of plot against him. Mr. K. had good family support. He was assessed to be at low risk to re-offend and in reaching her decision, Judge Dorey was satisfied that Mr. K.’s prospects for rehabilitation were good. [ 89 ] Mr. K. was sentenced to nine months in jail, followed by 18 months’ probation. [ 90 ] I make two comments in relation to R.L.K .

Firstly, R.L.K. has been appealed and I understand as a result, the conviction was set aside and the matter has been remitted back for a new trial. Because the conviction was set aside, it was not necessary for the

Summary Appeal Court to consider the sentence. Secondly, R.L.K. was decided prior to Friesen and as we know, the sentencing landscape for persons convicted of sex offences against children has changed. [ 91 ] I agree with Mr. Vayeghan that Judge Dorey’s overview of some of the relevant case law is helpful, although again, they must all now be viewed through a post- Friesen lens. For example, in R. v. Maxmenko , 2015 BCSC 2224 , the 60 year old accused pleaded guilty to sexually touching his 12 year old grand-niece at her grandmother’s home.

The offence included touching her bare breasts and buttocks underneath her clothing. A trust relationship was found to exist between the accused and the complainant because she thought of him as her favourite uncle. Mr. Maxmenko had a related but dated record. As a result of the charges, he suffered significant financial loss and the immigration applications of his wife and daughter were denied due to the charges. Mr. Maxmenko was sentenced to six months jail, followed by 18 months probation. [ 92 ] Mr. Vayeghan also provided the sentencing decision of R. v. Chen , 2019 BCSC 1290 . Ms.

Chen was found guilty after a jury trial and was before the Court for sentencing for the offence of sexual interference. Ms. Chen had intercourse with a young person who was willing but could not legally consent due to his age. The Crown sought a sentence of one year in jail and probation and the defence argued for a non-custodial sentence. [ 93 ] Chen is highly distinguishable on its facts, in terms of the circumstances of the offence as well as the accused’s circumstances. The aggravating factors included the seriousness of the offence committed with a 13 year old boy and that Ms.

Chen was friends with the complainant’s mother. The Crown described the complainant as especially vulnerable because he was in a transition house, but the defence pointed out that despite his age he presented as much older than his years, defied rules and was largely independent. Even so, the Court found the complainant to have been vulnerable, noting that his family life was in a turmoil and he was in a transition house which was supposed to be a safe place. [ 94 ] Ms.

Chen had significant mitigating factors including being herself the survivor of years of sexual abuse by her father and a neighbour and being forced from a young age to watch her father sexually assault her mother. She was before the Court without a record, had been living a pro-social life and had mental health issues for which she had sought treatment. She had also engaged in extensive counselling. She was before the Court for sentencing as a mother of small children who were dependent on her.

She also faced potential immigration consequences, depending on the sentence, which was a collateral consequence the Court took into account. [ 95 ] In imposing a suspended sentence, Justice Murray noted that the many factors she considered in determining a fit sentence included that “…this crime turned on the personalities of Ms. Chen and [the complainant] SH and the unusual circumstances they found themselves in.” [ 96 ] The authorities the Crown relies on also predate Friesen , except for R. v. Williams , 2020 BCCA 286 (“ Williams 2 ”).

She says that the cases are illustrative of a sentencing range for similar offences that would likely be higher if they were decided now,

post- Friesen. The Crown referred to Williams 2 in the context of her submissions on the s. 161 order which I address below. [ 97 ] R. v. Rennie , 2013 BCSC 909 , which the Crown says is factually most on point, involved sexual touching, although more invasive than in this case. The complainants were 5 and 6 year old girls. Justice Fenlon found Mr. Rennie guilty of two counts of sexual assault and two counts of sexual touching a person under the age of 16 years.

At the sentencing hearing, a stay of proceedings was entered in relation to two counts, based on the Kienapple principle. [ 98 ] The Crown had proven touching of each complainant on one occasion. The touching involved lying in bed with the girls, rubbing their genitals and buttocks, putting his tongue in their mouths and licking one girl’s back. [ 99 ] Mr. Rennie had been in a relationship with the girls’ mother and was living with them at the time of the offences.

At sentencing, he was found to be a man with significant mental health issues, who continued to deny responsibility, and who was assessed at a moderate risk to re-offend. Mr. Rennie did not have a prior record for sex offences, did not threaten his victims, but abused a position of trust. Unlike Mr. J., Mr. Rennie had what the Court described as a “woeful record of compliance with bail and probation orders”. Justice Fenlon concluded that Mr. Rennie would have a greater chance of rehabilitation and society would be better protected if he spent more time incarcerated and less time on probation. Mr.

Rennie was sentenced to 11 months jail on each count, to be served consecutively, followed by 12 months’ probation. [ 100 ] The ancillary orders included a 20 year order under s. 161(

b) preventing Mr. Rennie from working in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years. The Court declined to make the order sought by Crown under s. 161(

a) which would have prohibited him from being near any playground or community centre, because Mr. Rennie had at the time a number of young children so it did not seem to be a workable prohibition. The Court also noted that there had been no suggestion that that sort of condition related in any way to the offences Mr. Rennie had been convicted of. [ 101 ] The Crown also included R. v. J.M. , 2019 BCPC 235 , which like R.L.K. , includes an overview of similar cases. In J.M. , Judge Doulis convicted the accused of sexual interference with a person under 16 years of age and two counts of sexual assault.

One of the two counts of sexual assault was conditionally stayed pursuant to Kienapple. [ 102 ] Judge Doulis found that there were five acts of sexual touching that occurred when the complainant was 14 or 15 years old. She was a foster child in the care of Mr. M. and his partner. The acts included fondling, digital penetration, oral sex and vaginal and anal intercourse. Mr. M. was also convicted on a separate Information of a later incident of non-consensual intercourse when the complainant was 17 and no longer living in Mr. M.’s home. [ 103 ] Mr.

M. was 53 years old and before the Court with previous convictions for violent offences. He denied the offences he had been found guilty of, but even so, had been taking

part in counselling and expressed a willingness to continue to do so. [ 104 ] Mr. M. was sentenced to a global sentence of six years, for offences obviously far more serious than those committed by Mr. J. [ 105 ] The ancillary orders included a 5 year order under s. 161 prohibiting Mr. M. from going to any house where the complainant resides or from seeking employment that involves being in a position of trust or authority towards persons under the age of 16 years. Conclusion on Sentence on Information 101181 [ 106 ] The authorities reviewed by the Crown and Defence have been helpful.

I must consider those cases in light of what the Supreme Court of Canada has said in Friesen at paras. 108-114 , summarized by the Court of Appeal in Williams 2 at para 73 that: “…reliance on precedents that predate [ Friesen ] may well be inappropriate or of limited assistance to the sentencing and appellate courts.” Post- Friesen , the sentences in the cases both Crown and Defence brought me to would in all likelihood be higher. [ 107 ] The case closest factually to the circumstances of this matter is R.L.K. In Mr.

J.’s case, I must also consider the aggravating nature of the breach of trust and that there were two complainants. [ 108 ] Mr. J.’s moral blameworthiness is high in committing what were serious offences against his young nieces. Given their ages, I am statutorily required to give primary consideration to the principles of denunciation and deterrence. Mr.

J. is before the Court as a relatively young man without a previous criminal record, whose prospects of rehabilitation are good. [ 109 ] I have taken all the circumstances into consideration and applied them to the backdrop of the relevant case law, in order to arrive at a proportionate sentence. [ 110 ] I have determined the fit sentence to be a total period of incarceration of two years less a day, followed by two years of probation to support Mr. J.’s rehabilitation.

The custodial sentence will be allocated as follows: Count 1: (sexual touching of Z.): 1 year And Count 2: (sexual touching of J.): 1 year less a day. [ 111 ] Mr. J. has spent 118 days in custody and will get credit for 177 days. This leaves 552 days remaining to be served. [ 112 ] The terms of probation will be as follows: 1.

(2001) Compulsory conditions; 2.

(2104) You must report in person to a probation officer at the Tri-Cities Community Corrections office at 2610 Mary Hill Road Port Coquitlam within two business days after your release from custody. After that, you must report as directed by your probation officer.

(2202) When you first report to the probation officer, you must provide them with your address and phone number. You must not change your address or phone number without notifying your probation officer in advance. 4.

(2501) You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer, which may include counselling or programming for substance dependency, mental health and sexual offence prevention. 5.

(2002) You shall have no contact or communication directly or indirectly with N.J., J.S., J., Z., L.L. or J.W. 6.

(2005) You must not go to or be within two blocks of [omitted for publication], Port Coquitlam, BC. 7. (2005-1) You must not go to any residence, school, workplace or place of worship known to you to be that of N.J., J.S., J., Z., L.L. or J.W. If you see them, you must leave their presence immediately without any words or gestures. Ancillary orders [ 113 ] The offences Mr. J. is convicted of are primary designated offences under s. 487.04(a)(i.1). Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of bodily substances from Mr. J. [ 114 ] Crown asked for a mandatory 20 year order that Mr.

J. comply with the Sex Offender Information Registry Act under s. 490.012 and 490.013(2)(b). I note that s. 490.013(2.1) states that a SOIRA order applies for life if a person is convicted of more than one designated offence, which seems to me to be the case with Mr. J. Accordingly, the SOIRA order will be for life. [ 115 ] I will also impose a non-communication order under s. 743.21. The Warrant for Committal will be endorsed with an order that while in custody, Mr. J. must have no contact or communication with N.J., J.S., J., Z., L.L. or J.W. •

Section 161 Order [ 116 ] The Crown also seeks a 10 year order under s. 161 terms with that Mr.

J. be prohibited from: i. being within a two-block radius of Z. or J.’s residence, school, workplace or place of worship: ii. seeking, obtaining or continuing employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; iii. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolyard or playground or community centre unless you are with your children and in the presence of A.F. or a third party approved of by A.F.; iv. having any contact, including communication by any means, with a person who is under the age of 16 years, unless such contact or communication takes place under the supervision of a person approved of by the Court or is in relation to your children and pursuant to a family court order made by a judge who has reviewed this order. [ 117 ] The Court of Appeal in Williams 2 at para. 71 , confirms that the over-arching purpose of s. 161 is the protection of children from sexual violence.

The Court said that the terms of s. 161 orders can be tailored to manage the nature and degree of risk posed to children after an offender’s release from custody. At para. 48, the Court quoted from R. v. K.R.J. , 2016 SCC 31 where it was explained that: …[S]ection 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk… These orders are not available as a matter of course.

In addition, the content of the order must carefully correspond to an offender’s specific circumstances. [ 118 ] The Crown submits that the terms proposed are justified given Dr. Williams’ conclusion that it would be imprudent for Mr. J. to have unsupervised involvement with children. She also pointed out that the Court can impose different durations for each term if appropriate, in order to tailor the order to properly manage the risk that Mr. J. may pose to the complainants and children, balanced against the restrictions on his liberty. [ 119 ] In response, Mr.

Vayeghan submits that only the Crown’s first two proposed terms are appropriate and that the order sought is overly broad and goes beyond the circumstances of the offences Mr. J. has been found guilty of. He says that the

section 161 order should be the same length as the probation order. [ 120 ] Further, Mr. Vayeghan says that imposing the condition

c) prohibiting Mr. J. from public parks, swimming areas and so on is not based on any evidence that he is a danger to children in a public setting and would be punitive, when considered in combination with the sentence and the SOIRA order. Mr. Vayeghan also points to Dr. Williams’ assessment that Mr. J. is at low risk to re-offend. I have not however lost sight of the caveat to that assessment – that it is dependent upon Mr.

J. being monitored, treated and not using illicit substances and that if those safeguards are not in place, there is a greater risk for him to act out, including engaging in sexual misconduct. This is one of the primary reasons I have imposed a two year probation order, to ensure that Mr. J. is being monitored and treated. [ 121 ] I agree with the defence that there is nothing in the evidence that Mr. J. poses a general risk to children in public places. For that reason, I decline to impose the proposed s. 161(

a) prohibition. [ 122 ] There will be a 10 year term in relation to s. 161(a.1) – that Mr. J. is prohibited from being within a two-block radius of Z. or J.’s residence, school, workplace or place of worship. Such a term is of minimal impact to Mr. J. and is intended to provide Z. and J. with a level of physical and emotional security as they move forward in their lives to young adulthood.

[123] Because Mr. J. was in a position of trust that he took advantage of in order to commit these offences, I am satisfied that a termunder s. 161(

b) is an appropriate protection to put in place. It will be for 10 years, in light of Dr. Williams’ recommendations. [124] Finally, I find that a prohibition under s. 161(

c) is also appropriate, since Mr. J. seized the opportunity to sexually offend againhis nieces during a time that they were in bed and vulnerable; Mr. J. took advantage of the fact that the girls were not under thesupervision of their parents who were in a separate part of the house. For this reason, and again, in light of Dr. Williams’recommendations, I find that Mr. J. could pose a risk to other young people under the age of 16, unless he is under the supervision of aresponsible adult. The term will be for 10 years such that Mr.

J. is prohibited from: having any contact -including communication by any means- with a person who is under the age of 16 years, unless such contact orcommunication takes place:

a) with the consent of and under the continuous supervision of a responsible adult who has reviewed a copyof this order;

b) a person approved of by the court; or

c) is in relation to his children and pursuant to a family court order made by a judgewho has reviewed this order. The Sentence on Information 101181-2-A [125] In her submissions in support of a 14 day jail sentence for Mr. J.’s failure to attend his trial on July 22, 2020, the Crown notes thatas a result, witnesses and the Court were inconvenienced and the balance of the trial had to be re-scheduled following Mr. J.’sapprehension and arrest. [126] Mr. Vayeghan says that a sentence of one day incarceration, concurrent, reflects Mr.

J.’s moral culpability which he says was lowdue to his stress associated with the trial and takes into account his early guilty plea and lack of criminal record. [127] I do not agree Mr. J.’s moral culpability was low. He fled prior to the start of Court after attending two days of trial. During thosetwo days, Mr. J. conducted himself appropriately and did not display any signs of distress. Despite whatever was going on for Mr.

J. onJuly 22, he did not take it upon himself to contact his lawyer, seek medical attention or return to Court later that same day or on July 23or 24, both of which were continuation dates. As a result, three days of court time were lost. Mr. J. did not turn himself in and instead waslocated and arrested that weekend at Wreck Beach, a place he was known to frequent. When I heard the circumstances of Mr. J.’s arrest,there was nothing to suggest he was going through a mental health crisis. [128] Balanced against Mr.

J.’s early guilty plea, personal circumstances and lack of criminal record, I find that an appropriate sentenceis seven days, to be served concurrent to the sentence on the substantive offences. The Honourable Judge A. Brown Provincial Court of British Columbia CORRIGENDUM - Released July 12, 2021 In the Reasons for Sentence dated June 7, 2021, the following changes have been made: [1] In paragraph [61], R. v. Audet, [1996] 2 SCR 17 should be cited as R. v.

Audet, (SCC), [1996] 2 SCR 171. [2] In paragraph [61], the quotation should read as follows: ¶38 It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of therelationship between a young person and an accused, whether the accused was in a position of trust or authority towards the youngperson … at the time of the offence. [3] In paragraph [74], the quotation should read as follows: [112] It is inappropriate to artificially constrain sentencing judges’ ability to impose a proportionate sentence in this manner…. [4] In paragraph [79], R. v.

Plenhanov, 2020 BCCA 249 , [2020] BCJ No 1473 should be cited as R. v. Plehanov, [2020]BCJ No 1473. The Honourable Judge A. Brown Provincial Court of British Columbia