R. v. S.W.N. Date:, 2012 BCPC 436

Citation: R. v. S.W.N. Date: 20121107 2012 BCPC 0436 File No: 76478-2-C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.W.N. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.C. DICKEY BAN ON PUBLICATION s. 486.4(1) CCC Counsel for the Crown: J. Barbour

Counsel for the Accused: J. Israels Place of Hearing: Abbotsford, B.C. Date of Hearing: June 7, July 26, Oct 19, 2012 Date of Sentence: November 7, 2012 [1] THE COURT: The offender appears before me for sentencing after pleading guilty to the sexual assault of his daughter. TheCrown has proceeded summarily. The Crown and defence jointly submit that an 18-month conditional sentence order, with probation, isappropriate. [2] This raises the issue of whether a CSO is available when there is a serious personal injury offence, but the Crown proceedssummarily.

The Crown and Defence both argue that a CSO is available and have provided me with case law and the English translationof the French version of the relevant section. [3] The joint submission also raises the question, assuming a CSO is available, of whether a CSO is appropriate in thecircumstances. The Crown and defence have provided thorough submissions on both issues. [4] The parties seek conditions of a CSO and probation order which would allow the offender to have supervised contact with hisvictim.

I have heard not only submissions on this point, but also I have received a psychiatric assessment, pre-sentence report, lettersfrom counsellors, and reference letters. I have also spoken with D.D., the wife of the offender and the mother of the victim. CIRCUMSTANCES: [5] The Crown and defence have provided me with an Agreed Statement of Facts. The victim is presently age 11 years old; theoffender is her father. The victim describes the offender touching her vagina, rubbing his penis against her vagina, French-kissing herand ejaculating on at least two occasions. There was no vaginal penetration.

This sexual abuse occurred on at least three occasions,although there is no precision in this estimate. The abuse occurred between April 1, 2007 and December 30, 2009. Is a CSO available on a serious personal injury offence when the Crown has proceeded summarily? [6] The Crown and defence rely on the decision of R. v. Buttar (30 August 2012), Abbotsford 76973-1 (B.C.P.C.) In that decision,the Honourable Judge Brown found that a CSO was available where the Crown proceeded summarily and the offender pled guilty to asexual assault. His decision was based on what he had been told was the English

interpretation of the French version of s. 742.1. This isin contrast to the decision of R. v. Nguyen, [2012] B.C.J. No. 721 (B.C.P.C.) [Nguyen], which found that a conditional sentence couldnot be ordered if it was a serious personal injury offence, even if the Crown had proceeded summarily. I am also aware of R. v. F.A.B.,[2012] B.C.J. No. 2138 (B.C.P.C.), [F.A.B.] that adopts the reasoning found in Nguyen. The judge's comments in Nguyen, however,appear to be obiter on this issue. The English translation of the French version of this

section does not appear to have been argued ineither Nguyen or F.A.B. As I refer to later, it is the English translation of s. 742.1 that is critical in determining the

interpretation of thissection. [7] The relevant portion of the English version of s. 742.1 reads as follows: If a person is convicted of an offence other than a serious personal injury offence as defined in s. 752, a terrorism offence or a criminalorganization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more, or an offencepunishable by a minimum term of imprisonment… [8] It can be argued on the English version of the

section that "prosecuted by way of indictment" modifies only a "terrorismoffence or criminal organization offence" and does not qualify a serious personal injury offence (see Nguyen). It can also be argued tothe contrary (see R. v. Thompson 2010 ONCJ 399) where Maresca, J. pointed out that criminal organization offences must all beprosecuted by way of indictment (s. 467.1 to 467.13). It makes no sense, therefore, to modify criminal organization offences alone bythe term "prosecuted by indictment".

In Thompson, it was found that the term "prosecuted by way of indictment" modified all of theoffences proceeding, including that of serious personal injury offence. (Para. 20) [9] The relevant portion of the English

interpretation of the French version of s. 742.1 as translated and certified by MosaicTranslation Services, is as follows: If the court is convinced that the sentence does not endanger the security of the community and is in accordance with the objectives andprinciples outlined in Articles 718 to 718.2, the court may order that a person who has, on the one hand, been found guilty of an offenceother than a serious personal injury offence as defined in

Article 752, a terrorism offence or criminal organization offence, each of whichare prosecuted by indictment and carry a maximum term of imprisonment of ten years or more… (underlining is my emphasis) [10] The fundamental principle of statutory

interpretation is defined in Re Rizzo Shoes (SCC), 1998 1 SCR 27, byciting Elmer Driedger's text "Construction of Statues" Second Edition 1983: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The French version is unambiguous. It is clear that the intention of Parliament was to qualify the term "a serious personal injury offence"with the term "prosecuted by way of indictment". When the Criminal Code is read in its entire context, including both English andFrench versions of s. 742.1, any uncertainty within the English version is clarified by the certainty of the French version. I find,

therefore, that a person convicted of a serious personal injury offence in which the Crown has proceeded summarily is not precluded, onthis basis alone, from a conditional sentence order. Is a Conditional Sentence appropriate in this case? [11] The purposes and principles of sentencing are found in s. 718 to 718.2. I find in this situation that the primary consideration isthe objective of denunciation and deterrence (s. 718.01 and .02). I find from my review of the case law that in this type of offence, thatthe need for denunciation and deterrence will require a custodial sentence in most but not all cases.

The defence has provided me withexamples of circumstances where a conditional sentence was imposed in these types of circumstances: R. v. M.H., [2002] B.C.J. No. 771, (C.A.) R. v. Birch, [2003] B.C.J. No. 1135 (B.C.S.C.) R. v. J.P.F., [2002] B.C.J. No. 1439 (B.C.S.C.) R. v. Y.O.M., [2005] B.C.J. No. 3069 (B.C.S.C.) R. v. D.C.C., [2001] B.C.J. No. 1012 (B.C.P.C.). [12] The leading case on CSOs, R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, found that there is no judicially createdpresumption "that conditional sentences are inappropriate for specific offences." (para. 81) [13] In Proulx, Lamer, C.J.C., said at paragraph 109: [109] While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence isgenerally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility inthe offender. [14] A court, in determining the appropriate sentence, must apply the principles of sentencing to the offender and the offence.

Theoffender has no criminal record. He is 35 years of age. He is employed full-time. He is extremely remorseful. Although it is not clearon the information I received, it appears that the last incident of abuse occurred approximately one year before a disclosure was made tothe police. [15] S.W.N. was sexually abused over a lengthy period of time, both as a child and youth, by a family friend. The family friend wascharged with these allegations and has now entered a guilty plea.

S.W.N. did not disclose that he had been abused until after he wascharged with the offences before me, and has only recently begun to deal with the trauma of this abuse. [16] A very thorough and insightful psychiatric report authored by Dr. Lohrasbe has found that S.W.N. is a low risk to re-offend. Itshould be remembered that this is the lowest category of risk as there is always a risk in these matters. The doctor found that S.W.N.was remorseful, showed insight, and sought counselling. Dr.

Lohrasbe concludes the following: What the family most certainly needs is a family therapist who is skilled in assisting the healing of all family members who have gonethrough the trauma of incest. Although a temporary separation while the needs of the children are assessed is entirely appropriate, alengthy separation can do more harm to the children than the incest itself. [17] I have received a letter from a social worker and counsellor in the Sexual Abuse and Intervention Program with the FraserValley Aboriginal Children and Family Services Society.

She has provided counselling to the victim since 2011, and to the sister andmother. The counsellor advises that all three do not want S.W.N. to go to jail, but rather would like to begin joint counselling sessionsand supervised visits with S.W.N. [18] A proposed plan has been provided that would initially see S.W.N. receive further counselling from Dr. Smitton. Following,there would be joint counselling sessions with the social worker, family members, S.W.N. and Dr. Smitton. [19] I was concerned that this agenda is being pushed by the adults involved and did not consider the complainant and children.

Iquestioned the mother on this issue. It was apparent from my discussion with the mother that the progress of these sessions would not bepushed forward by the adults, but would require the agreement of the victim and other children of the family. It is hopeful that thisgraduated approach will ensure that no step is taken without the comfort and best interests of the victim being considered first andforemost. [20] I am advised that the children and victim requested that S.W.N. spend this past Thanksgiving with the family. This was the firsttime there was contact between the victim and her father.

The mother reports that the evening went very well. S.W.N. apologized to thevictim, and the victim forgave her father. [21] I find the following factors to be mitigating: 1. S.W.N. has entered a guilty plea which I understand has been pursued by the offender from the time of the laying of charges. Guiltypleas were entered despite significant triable issues. I am advised that the offender refused to put the victim through further trauma byplacing her through the trial process.

His counsel advised that S.W.N. expressed that he would not do this in an attempt to try and excusehis own "monstrous and inexcusable behaviour". 2. There is a positive PSR and psychiatric report in which S.W.N. is found to be a low risk to re-offend. This includes that he hasexpressed both remorse and insight into the commission of this offence. 3. There were no suggestions of violence or threats used by the offender against the victim.

4. The offender has no criminal record and there are no allegations of breach while on bail. 5. There are positive reference letters. 6. He has sought out counselling from Dr. Smitton, a psychologist, who has recommended that the sentencing process be completed before the commencement of regular counselling sessions. 7.

There is strong family and community support. [ 22 ] It is aggravating that the offender abused someone under the age of 18 (s.718.2(a)(ii.1)) and abused a position of trust. (s. 718.2(a)(iii)). [ 23 ] I must also consider that an objective of sentencing is to provide reparations for harm done to victims (s. 718(d)), and that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)), and "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders." (s. 718(e)). [ 24 ] In applying the objectives and principles of sentencing, including the weighing of the mitigating and aggravating factors, I find that in the circumstances of this offence, and offender, that the statutory requirements of a conditional sentence order and the need for denunciation and deterrence can be satisfied by the imposition of a conditional sentence. [ 25 ] The conditional sentence will be for 18 months. [ 26 ] The terms of the conditional sentence shall be as follows: There will be the mandatory conditions, including that you shall report in person to a conditional sentence supervisor by no later than 4:00 p.m. today at the probation office at 2865 Cruickshank Street, Abbotsford, B.C., and you shall thereafter report as and when directed by your supervisor and in the manner directed by your supervisor. [ 27 ] You shall inform your supervisor of your present residential address and phone number and not change that address or phone number without prior written notice to your supervisor. [ 28 ] You shall have no contact, either directly or indirectly, with either K.N. or M.N. unless supervised by either D.D., or Esther Gubiotti, or supervised by someone approved by either D.D. or Esther Gubiotti. [ 29 ] Mr.

Israels, I'm not sure I obtained the hours of work. [ 30 ] MR. ISRAELS: My understanding was, from what we discussed last time, I think she had asked for a curfew of 6:00 a.m. to 4:30, the Crown that being. He leaves at 5:00 in the morning, approximately -- [ 31 ] THE COURT: Yes? [ 32 ] MR. ISRAELS: -- and my understanding is he's home at about 5:15 -- [ 33 ] THE ACCUSED: 6:00. [ 34 ] MR. ISRAELS: Sorry, six o'clock at night. So, I'm sorry, Your Honour, he leaves at about 5:00 in the morning and is home by approximately 6:00 p.m.

And that's Monday to Friday, not on the weekends, Your Honour. [ 35 ] THE COURT: Thank you. You shall obey a curfew by being inside of your residence between the hours of 7:00 p.m. and 5:00 a.m. each day, subject to the following exceptions: Except with the written permission of your supervisor to be outside of your residence during the hours specified in such written permission, in which case you are to carry a copy of such written permission on your person and present it to any peace officer who requests to see it.

Such permission is to be given only for compelling personal, family, employment or counselling purposes. [ 36 ] You shall present yourself at the door to your residence to any peace officer or your supervisor for the purposes of determining your compliance with the curfew condition of this order. [ 37 ] You shall attend for, participate in, and complete to the satisfaction of your supervisor, any counselling or program as directed by your supervisor. [ 38 ] Those are the terms and conditions of the conditional sentence. [ 39 ] You will also be placed on a period of probation of 18 months.

The terms and conditions of the probation order will be the mandatory conditions.

You shall report in person to a probation officer within 72 hours of the completion of your conditional sentence order at the office of the Abbotsford Community Corrections, 2865 Cruickshank Street in Abbotsford, B.C., and shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer. [ 40 ] You shall inform your probation officer of your present residential address and telephone number and not change that add address or telephone number without prior written notice to your probation officer. [ 41 ] You shall have no contact, either directly or indirectly, with either K.N. or M.N. unless supervised by either D.D. or Esther Gubiotti, or supervised by someone approved of by either D.D. or Esther Gubiotti. [ 42 ] You shall attend for, participate in, and complete to the satisfaction of your probation officer any counselling or program as directed by your probation officer. [ 43 ] Those are the terms and conditions of the probation order.

[ 44 ] MR. ISRAELS: If I can -- sorry, Your Honour. [ 45 ] THE COURT: Yes, go ahead. [ 46 ] MR. ISRAELS: Just with respect to the curfew, might there be an exception with respect to medical emergencies? [ 47 ] THE COURT: Yes, I -- [ 48 ] MR.

ISRAELS: I mean, I don't think he would be -- I suppose the issue is whether the Crown would charge him with something like that, but it can be a problem if, in the middle of the night, there's a -- I mean, if he has to rush to the hospital, if there's something -- I just don't want him to be panicked about being in breach of the order. [ 49 ] THE COURT: I think that it's an exception that goes without saying, but just for clarity -- [ 50 ] MR. ISRAELS: Thank you. [ 51 ] THE COURT: -- I will also include that as an exception. Except for any medical emergencies. [ 52 ] Mr. Barbour, anything else? [ 53 ] MR.

BARBOUR: I note that Your Honour had made the "inform address" as a part of the probation; is that also a term of the conditional sentence order? [ 54 ] THE COURT: Sorry, that -- [ 55 ] MR. BARBOUR: To inform the supervisor of his residential address? [ 56 ] THE COURT: Yes, that's part of the probation order. [ 57 ] MS. BARBOUR: Is it also part of the CSO? [ 58 ] THE COURT: Yes. Did I not make reference to that? [ 59 ] THE CLERK: You said it, Your Honour. [ 60 ] MR. BABBOUR: I just didn't hear it then. Thank you.

And is Your Honour making the -- I believe my colleague at the previous occasion had indicated that the Crown would be asking -- that this is a DNA matter, and a SOIRA order? [ 61 ] THE COURT: It's a primary, isn't it? [ 62 ] MR. BARBOUR: It should be a primary -- [ 63 ] THE COURT: I think it's a primary designated -- [ 64 ] MR. ISRAELS: I believe it is, and in any event, the agreement with my friend was that I was not going to oppose that, so -- [ 65 ] THE COURT: Okay. [ 66 ] MR. BARBOUR: And a ten-year SOIRA order? [ 67 ] THE COURT: Oh, yes, a ten-year SOIRA order, too. Do you have the form for that, Mr.

Barbour, or do we have that -- [ 68 ] THE CLERK: It's done on JUSTIN now, Your Honour -- [ 69 ] THE COURT: Oh, is it? [ 70 ] MR. BARBOUR: It's automatic. [ 71 ] THE CLERK: -- [indiscernible - overlapping speakers] the J.P. [ 72 ] THE COURT: Okay.

And then with respect to the DNA order, you will attend -- what are the hours here, Madam Clerk? [ 73 ] THE CLERK: It would be Mission RCMP on Thursdays between 8:00 to 12:00. [ 74 ] THE COURT: You will attend at the RCMP detachment between the hours of 8:00 a.m. and 12:00 noon on a Thursday, by no later than November 23rd, 2012, for the purposes of providing a sample of your DNA for the purposes of entering into the DNA databank. [ 75 ] Good luck, S.W.N. Certainly I was impressed, not only by the steps that you've taken.

You made a huge mistake, and I don’t need to tell you that, you know that, but since doing that and making that mistake, it looks like you've been doing everything right, and it's not something that you'll ever change, it will always be there, but you certainly have taken the right steps to try and ensure that it never occurs again in the future, and that any help and assistance that not only your daughter needs, but also your family, appears to be taken.

I'm giving you credit for that, and that's a huge part, and it's a huge part and hugely mitigating, also that this matter did not go to trial and put your daughter through the difficulties of the trial process. Good luck. [ 76 ] THE CLERK: And the remaining counts?

[ 77 ] MR. BARBOUR: Those not pled to, enter a stay of proceedings. [ 78 ] THE COURT: There's no application for the victim fine surcharge to be waived? He's working full time? [ 79 ] MR. ISRAELS: Yes. So I'm not really in a position to ask that. Thank you, Your Honour. [ 80 ] So the victim fine surcharge will still apply. He doesn’t need time to pay? [ 81 ] MR. ISRAELS: If he could have, yes, because he does earn a modest wage, if he could have perhaps three months? [ 82 ] THE COURT: Okay. January 31st, 2013. R.C. DICKEY Provincial Court Judge