R. v. Bogh, 2023 BCPC 239

Citation: R. v. Bogh 2023 BCPC 239 Date: 20230927 File No: 74525-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CRAIG BOGH PUBLICATION BAN 486(4.1) of the CRIMINAL CODE OF CANADA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: A. Baines Counsel for the Defendant: M. Houg Place of Hearing: Prince George , B.C. Dates of Hearing: November 30, 2022, February 2, June 5, 2023 Date of Judgment: September 27, 2023

[ 1 ] THE COURT: Craig Bogh has pled guilty to one count of sexual interference in connection with an assault which took place in Prince George on August 20, 2020. Crown and defence have put forth a joint submission seeking a conditional sentence order of two years less a day followed by three years' probation. The issue I must decide is whether the proposed joint submission is contrary to the public interest or would bring the administration of justice into disrepute. [ 2 ] After hearing the facts and submissions, I advised counsel, following the procedure in R. v.

Anthony-Cook , 2016 SCC 43 , that I was considering rejecting the joint submission and invited counsel to make further submissions. After hearing such submissions, I am of the view that the proposed joint submission for a non-custodial sentence is contrary to the public interest and would bring the administration of justice into disrepute. I am rejecting the joint submission and imposing a sentence of one year's jail followed by three years' probation. [ 3 ] Crown and defence have proceeded on an Agreed Statement of Facts. At the time of the offence, Mr. Bogh was 22 years old.

On the afternoon of August 29, 2020, Mr. Bogh went to the soccer field of [omitted for publication] Secondary School with three Indigenous teenage girls: 15-year-old A.J. and her two friends, T.L. and L.N. The school fields are located in a subdivision beside a children's play park. [ 4 ] The group consumed alcohol, including cider and vodka. Mr. Bogh says the girls brought the alcohol, but he told police at the time he helped pay for it. A.J. became grossly intoxicated and passed out. At around 5:00 p.m. while A.J. was unconscious, Mr.

Bogh removed A.J.'s pants and underwear, pulled down his pants, and had sexual intercourse with her in front of her companions in the middle of the field in view of the children's play park. A grandmother at the children's park with her husband and grandchildren called the police. [ 5 ] When police arrived, they could see Mr. Bogh bare-bottomed and thrusting his groin between A.J.'s legs who appeared "lifeless." Her companions were extremely intoxicated, crying, and unable to speak. They appeared to be in distress and kept asking the police for help. Police asked Mr. Bogh what he was doing. Mr.

Bogh immediately stopped, stood up, pulled on his pants, and appeared nervous. A.J. remained lifeless on the ground wearing a sweater and no pants, with her vagina exposed. [ 6 ] A.J. was profoundly impacted by the consumption of alcohol. The police were unable to rouse A.J. who remained unresponsive to their efforts. An ambulance was called to transport her to the hospital. A.J. remained unconscious at the hospital. She had to be sedated and remained in hospital overnight. A.J. did not regain consciousness until the next day. [ 7 ] Mr.

Bogh told the police he had been drinking and using drugs that day and was intoxicated. His level of intoxication is not outlined in the agreed statement of facts and the statement does not refer to any observations by police that Mr. Bogh was intoxicated. Mr. Bogh did appropriately respond to police questions about legal counsel. He conducted a penile swab at police direction and he spoke to counsel after his arrest. [ 8 ] The Crown was unable to obtain a victim impact statement from A.J. herself. Her mother advised that A.J. experiences long- lasting effects from the offence.

A.J. has demonstrated a moderate increase in anxiety and depression and a mistrust of adult men. A.J. became anxious about going outside and did not attend school in the 2020/2021 school year. A.J. did attend a couple of counselling sessions, but quit because she did not find them helpful. She was able to return to school in 2021 with structured attendance to manage her anxiety. She no longer consumes alcohol. Personal Circumstances of the Accused [ 9 ] Mr. Bogh is 25 years old. He suffers from a genetic condition known as Cri-du-chat syndrome which impacts his cognitive functioning.

His mother had the same disorder and was unable to care for Mr. Bogh. Mr. Bogh was not raised by his father as his father's girlfriend abused him at age three. Mr. Bogh was primarily raised by his grandparents. [ 10 ] Mr. Bogh's syndrome impacts his ability to manage time and daily tasks, including personal hygiene. He is unable to live without assistance and lives with his grandparents. He tried to live on his own once unsuccessfully ending up in the intensive care unit with hypothermia following an alcohol-induced blackout. Mr.

Bogh is loner who spends most of his time at home watching television and playing videogames. He has a girlfriend who visits him in his residence. I note the proposed conditional sentence would, to a significant degree, merely require Mr. Bogh to continue living the same home-based lifestyle he is already accustomed to. [ 11 ] With learning assistance, Mr. Bogh was able to receive a modified grade 12 diploma. He has never formally worked, although he has offered to volunteer to work at video gaming businesses. He started a college workplace program, but dropped out due to feeling overwhelmed.

He receives a persons with disability pension. [ 12 ] Mr. Bogh started abusing alcohol and cannabis at around age 20 while attending college. After a year, he started drinking daily and would experience blackouts that could last for days. He has been sober since this offence, although he would like to resume the consumption of cannabis. [ 13 ] Mr. Bogh reports he met the victim's companion at the mall two days prior and she invited him through the messaging application Snapchat to come drinking with her and her friends. He says he assumed she was a young adult because she and her friends provided the alcohol.

He recalls kissing A.J. at one point, but has no memory of the assault due to his level of intoxication. He says his vision was impaired due to the alcohol consumption and he could not recall if A.J. was conscious or unconscious at the time of the offence. Mr. Bogh expressed empathy for the victim and an understanding of how his assault upon her may affect her. [ 14 ] Mr. Bogh retained Dr. David Morgan to provide an independent medical assessment which was adduced in evidence.

He holds a faculty appointment as a clinical associate professor in the Faculty of Medicine at UBC and is active in the forensic division of forensic psychiatry. He has experience assessing adult and adolescent offenders in a broad range of psychological and psychiatric environments. He reviewed historical medical and psychiatric reports prepared on behalf of Mr. Bogh in 2009, an assessment prepared in 2015, the Report to Crown Counsel, and Mr. Bogh's statement to police. He also interviewed Mr. Bogh.

[ 15 ] Mr. Bogh reported that around the time of the offence, he used cannabis every day and would start smoking it in the morning and continue throughout the day. He also drank every day and often woke up hungover or still intoxicated by alcohol. He spent all of his time playing videogames or watching movies at home. Mr. Bogh reported that, at the time of the offence, he would go to parks or the mall and drink with random people he met. He used his disability pension to buy hard alcohol or shared others'. He often would stay out late drinking and not come home until the early hours. [ 16 ] Mr.

Bogh's description of his relationship with the victim and her companions varied throughout the different materials provided to the court and to Dr. Morgan. Mr. Bogh told Dr. Morgan that, on the day of the offence, he had received an invitation from a girl, T., to come drink at a place in the hood. He went and two other girls, including the victim, A.J., were there. This was the first time he met the other girl and A.J. He had known T. for a few weeks. Dr. Morgan reports that Mr. Bogh told police, however, that he had known two of the three girls for over a year. [ 17 ] Mr. Bogh told Dr.

Morgan that the two girls he met that day, including A.J., were grabbing at him and one started to kiss him. Everyone was intoxicated. He says he had sex with one of the girls, but his memory of it was blurry. He remembers being on top and that it was at the field at Duchess Park. He recalls the police arriving and he told them A.J. was his girlfriend and had fallen asleep. [ 18 ] Mr. Bogh reported to Dr. Morgan that he did not know how old T. was and that she was tall with large breasts. He understood his wrongful activity was that she was underage and unconscious at the time he had sex with her.

I note T.L. was not the victim in the offence, it was A.J. Mr. Bogh told Dr. Morgan he did not know the girls' ages. According to Dr. Morgan's report, Mr. Bogh told the police he did not know the girls were underage, but later said he was aware of their ages. [ 19 ] Mr. Bogh reported getting in trouble at school as a youth. Medical reports reviewed by Dr. Morgan indicated Mr. Bogh was referred to Children's Psychiatry in 2009 for acting out at school and sexually inappropriate behaviour. He had anxiety issues and would easily be overwhelmed. In elementary school, he was homeschooled part of the time.

He was socially awkward, would sometimes behave inappropriately, and had difficulties making friends. He had difficulty reading social cues, had Tourette's-like outbursts, and demonstrated OCD and phobic reactions to various situations and stimuli. Mr. Bogh was socially isolated. As an adult he spends an inordinate amount of time online gaming and considers his online gaming connections to be his friends. [ 20 ] In August 2009 at age 11, Mr. Bogh was diagnosed with epilepsy, Tourette's syndrome, anxiety disorder, and development coordination disorder.

September 2009 genetic testing found deletions of a small fragment of Chromosome 5, which the report says was not consistent with Cri-du-chat syndrome, although it is submitted in this proceeding and I accept he, in fact, suffers from that syndrome. A psychiatrist at Children's Hospital opined this chromosomal abnormality was consistent with an executive function disorder and likely the root cause of Mr. Bogh's symptoms which included petite mal seizures, a high-pitched voice, immaturity, and ADHD-like symptoms. [ 21 ] A psychological assessment was performed of Mr. Bogh in 2015 when he was 17 years old.

His full scale IQ tested in the very low range and his processing speed was extremely low. Verbal comprehension and working memory were low average, but perceptual reasoning was average. His reading skills were average, but reading comprehension and math skills were below average. At age 17, his social skills were placed in the 10 to 12-year-old age range. His overall social and practical skills were assessed as extremely low. Mr. Bogh did not qualify for an intellectual disability as his full-scale IQ was over 70, but his mental health disabilities precluded him from ever being able to work. [ 22 ] Dr.

Morgan opined that Mr. Bogh's deficits in social communications and context were consistent with social pragmatic communication disorder. In addition, Dr. Morgan opines Mr. Bogh suffers from development coordination disorder, Tourette's disorder, specific phobias, obsessive compulsive disorder, unspecified anxiety disorder with features of PTSD, severe alcohol use disorder, and mild to moderate cannabis use disorder. It is Dr. Morgan's view that Mr.

Bogh's numerous deficits and disorders made it likely that the only way he was able to socially interact with others was when he was intoxicated by alcohol. [ 23 ] Mr. Bogh displayed inappropriate sexual behaviour and was exposed to pornography at a young age and masturbated excessively as a teen. Dr. Morgan opined that Mr. Bogh was sexually naïve, but not sexually deviant. [ 24 ] Dr. Morgan further opines that Mr. Bogh assumed the victim was of legal age to consent based on her physical characteristics. Again, the female he described to Dr.

Morgan, T., was not the victim of the offence, but one of her companions. However, Mr. Bogh also expressed his assumption that, because the girls were old enough to drink alcohol or procure alcohol, they must not be underage. Dr. Morgan believes Mr. Bogh was also confused by the girls' flirtatious interactions with him given his difficulties understanding social cues. Dr. Morgan concluded that while Mr.

Bogh was capable of appreciating the nature of his act as demonstrated by his embarrassment when interrupted by police, his mental disorder was so severe that he lacked the mental capacity to know his actions were legally or morally wrong. In finding Mr. Bogh likely fulfilled the criteria for not criminally responsible by reason of mental disorder, Dr. Morgan says in his report: Mr. Bogh was globally functionally impaired by his mental disorders, sexually naïve, prone to misinterpreting social interactions, and intoxicated with alcohol.

He had limited sexual experience and his assessment of whether the victim was old enough to consent to sexual intercourse was probably impaired by his mental disorders, sexual naivety, and superimposed intoxication, leading him to erroneously conclude that she was older than she actually was. I am therefore of the opinion that his mental disorders were so severe at the material time of the index offences that he thought the victim was old enough to consent to sexual intercourse when in reality she was not and further that he gave no consideration to her level of intoxication.

It is therefore my opinion that his mental disorders were probably so severe at the material time of the index offences that he did not know that his having sexual intercourse with the victim was illegally or morally wrong. [ 25 ] Despite Dr. Morgan's opinion, Mr. Bogh has not pled NCRMD. He admits to possessing the requisite mental intent for sexual assault or, in this case, the requisite mental intent of touching for a sexual purpose. Further, the victim was unconscious at the time of the assault. While, arguably, Mr.

Bogh's deficits might impede his ability to accurately gauge whether or not the victim was too intoxicated to consent, there can be no question that an unconscious person rendered unconscious by any means is incapable of consent. Such a

determination does not rely on an accurate assessment of complex social cues. Dr. Morgan's opinion does not address how Mr. Bogh's deficits impacted his ability to accurately assess consent to engage in sexual activity from a "lifeless" person. [ 26 ] Dr. Hodelet prepared an independent NCRMD assessment for the court on May 4, 2022. Mr. Bogh told Dr. Hodelet that the victim was pulling him towards her and gave him a hickey before the "act" happened. He said he thought her consent "could be inferred" and, when it came to sex, he was not sure what to do. He did not realize it was wrong until the police intervened.

He thought the girls were 17 or 18, but that was "just a guess." He says he forgot he was in a public place when he assaulted the victim. Dr. Hodelet reports Mr. Bogh told police that he knew they "shouldn't do this" in a park full of children and that he was trying to stop her and he fully knew it was a bad idea, but that he "could not control it as much as he really could." [ 27 ] It was Dr. Hodelet's assessment that Mr. Bogh's genetic abnormality was not associated with any particular psychiatric condition. He appeared somewhat immature for his age, but he appeared to function in the normal IQ range.

His mental state at the time of the offence was notable for his account of heavy alcohol and cannabis use to the point of intoxication, but he was not experiencing significant depressive or anxiety symptoms at the time. She concludes: However, should the court find he does meet the test, it may determine that the subsequent arms of the test appear not to be met.

His description of the index offence at the time and subsequently appears to confirm a picture of significant intoxication, but no other mental process that would impair his ability to appreciate the nature and quality of his actions or that they were wrong. His statements at the time do suggest he did understand the nature of his actions and that they would be considered both legally and morally wrong. [ 28 ] Dr. Hodelet prepared a follow-up report on September 13, 2022. She reiterated Mr. Bogh appeared to function in the normal IQ range and spoke in a linear fashion with a wide vocabulary.

He expressed recognition of the harm alcohol has caused him, but has a blind spot for cannabis use which he wishes to resume. She opines that Mr. Bogh is a low risk to reoffend. His risk would be related to feeling lonely, drinking alcohol, and seeking out others, putting him in a situation where he could commit a similar type of opportunistic sexual offence while he is disinhibited by alcohol. [ 29 ] Dr. Tyler Oswald, a forensic psychiatric, provided psychiatric care to Mr. Bogh from November 11, 2020, until March 15, 2023. It was his initial impression that Mr.

Bogh suffered from alcohol and cannabis use disorder and anxiety in addition to experiencing tics suggestive of Tourette's syndrome. He reports Mr. Bogh minimized the impact of anxiety on his life and declined medication or treatment for anxiety or alcohol use problems. His mental health was stable. He was participating in substance use counselling and claimed to be sober and confident in his sobriety. Dr. Oswald offers no opinion about the relationship between Mr. Bogh's genetic disorder and the offence.

The Public Interest [ 30 ] As this is a joint submission, it is not necessary that the proposed sentence give effect to the principles of sentencing in pursuit of a fit sentence. Fitness is not the test. The test is whether the proposed sentence is contrary to the public interest or would bring the administration of justice into disrepute.

Principles of sentencing and caselaw are helpful in providing some context for what informs the public interest or the reputation of the judicial system insofar as they give effect to the expression of community values. [ 31 ] To assess whether a proposed sentence would be perceived as "so unhinged" that a reasonably informed member of the public would think the justice system had broken down, the court must have some notion of the collective values relating to the circumstances of a particular offence and the kind of sanctions the community would ordinarily expect. The circumstances of this case are egregious.

The social values that inform the sentencing of offenders who sexually abuse children were expressed by the Supreme Court in R. v.

Friesen where it said at paragraphs 89 to 90: [89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity … [ 32 ] I am going to omit cites in this quote, counsel: As L’Heureux-Dubé J. reasoned in L.(D.O.) , “the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women” precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441).

Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation … [90] The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable … As L’Heureux-Dubé J. recognized in R. v.

L.F.W. … “[a]s to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions” … Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires … We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society. [ 33 ] The notion that it is aggravating to abuse a child belonging to a vulnerable social group has been codified in s. 718.04 of the Criminal Code which provides that where: … a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence … [ 34 ] In Friesen , the Supreme Court recognized the heightened risk of sexual violence faced by marginalized children and particularly Indigenous children.

The court emphasized that, when a child victim is Indigenous, the court may consider the racialized nature of a

particular crime and the sexual victimization of Indigenous children at large in imposing a sentence (paragraph 70). [ 35 ] I find A.J., a young Indigenous female engaging an alcohol misuse with her teenage friends, was the kind of vulnerable victim contemplated in s. 718.04 of the Code and in Friesen and for whom society has made increasingly fervent demands for protection.

There is a strong public interest deterring sexual violence against Indigenous female children who are often the most vulnerable persons in our society and, tragically, the most victimized. [ 36 ] At the same time, the court in Friesen recognized that the personal circumstances of offenders can have a mitigating effect, saying that offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (paragraph 91). Sentencing Considerations for Indigenous Offenders [ 37 ] Mr. Bogh is of Indigenous ancestry.

His father was a member of the Tse’khene Nation near McLeod Lake, B.C. His paternal grandparents attended residential school and struggled with alcohol misuse. A sentencing judge must apply the principles set out by the Supreme Court in Gladue and Ipeelee even in “extremely grave cases of sexual violence” when sentencing an Indigenous offender, Friesen, at paragraph 92. [ 38 ] Mr. Bogh was raised off-reserve by his maternal grandparents who are Caucasian. He is separated from his Indigenous culture and expresses no interest in learning about his heritage or participating in culturally based programming.

I take into consideration the court's direction in Gladue and Ipeelee that cultural alienation is one of the legacies of systemic discrimination, colonization, and residential schools. [ 39 ] Even though Mr. Bogh may not internalize his cultural heritage or wish to connect with it, its impacts have affected his life. His father was initially absent in his life. When they did connect, Mr. Bogh's father's girlfriend abused him, causing Mr. Bogh's father to be on protective conditions restricting contact with his son. Mr. Bogh suffers from alcohol misuse.

He reconnected with his father as an adult, but their relationship has been strained due to Mr. Bogh's alcohol misuse. Mr. Bogh's mother left him as a child and he was raised by his grandparents. [ 40 ] Mr. Bogh's assessments paint a picture of an individual who is lonely and socially isolated leading to inappropriate or unhealthy modes of socializing. In that regard, Mr. Bogh's disconnection from his culture and community have deprived him of a means to achieve a sense of belonging and social connection. This history of familial instability, cultural alienation, and substance misuse are factors which reduce Mr.

Bogh's moral culpability. [ 41 ] Mr. Bogh's reduced moral culpability arising from his mental deficits and personal circumstances as an Indigenous offender are relevant in assessing whether the proposed joint submission is contrary to the public interest or would bring the administration of justice into disrepute. There is a public interest in reducing the number of Indigenous offenders in custody. Precedents [ 42 ] The parity principle is attenuated in the case of joint submissions, so the influence of judicial precedents is limited.

They are useful in identifying what sentence may or may not bring the administration of justice into disrepute to the extent they demonstrate how competing social values are weighed in similar cases and inform the final sanction. A proposed joint submission does not automatically fail the public interest test only because it falls below or at the bottom of an available range of sentence.

Conversely, a proposed joint submission does not necessarily meet the public interest test only because there were a couple of cases where the proposed sentence was imposed in other circumstances on other offenders. [ 43 ] In referring to caselaw and applying some of the considerations and facts to the case at bar, I am always mindful that the issue is not whether the proposed joint submission is fit or appropriate given the range espoused in the cases.

Rather, I am considering how these cases inform the reputation of the administration of justice and the public interest where the purposes of determining whether the proposed sentence contravenes those principles. [ 44 ] The Crown and defence rely on R. v. P.R.J. , 2021 BCSC 2537 ; R. v. B.L.M. , 2022 BCPC 187 ; R. v. C.G.J. , 2019 BCPC 252 ; R. v. C.G.J. , 2020 BCPC 26 ; R. v. J.A.P.H. , 2023 BCPC 90 ; and R. v.

Vaux , 2021 BCSC 1773 , as support for the proposed imposition of the conditional sentence order in this case. [ 45 ] In Friesen , the court affirmed that mental disabilities can have a mitigating impact on sentencing, citing R. v. Scofield , 2019 BCCA 3 , and R. v. Hood , 2018 NSCA 18 . In Scofield , the Court of Appeal upheld the imposition of a conditional sentence imposed on a 22-year-old offender who pled guilty to two counts of sexual interference in respect of two 15-year-old girls. He commenced romantic relationships with both victims which involved sexual activity culminating in vaginal intercourse. Mr.

Scofield had an IQ of 59 with a severely diminished level of cognitive and executive decision-making abilities. [ 46 ] In imposing a CSO, the sentencing judge found Mr. Scofield's disabilities precluded him from appreciating the significance of the girls being under the age of 16, what that meant, and the associated harm from sexually interfering with them. The judge found Mr.

Scofield's moral blameworthiness was significantly reduced by the fact that he possessed the maturity of a much younger person who would otherwise be within five-year age exception for consensual activity between youth. [ 47 ] In Hood , the court upheld the imposition of a CSO on a schoolteacher who cultivated romantic relationships with two of her former male students at a time when she was suffering from an undiagnosed bipolar disorder. The students were 15 and 17 years old. There was an issue as to whether she was not criminally responsible at the time of her offence. The trial judge found Ms.

Hood was criminally responsible, but her mental illness reduced her moral culpability. She had suffered collateral consequences such as loss of her career as a schoolteacher and public humiliation. [ 48 ] In R. v. Vaux , the 23-year-old accused pled guilty to sexually interfering with two girls ages 14 and 15. In both cases, he met the

victims and drove them to his father's house where they drank alcohol. He had vaginal intercourse with the victims even after they communicated they were not interested in having sex with him. He suffered from autism spectrum disorder (ASD) and ADHD. However, he did not present with intellectual deficits. [ 49 ] Like Mr. Bogh, Mr. Vaux's condition impaired his ability to read social cues, exercise appropriate social skills, and form same- age peer friendships. He was found to have poor social judgment and limited social competence.

His level of maturity was not commensurate with his age and he gravitated towards adolescent peers similar to the offender in Scofield . The judge found as a fact that Mr. Vaux's ASD contributed to the coercive aspect of the sexual offences as it impacted his ability to understand and appreciate consent to sexual activity. She imposed a 23-month CSO. [ 50 ] A fundamental distinguishing fact between Scofield , Hood , and Vaux and the case at bar arises from the relationship between the offender's cognitive and social impediments and the nature of the offending acts.

In Scofield and Vaux , the sentencing judges found it compelling that the offenders' disabilities gave them a mental age closer to the ages of the girls they assaulted. In Vaux , the judge considered the autistic offender's ability to understand and appreciate the scope of establishing consent. [ 51 ] By contrast, Mr. Bogh sexually assaulted an unconscious victim. His maturity level, ability to read social cues, and mental age did not factor into that aspect of his offending. His conduct would have been illegal even if he had been the same age as A.J. Dr. Morgan opined that Mr.

Bogh was likely not criminally responsible for his actions because his social impairments and sexual inexperience impaired his assessment of whether the victim was old enough to consent to sexual intercourse or whether she was too intoxicated to consent, but his opinion does not go on to consider the issue of how Mr. Bogh's disabilities related to his ability to assess whether or not an unconscious victim was consenting to sexual activity. The evidence put before me does not establish that Mr. Bogh's cognitive impediments were the driving factor in his decision to rape the victim while she was unconscious.

His consumption of alcohol was the significant factor. [ 52 ] In P.R.J . , the trial judge imposed a 23-month conditional sentence on a mother convicted of digitally penetrating and performing oral sex on her eight-year-old daughter. In imposing a CSO, the sentencing judge found it was a single event and the accused's mother was intoxicated and suffered from anxiety and depression at the time of the offence. On appeal, the court overturned the trial judge's decision, R. v. P.R.J . , 2023 BCCA 169 , substituting a jail sentence of 36 months.

The court addressed the impact of the accused's personal circumstances on sentence at paragraphs 57 to 59, and I will omit cites in reciting this quote: [57] Properly analyzed, factors specific to an offender’s physical condition, mental or cognitive state at the time of an offence may attenuate the offender’s personal responsibility. As I explained in R. v. Hagen … (at para. 43): [43] … factors that attenuate moral culpability always require meaningful consideration at sentencing, even in the context of a grave offence.

This will include, but is not limited to, cognitive impairment or mental health issues shown to affect an offender’s capacity to control their impulses or appreciate the seriousness of their conduct or its risk; mental illness; addiction; traumatic personal events that may contribute to their offending behaviour; or Gladue factors. … [58] However, sexual interference is a specific intent offence … Whatever PRJ’s level of intoxication may have been, it did not negate this intent.

In other words, notwithstanding the intoxication and her possible misuse of prescription drugs, anxiety or depression, PRJ knowingly offended against her seven or eight-year old daughter for a sexual purpose . She intentionally applied force of a sexual nature to a young and dependent child in circumstances where she was, or ought to have been aware, that her actions could profoundly harm the child.

There was no evidence that PRJ was unaware of the “profound physical, psychological, and emotional harm that [her] actions may [have caused] … To the contrary, there was evidence that during the sexual interference, P manifested visible signs of immediate harm, but they were ignored. [59] In my view, the reasons for sentence reflect a finding of diminished moral blameworthiness based on mere assumptions about the contribution of PRJ’s substance use and mental health to her sexual offending … Applying the harm-based analytical approach mandated by Friesen , PRJ’s personal responsibility was properly at the high end. [ 53 ] In R. v.

J.A.P.H ., the sentencing judge acceded to a joint submission for an 18-month CSO for an Indigenous offender who committed one act of sexual touching against his daughter while intoxicated, involving the offender briefly sliding his hand down his daughter's pants during a tickle fight. In C.J.G. , the court imposed a five-month CSO on an 18-year-old Indigenous offender suffering from partial FASD.

He befriended a 13-year-old grade eight student, eventually kissing her and putting his hand down her pants over her protests. [ 54 ] The facts in those cases were significantly distinguishable in terms of the severity of the assaults in those cases. [ 55 ] In R. v. B.L.M. , the Indigenous offender was found guilty after trial of performing fellatio on his partner's 13-year-old son and instructing the same boy to perform fellatio upon him when the child was 15 years old. The offences were historical.

The offender was 38 and 40 years old at the time of the offence, but 59 at the time of sentencing with health issues that Judge Patterson characterized as constituting a collateral consequence making jail disproportionately punitive for that offender. Judge Patterson found the offender's Indigenous background particularly mitigating and took into account he was sexually abused at age 12. Rejection of the Joint Submission [ 56 ] Mr. Bogh entered a guilty plea early in the proceedings. In Anthony-Cook , Justice Moldaver explained the compelling rationale for accepting joint submissions.

Joint submissions introduce certainty into plea negotiations which are integral to the efficient functioning of the criminal justice system. The entry of a guilty plea frees up judicial resources and spares victims and witnesses from testifying. Joint submissions reflect the quid pro quo of plea negotiations in which the Crown mitigates the risk inherent in its case in consideration of the agreement to seek a more lenient sentence. [ 57 ] The value of joint submissions to the criminal justice system and the certainty that they will be accepted by the courts cannot be overstated.

It is because of the important value of the resolution process that the court may only reject a joint submission if its imposition

would be contrary to the public interest or would bring the administration of justice into disrepute, a very high standard. I may only depart from the joint submission if imposing it would be so markedly out of line with the expectation of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system, or would cause informed and reasonable members of the public to lose confidence in the institution of the courts, Anthony-Cook at paragraph 33 . [ 58 ] The facts of this case are especially egregious.

This involved the rape of an unconscious 15-year-old Indigenous girl likely in need of medical attention, in a public place, in the middle of the day, in view of other children and bystanders, while her helpless friends cried out for help.

I must consider whether imposing a non-custodial sentence in this case would be contrary to the public interest or bring the administration of justice into disrepute. [ 59 ] As stated above, joint submissions benefit the legal system in a number of ways, including sparing traumatized victims from having to testify, sparing judicial resources by eliminating the need for a lengthy or complicated trial or foregoing risks which maybe inherent to the Crown's case. [ 60 ] However, none of those benefits appear to apply in this case. In terms of mitigating risk, the Crown's case is overwhelming.

The rape was witnessed by independent sober third parties. The rape was still ongoing when the police arrived and Mr. Bogh was literally caught in the act. The victim's DNA was located on Mr. Bogh's penis. Mr. Bogh's defense of mistake of age is dubious given his lack of diligence and, in any event, is no defence to raping an unconscious victim incapable of consenting no matter what her age. [ 61 ] In terms of sparing victims from testifying, it would likely not be necessary to call the child victim to give evidence.

In fact, she would likely have little to testify about given her intoxicated and unconscious state at the time of the offence. The Crown's case would be readily proven by independent witnesses and police officers who observed the offence without having to retraumatize the adolescent girls involved.

The victim's lack of consent could be established by adducing evidence of her age and her state of unconsciousness as observed by police. [ 62 ] In terms of sparing judicial resources, there is nothing inherently complicated about the case such as Charter issues, voluntariness, or expert testimony other than DNA evidence. There is no reason to believe the Crown would have to call an inordinate number of witnesses to prove its case.

While a plea always benefits the justice system by saving the time and resources necessary for a trial, it is not a case where the quantum of judicial resources necessary to bring the matter to trial was significant. There is no apparent quid pro quo in the Crown's plea negotiation or obvious significant benefit to the justice system garnered by Mr. Bogh's plea. [ 63 ] Mr. Bogh argues that, based on Dr. Morgan's assessment, he could have pled NCRMD, but instead is taking responsibility for his actions, which he offers as a quid pro quo . I cannot accept that as a proper quid pro quo supporting a negotiated plea.

Any plea requires an offender actually possessed the requisite mens rea for the offence. If Mr. Bogh was not criminally responsible for his actions due to a mental disorder, then he cannot be sentenced for the offence and his plea must be struck. [ 64 ] Plea negotiations solely relieve the legal and evidentiary burden on the Crown. A plea bargain contemplates that the offender is legally guilty and all essential elements of the offence are present and, in consideration for a lenient sentence, the offender will admit those elements without the Crown having to prove them.

Joint submissions do not authorize or condone an accused person admitting guilt to an offence they did not possess the requisite intent to commit. It does not benefit the legal system for accused persons to plead guilty to offences which they are not legally responsible for in consideration of favourable sentencing positions. Such a practice, in fact, would have the opposite effect, undermining the reputation of the administration of justice. [ 65 ] In

summary, none of the benefits identified in Anthony-Cook justify the imposition of the proposed joint submission in this case other than the plea saves some judicial resources by eliminating the need for a trial of moderate length. [ 66 ] I am told Mr. Bogh is afraid of going to jail and incarceration would be difficult for him, although no details were provided explaining how incarceration would impact him in any exceptional way. Many individuals convicted of sexual offences against children have no criminal history and have never served time in prison.

Some also have mental health issues such as anxiety or depression or, sadly, suffer from FASD. I accept the prospect of going to jail for the first time would be especially daunting for anyone with that background. In that respect, Mr. Bogh has not provided evidence of factors unique and specific to him and his anticipated conditions of incarceration to conclude that a jail sentence would be disproportionately punitive. [ 67 ] Mr.

Bogh's condition and numerous deficits do reduce his moral culpability for the offence to the extent that his deficits likely impeded his decision-making in the time leading up to the offence which set the stage for its commission. His deficits may have impacted his ability to recognize the impropriety of a man his age socializing with teenage girls and drinking alcohol with them. It may have impacted his understanding of the obligation to diligently ascertain the victim's real age before engaging in sexual contact with her.

He seeks social connections, yet his disorders make it difficult for him to socialize at all without drinking to intoxication which has a disinhibiting effect. His social deficits combined with his sexual history may have impaired his ability to accurately process friendly overtures from the victim when she was conscious. [ 68 ] That being said, Mr. Bogh acknowledged to Dr. Morgan he knew it was wrong to have sex with the victim when she was unconscious. Even if Mr.

Bogh's cognitive and social deficits impaired his ability to accurately assess the victim's age, her social cues, or whether or not she was too intoxicated to consent, he either knew or was wilfully blind to the fact she was not awake when he was having intercourse with her. I am not satisfied on the evidence put before me that Mr. Bogh's deficits impaired his ability to ascertain whether or not the unconscious victim was consenting to intercourse. The distress of the victim's companions should have also signalled to Mr. Bogh the unwanted and harmful nature of his actions. [ 69 ] The aggravating factors are many.

The victim was a child. The victim was a vulnerable Indigenous female. The victim was ill at the time at the time of the rape, ultimately requiring overnight hospital treatment. Instead of seeking medical attention or trying to rouse the victim, Mr. Bogh took advantage of her incapacity to rape her. The harmful impact on the victim has been significant. The offence was especially degrading involving the rape of the victim in a public place in view of members of the public.

The rape of a vulnerable unconscious victim is demeaning and dehumanizing, reducing that human being to little more than an object to be used as a tool for sexual gratification. Mr. Bogh raped the victim near a playground where children were playing in full view of its occupants and, in doing

so, spread the horrifying impact of this offence to other members of the community. Mr. Bogh raped the victim in the presence of her companions causing them distress. [ 70 ] Even after considering Mr. Bogh's diminished moral culpability arising from his genetic disorder and experiences as an Indigenous offender, I am of the view that the proposed joint submission is contrary to the public interest and, if imposed, would bring the administration of justice into disrepute. Mr. Bogh's social deficits do not explain his decision to rape the unconscious A.J.

A.J. is a particularly vulnerable victim that the public has a strong interest in protecting. [ 71 ] The circumstances of the offence and its impact are egregious, the Crown's case is uncomplicated and overwhelming, and there is no significant benefit to the victim or the justice system gained from the guilty plea justifying an extraordinarily lenient sentence.

I find a reasonably informed member of the public would find a non-custodial sentence so unhinged from the circumstances of the offence and the offender that they would believe the proper functioning of the justice system had broken down and I reject the joint submission. [ 72 ] Having rejected the joint submission, I must consider what would be a fit sentence in this case. In doing so, I have considered cases set out above in addition to the principles of sentencing set out in the Criminal Code , including principles of judicial restraint particularly for Indigenous offenders.

For any other offender, this conduct would attract a sentence of four to six years' jail. [ 73 ] However, as stated above, Mr. Bogh's cognitive and social deficits reduce his moral culpability. Mr. Bogh is not assessed to be a high risk to reoffend. He has pled guilty. He has taken responsibility for his actions. He is an Indigenous offender who has suffered some Gladue factors including a history of familial residential school attendance, family breakdown, and separation from his parents, potential abuse at the hand of his father or his father's partner, and a profound loss of connection to his culture.

Considering Mr. Bogh presents as a socially awkward young man eager for connection, alienation from his Indigenous culture and community is especially tragic. Mr. Bogh also has significant mental deficits and social deficits which, as I have found, set the stage for the commission of the offence and significantly reduce his moral culpability. [ 74 ] Mr. Bogh has been on restrictive house arrest bail conditions for three years. He has also been prohibited from attending parks and public places frequented by children or having contact with persons under the age of 16.

He was only allowed out for three hours a day or in the presence of his surety. He was on a Rogers order and an abstain condition. I have taken this lengthy period of presentence restriction on his liberty into account when determining the appropriate length of Mr. Bogh's sentence. [ 75 ] I find a sentence of one-year jail plus three years' probation is a fit sentence given all of the aggravating and mitigating factors previously identified and after taking into account Mr. Bogh's reduced moral culpability and presentence restrictions of his liberty.

The jail sentence gives effect to the principles of denunciation and deterrence, while the abbreviated length and imposition of a lengthy probationary term recognizes Mr. Bogh's reduced moral culpability while providing a framework for rehabilitation and protection of the public following his release. [ 76 ] Mr. Bogh, you are sentenced to one year's jail. [ 77 ] That will be followed by three years' probation on the following terms. [ 78 ] 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or officer in any change in employment or occupation. [ 79 ] 2002, you must have no contact or communication directly or indirectly -- and I am sorry, Ms. Baines, the names because I have been working off the initials? So it is -- is it T.L. and A.J.? [ 80 ] CNSL A. BAINES: And L.N. [ 81 ] THE COURT: And L.N. [ 82 ] CNSL A.

BAINES: Which is [spelling of name omitted for publication] [ 83 ] THE COURT: [omitted for publication] okay. [ 84 ] So you shall have no contact or communication directly or directly with A.J., T.L., or L.N. [ 85 ] 2005-1, you must not go to or be within 25 metres of any place where A.J., T.L. and L.N. lives, works, attends school, worships, or happens to be.

If you see any of them, you must leave their presence immediately without any words or gestures. [ 86 ] 2104, you must report in person to a probation officer at Prince George Community Corrections at Number 101, 250 George Street within two business days after your release from custody unless you have obtained, before your release from custody, written permission from a probation officer to report elsewhere or within a different timeframe and, after that, you must report as directed by your probation officer. [ 87 ] 2401, you must not possess or consume alcohol, illegal drugs, intoxicating substances, marihuana, or prescription medication except in accordance with a medical prescription. [ 88 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for, Madam Clerk, (

a) alcohol or substance use; (

b) mental health and, Madam Clerk, I am going to add the (

c) or sexual violence prevention. [ 89 ] 2501, having consented in court, you must: (1) report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your probation officer; (2) attend all scheduled appointments with your doctor, psychiatrist,

psychologist, counsellor, and mental health worker; (3) take all medications and medical treatment prescribed for you; (4) provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, psychologist, counsellor, or mental health worker; (5) authorize your probation officer to give all professionals identified in this condition a copy of this order; (6) authorize your probation officer to tell all professionals identified in this condition that if you do not follow this order, they have your permission to inform your probation officer; (7) sign any document that is necessary for your probation officer and all professionals identified in this condition to check your attendance and completion of any intake, assessment, counselling, or treatment program; (8) if you decide not to follow the terms of this order, you must immediately report this in person to your probation officer and tell them why.

If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. [ 90 ] CNSL M. HOUG: Can I interrupt -- Your Honour with that? [ 91 ] THE COURT: Certainly. [ 92 ] CNSL M. HOUG: Judge Malfair is putting you on a Rogers order. When we did our sentencing, it was on the basis of a conditional sentence. She is not agreeing to a conditional sentence, okay? So that means do you still consent to having the court impose terms having to do with your care and all healthcare? [ 93 ] THE ACCUSED: Yes. [ 94 ] CNSL M.

HOUG: Okay, thank you. [ 95 ] THE COURT: Thank you for clarifying that, Mr. Houg. [ 96 ] You do not have to consent to that term if you do not wish to because this is not -- I am not -- so if you do not want to be on the order I just put you about, seeing all of these professionals, et cetera, you do not have to agree to that. [ 97 ] CNSL M. HOUG: Okay, so you understand that, but you still wish to have access to those resources through the probation office, do you? [ 98 ] THE ACCUSED: Yes. [ 99 ] CNSL M. HOUG: Yes, he consents to that, Your Honour. [ 100 ] THE COURT: Okay, thank you, Mr. Houg, for clarifying.

Thank you. Okay. [ 101 ] There are some mandatory ancillary orders. [ 102 ] CNSL M. HOUG: I think you have to deal with a weapons prohibition, don't you? Is it mandatory, Ms. Baines? [ 103 ] CNSL A. BAINES: Yes, it is, it's a 109, but also Your Honour did not make any conditions about residence for Mr. -- [ 104 ] THE COURT: Oh, right, thank you. I know there is -- in terms of the -- I do not know if I have to mandatorily put on the probation a restriction on weapons. I know I do for bail. I do not think I have to for probation, but the 109 I do. Thank you for the -- thank you, Ms. Baines.

Twenty-two -- [ 105 ] CNSL A. BAINES: The Crown was suggesting 2201, "not to change without permission". [ 106 ] THE COURT: Okay, 2201, when first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without prior written permission from your probation officer. [ 107 ] Okay, and then, as I said, I know the no-weapons is mandatory on a bail order.

I do not think it is mandatory on the probation order and he is -- I am going to -- he is going to be on a 109 order, anyways, which is mandatory. [ 108 ] So it is a primary designated offence. Count 4 is a primary designated offence. There has to be a DNA order. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of bodily substances from you. These samples will be taken from you while you are in custody. You must submit to the taking of samples. [ 109 ] 109, I have to make a mandatory firearms prohibition order given the nature of the offence.

Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, explosive substance for a period of 10 years from today; and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 110 ] I take it Crown is not seeking a 161 order in this case -- [ 111 ] CNSL A. BAINES: Crown was requesting 161s. [ 112 ] THE COURT: -- but there is a SOIRA -- you are? [ 113 ] CNSL A.

BAINES: Yes, I made notes that I made submissions about that, but maybe I -- [ 114 ] THE COURT: Okay. [ 115 ] CNSL A. BAINES: -- maybe I didn't and just --

[ 116 ] THE COURT: Any position -- [ 117 ] CNSL A. BAINES: -- made the notes. [ 118 ] THE COURT: -- on a 161 order, Mr. Houg? [ 119 ] CNSL M. HOUG: The SOIRA order. [ 120 ] THE COURT: An order prohibiting him from having contact with persons -- [ 121 ] CNSL M. HOUG: Oh, okay. [ 122 ] THE COURT: -- under the age of 16? [ 123 ] CNSL M. HOUG: No, there's no -- I take no position -- it seems to be -- it was -- [ 124 ] THE COURT: Well, which aspects of 161 is the Crown seeking? Does he need to be barred from public parks and playgrounds and daycare centres?

It is not really suggested he was grooming -- going and grooming young children in those places or anything along those lines. I am -- I do have some concerns about his ability to still, he is young, function in society. I can understand employment, being in a position of trust-- which provisions was the Crown seeking? [ 125 ] CNSL A.

BAINES: I had made note of (a), (a.1), (b), and (c), but I may have been overly enthusiastic. [ 126 ] THE COURT: Yes, like no -- he cannot go to a pool or community centre -- I am just thinking like given his -- those are the types of places, and especially given his cognitive profile, that he may wish to go. I just have some concern. This was -- he is meeting up with kids at the mall and drinking with, I understand. I am just trying to think of balancing protecting the public with what the nature of this offence is. (

B) I can see, being in a position of trust where he might have that access, but does he need to not go to a pool? [ 127 ] CNSL A. BAINES: My friend just wants to review the section. It may be more appropriate to have those as part of the probation order, instead, which is another note I made, so, because that would be for the three years and then it would be included. [ 128 ] THE COURT: Okay. [ 129 ] CNSL M. HOUG: I think (c) -- I think (

c) is all you need here, s-s. (c), having any contact with a person who's under the age of 16 years. [ 130 ] THE COURT: Okay. [ 131 ] CNSL M. HOUG: I think that covers it, and you're saying he self-isolates which led to his offending. So if he's starting to go out to places where he can be appropriately engaging with people, that's a good thing. [ 132 ] THE COURT: That is my concern, sort of just getting -- that so I think -- sorry, Ms. Baines, what do you think of (c), a no-contact except with incidental contact through work, for example, or something like that -- [ 133 ] CNSL A.

BAINES: Well -- [ 134 ] THE COURT: -- or while in public place? [ 135 ] CNSL A. BAINES: -- I made myself a note about 2303. So I'm just going to ask a condition of probation, instead. [ 136 ] THE COURT: And is three years sufficient? Does he need a long-term 161 or is -- in this -- for the circumstances of this case, would three years on probation be sufficient? [ 137 ] CNSL A.

BAINES: Well, I would think that three years on probation would be sufficient being as he is also supposed to be undertaking counselling and so forth in the interim and supposed to be stone-cold sober which he has managed to accomplish for the last number of years here now. [ 138 ] THE COURT: All right. I am inclined just to put it on the probation order, but not put him on a long-term 161 order. [ 139 ] CNSL A. BAINES: Crown is content with that. [ 140 ] THE COURT: Okay, thank you. [ 141 ] So, Mr.

Bogh, I am going to just -- Madam Clerk, can we go back to the probation order? [ 142 ] THE CLERK: Yes, Your Honour. [ 143 ] CNSL M. HOUG: And so that would 20 -- [ 144 ] THE COURT: 2304. [ 145 ] CNSL M. HOUG: 2304, yes, Your Honour. [ 146 ] THE COURT: Okay. So Madam Clerk. [ 147 ] You must not have any contact or communication directly with -- directly or indirectly with or be in the presence of any person

under the age of 16 years, except: (

b) in the immediate presence of an adult who has been informed by your probation officer about this order; (

e) in the immediate presence of a guardian of the child; or (

g) incidental communication, contact, or presence in a public place where other adults are present. [ 148 ] Okay, and Ms. Baines, have you prepared a SOIRA order to sign? [ 149 ] CNSL A. BAINES: No, I understood that -- [ 150 ] THE COURT: Oh, is the registry doing them now? [ 151 ] CNSL A. BAINES: That's what I understood -- [ 152 ] THE COURT: Okay. [ 153 ] CNSL A. BAINES: -- but, my goodness, these things change and I haven't been informed that's it's been changed, but I understood it was the registry prepared them so I did not prepare one. [ 154 ] THE COURT: Okay. [ 155 ] So, Mr.

Bogh, again, this is a mandatory order given the nature of the offence to which you have pled guilty. Pursuant to s. 490.12 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 10 years? [ 156 ] CNSL A. BAINES: I had written down 20, but I -- [ 157 ] THE COURT: Twenty or 10? Did you proceed summarily or by -- [ 158 ] CNSL A. BAINES: We proceeded by indictment. [ 159 ] THE COURT: Okay, I think it is 20 years, then, for 20 years. [ 160 ] CNSL A. BAINES: Thank you. [ 161 ] THE COURT: Okay. All right. Now, with the remaining counts on the information, Ms.

Baines? [ 162 ] CNSL A. BAINES: Yes, Crown directs a stay on Count 1, 2 -- just a sec, and three. I believe he pled guilty to Count 4. Yes. Crown directs a stay on Counts 1, 2, and 3. [ 163 ] THE COURT: All right. Thank you, counsel, this was very difficult. Thank you for all your assistance. (REASONS FOR SENTENCE CONCLUDED