R. v. A.S.B. Date:, 2012 BCPC 412

Citation: R. v. A.S.B. Date: 20120830 2012 BCPC 0412 File No: 76973-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.S.B. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. BROWN BAN ON PUBLICATION s. 539(1) CCC

Counsel for the Crown: S. Domaradski Counsel for the Accused: D. Lacusta Place of Hearing: Abbotsford , B.C. Date of Sentence: August 30, 2012 [ 1 ] THE COURT : This is a sentencing hearing concerning R. v. A.S.B., and I assume everyone who was here this morning is still present. [ 2 ] A.S.B. has pled guilty under file number 76973-1, that on January 26, 2012, at Mission, B.C. he did commit a sexual assault on A.J., contrary to s.271 of the Criminal Code . The accused is a Punjabi speaker and he has had the use of an interpreter throughout this proceeding.

THE CIRCUMSTANCES [ 3 ] On January 26, 2012, the Mission RCMP were dispatched to the accused's residence because it appeared there was some home invasion in progress. In actual fact, neighbours were pounding on the accused's front door after learning of a sexual assault perpetrated against A.J. [ 4 ] I will just pause here, Mr. Interpreter, if I am going too fast let me know. [ 5 ] INTERPRETER: I am quite fine with that. [ 6 ] THE COURT: All right. A.J. is a 17-year-old girl, who at the time lived across the street from the accused. She provided the following information.

The accused's family and the complainant's family were neighbours and were actually quite close. The accused came over and asked for some assistance in translating information concerning what I believe to be his brother-in-law's hot water tank warranty. Interestingly, the complainant grew up with the accused's children and even used some Punjabi herself. The complainant drove the accused to the other residence and provided assistance. On the way back the accused stopped at a liquor store and purchased two bottles of liquor.

The complainant and accused arrived at the accused's residence and the accused asked her inside. The complainant did not think anything of this, as the parties were very familiar with each other. [ 7 ] This is where the accused made a fundamental error in judgment. He offered the complainant liquor and the complainant declined. The accused kissed the complainant on the face, touched her breasts and, at the same time, he showed the complainant some pornography on his computer.

The accused made a masturbating motion with his hand and apparently uttered the words, "900 dollars." Obviously, the complainant was terrified and she fled the accused's residence and even left her boots behind. She advised her family of the incident. [ 8 ] For his part, the accused says he phoned the complainant's residence, hoping to contact her father for assistance regarding the hot water tank warranty. He admits to making sexual advances, but says he was not offering the complainant money for a sexual purpose. He apparently was discussing a cheque for the new hot water tank and there was a misunderstanding.

The accused's counsel says there was no suggestion of force or restraint in the incident and no exposure of genitalia. Nevertheless, the accused admits his conduct was totally inappropriate and he attributes it to loneliness and alcohol use before the incident. He said he had gotten very drunk the day before the incident and was hung over. His wife and family had gone to India earlier in the month. The accused himself appeared very remorseful this day, the day of sentencing. This does appear to be an isolated event and a crime of opportunity.

PRE -SENTENCE REPORT [ 9 ] The pre-sentence report prepared by the probation officer, Kelly Chahal, and dated August 8, 2012, is somewhat concerning. At page 2, the author of the report says: The PSR interview with A.S.B. was difficult, not due to any language barrier, as both the PSR writer and A.S.B. speak Punjabi, but mostly due to his lack of participation in the interview process. Client was evasive and not forthright in providing even basic information. [ 10 ] For his part, the accused says he had some trouble understanding the probation officer. He says her Punjabi was anglicised.

He also says he was very embarrassed to discuss his sexual matters with a female. I must say I accept the second explanation more than I accept the first explanation. [ 11 ] Also on page 2 of the report, under behaviours, it is stated that the accused presents as being confused, lacking understanding and unable to have insight into his own behaviours. Page 3 lists risk factors such as alcohol consumption, lack of problem solving and coping skills, and in terms of the substance misuse issue, page 3 also says that the accused does not seem to understand the process of alcohol treatment or programming.

It is important to note that this accused has no criminal history and there was no breach of the recognizance. However, page 4 also talks about the accused's attitude and it states there, "it is not clear whether A.S.B. is able to understand the effect his offence has upon the victim." Now I certainly did hear different words than that from the accused today. [ 12 ] In terms of the victim impact, we do not have a victim impact statement but we do have page 3, the victim information. This complainant had just turned 17 when the offence occurred.

Since the offence has occurred she has struggled with feelings of mistrust,

anxiety and fear. This complainant is afraid to sleep by herself and she has even been prescribed medication for anxiety. [13] In terms of the offender, I have heard from defence counsel who says the accused is a man 33 years of age. He came to Canadain 1998 and is a landed immigrant. He married in 2003 and has twin boys age seven, and a five-year-old daughter. The fact this accusedhas a daughter should all the more reinforce with him the unacceptable nature of his conduct with a young female complainant. Theaccused has worked steadily, although his English is limited.

He has a framing business and also works at a sawmill. He owns a homein Mission, although I understand it is up for sale now, probably due to these circumstances. [14] Since being charged, the accused has suffered from sleeplessness and there has been a strain on the marriage. He is ashamed toshow his face in the neighbourhood, which, in my view, is as it should be in these circumstances.

The accused has not returned home yetand he lives with his brother in Mission, although I understand he also stays in Surrey for work purposes. [15] Today in Court, he has expressed remorse and realizes the complainant faces her own sentence in a way and, as well, as a resultof the incident, he realizes that all the children in his family have been affected. [16] According to the probation officer, the accused presents to his family members as simple. He has struggled with understandingcertain concepts throughout his life and requires assistance.

The probation officer believes electronic monitoring is not practical,especially due to the accused's work pattern and two possible residences. AVAILABILITY OF CONDITIONAL SENTENCE ORDER: [17] In terms of the availability of a conditional sentence order, which I might refer to as a CSO from time to time, I do agree withthe Crown's policy that if a sexual assault offence under s.271 is proceeded with summarily, a CSO is still available. [18] The learned judge in the case of R. v. T. N.

N., Vancouver Registry, file number 212301-1, February 28, 20, made somecomments to the contrary of this Crown policy, but they were really over obiter dicta. The learned judge in that case had already ruledthat the imposition of a CSO would not adequately address the principles of denunciation and deterrence, which principles must be givenprimary consideration under s. 718.01.

Her case also involved a seven-year-old victim and the facts are highly distinguishable from thecase at bar. [19] The judge in the R. v T.N.N. case is certainly very learned on these matters, and I agree that a plain reading of the Englishversion of s. 742.1 and s. 752 suggests that a serious personal injury offence, which includes the offence of sexual assault regardless ofthe manner in which the Crown proceeds, is an excluded category for the purposes of a CSO.

However, as stated above, the learnedjudge's comments are obiter and, more importantly, no one argued before the court the issue of the French versions of s. 742.1 and s.752. Without going into great detail here, the French version of s. 742.1 contains the words, "chacune d'entre elles." I am not a Frenchspeaker, but I am told by Crown counsel that these words make it clear that the words "by indictment" apply to serious personal injuryoffences, including sexual offences, as well as the other offences listed at the outset of s. 742.1. Crown counsel also properly referred tothe case of R. v.

Daoust a neutral citation 2004 SCC 6, which deals with discrepancies which may occur between English and Frenchversions of bilingual statutes. I will just briefly read from the head note: The Court cannot use the history of a clearly drafted statute as the sole basis for changing it or completely disregarding its meaning. Under the rules of contextual

interpretation, moreover, words that could effectively broaden the scope of the penal statute cannot be readin. Finally, under the rules of bilingual statutory

interpretation, where, as here, the meanings of two versions of the provision are clear,yet irreconcilable, the common meaning of the two versions of the enactment should be favoured. Here, the common meaning is thenarrower version, which is the French version. It is therefore the French version that must first be examined to determine whether itaccords with Parliament's intent.

The two versions are divergent because of an error or an omission on the part of Parliament, but thatdoes not give this Court the authority to amend a clearly drafted enactment. [20] I think those words apply precisely to this situation. [21] As stated above, the common meaning, especially in a criminal context, must be the narrower meaning.

Applying that principlehere, a CSO is not excluded for all sexual offences; it is excluded for sexual offences proceeded by indictment. [22] I am giving an oral judgment here, and it is certainly not as eloquent as it could be if I had reserved, but in my view, the rules ofa statutory

interpretation require that I allow the availability of a CSO in this case. SENTENCE [23] A CSO is available here; the question is whether I think it is appropriate. I again refer to the above mentioned T.N.N. decision,paragraph 36, as the commentary there applies very much to sexual offences. At paragraph 36, the court quotes from R. v. D.D., (ON CA), [2002] O.J. No. 1061 an Ontario Court of Appeal decision, and I will just quote from one

section there: The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code, commonly referred to as denunciation,general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognizedobjectives of sentencing. [24] Now it must be borne in mind in the T.N.N. case, the court was dealing with a seven-year-old victim in much differentcircumstances, but I must remind myself, again, of s. 718.01 of the Criminal Code. However, I also must look at the aggravating and

mitigating factors of this case. The aggravating factors of this case are as follows:

a) The girl was 17, she was a minor.

b) She was a friend of the family of the accused.

c) The accused took advantage of the trust he had established previously with this girl, and,

d) There is a concern about a lack of insight as referred to in the PSR. [ 25 ] The mitigating factors are, however, quite numerous as well. First of all, this is a first offence. Secondly, there is no indication whatsoever of grooming the complainant or any activity of that nature. Thirdly, there is no evidence of any predatory behaviour. Fourthly, this accused is, but for this instance, apparently a good family man with a good job history.

And fifthly, he seems remorseful despite the lack of insight referred to in the PSR. [ 26 ] Simply put, this was a crime of opportunity where the accused showed no judgment or restraint. [ 27 ] A.S.B. I would ask that you please stand up. [ 28 ] Bearing in mind the denunciation deterrence factors in s. 718.01 , but taking into account all other factors, I believe a jail sentence is appropriate, but the jail sentence should be served in the community through a conditional sentence order.

The conditional sentence order will be for five months, followed by a probation order for 13 months. [ 29 ] INTERPRETER: 18 months? [ 30 ] THE COURT: 13 months. 13 months probation. Five months for the CSO. [ 31 ] INTERPRETER: Thank you. [ 32 ] THE COURT: During the conditional sentence order, I am viewing it as a house arrest situation. Now, I have given my reasons for sentence but I would be open to submissions as I make each condition here because, quite frankly, I am a little confused as to where this individual lives, Mission or Surrey.

I am assuming he has a fixed residence in Mission with his brother. [ 33 ] So in that regard, I will first of all deal with the conditional sentence. There will be the mandatory conditions, you shall keep the peace and be of good behaviour, you shall appear before the court when required to do so by the court, you shall report in person to a conditional sentence supervisor no later than, would that be 4:30 p.m. today or would you think that would be tomorrow? [ 34 ] MS.

DOMARADSKI: Erring on the side of caution, just in case paperwork is not done, maybe by the end of tomorrow would make sense. [ 35 ] THE COURT: Okay, I will say by 4:30 tomorrow, August 31, 2012, at the probation office at 2865 Cruikshank Street, Abbotsford, B.C. I will read this quickly because it will be covered again, sir. [ 36 ] You shall thereafter report as and when directed by your supervisor and in the manner directed by your supervisor. You shall remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.

You shall notify the court or your supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 37 ] Now, those are the mandatory conditions. I am next going to, Madam Clerk, have a house arrest condition, 745. You are to remain within your residence or on the lot on which it is situated at all times subject only to the following exceptions. Now before I go further about these exceptions, do either counsel feel I need to put in an address, because, as I said, I am a little unclear if he is drifting towards Surrey.

He is going to have to choose one residence and he is going to have house arrest there, but for some work exceptions and that is about it. [ 38 ] MS. DOMARADSKI: From the Crown's perspective, so long as he advises the CSO supervisor of that address and obviously not change it, that would be fine. [ 39 ] THE COURT: So I do not need to put an address in the order? [ 40 ] MS. DOMARADSKI: It does not have to be in the order. The CSO supervisor obviously has to have some kind of -- [ 41 ] THE COURT: Okay. [ 42 ] MS. DOMARADSKI: -- knowledge and there has to be some -- [ 43 ] THE COURT: Okay. [ 44 ] MS.

DOMARADSKI: -- some component of compliance within that CSO, but it does not have to be specifically -- [ 45 ] THE COURT: All right. [ 46 ] THE CLERK: That is already in the mandatory. [ 47 ] MS. DOMARADSKI: Oh, okay.

[ 48 ] THE COURT: Yes. So I will not put the address in condition 745, but it is house arrest, so, sir, I hope you understand that you do not leave the house or the lot except for these exceptions. And the exceptions, Madam Clerk, will be 747, 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 or employment reasons, and I am going to add in another exception, 748, except when travelling directly to or returning home directly from your place of employment or while in the course of such employment. You shall provide your supervisor with any proof or verification of such employment that he or she may request. [ 49 ] Is that all understood? [ 50 ] THE ACCUSED: Yes. [ 51 ] MS. DOMARADSKI: Sorry, Your Honour, [ 52 ] THE COURT: Yes, that is fine. [ 53 ] MS.

DOMARADSKI: We are -- with respect to the house arrest, is there then an exception for employment purposes? [ 54 ] THE COURT: Well, I have just, that is the one I have read in for 748, except when travelling to or returning home directly from your place of employment. [ 55 ] MS. DOMARADSKI: Okay. [ 56 ] THE COURT: So that 748 covers that. Now, in the general written permission exception of the supervisor, she can look at employment, personal and family reasons as well. All right. [ 57 ] MS. DOMARADSKI: Very well.

Thank you. [ 58 ] THE COURT: But I want the accused to understand that, apart from these exceptions, this is jail in the community, in your house specifically and whatever address you give, that is it, you do not leave that house for five months except for work, essentially. [ 59 ] There will be curfew checks, 751, you should present yourself at the door to your residence to any peace officer or your supervisor for the purpose of determining your compliance with the curfew condition of this order, and 752, you shall respond personally and immediately to the telephone when a peace officer or your supervisor officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [ 60 ] Now, the balance of the conditions for the five month conditional sentence order are, I am taking from the report, but I will read them into the record, and there are some minor modifications.

We will start with number 3 from the PSR, which is now to be renumbered for my order. You are to have no contact directly or indirectly with A.J. [ 61 ] INTERPRETOR: I am sorry, the name was? [ 62 ] THE COURT: A.J. I am just using -- he knows who it is, it is the victim, complainant. [ 63 ] INTERPRETOR: Thanks, Your Honour. [ 64 ] THE COURT: You must not attend at any known residence, work place or school of A.J. You must not attend within 100 metres of A.J.’s residence. You shall have no -- now, this one I did not hear any submissions against this one, so I assume number 6 still applies. [ 65 ] MR.

LACUSTA: I would be concerned if the children, for example -- [ 66 ] THE COURT: Oh, I see. [ 67 ] MR. LACUSTA: -- he does get back to his wife, is -- kind of -- may preclude his children from having friends over and the like. There is no -- no history of sex -- of him being in any way a sexual predator. [ 68 ] THE COURT: I know the reason I was going to read it in, but I certainly accept your submission here, was that there was an exception. If the mother was there he can be with his kids. Any submission from Crown? [ 69 ] MS. DOMARADSKI: No.

No, I would have the same submissions as I did with respect to number 14 that I had addressed earlier. [ 70 ] THE COURT: Oh, that you are not that concerned about it? [ 71 ] MS. DOMARDASKI: There -- as Your Honour has noted, there doesn't seem to be any kind of predatory behaviour -- [ 72 ] THE COURT: Okay. [ 73 ] MS. DOMARADSKI: -- or any concerns with respect to other children. [ 74 ] THE COURT: So if no one is pushing it I will not use number 6 then. [ 75 ] MS. DOMARADSKI: Very well, but --

[ 76 ] THE COURT: Yes. [ 77 ] MS. DOMARADKSI: -- before Your Honour proceeds -- [ 78 ] THE COURT: Yes. [ 79 ] MS. DOMARADSKI: -- if I can just have one second, I think I misspoke earlier. I was just looking at the report to Crown counsel and it says that A.S.B.’s residence which seems to be number 5. I was under the mistake earlier when I commented that that was the victim's residence. [ 80 ] THE COURT: Yeah, I thought that was the complainant's house. [ 81 ] MS. DOMARADSKI: But it appears now that I am seeing it on their RTTC, it appears to be A.S.B.’s residence, so. [ 82 ] MR.

LACUSTA: Perhaps just 100 metres of the residence of -- [ 83 ] THE COURT: All right. I will revise the condition, Madam Clerk, where I said you must not attend within 100 metres of the complainant’s residence, since I do not know whose address that is, I will just say within 100 metres of the complainant's residence. It is a revision to the previous term then. [ 84 ] Because I am concerned about alcohol I will leave in the next term.

You must not attend at any bars, pubs (and of course this is obvious anyway because of your CSO), retail outlets or other establishments licensed primarily for the sale of alcohol beverages. [ 85 ] Do you want a -- either of you object to the consent to provide breath samples? He says he has been clean for two months. [ 86 ] MR. LACUSTA: That is correct.

I am just wondering if that -- if it is intended that those samples be provided if he's outside of the home as opposed to being, perhaps having wine with his meals or -- [ 87 ] THE COURT: Well, no, because I am going to be making a no alcohol condition, I think I am going to leave it in. [ 88 ] MR. LACUSTA: Okay. [ 89 ] THE COURT: He is just going to have no alcohol. [ 90 ] MR. LACUSTA: Oh. [ 91 ] THE COURT: He can view that as a punishment or rehabilitation, however he sees fit, but I am going to leave it in.

So with your express consent you must supply such samples of your breath or your urine as are reasonably demanded by a peace officer to determine compliance with this order. And number 9 will be the standard no alcohol condition, Madam Clerk, not the one that is in number 9 here.

So I will just say this: You shall not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician. [ 92 ] I am not going to deal with 10, 11, 12 or 14 of the PSR, unless there are any comments from either counsel, but I will say that this term will go in: You shall allow your probation officer or any peace officer access to your home to ensure you are complying with the above conditions and I will add in the counselling term.

You shall attend, participate in and successfully complete any such assessment, counselling or program as directed by your probation officer. Without limiting the generality of this condition, such counselling or program may, at the discretion of your probation officer, include the sex offender treatment and maintenance programs. [ 93 ] Now, those are the terms for the five-month CSO.

Following that, there will be a 13-month probation order and it will contain the mandatory conditions there, which I will read in now: You shall keep the peace and be of good behaviour; you shall appear before the court when required to do so by the court; you shall notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 94 ] From there I will go to the reporting condition as set out in the PSR.

You shall report in person to Abbotsford Community Corrections, 2865 Cruickshank Street, Abbotsford, B.C. and I will say forthwith following the conditional sentence term of five months and shall thereafter report as and when directed and in the manner directed by your probation officer. Next term, and this again comes from the PSR, you shall reside at a residence approved of by your probation officer and not change that residence without the prior consent of your probation officer. [ 95 ] And all of the other terms are identical to what I read in previously. There will still be the -- I will read them in again.

You are to have no contact directly or indirectly with A.J. You must not attend any known residence, workplace or school of A.J. You must not attend within 100 metres of A.J.'s residence and then you must not attend at any bars, pubs, retail outlets or other establishments licensed primarily for the sale of alcohol beverages. With your express consent you must supply such samples of your breath or urine as are reasonably demanded by a peace officer to determine compliance with this order. There will be the no alcohol condition as I read in previously, and this will apply for the, as I said, the next 13 months.

And that is that same term, Madam Clerk: You shall not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except what has been prescribed by a licensed physician. [ 96 ] We were not going to deal with 10 again, 10, 11, 12 or 14, but 13 will still be there. You will allow your probation officer, any peace officer access to your home to ensure you are complying with the above conditions. And there will still be the counselling condition.

You shall attend, participate and successfully complete any such assessment counselling or programming as directed by your probation officer. Without limiting the generality of this condition, such counselling or program may, at the discretion of your probation officer, include sex offender treatment and maintenance programs. [ 97 ] Those are the conditional sentence and probation orders. Then there will be a SOIRA order, and I understand that I do not need

to read that into the record, I simply sign it? [ 98 ] MS. DOMARADSKI: That is correct. [ 99 ] THE COURT: Is that correct? Now do I sign two copies? [ 100 ] MS. DOMARADSKI: The two copies should be signed, oh one, and then A.S.B. signs both. He gets to keep one copy and one copy is kept for the court file. [ 101 ] THE COURT: All right. I am signing those now and obviously no objection Mr. Lacusta? [ 102 ] And finally the DNA designation. Is this a primary offence? [ 103 ] MS. DOMARADSKI: It is yes. [ 104 ] THE COURT: Yes, so there will be a DNA order that you must provide a DNA sample.

And I think I have to put in the date. [ 105 ] THE CLERK: This is submissions, so it is [indiscernible]. [ 106 ] THE COURT: So there is a date sir, you will have to give your DNA. [ 107 ] THE CLERK: This is any Thursday between 8:00 to 12:00. [ 108 ] THE COURT: What Thursday do you propose? [ 109 ] MR. LACUSTA: I would suggest next week. [ 110 ] THE COURT: Okay, next Thursday, I do not know where my calendar went off here. [ 111 ] THE CLERK: That is September the 6th, Your Honour. [ 112 ] THE COURT: Thank you.

September 6th to provide a DNA sample, and it will be the usual DNA order for a primary designated offence. [ 113 ] THE CLERK: [indiscernible] 8:00 a.m. to 12:00 p.m. [ 114 ] THE COURT: Yes. 8:00 a.m. to 12:00 noon? [ 115 ] THE CLERK: Yes. [ 116 ] INTERPRETER: Would that be at the Abbotsford police? [ 117 ] THE COURT: No, I understand it is in Mission, but I do not know where? Do you know where, Madam Clerk, or I am sure he can be -- [ 118 ] THE CLERK: It will be on the form, but it is 7171 Oliver Street, but it is on the document. [ 119 ] THE COURT: Okay.

Now did counsel want the authorities back, or can I keep them. [ 120 ] MS. DOMARADSKI: You can most certainly keep them. I have lots of copies. [ 121 ] THE COURT: All right, thank you. And thank you both for your submissions. I am returning the SOIRA orders, the PSR, and I do not know if there are any outstanding matters. [ 122 ] MS. DOMARADSKI: No, that's everything. A.S.B., with the assistance of Mr. Translator can sign the SOIRA orders and then -- [ 123 ] MR. LACUSTA: Yes. [ 124 ] THE COURT: All right.

Yes, they are fairly detailed, so you will have to understand them before you sign them. [ 125 ] THE CLERK: The JPM will go over them with him. This procedure I don't think will be [indiscernible]. [ 126 ] THE COURT: Okay. [ 127 ] THE CLERK: I'll just keep them [indiscernible]. [ 128 ] MS. DOMARADSKI: All right, along with the Conditional Sentence Order and the probation, everything. That makes sense. [ 129 ] THE COURT: But will he have the use of an interpreter? [ 130 ] MS. DOMARADSKI: Mr.

Translator would have to be available for that. [ 131 ] THE CLERK: Yes to read his conditions. [ 132 ] INTERPRETOR: I will be here.

[ 133 ] MS. DOMARADSKI: All right. [ 134 ] THE COURT: All right. [ 135 ] MS. DOMARADSKI: Good. Thank you, Your Honour. [ 136 ] THE COURT: Thank you. G. BROWN Provincial Court Judge