R. v. Keitlah Date:, 2014 BCPC 202

Citation: R. v. Keitlah Date: 20140730 2014 BCPC 0202 File Nos: 3483-1, 3593-1 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN PAUL NICHOLAS KEITLAH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: J. Marin Counsel for the Defendant: B. Hughes Place of Hearing: Pemberton , B.C. Date of Hearing: June 13, 2014

Date of Judgment: July 30, 2014 [ 1 ] THE COURT: These are my reasons on sentence in the matter of Jonathan Paul Nicholas Keitlah. Mr. Keitlah is before the court on two separate Informations. [ 2 ] The first in time, Information 3483, arose February 26, 2013. He pled guilty on Count 3 on a

summary basis to sexually assaulting C.S. contrary to s. 271 of the Criminal Code . As the Crown proceeded summarily, the maximum sentence is 18 months and a conditional sentence order is available. [ 3 ] The second Information before the court is 3593. The Crown proceeded by indictment. Mr. Keitlah elected to be tried in Provincial Court. It is another allegation of sexual assault, this time of K.W. arising June 1st, 2014, contrary to s. 271 of the Criminal Code . [ 4 ] Both offences occurred in Mount Currie. On the first in time, Mr. Keitlah entered a guilty plea in October of 2013.

On the second, he entered a guilty plea in July of 2014. [ 5 ] The sentencing proceedings on the first Information proceeded on March 12th, 2014. The court would have given oral reasons that day and imposed sentence, but did not do so as a result of a lack of court time. The matter was adjourned over and, unfortunately, there was a significant delay due to my unavailability. In the meantime, the second offence arose. [ 6 ] The court has had the benefit of a Pre-Sentence Report and psychological assessment.

The Pre-Sentence Report contains minimal information regarding the Gladue factors and, even in submissions, I received very little information about that background. [ 7 ] The circumstances of the first offence on Information 3483 are that on April 26th, 2013, at about 5:00 in the morning on the Mount Currie Reserve lands, Mr. Keitlah entered the home of the victim. Residing in the home were two parents and four children. The victim was a male aged 13. [ 8 ] The victim said he awoke around 4:00 a.m. hearing a door open. He went back to sleep and, approximately an hour later, was awoken again.

This time, the accused was kneeling beside his bed with his hand inside his pyjama pants touching his penis. The boy told Mr. Keitlah to get out, which he did. [ 9 ] The boy noted Mr. Keitlah to have a staggering gait. The victim got up and went to the bathroom, at which point, he could hear his father yelling. He became fearful that his father might be harmed by the man who had just been in his room. [ 10 ] The victim's parents' bedroom was downstairs. His parents, too, had heard someone enter the residence, but thought it was someone else staying in the house.

Apparently, after being in the child's room, the accused entered the parents' bedroom and sat on the bed. They awoke. The father kicked him, struggled with him, and held him for the police. [ 11 ] Mr. Keitlah was found to be wearing the father's underwear and t-shirt. His own clothes were located later in the house along with an empty beer can. The child victim disclosed immediately to his parents and the police what had occurred in his room. [ 12 ] The police reported that Mr. Keitlah was highly intoxicated, confused, and disoriented.

As a result, he was taken to hospital by Emergency Health Services for a brain scan. When interviewed, he had little recollection of the offence and was unable to understand why he had entered the victim's home and behaved as he did. He did not know the family. [ 13 ] The circumstances with respect to the second offence on Information 3593 arose overnight from May 31st to June 1st, 2014. Mr. Keitlah was attending at a house party for someone's birthday. In the early morning hours of the 1st, the victim went to lie down.

The rest of the people at the party were playing a game. [ 14 ] One female who had not had very much to drink noted Mr. Keitlah was missing from where they were playing the game and went to look for him. She found him on top of the unconscious victim. Their clothing was down around their legs and Mr. Keitlah was engaged in intercourse with the victim. When the witness confronted him, he said, "Don't tell anyone." The victim then awoke and the assault ended. [ 15 ] There was no victim impact before the court with respect to either offence. [ 16 ] The Pre-Sentence Report is current up to March of 2014. Mr.

Keitlah was 23 at the time of the first offence and 24 at the time of the second offence. His history is set out under, "Current Circumstances," and states as follows: Jonathan Paul Nicholas Keitlah was born in Squamish, British Columbia, on December 18th, 1989. Although he was born in Squamish, he is a member of the Ahousaht Band which is located near Tofino, B.C. He is the son of Selma Sevarge and Nelson Keitlah. Jonathan has four paternal half-siblings and two maternal half-siblings. He indicated that his home life was dysfunctional. Jonathan indicated that both his mother and father were alcoholics.

He advised that they would often disappear for months on drunken binges and he often would be cared for by his older half siblings during their absences. When the parents were home, Jonathan mentioned that his father would be physically and sexually abusive towards his mother and stepsister as well as neglectful towards the children. He denies any sexual or physical abuse by his parents, but did acknowledge being allegedly sexually abused by a relative when he was seven years old. He refused to go into any detail regarding this incident. His parents separated when he was seven years old.

Jonathan indicated that he lived a nomadic lifestyle after his parents' separation which continued until he was 12 years old. He lived in numerous communities in British Columbia including Nanaimo, Ucluelet, Bamfield, and Mount Currie. Jonathan advised that at the age of 12, his mother sobered up and they finally settled in the Mount Currie area which has been the community he continues to reside in.

[ 17 ] Further on, the report indicates that Mr. Keitlah has had one serious relationship. It lasted for three years from 2010 to 2013. There was one child of that relationship who is now five. Mr. Keitlah had custody of that child as a single parent for the first year after separation and he now sees the child regularly on weekends. [ 18 ] He was living with an uncle on the Mount Currie Reserve which was a dry house and apparently a healthy environment.

From the time of the first offence up until his arrest after the second offence, the uncle he was living with reported that he had not seen any signs that his nephew had been under the influence of any intoxicants. [ 19 ] Ms. Sevarge, his mother, was interviewed and she indicated that her son had never been able to open up about his past abuse or about bullying he experienced in school. She indicated in the psychological report that they were poor and Mr. Keitlah did not appear to be aboriginal and that was why he was bullied. [ 20 ] Mr. Keitlah obtained his grade 12 education through the GED program.

He also completed a culinary program, a WHMIS course and a first aid course. The psychological report says that he did not write the exams for his culinary program because, at that time, his relationship with his common law wife was breaking down. The report indicates that his goal is to become a chef and up to the time of the report, he was working at a restaurant in Pemberton as a prep cook. He has no financial issues. [ 21 ] With respect to substance misuse, at page 4 of the Pre-Sentence Report, it states as follows: Jonathan has stated that he began drinking alcohol around the age of 13.

He indicated that he did not drink on a regular basis, but when he did, he was a binge drinker. He admitted that he would consume alcohol to the point of total intoxication. These episodes of binge drinking would last from one to two days. Jonathan mentioned that his binge drinking continued on for some time and ended after this offence occurred. Mr. Keitlah has had no previous contact with the criminal justice system. The Pre-Sentence Report indicates that Mr.

Keitlah is prepared to comply with any conditions or interventions the court may impose and that he had been cooperative and informative with the preparation of the report. [ 22 ] With respect to his attitude and understanding regarding the offence, he reported to the Pre-Sentence Report preparer that he had no recollection of the circumstances, but that he was ashamed about his behaviour and had no rational explanation for his actions. [ 23 ] In terms of the Gladue information, there is a description of both the Ahousaht Nation and Mount Currie Band or Lil'wat Nation and some of the resources available in the community.

The Mount Currie Band is in partnership with Community Corrections in providing funding for a therapist who is trained to counsel sex offenders in the community. However, any intense or thorough treatment would require Mr. Keitlah to go to Vancouver. Mr. Keitlah does not appear to be involved with the Ahousaht Nation or any of their cultural activities. [ 24 ] In the psychological report under the title, "Summary and Recommendations," the preparer of that report says as follows: Mr. Keitlah's lack of insight makes it impossible to understand his motivation for the index offence.

This is, therefore, a key risk factor because Mr. Keitlah can offer few clues regarding how to prevent similar behaviours. Other important risk factors in this case include Mr. Keitlah's problems related to childhood abuse, stress, and coping, substance abuse, and intimate relationships. He has been a binge drinker for a number of years and copes with stress by consuming alcohol. This typically destabilizes and disinhibits him.

Although he claims not to be interested sexually in men or young children and has no prior violent or sexual violent behaviours, it appears that his behaviour is unpredictable when he is intoxicated. It is likely his behaviour and his lack of self-awareness is related to his own victimization experiences which possibly continues to traumatize him. In Mr. Keitlah's case, it is unlikely that he would reoffend if he remains sober given that (

a) he does not endorse antisocial attitudes supporting sexual violence or crime in general; and (

b) he has not otherwise displayed sexually deviant tendencies or behaviours. However, if he were inebriated, it is plausible that he could engage in similar behaviour, especially if he remains untreated and does not address the root causes of his crime. Thus, as management strategies, it is respectfully recommended that the court consider imposing conditions to abstain from alcohol use and attend treatment for substance abuse, his own childhood victimization, and his sexual offending. [ 25 ] At the next paragraph, the psychologist goes on to note that: It is likely that Mr.

Keitlah would benefit from cultural sensitive psychological treatment. And: Mr. Keitlah presented as a good candidate for such treatment due to his reasonable intelligence and his openness to counselling. [ 26 ] That report was prepared for the sentencing proceeding in March and, unfortunately, the prediction that Mr. Keitlah could act out again when under the influence of alcohol proved true. [ 27 ] The aggravating circumstances with respect to the first offence in time are that Mr. Keitlah entered an occupied residence and offended against a 13-year-old child.

With respect to the second, the victim was vulnerable and, indeed, defenceless at the time the assault occurred. He engaged in unprotected intercourse and, given his comment, it is clear that at the time he was consciously aware that what he was doing was wrong. [ 28 ] With respect to the second offence, it is also an aggravating factor that he offended again in a sexual manner while awaiting sentence for a similar offence. This indicates that he was not specifically deterred by the process of the prosecution for that first offence or the potential consequences.

As Crown counsel at the time said, it would appear he has unregulated and unpredictable sexual impulses

while intoxicated. [29] The mitigating circumstances are many. Mr. Keitlah has taken responsibility from the beginning with respect to each offence. He entered early guilty pleas and is entitled to significant mitigation as a result. I accept that he is sincerely remorseful for both. Withrespect to the first offence, Cedric Jones, who is a drug and alcohol counsellor, described Mr. Keitlah as humbled by his offendingbehaviour. [30] Although Mr. Keitlah has not demonstrated particular insight into why he is offending sexually, he certainly has demonstratedinsight into his need for psychological assistance.

The reports indicate he pursued counselling for two years in high school andbenefitted from that. He also attended counselling with Mr. Jones in the spring of 2014. That occurred on a weekly basis for a couple ofmonths up to the time of the sentencing hearing in March. As indicated in the report, he is open to receiving further and intensivetreatment and has been cooperative with the Corrections authorities to date. [31] There are positive prospects for his rehabilitation. His sole criminogenic factor would appear to be alcohol in combination witha history of trauma.

He is capable of abstaining from the use of alcohol for significant periods of time. He was abstinent from alcoholfrom the time of the first offence well into the spring of 2014. He does not suffer from any cognitive challenges and, as noted, he isamenable to treatment. He is intelligent and able to maintain employment and be self-supporting. [32] Both offences were opportunistic as opposed to predatory. [33] Mr. Keitlah will continue to suffer from the stigma of having committed these offences. This is particularly so given he isliving in a very small community.

He has suffered the stress of the process of the prosecution and, of course, he will face the manyconsequences of a conviction, being a criminal record for two sexual offences, being subject to the Sex Offender Registration Actprovisions for a significant period of time, and he having have to provide a sample of his DNA for the databank. [34] As I noted earlier, I have little information about the Gladue factors and their specific impact on Mr. Keitlah. He hails from theAhousaht Nation, but appears to have had little contact with them. He was born in Squamish.

He is currently living in Mount Currie andhas been since age 12. He has also lived in other communities where there are either First Nations' reserves or a high percentage of FirstNations people being Nanaimo, Ucluelet, and Bamfield. His parents were alcoholics. He suffered sexual abuse as a child. [35] As I said in the case of R. v. Lewis and Lewis 2014 BCPC 93 at paragraphs 13 to 22, and I adopt those comments here, it shouldnot prejudice Mr.

Keitlah that he has been unable to have a Gladue report prepared: [13] A Gladue report was not before the court as both offenders were unable to privately fund such a report and their counsel were notable to obtain funding from Legal Aid. Instead, the Pre-Sentence Reports included some limited information about the history of theSquamish Nation and the effects of contact and assimilation policies on that Nation and the list of possible treatment resources foraboriginal offenders.

The reports contained very limited information and, with respect to Louie Lewis, incorrectly reported informationabout the personal background of the offenders. [14] Gathering information from offenders about the impact of the Gladue factors on their families and their lives is a difficult taskand probation officers are not well positioned to do so effectively. The experiences of First Nations people often involve significanttrauma and often involve egregious conduct by family and community members.

Most people would be very reluctant or unable to shareintimate and disturbing information about the trauma they have experienced with a person who is not independent and whose roleincludes investigating and reporting criminal charges against them. [15] Although some offenders may develop a rapport and level of trust with their counsel, lawyers are not trained to collect theinformation relevant to the preparation of Gladue reports.

They are not compensated for the extensive time which would be involved ingathering such information and most already go above and beyond their retainers when participating in a First Nations Court proceeding. [16] It is also unreasonable to expect that offenders who have suffered from the impact of Gladue factors would be able tomeaningfully communicate their histories in the course of sentencing proceedings in court.

In my experience, sitting on the circuit inBella Bella for over five years and now in First Nations Court in North Vancouver for two years, even with the support of people close tothem or in the presence of trusted intermediaries, it is unrealistic to expect to receive background information in such a stressful andunfamiliar atmosphere where their liberty is at stake. [17] It should not be forgotten that many First Nations people themselves do not know the history of their families as they have beenseparated from them or have lost their parents and extended family due to Gladue factors.

It is apparent that many simply choose not toshare the narrative of their trauma with their children and grandchildren or extended family. [18] In R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, at paragraphs 83 and 84, the Supreme Court of Canada instructedjudges cast with imposing sentences: ... to take judicial notice of the systemic or background factors and the approach to sentencingwhich is relevant to aboriginal offenders. [19] The court described this as "a statutory duty." They suggested that courts should have "some evidence" of the circumstances ofthe offender as an aboriginal person and alternatives to incarceration. This information is now in theory put before the court through aGladue report.

[20] However, in my experience, due to a lack of resources, it is the rare case where such a report is before the court. Instead, we have Pre-Sentence Reports such as were prepared in the present case which gloss over the post-contact history of the offender's nation or band and provide little information about the personal impact the assimilation policies and residential school system have had on an individual offender and their families and which also make passing reference to resources in the community.

It is even rarer to receive information about the views of the First Nations community involved or a specific culturally sensitive justice practices out of a particular nation or band. [21] A paucity of evidence about the personal impact of Gladue factors or about available alternative restorative or reparative options makes the task of the court in crafting appropriate remedial sentences for aboriginal offenders a more difficult one.

However, the absence of an effective and sensitive process to gather this information cannot prejudice the interests of specific offenders. [22] In order to impose just and appropriate sentences which give effect to the directions in Gladue and now Ipeelee and meet the principles of sentence, I find I must assess the limited information presented and draw inferences from it to determine if the moral culpability of an individual aboriginal offender is reduced by those unique experiences.

I find I must also rely on my own knowledge of resources in addition to any suggested to the court in submissions to craft appropriate restorative, reparative, and rehabilitative terms. [ 36 ] In any event, I am prepared to infer from all the circumstances that Mr. Keitlah has been significantly impacted by the Gladue factors and that his particular circumstances are unique and serve to reduce his moral culpability for both offences. I find that my sentence must be tempered on both offences to take those factors into account. [ 37 ] The Crown relied on a number of cases. The first is R. v.

J.W.D. , a decision of my sister Judge Marion Buller Bennett, 2001 BCPC 58 , for the reference she makes at paragraph 33 to a decision of my brother Judge Paradis, as he then was, in R. v. J.A.F. , [1997] B.C.J. No. 2503 : Judge Paradis set out factors to be considered when deciding whether the offender's conduct has reached the point where denunciation can be properly addressed only through a sentence of incarceration.

Those factors were: the nature of the acts alleged, from touching to intercourse; the age of the child; the presence of violence or threats of violence; the length of time over which the offences took place; premeditation; the manner in which the accused has dealt with the disclosure of the offending conduct; a criminal record for similar offences; the impact on the victim; and, factors personal to the accused, including the effect on the accused of the proceedings themselves, the age and mental and physical health of the accused, the age of the offences and the offender's existing or reasonably foreseeable ability to earn an income. [ 38 ] The Crown also relied on R. v.

C.M.D. , 2003 BCSC 1129 . In that case, a CSO was found to not meet the principles of sentence given the circumstances of that offender and that offence. [ 39 ] The Crown also relied on R. v. White , 2008 YKSC 34 . This was also a case where a male had intercourse with an unconscious female. That offender had a serious criminal record. He also denied responsibility. He was determined to be at high risk to reoffend violently and at moderate risk to reoffend sexually.

In that matter, the judge undertook a comprehensive review of the sentencing cases regarding similar offences in both the Yukon and Northwest Territories. It was determined that the range of sentence was from 12 to 30 months and that CSOs were imposed for some offences depending on the circumstances of the offence and the offender. [ 40 ] In R. v. F.R. , 2012 NWTTC 5 , the court imposed a CSO of 18 months. That matter involved the digital penetration of a cousin while she was sleeping. It was found to be a form of a breach of trust.

The offender was 26 with no record and was intoxicated at the time of the offence. The matter went to trial and so there was no mitigation arising from an early plea. The accused was a First Nations person impacted by the Gladue factors. [ 41 ] The Crown also relied on R. v. S.D.R. , 2012 BCPC 414 . That case involved the sexual touching of a 13-year-old male on two occasions. The accused was 27 with no criminal history. He was a First Nations person impacted by the Gladue factors. He was not intoxicated at the time of the offence.

He entered a guilty plea and received an 18-month conditional sentence, I gather, concurrent on each count, and probation for 18 months. [ 42 ] Crown also relied on R. v. Yamelst , 2013 BCSC 1689 , a case also involving sexual intercourse with an unconscious female. Crown proceeded by indictment in that matter so a conditional sentence order was not available. That offender received a sentence of 18 months' jail and 18 months' probation. He was 24 and had a minimal criminal record for two offences of drinking and driving. He was also of First Nations ancestry and was impacted by the Gladue factors.

There was no mitigation through an early plea. The court in that matter found the range of sentence to be 16 to 30 months for such an offence. [ 43 ] Finally, the Crown referred to R. v. Martin-Clements , 2014 BCPC 87 , a decision of my sister Judge Gillespie. This also involved sexual intercourse without consent. A sentence of two years less a day and two years' probation was imposed. The offender had a prior conditional discharge for assault. There was no mitigation with respect to an early guilty plea.

The offender was at moderate to high risk to reoffend and not a First Nations person. [ 44 ] The defence relied on R. v. M.H. , 2002 BCCA 248 , as support for the submission that, with reference to the first offence, a conditional sentence order may be found to meet the principles of sentence even for sexual offences involving a breach of trust with a child victim. [ 45 ] They also referred to The Queen v. D.A.H. , unreported, Ontario Court of Appeal, 2003, 1024, Docket C38614. At paragraph 29, the Ontario Court of Appeal said as follows:

The trial judge accepted that the range of sentence for the abuse of a child by a person standing in loco parentis where intercourse is involved, is three to five years. However, she stated that there were a number of factors which took this case outside of that range, as follows: (

a) Appellant turned himself in prior to detection (

b) guilty plea, voluntary disclosure, confession to police (

c) remorse, full acceptance of responsibility (

d) absence of violence, threats of violence (

e) little risk of re-offence as complainant lives elsewhere (

f) disruption of family life (

g) support of common law spouse; needs of his children (

h) has had to overcome almost insurmountable obstacles (

i) the importance of rehabilitation given his youthful age (

j) he is on the path to financial independence (

k) promising treatment prospects (

l) he does not fall within the definition of parent. [ 46 ] Counsel argued that many of those factors apply in this case to Mr. Keitlah. In that matter, a half-brother, who was age 24, was acting as foster parent to his half-sister who was 14. There was a course of sexual conduct which began as touching and kissing, moved on to oral sex, and then intercourse.

A CSO of two years less a day was imposed. [ 47 ] With respect to the first offence, the Crown took the position that a sentence of nine to 12 months of institutional incarceration or an 18-month conditional sentence order was appropriate to be followed by probation. On the first and second offences, the Crown's position was that a sentence of two-and-a-half to three years as a global sentence was appropriate. They, of course, point to the principles of denunciation, general deterrence, and protection of the public as those which the court must give particular weight to. [ 48 ] Counsel for Mr.

Keitlah argued at the first sentencing hearing that a conditional sentence order of nine to 12 months followed by probation would be a fit and appropriate sentence. At present, with respect to both offences, counsel submits that a sentence of two years less a day global or jail on the first and CSO on the second would be an appropriate sentence with probation to follow. [ 49 ] I have considered the principles of sentence set out in s. 718, 718.1, and 718.2 of the Code.

I have also considered the provisions of s. 718.01 of the Code regarding the need to give primary consideration to the principles of general deterrence and denunciation in respect to offences regarding children which is also set out as an aggravating factor to be considered under s. 718.2. [ 50 ] These are very serious offences. Sexual offences have a profound and lasting harmful effect upon victims and their families. There is no understating how that damage can impact many aspects of a victim's life and for such a long time.

It is clear that I must also give consideration to the protection of the public. [ 51 ] I must balance that, however, against the fact that Mr. Keitlah is a youthful adult offender with, at this time, no criminal record and with positive prospects for rehabilitation. I must attempt to craft a sentence that will provide an opportunity for Mr.

Keitlah to make reparation to his community and to promote a sense of responsibility in him and to establish to all that he acknowledges the harm he has done. [ 52 ] I must also give particular consideration to tempering the length of any jail sentence either served institutionally or in the community as a result of his aboriginal background.

As earlier noted, I have considered the gravity of the offences and the moral blameworthiness of this offender given the impact of the Gladue factors on him. [ 53 ] I also have given consideration to totality in that the sentence must not be unduly harsh or long for both offences. At the time of the first sentencing hearing, I had been prepared to give my reasons and impose a conditional sentence order of 15 months. In my notes, I had determined that Mr. Keitlah's compliance with the authorities, his ability to maintain his sobriety for 11 months to that point, the

fact that he was employed and otherwise prosocial, and an active engaged father all mitigated in favour of a conditional sentence being appropriate and meeting the principles of sentence. That sentence, of course, was increased to reflect the fact that it would be served in the community and that a 12-month institutional jail sentence being one at the lower end of the range would have been appropriate. [ 54 ] The second offence is particularly aggravated by the fact that Mr. Keitlah was on bail and was undeterred even though he was awaiting a decision on sentence on that matter.

I conclude that the low end of the range for the second offence is simply not appropriate. [ 55 ] I have given significant consideration to the fact that Mr. Keitlah has a child with whom he is bonded and who is bonded with him. He provides support for that child and is an important person in her life. She will miss him.

Indeed, I am sure she misses him now, and he has much to work for in terms of returning to the community and resuming his role as a father to his child. [ 56 ] In all the circumstances of these offences and this offender, I find that I must impose a sentence of institutional incarceration on the second matter. I have no option, in any event, as it is precluded at law. That will, by operation of law, be followed by the conditional sentence order which I will be imposing on the first offence and both will be followed by the maximum period of probation of three years.

In my view, this sentence is crafted to meet all of the principles and factors I have had to consider. [ 57 ] Mr. Keitlah has now been in custody by consent since June 3rd of this year. By my calculation, that is a period of eight weeks. As there is no bar to the imposition of enhanced credit, I am going to grant him credit at 1.5 ratio which results in credit for four weeks for a total of 12 weeks or three months of credit for time served. [ 58 ] Mr. Keitlah, if you will stand. [ 59 ] Mr. Keitlah, on the first Information, 3483, I am imposing a conditional sentence order of 15 months.

With respect to the second offence, there will be a period of 15 months' institutional incarceration. That will be followed, on each Information, by a period of probation for three years. The first sentence will be reduced by three months for credit for time served. So you will now serve a further year in custody. [ 60 ] I am going to make a recommendation on the record that you be classified to the Ford Mountain Institution or any provincial institution that offers a First Nations healing lodge or similar program. [ 61 ] You may be seated. [ 62 ] Now, Mr.

Marin, you are at a bit of a disadvantage not having been the Crown on either sentencing hearing, but we will have to work our way through the conditional sentence order terms at this point. [ 63 ] With respect to the conditional sentence, Mr.

Keitlah, you will be required to keep the peace and be of good behaviour. [ 64 ] You must appear before the court when required to do so by the court. [ 65 ] You are to report within 72 hours of your release from custody to a conditional sentence supervisor at 1366 Aster Street, Pemberton, British Columbia, and thereafter, as and when directed by the conditional sentence supervisor. [ 66 ] You must remain within the Province of British Columbia unless written permission to go outside the province is obtained from the court or the supervisor. [ 67 ] You must notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. [ 68 ] You must reside where directed by the conditional sentence supervisor and do not change that residence without the prior written permission of the conditional sentence supervisor. [ 69 ] You are to have no contact direct or indirect with K.W.

You are not to attend to any residence or place of employment or place of education at which you know K.W. to reside, work, or attend. [ 70 ] You will be subject to a term of house arrest.

You must not be outside your place of residence save and except for reporting to your supervisor as your supervisor requires, or for attending to any medical emergency for yourself or any member of your immediate family. [ 71 ] Your supervisor may give you written permission to be outside your residence for the purpose of going directly to any place of employment, working, and returning home immediately thereafter; performing any work service hours; attending any programing or counselling as directed by your conditional sentence supervisor; attending to any cultural or religious events as approved of by your supervisor; for three hours twice per week to attend to your personal errands; for exercising parenting time to your child, and I will discuss with counsel later if there are any other terms that need to be included.

I will also include an exception for attending any educational or vocational or job-training programs as approved of by your supervisor. [ 72 ] You must carry your supervisor's written permission with you at all times when outside your place of residence and produce it to any peace officer who stops or questions you for any purpose. [ 73 ] You must present yourself at the door of your residence upon the demand of any peace officer or your supervisor to determine compliance with the curfew condition of this order. [ 74 ] You will attend for, accept, and complete any counselling or treatment to include, but not limited to, substance abuse counselling or sexual offender treatment and complete same to the satisfaction of your supervisor. [ 75 ] You must attend and complete to the satisfaction of your supervisor any residential treatment or recovery programs.

When

residing in any residential treatment or recovery programs, you must obey all the rules and regulations including any curfew.

When residing in residential treatment, you will continue to be subject to the house arrest curfew of this order unless you obtain an exception from the court. [ 76 ] You are to take such psychiatric and/or psychological counselling and/or treatment with your consent as directed by the conditional sentence supervisor. [ 77 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled under the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed. [ 78 ] You are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 79 ] You are not to possess any knives except for the immediate, preparation, or consumption of food, or such knives as are necessary to carry out the duties of your employment at your place of employment. [ 80 ] You are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substances, or all such things, and any related authorizations, licences, and registration certificates. [ 81 ] Does he have any such items to surrender? [ 82 ] MR.

HUGHES: I do not think so. [ 83 ] THE COURT: Do you have any such items, Mr. Keitlah? [ 84 ] THE ACCUSED: No. [ 85 ] THE COURT: Finally, you will complete 75 hours of community work service under the direction of and to the satisfaction of the community work service officer and/or the conditional sentence supervisor within the first nine months of your conditional sentence. That community work service is to be done for the benefit of Mount Currie or Lillooet Band. [ 86 ] Are there any other terms or conditions or comments about those terms and conditions on the CSO? [ 87 ] MR.

MARIN: I do not think so, Your Honour. [ 88 ] MR. HUGHES: No. [ 89 ] THE COURT: Okay. [ 90 ] MR. MARIN: The only thing I was perhaps a little wondering about, the no-contact with the named complainant in the CSO, that was actually the young person and not the female complainant. [ 91 ] THE COURT: Oh, I am sorry. You are right. I got the wrong person there. [ 92 ] So you are not to have any -- it is not K.W. In both those terms, the no-contact and no-go, should be C.S. or any member of C.S.'s immediate family. [ 93 ] The other thing I do want to mention, Mr.

Keitlah, is that although I have placed you on house arrest, I look forward to you coming to court and asking, with the appropriate support and information, for me to change that to an overnight curfew or whatever might suit. You should not become discouraged by this.

I do have to consider protection of the public in this matter, but I also expect that you will quickly come to a point where you are in a position to ask the court to consider something different. [ 94 ] I will move on to the probation terms and that will attach to both matters to run concurrently. [ 95 ] So on that order you are to keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 96 ] You are to report within 72 hours of your release from custody to a probation officer at 1366 Aster Street in Pemberton, British Columbia, and thereafter, as and when directed by the probation officer. [ 97 ] You are to reside where directed by the probation officer and not change that residence without the prior written permission of the probation officer. [ 98 ] You are to have no contact direct or indirect with C.S. or any member of her immediate family, or K.W. [ 99 ] You are not to attend to any residence, place of employment, or place of education at which you know C.S. or any member of her immediate family or K.W. to reside, work, or attend. [ 100 ] You will abstain absolutely from the possession and consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according the dosage prescribed. [ 101 ] You will abide by a curfew of 11:00 p.m. to 6:00 a.m., seven days a week.

Your supervisor may give you written permission to be outside your residence for the purpose of attending to any employment or other programing approved of in advance by your

supervisor, or for exercising parenting time to your child. [ 102 ] You will attend for, accept, and complete any counselling or programing or treatment to include, but not limited to, substance abuse management, sexual offending, psychological or psychiatric counselling. [ 103 ] Is he consenting to a term with respect to residential treatment on his probation? [ 104 ] MR. HUGHES: Yes, he is, Your Honour. [ 105 ] THE COURT: You will attend for, accept, and complete to the satisfaction of your probation officer any residential treatment or recovery programs.

While residing in any residential treatment or recovery program, you will obey all the rules and regulations including any curfew. [ 106 ] You will attend for, accept, and complete any educational, vocational, or job-training program as directed by your probation officer. [ 107 ] Any other terms, Mr. Marin, that the Crown would want to see on the probation? [ 108 ] MR. MARIN: There was a no weapons' condition on the CSO, perhaps that could be extended to the probation? [ 109 ] THE COURT: All right.

So you are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 110 ] Is there a firearms prohibition? [ 111 ] MR. MARIN: I was just about to look that up, Your Honour. [ 112 ] MR. HUGHES: Yes. [ 113 ] MR. MARIN: Is it mandatory? [ 114 ] MR. HUGHES: Yes, I think it probably is. [ 115 ] THE COURT: I think it is.

I will not include the firearms prohibition on the probation, but I will include that you are not to be in possession of any knives except for the immediate preparation or consumption of food or such knives as are necessary to carry out the duties of your employment at your place of employment. [ 116 ] I think that covers all the terms on the probation? Counselling, residential treatment, abstain, curfew, no contact, no-go. Yes? [ 117 ] MR. MARIN: That would be sufficient. [ 118 ] THE COURT: All right. The other thing, Mr.

Keitlah, I would like to impose on your probation is that you attend for, accept, and complete any parenting skills courses as is directed by your probation officer. The reason I would like to impose that is because you did not have very good modeling yourself when you were growing up about parenting and family life.

It is not your fault, but it is a learned skill and so I would like to see you put some effort into making sure that you do not repeat the cycle that you find yourself in. [ 119 ] THE ACCUSED: Yes, Your Honour. [ 120 ] THE COURT: So I will include that final term, that you attend for, accept, and complete to the satisfaction of your probation officer any parenting programs. [ 121 ] I am going to require that you provide a sample of your DNA. That is on both offences and on a primary basis on both offences. [ 122 ] He will now be subject to Sex Offender Information Registry Act for 20 years? [ 123 ] MR.

MARIN: Yes, I believe it is -- [ 124 ] MR. HUGHES: On indictable -- [ 125 ] MR. MARIN: -- 20, Your Honour. I am prepared to draft orders -- [ 126 ] THE COURT: So, ten on the first and 20 on the second. [ 127 ] MR. HUGHES: Second, yes. [ 128 ] THE COURT: Okay, and Mr. Marin you have those draft orders done, and is there a s. 109 or 110 prohibition that applies? [ 129 ] MR.

MARIN: Yes, I believe it is pursuant to s. 109(1)(a), an indictable offence in the commission of which violence against a person was used, threatened, or attempted for which the person may be sentenced to imprisonment for 10 years or more the violence here being the sex offence. [ 130 ] THE COURT: Yes, okay. [ 131 ] So, on the second Information, there will be a firearms prohibition pursuant to s. 109.

You are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorization, licences, or registration certificates. Is that for life?

[ 132 ] MR. MARIN: For a minimum of 10 years. [ 133 ] THE COURT: Okay, so it will be for a period of 10 years. I will hand that SOIRA order back. The victim fine surcharge? [ 134 ] MR. HUGHES: Ask it be waived. [ 135 ] THE COURT: He is not going to have an ability to pay it, I take it -- [ 136 ] MR. HUGHES: No, he will not. [ 137 ] THE COURT: -- for a significant period of time? Mr. Marin, any submissions on that point? [ 138 ] MR. MARIN: No, Your Honour. [ 139 ] THE COURT: I will find he is unable to pay it and impose one day in default on each to be served concurrently with the sentence just imposed. [REASONS FOR SENTENCE CONCLUDED]