R. v. Hans Date:, 2016 BCPC 222

Citation: R. v. Hans Date: 20160615 2016 BCPC 222 File No: 78955-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY JOSEPH HANS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY BAN ON PUBLICATION s. 486.4 CCC Counsel for the Crown: C. Hagen Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C.

Date of Hearing: May 19, 2016 Date of Judgment: June 15, 2016 INTRODUCTION : [ 1 ] Anthony Joseph Hans ("the Offender") is charged and entered a guilty plea that he did, on or about October 11th of 2014 sexually assault K.C. ("the Victim"), contrary to s. 271(1) of the Criminal Code . [ 2 ] Crown has proceeded summarily, although initially had proceeded by way of indictment. At the date of the offence, the Victim was a middle aged female adult. Consequently, under s. 171(1) (

b) of the Criminal Code , the Offender is liable to imprisonment for a term not exceeding 18 months. [ 3 ] The Offender, who is an Aboriginal male, is before this court for sentencing. The issue to be decided is what is a fit sentence for the Offender. [ 4 ] Crown seeks an actual custodial sentence for the Offender of between 15 and 18 months and a period of probation of three years in duration. Defence says that a fit sentence is a conditional sentence order of 18 months, with a shorter probation order of two years. Crown seeks ancillary orders, which are not opposed by defence.

FACTS : CIRCUMSTANCES SURROUNDING THE OFFENCE: Crown has outlined the circumstances of the offence, which are not disputed by defence. Accordingly, I accept those as the facts and they are sufficient to support the guilty plea that has been entered. [ 5 ] Besides Crown's oral submissions on the facts, both Crown and defence cite and rely upon additional information provided by the Offender about the offending circumstances to the authors of a presentence report ("the PSR") and a presentence report and psychological/psychiatric assessment report ("the Forensic Assessment Report"), both referred to below.

I understand that the information is accepted as factually correct for the purposes of this sentencing. [ 6 ] I will summarize the undisputed facts based upon the oral submissions and other material before the court. On October 10th, 2014, the Victim, being a thirty-six-year-old female at the time of the offence, and a friend described in these reasons by the initials "C.Z.", departed from the Victim's residence and spent the evening in downtown Nanaimo at various bars and lounges, consuming alcoholic beverages.

The Victim had arranged for an overnight babysitter to stay with her twelve- and eight-year-old children at her residence. [ 7 ] At the last bar they met up with a group of friends, which included the Offender, who was a neighbour of the Victim. They lived in adjacent residential units. They were friends and had known each other for about two and a half years. At closing time, the group dispersed and the Victim and C.Z. travelled by taxi to the Victim's residence, where they continued drinking into the early hours of October 11th, 2014.

C.Z. departed the Victim's residence around 3:30 a.m. [ 8 ] The Victim took sleeping pills due to some health issues. The Victim chose to sleep on an air mattress in her living room because her children were sleeping upstairs and the babysitter was in the Victim's room, also sleeping. [ 9 ] Between 3:30 and 4:30 a.m. the Victim stirred from her slumber, experiencing what she believed was a "vivid sexual dream" and that "somebody was inside of her". She felt hands on her crotch and fingers in her vagina.

She felt a heavy weight on top of her, awoke further, and found the Offender lying on top of her, penetrating her vagina with his penis. She was unable to say whether or not he was wearing a condom. She pushed the Offender off with her hands and feet and told the Offender he was not invited into her home and he was not supposed to be there, and she told him he had to leave. [ 10 ] The Offender got up, said "I'm sorry", and left the Victim's residence. She heard the door close. The Victim recognized the Offender's voice. The Victim fell back asleep, apparently still groggy from the effects of the sleeping pills.

She slept through until 9:30 on the morning of October 11, 2014. [ 11 ] At approximately 8 a.m. on October 11, 2014, the Offender knocked on her residence door. It was opened by her eight-year-old daughter, who knew the Offender. The Offender told her that he was there to "grab some of his stuff he had left". The eight-year-old daughter observed the Offender retrieve his hat, glasses and a sweatshirt from beside the air mattress. The Offender departed. [ 12 ] When the Victim awoke at 9:30 a.m. her daughter told her that the Offender had come by to get his things.

At that point, the Victim realized what had transpired. The Victim felt shocked and ill over what had occurred and felt betrayed by her friend, the Offender. She was emotionally unable to contact the police at that time but did speak to some friends. Later in the morning she did attend at the Nanaimo RCMP detachment to report the sexual assault. She was also directed by the police to attend at Nanaimo Regional General Hospital for a sexual assault examination. Nothing relevant was recovered by that examination. [ 13 ] At 1:40 in the afternoon of October 11, 2014, the Offender was arrested at his residence.

At the time of his arrest, the Offender had his two children in his care. The Offender was taken to the RCMP detachment, where he was chartered and warned and then provided a statement to the police. He stated that he had gone to the bars the evening before. He recalls meeting the Victim and other friends and neighbours in a bar. When he woke up at home the next morning, he could not find his glasses, hat, and sweatshirt. [ 14 ] As I understand the circumstances, the Offender believes and has repeatedly stated that he must have blacked out because of

heavy alcohol consumption the previous evening. He had no memory of where he had left his missing personal items. Apparently his last memory was being at the bar. Accordingly, he retraced what he surmised may have been his steps, including a stop at another neighbour's residence, where he did not find his belongings.

He then went to the Victim's residence, where he located the misplaced items beside the air mattress. [ 15 ] He told police that he had no memory of the offence because of blacking out and did not know that he had left his belongings at the Victim's, and accordingly, searched first elsewhere before attending at the Victim's residence the morning of October 11, 2014. He explained that he had gone there apparently because he had been at the Victim's residence by invitation a week previously, after another night out. [ 16 ] The Offender told the author of the Forensic Assessment Report as follows: Mr.

Hans denied any memory of the offence and stated that while he does not believe that the offence occurred, he acknowledged that it is possible and could give no reason why the Victim would lie about it. [ 17 ] By virtue of his voluntary guilty plea, the Offender is, inter alia , admitting the essential elements of the offence: (see, s. 606(1.1) of the Criminal Code ).

CIRCUMSTANCES OF THE OFFENDER: [ 18 ] Considerable reliance is placed both by Crown and defence on the personal and background information about the Offender contained in the PSR dated December 4, 2015, prepared by Wendy Halliday, a probation officer with the Nanaimo Community Corrections, and in the Forensic Assessment Report dated January 19th, 2016, prepared by Dr. A. Murray Ferguson, registered psychologist, with the Forensic Psychiatric Services Commission.

Both reports are comprehensive, complete and are useful to the court. [ 19 ] From the Forensic Assessment Report we learned that the Offender was born and raised in Bella Coola by his parents, along with a younger brother. His parents were both alcoholics and apparently had little time for their children. They spent most of their time drinking and partying with friends. The Offender described a life of emotional and material neglect, but said that he had some support from his paternal grandparents. He described himself as a shy and quiet child with few friends, but began to develop friendships in adolescence.

The Offender's former spouse described him as friendly, easy going, and a good father. [ 20 ] In the Forensic Assessment Report it is noted that the Offender struggled at school and left in grade nine. He has had a very limited work history, primarily construction labouring, as well as in the shellfish industry. For a period of about 13 years he was a stay- at-home father, looking after the children of the Offender and his former spouse. He and his spouse were married for about 16 years, until around 2013 when the relationship broke up.

Part of the cause of the breakup was the constant arguing and the wife's anger at the Offender's inability to find work and provide financially for the family. [ 21 ] The Forensic Assessment report notes that the Offender had some problems with alcohol in his early twenties; however, at the urging and an ultimatum from his former spouse, he was abstinent from alcohol use for a period of some 14 years. That ended some six months after his former spouse left him.

The major problem for the Offender has been the use of alcohol but apparently he has not used illicit drugs. [ 22 ] The Forensic Assessment Report notes that the Offender appears to have been experiencing a major depressive episode at the time of the offence and was using alcohol as a form of self-medication. [ 23 ] Collateral information was sought and obtained by the author of the Forensic Assessment Report.

Based on collateral information, the forensic report indicates that the Offender is regarded as a good father who has always put his family first and always looked out for the needs of his children and his former spouse before himself. The indication from the former spouse is that the Offender took parenting very seriously; however, the issue in their relationship was his inability to provide financial support for the family, which the ex-spouse found to be a very frustrating experience.

The material before me indicates that the Offender is currently unemployed; he lives in the Nanaimo area with extended family. [ 24 ] The Offender has two children, being a daughter in her early teens, and a son less than five years of age. The children presently remain in the primary care of their mother. The Offender has reasonable access to both of his children and is very involved in their lives on a daily basis. The Ministry of Children and Family Development became involved at the onset of the charges.

Thereafter their file was closed and there are no Ministry child safety or access concerns at this time. [ 25 ] The Offender has admitted a prior conviction for domestic assault of his ex-spouse. He admitted the offence, pled guilty, and was sentenced all in March of 2004. He received a suspended sentence with one year of probation. He was 31 at that time. The PSR indicates that he completed the probation order without any instances of non-compliance.

There have been no non-compliance issues while the Offender has been bound by the terms of his current bail order on the sex assault offence presently before the court. [ 26 ] Dr. Ferguson completed a risk assessment on the Offender by way of what is referred to in the Forensic Assessment Report as a "risk for sexual violence protocol (RSVP)". The RSVP consists of 22 factors organized around five domains, namely: sexual violence history; psychological adjustment; mental disorder; social adjustment; and manageability. [ 27 ] Dr.

Ferguson provided the following opinion about the Offender on page 7 of the Forensic Assessment Report: Based on the risk factors identified by the RSVP as being relevant to Mr. Hans, he is estimated to be in the low risk category for sexual recidivism overall. However, while he meets the criteria for few risk factors on the RSVP, should Mr. Hans relapse to consuming alcohol, his risk of sexual violence would significantly increase. Mr. Hans' risk of relapse is increased by ongoing mental health difficulties, poor coping and stress management skills, and limited work opportunities.

While he managed to remain abstinent for fourteen years, he had very strong external pressure to do so. Currently, while he understands his risk of sexual violence escalates should he return to drinking, there is no external immediate consequence to such actions which could allow him to fall back into

drinking, as it did after the break-up of his marriage. Nonetheless, should Mr. Hans remain abstinent, his risk for sexual violence is likely to be low. Mr. Hans also possesses a number of protective factors that may help to reduce his risk of sexual violence; he has supportive family, cares greatly for his children, and wants to be there for them. He recently regained unsupervised access with them. He has accessed mental health treatment and would like to continue with treatment if he can access funding.

He is looking for work and he continues to be abstinent from alcohol, attending weekly Alcoholics Anonymous meetings and intends to begin attending twice weekly. [ 28 ] The PSR provides a Gladue component that deals with sentencing considerations for this Aboriginal Offender. The Offender is a status member of the Nuxalk Nation having been born and raised on the central coast of British Columbia in Bella Coola. He left his home community over 15 years ago. [ 29 ] The PSR describes some of the adverse communal, financial, and societal challenges faced by this First Nation.

It further describes that the residential school system has had an adverse effect on the Nuxalk Nation, mention is made of reports of physical, sexual, emotional, and cultural abuse being commonplace among the children forced to attend the residential school. The residential school experience contributed to the loss of traditional customs including languages and knowledge about healing, parenting and social relations. The intergenerational effects include transmission of abusive behaviours learned from residential schools. This has led to a cycle of abuse and violence from one generation to another.

The PSR notes that intergenerational substance abuse and violence are a common pervasive remnant of residential school. [ 30 ] The Offender's maternal grandmother attended residential school for approximately eight years. The Offender's own mother reports the residential school experience contributed to familial breakdown in their family home. The Offender was raised in a home where he witnessed frequent acts of physical violence inflicted upon his mother from his father throughout his childhood and adolescence.

The Offender also suffered neglect and witnessed ongoing substance abuse. [ 31 ] The Offender has a limited background of being taught or growing up participating in any cultural activities, but on his own volition and upon his own initiative has participated in cultural activities. The Offender has strong family connections in Bella Coola. Returning to that community is an option that is being considered by him after he deals with this offence. The PSR indicates that there are no Aboriginal sex Offender programs available within that community.

The Offender has concerns about the detrimental impact on his children if he were to relocate there with his children to that community. A number of other resources are available to the Offender within that community. The Offender can be monitored within the community if a community disposition is ordered. [ 32 ] The PSR provides the following

summary about the Offender as it relates to his upbringing: Subject's life demonstrates the intergenerational transmission of trauma often associated with residential schools, which include unstable childhood, domestic violence and abuse, significant substance abuse, poverty, and parental negligence. Areas of the aforementioned are also emulated in his own personal relationships and struggles, including domestic abuse and substance use. [ 33 ] Two letters are before the court from the Offender's counsellor dated October 10th, 2015, and a second dated May 10, 2016. Both are authored by Jenifer Wilson, MSW RSW.

The letters confirm that since October of 2014 the Offender has been extremely diligent, taking intensive therapeutic counselling, and has completed what is described as "profound clinical work", only interrupted by a period of time due to funding difficulties. He has also attended Alcoholics Anonymous on a weekly basis. He has maintained sobriety since October 11, 2014. Ms. Wilson reports in highly positive terms about the Offender's engagement in the counselling, speaks in terms of the significant progress that he has achieved, and further notes that his behaviour has changed for the better. [ 34 ] Ms.

Wilson specifically speaks about the Offender in the following terms: Of note is Mr. Hans' commendable decision to be personally accountable and to take this event as an opportunity to be as honest, conscionable and clear-minded as possible. Going forward, he presents as genuinely contrite for the damage that all of this has caused his family (as well as himself), either by his action or inaction. He is in the process of attempting to secure counselling for his thirteen year old daughter so she has unbiased assistance in discussing her reactions to what has happened to her dad. In this Mr.

Hans presents as open, transparent and empathetic. Mr. Hans recognizes that alcohol was a major factor in what happened, regardless of what exactly took place that evening. He now realizes that he needs to be in control of himself at all times. With this in mind, he has continued to be "clean and sober" with his sobriety date (October 11, 2014) nineteen months ago. He continues to attend A.A. meetings once per week without fail. His drug and alcohol counsellor has closed Mr. Hans' file, noting that Mr. Hans is "working his program" effectively.

He enjoys a sober life and feels he is much happier without alcohol. [ 35 ] Ms. Wilson describes the Offender as an exemplary parent, emphasizing his time commitment and his wish to improve his parental skills. Ms. Wilson concludes with the following comment: Over time I have come to have a great deal of respect for this unfortunate gentleman and to believe in his genuine investment in healthy change.

He is desirous to be a fully functioning, fully contributing member of society and of his family, as well as his community and has already shown a strong capacity to change. [ 36 ] Another positive letter before the court is from Jeff and Mitzi Bob. They are alcohol and drug addiction counsellors and engage in trauma counselling. Following the offence, they provided a residence for the Offender in their home and he resided with them from November of 2014 to July of 2015.

They speak very positively of the Offender's engagement with his recovery and his positive parental skills and his commitment to his children. [ 37 ] A letter from the Offender's former spouse is also before the court. She recounts his challenges with alcohol abuse. His decision, based on his ex-spouse's ultimatum to stop drinking, resulted in a 14-year period of abstinence. The challenges flowing from the breakup of their relationship led the Offender to start drinking again. The former spouse states:

I knew that when Tony and I broke up that he would start drinking again, just as surely as I believe that he will never drink again in hislife. [38] She also speaks in terms of his excellent parental skills and his commitment to their children in his role as a co-parent.

She alsospeaks of the Offender's caring nature and the help that he constantly extends to friends and to strangers, and his gift at making andmaintaining strong and positive friendships, especially when leading a sober life. [39] The three other letters from family members and in-laws speak very positively about the Offender's character, describing him asvery patient and calm, a devoted, caring father and a faithful and helpful friend and neighbour. [40] A common theme in the various letters is that the Offender is remorseful and has taken significant steps to make sure that hewill never be the cause of such an offence to occur in the future.

IMPACT ON VICTIM: [41] Wendy Halliday, author of the PSR, spoke to the complainant Victim in this case. Ms. Halliday said that the Victim reported toher as follows: She reported prior to the offence the [Offender] had been her friend and neighbour for approximately three years. She reports that shehas experienced emotional distress resulting from the offence. She described significant anxiety and increased vulnerability.

In addition,she feels her safety in her home and in the community has been compromised. [42] This information and other highly adverse effects of the crime upon the Victim are also detailed in the written Victim impactstatement that is before the court. Other specific effects such as sleep disruption, difficulty holding a thought and staying on task aredescribed in the Victim impact statement. The adverse effects of the Victim's condition on her children are also described, as is thenecessity for her to obtain counselling.

THE PURPOSE, PRINCIPLES AND OBJECTIVES OF SENTENCING: GENERALLY: [43] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker [2006] SCC 44 at para. 14; and R. v. Angelillo [2006] SCC 55 at para. 22).

As the sentencing judge I must direct myself to consider all the principles of sentencing contained in the Criminal Code, but also bemindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others. (see: R. v.McCormick [2006] ABCA 410 at paras. 9 to 12). [44] In R. v. Nanji 2009 BCPC 79 , [2009] BCJ No. 521, [2009] BCPC 79 the Honourable Judge Woods of ourProvincial Court provides a useful

summary to deal with the purpose and principles of sentencing set out in the Criminal Code bydrawing from the decision of our British Columbia Supreme Court in R. v. Pommer (infra). Quoting Judge Woods from paragraph 12 ofthe Nanji decision, he says: [12] In R. v. Pommer, 2008 BCSC 737, D. Smith J. (as she then was) recently provided a strikingly succinct, complete and “to the point”generic

summary of the relevant purposes, principles and objectives of sentencing with which I find myself in respectful agreement. Ireproduce that

summary below, believing it to be fully applicable to the case at bar: The ‘normative’ principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Criminal Code (see. R. v. L.M., 2008 SCC 31).

Thefundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance ofa just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the CriminalCode: to denounce unlawful conduct; to deter the Offender and other persons from committing offences; to separate Offenders fromsociety, where necessary; to assist in rehabilitating Offenders; to provide reparations for harm done to Victims or to the community; andto promote a sense of responsibility in Offenders, and acknowledgement of the harm done to Victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the Offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigatingcircumstances relating to the offence or the Offender, evidence that the Offender in committing the offence abused the Offender’sspouse or a position of trust in relation to the Victim; that a sentence should be similar to sentences imposed on similar Offenders forsimilar offences committed in similar circumstances; an Offender should not be deprived of liberty, if less restrictive sanctions maybe appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered.

In this case, the conditional sentencing regime as set out in s. 742.1 may be available if the court is satisfied an appropriatesentence of imprisonment would be less than two years, that serving the sentence in the community would not endanger the safety of thecommunity and would be consistent with the fundamental purpose and principles of sentencing as set out in

section 718 to 718.2 of theCriminal Code.” (At paras. 42-44). [45] I note parenthetically that s. 718(

f) of the Criminal Code now provides as follows: (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. (Emphasisadded.) [46] As noted by Romilly J. in R. v. Ralph (infra) when considering the requirements of s. 718.2(

b) that "a sentence should be similarto sentences imposed on similar offenders for similar offences committed in similar circumstances", requires an analysis of what iscommonly referred to as the range of sentence for a specific offence, (see: Para. 26). However, because of the proportionality principle

and individualized sentences, the parity principle does not preclude disparity where warranted by the circumstances. There is no suchthing as a uniform sentence for a particular crime (see: R. v. L.M. 2008 SCC 31 , [2008] 2 SCR 163). [47] In R. v. Bernier [2003] BCCA 134 the British Columbia Court of Appeal held that ranges of sentences are only guidelines andthat a sentence may be longer or shorter than the applicable ranges, as long as the circumstances of the particular case warrant it. (Seealso: R. v. Lequiere, infra).

CONDITIONAL SENTENCE ORDERS: [48] The principles which underline conditional sentences are set out in s. 742 to 742.7 of the Criminal Code. R. v. Proulx [2001] 1SCR 61 sets out the proper approach to the application of these principles (see: para. 127). Some of those principles that are particularlyrelevant to this case are as follows: (

a) a conditional sentence is intended to address both punitive and rehabilitative sentencing objectives, and should generally includepunitive conditions that restrict the Offender's liberty; (b) "safety of the community", not being endangered is merely one of the statutory pre-requisites for imposing a conditionalsentence and is not the primary consideration. The threat of the specific offender must be considered. The sentencing judge mustconsider the risk of the offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light ofconditions that can be attached to the sentence to thereby reduce any risk to an acceptable level; (

c) a conditional sentence is available for all offences of which the statutory pre-requisites are satisfied and there is no presumptionthat conditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances; (

d) serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory pre-requisitesare satisfied, but there is no presumption in favour of a conditional sentence; (

e) a conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed andthe terms of the sentence is longer than would have been imposed as a jail sentence; (

f) a conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed and judges should bewary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there maybe circumstances where deterrence will warrant incarceration; (

g) when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction, subject to considerations of denunciation and deterrence; (

h) while aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence,conditional sentences may be imposed even if such factors are present. GLADUE CONSIDERATIONS: [49] In this case it is very important that I take into account the direction of the Supreme Court of Canada in R. v. Gladue [1991] 1SCR 688, when dealing with an Aboriginal offender, and specifically when considering, as I must do, under s. 718.2(

e) all availablesanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to thecircumstances of Aboriginal offenders. Gladue points out that s. 718.2(

e) of the Criminal Code is not simply a codification or a re-statement of existing law. Its purpose is to ameliorate the serious problem of overrepresentation of Aboriginal offenders in prison and toencourage sentencing judges to cause to have a restorative approach to sentencing when dealing with them. Therefore, it is viewed asbeing a remedial provision. A number of factors are set out in R. v.

Gladue which must be considered by a sentencing judge whendetermining what is a fit sentence for an Aboriginal offender. [50] The Gladue principles and special sentencing approach have been reaffirmed more recently in R. v. Ipeelee 2012 SCC 13, [2012] 1 SCR 433. Ipeelee makes it clear that in the process of determining a fit sentence a judge must consider the uniquesystemic or background factors that may bring the particular Aboriginal offender before the court, and the types of appropriatesentencing procedures and appropriate sanctions, having regard for the offender's Aboriginal heritage or connections.

Ipeelee furtherindicates that the Gladue factors must be considered in a wide range of cases involving Aboriginal offenders. However, applying thesefactors on their own do not necessarily justify an Aboriginal offender receiving a different sentence or mandating a different result. Theycan provide a context for considering case specific information for an Aboriginal offender. [51] A recent decision of the Honourable Judge Keyes of this court in R. v. French (infra), provides useful guidance for sentencingthis Aboriginal offender for this offence before this court. Quoting from paragraph 60: In R. v.

R.R.M., 2009 BCCA 578, the Court provided the following direction on sentencing Aboriginal Offenders for sexual offences atparagraph 24: [24] The sentencing of Aboriginal offenders for serious sexual assaults, where there is evidence that they have suffered from historicaland systemic abuses, is not an easy task.

This Court has observed that in sentencing Aboriginal offenders, while judges must be "sensitiveto the conditions, needs and understandings of Aboriginal offenders and communities, this does not mean that sentences for suchoffenders will necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such asdeterrence and denunciation." See R. v. Morris, 2004 BCCA 305 at para. 55.

Chief Justice Finch further noted at para. 53 that Gladuemade clear that it was not the principles of sentence that varied in sentencing Aboriginal offenders but the application of those principlesto a particular case. In Gladue (at para. 80), the Court further stated that:

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? AGGRAVATING FACTORS: [52] No significant disagreement exists between the parties about the following aggravating factors: 1. The Victim was a friend and neighbour with a platonic and trusting relationship with the Offender for a duration of between two andthree years.

The Offender betrayed that trusting relationship when he committed this offence against the Victim; 2. The Offender entered the home of the Victim in the middle of the night, committed the offence while the Victim was asleep and veryvulnerable; 3. The Offender engaged in non-consensual sex with the Victim, in a location where she had every expectation of, and should havebeen, safe and secure. 4. The sexual assault and the circumstances surrounding it have had a profoundly negative effect on the Victim. I accept these as the relevant aggravating factors.

MITIGATING FACTORS: [53] Again, there is no significant disagreement between the Crown and defence about the following mitigating factors: 1. The Offender pled guilty after Crown decided to proceed summarily, and pled guilty prior to the preliminary inquiry set on theoriginal indictable offence, thereby avoiding the necessity of the Victim testifying.

The Offender was aware that the Victim was dealingwith a great deal of anxiety over the prospect of having to testify, and notwithstanding that there were triable issues, the Offender tookappropriate steps in terms of a relatively early guilty plea to avoid that having to occur; 2. The Offender has accepted the statement of the Victim as to the commission of the offence, notwithstanding that even after some"fairly intensive therapeutic questioning over several sessions" as reported by Jenifer Wilson, he has not been able to recollect anymemories of the offence and has taken responsibility for his behaviour; 3.

The Offender has expressed genuine remorse, shame and guilt for his offending behaviour; 4. He has participated fully in addressing his underlying issues that have given rise to his offending behaviour, and specifically indealing with his alcohol abuse issue through intensive counselling and therapy. He has maintained his sobriety through programs such asregular attendance at Alcoholics Anonymous.

In other words, he has developed and implemented a rehabilitation action plan with anaccompanying plan of support and with planned follow-up, all of which he has maintained from the time of the offence to present date; 5. He has a very dated criminal record and no prior convictions for an offence of this nature; 6. He has been cooperative throughout with police, MCFD, his bail supervisors and with the authors of the PSR and the ForensicAssessment Report. I accept all of these as relevant mitigating factors.

POSITION OF CROWN ON SENTENCING: [54] Crown seeks an actual custodial sentence for the Offender of between 15 and 18 months and a period of probation of betweentwo and three years. Crown also seeks an order under s. 487.051 of the Criminal Code requiring the taking of a DNA sample from theOffender on the basis of him having committed a primary designated offence under s. 487.04(a)(xi.3).

Crown further seeks a SOIRAorder to be made pursuant to s. 490.12 of the Criminal Code for the commission of a designated offence set out in s. 490.011(i)(a)(xvi),such registration to be for a duration of ten years as provided under s. 490.013(2)(

a) and also a s. 110 firearm prohibition for a period offive years. [55] Crown also notes the necessity for a mandatory no contact provision with the Victim under the terms of the probation order, asprovided in s. 732.1(2)(a.1) of the Criminal Code. Crown says that a Victim surcharge pursuant to s. 737 applies. [56] Crown relies on the sentencing principles of denunciation and deterrence, which it says must be paramount in this type ofoffence and in these circumstances, and having regard to the aggravating and mitigating circumstances.

Crown characterizes thisoffence, in these circumstances, as a "worst circumstance offence" and therefore the custodial sentence must be at the high end of theavailable range. [57] Crown acknowledges that a conditional sentence order is statutorily available, but opposes it as failing to adequately protect thecommunity.

While acknowledging the rehabilitative work and his steps to minimize any relapse that have been completed by theOffender, Crown expresses concern about the fact that the Offender does not recall this offence, which apparently emanated from hishigh level of intoxication at the date of the offence and his ensuing blackout. Thus, Crown argues that if the Offender were to relapsefrom his abstinence from alcohol consumption, that he poses a risk to the community. CASE AUTHORITIES RELIED UPON BY CROWN: [58] In support of its sentencing position, Crown relies upon the following cases: R. v.

French [2015] BCJ No. 2963 [2015] BCPC406 ; R. v. C.R.R. [2010] BCJ No. 2461 [2010] BCPC 315 ; R. v. Lequiere 2006 BCSC 668 , [2006] BCJ No.937 [2006] BCSC 668 (Can LII). These cases deal with offences very similar in nature to that of the offence of the Offender. In these

cases custodial sentences were imposed and conditional sentence orders were rejected. The importance of denunciation and deterrence in sentencing were expressed by the courts. [ 59 ] The accused in French was charged summarily with sexual assault and received a sentence of 18 months actual custodial time, and two years probation. The complainant was intoxicated and suicidal and passed out and awoke to find the accused with his fingers inserted in her vagina. The Aboriginal accused had two prior convictions for sexual assault.

Notwithstanding a late guilty plea, he continued to both deny and minimize the offence and was found to have no insight whatsoever into his offending behaviour. There was a considerable likelihood of reoffending. The circumstances were very aggravating and, hence, the court held that the sentence required was one that clearly and unequivocally declared the denunciation and condemnation of society for this sort of offence.

The court further noted that the appropriate sentence would have been in excess of two years, but for the fact that Crown has proceeded summarily. [ 60 ] The accused in C.R.R. was convicted after a trial for sexual assault and sentenced to 12 months of actual incarceration and placed on probation for three years. Crown proceeded summarily against this Aboriginal person. The complainant had previously refused the accused's earlier suggestion that he come to her residence to party. She awoke to find the accused on top of her, having sexual intercourse with her, with his penis in her vagina.

The accused stopped when he realized the complainant was awake. The accused offered a form of apology as she pushed him away. He continued to try to hug her and to once again attempt to enter her now locked room. The vulnerability of the sleeping victim, while in her own house, set upon by an intruder in the dead of night and forced to have non-consensual sexual intercourse were held to be very aggravating circumstances and factors. The Honourable Judge O'Byrne accepted that based on the cases cited, the range for this type of offence was between 9 and 13 months.

A conditional sentence in the range of between 12 and 18 months was sought and rejected because of the lack of protection provided to the community. In particular, the court noted the accused's three breaches of court orders both while awaiting and after trial. [ 61 ] In Lequiere , Dillon J. dealt with a sentencing appeal in which the sentencing judge had imposed 18 months for the appellant's sexual assault on a sex trade worker arising from non-consensual sexual intercourse.

The sentencing judge rejected defence's request for a conditional sentence on the basis of the appellant not being amenable to community supervision, his unwillingness to comply with court orders, and the danger that he posed to the community given his prior convictions for violent assault and dangerous driving. It was also inappropriate because community rehabilitation was likely to be ineffective, such that the community would be endangered and specific deterrence demanded jail time. Crown had proceeded summarily.

A number of other offences were dealt with at the same time, including impaired driving, refusing to provide breath sample and dangerous driving while on bail pending the sexual assault trial. While at large after failing to appear for sentencing on the sexual assault, the appellant committed offences of obstruction of a police officer and driving without a licence.

Consecutive sentences were imposed for a total sentence of 21 months with two years of probation. [ 62 ] In Lequiere the accepted aggravating circumstances included the fact that the victim of the sexual assault was a sex trade worker who had been subjected to physical and verbal intimidation by the appellant. The appellant had a prior criminal record including assault causing bodily harm and a long history of failure to appear in court or the probation office. No mitigating circumstances were found. The appellant expressed no remorse for the sexual assault. [ 63 ] A review of the range of sentences on

summary conviction for sexual assault is dealt with extensively by Madam Justice Dillon at paragraphs 66 to 80. Based on the court's examination of this wide range of cases from a number of different jurisdictions, the following conclusion is reached at paragraph 66: A review of the case law to determine the range of sentences handed down in cases of sexual assault involving intercourse where the Crown elected to proceed summarily indicates a range of between 6-18 months in jail and includes a variety of conditional sentences. The appellant's sentence on the sexual assault was upheld, noting that it was at the highest end for

summary conviction sex assault involving intercourse. The court noted the appellant's failure to address continuing problems. Significant jail time was required to offer any hope of rehabilitation and protection to the public. DEFENCE POSITION ON SENTENCING OF THE OFFENDER: [ 64 ] Defence submits that a fit sentence is a conditional sentence order of a duration of 18 months and a two-year probation order. Defence does not oppose the ancillary orders being sought by Crown. Defence notes that the Offender has been characterized in the forensic report as low risk to reoffend.

He has demonstrated that he has faithfully abided by the court imposed conditions that have bound him for the last 19 months. Thus, defence says, he can and will abide by a community disposition. [ 65 ] Defence further submits that the Offender wishes to engage completely in his role as a full-time co-parent for his children and to be responsible for their care and upbringing. His offending behaviour has denied him of that most important role for him for a considerable period of time.

A custodial sentence would prevent him from resuming this role, thereby placing a significant burden on the children's mother, being the former spouse of the Offender. [ 66 ] Defence submits that a conditional sentence order is statutorily available and has been ordered in similar circumstances. Defence further submits that a conditional sentence order provides adequate deterrence and denunciation.

Rehabilitative goals for this Offender, in these circumstances, are significantly important given his limited and unrelated criminal record; his positive personal characteristics recognized by friends, family and professionals; the personally motivated significant steps he has taken in dealing with his alcohol abuse issue that underlies his offending behaviour; and his insight to and his genuine remorse for his offending behaviour and its highly negative impact on the Victim. [ 67 ] Noting that the Offender has been on restrictive conditions and has been compliant with those conditions for a long period of time, defence says that he will abide by the terms of any community disposition. [ 68 ] Defence argues that the Crown's case authorities deal with Offenders who show little remorse and little insight, who have taken only limited (if any) rehabilitative steps and where there was a paucity of any mitigating circumstances.

CASE AUTHORITIES RELIED UPON BY THE OFFENDER:

[69] In support of its sentencing position, defence relies upon the following cases: R. v. R.J.E. [1999] BCCA 258 [1999] B.C.J. No.1115 ; R. v. Ralph [2014] BCSC 467 [2014] B.C.J. No. 485 ; R. v. Cadman [2016] BCSC 474 [2016] B.C.J. No. 538. These cases deal with a different type of sexual offending. They are highly aggravating due to the fact that the victims werechildren at the dates of the offences.

Notwithstanding the nature of these offences, the courts determined, in the whole of thecircumstances, that conditional sentence orders were appropriate sentences. [70] The appellant in R.J.E. successfully appealed his 18-month imprisonment for an historical sexual assault. Crown proceeded byindictment. The complainant was 13 years of age, had been fondled by the appellant and the appellant had performed oral sex on her onseveral occasions. He attempted but was unsuccessful at getting her to engage in sexual intercourse.

At the time of the offence theappellant was dating the complainant's mother and stood as a father figure to the complainant. The appellant had no other criminalrecord and appeared to lead a normal stable life in his community. The age of the victim, breach of trust, and the attitude of the offendertowards the offence were cited by the sentencing judge as aggravating factors.

The Court of Appeal held there to be an error with respectto the finding on the appellant's attitude towards the offence, but upheld the other two aggravating factors, concluding that the appellantacknowledged his offending behaviour and did not pose a danger to the community, that his present attitude did not require denunciation,and there was no purpose served by requiring an actual custodial sentence for his rehabilitation.

The British Columbia Court of Appealsubstituted an 18-month conditional sentence order. [71] I note parenthetically that the present wording of s. 742.1(f)(iii) of the Criminal Code would not allow such a disposition. [72] The Offender in Ralph was sentenced to two years less one day by way of a conditional sentence order for historical sexualinterference with a person under the age of 14 years, contrary to s. 51 of the Criminal Code. Oral sex occurred, but sexual intercourse didnot. The offender was the victim's elementary school teacher and at the time of the offence the victim was between the ages of 11 and13.

At paragraphs 79 to 101, Justice Romilly reviews a number of sex offence cases in which conditional sentences have been imposedby the courts. [73] In Ralph the court concluded that a deterrent and denunciatory sentence was warranted because of the serious offence involvingthe abuse of trust and a sexual offence against a child.

However, there were mitigating factors, such as: the guilty pleas; the fact that theoffender accepted full responsibility; a lack of a criminal record; a negligible risk to reoffend, the loss of her professional position and thelifelong stigma of the offence; she did not present a danger to the community; a custodial sentence was not required to give effect to theprinciple of deterrence; and the offender's elder care and child care responsibilities could not be met if she were incarcerated. [74] Following a conviction at a jury trial, the offender in Cadman was sentenced to a conditional sentence of two years less a dayfor historical sexual offences, namely, sexual assault against a victim who was then between 13 and 14 years of age.

The court found thefollowing mitigating circumstances to exist: absence of a criminal record, a positive personal and professional lifestyle both prior andsubsequent to the offences, and the offender's contribution to his family and community. The court noted that a significant amount oftime had elapsed from the period of the offences to the present, without incident, thereby signifying that the offender was not in need ofrehabilitation. The court further stated that the public was not at risk if the offender served the sentence within the community.

ANALYSIS: [75] Based on the overall circumstances in this case, including a consideration of the above noted aggravating and mitigating factorsand the range of appropriate sentences established by Lequiere for this type of offence and the case authorities reviewed in that decision,it is my view that Crown is correct when it says that a fit sentence is between 15 and 18 months for this particular offence. [76] I note in particular the following decisions considered in Lequiere: R. v.

Rahmani [2003] BCPC 535 being a date rape casewhere the sentence was an 18-month conditional sentence order and a 12-month probation order. R. v. Tony 2002 SKQB 226 ,[2002] 220 Sask.R.135 [2002] SKQB 226, was a case of non-consensual sexual penetration of a passed out victim who awoke during theoffence. The sentence of this Aboriginal offender was an 18-month conditional sentence order with strict conditions. In R. v.

G.A.L.2001 NSCA 29 , [2001] 191 N.S.R. (2nd) 118 [2001] NSCA 29 the sentencing judge's order was restored by the appellant courtsuch that the offender was to serve 14 months in jail, followed by 18 months of probation for attempted sexual intercourse on a sleepingvictim following a party. [77] I am mindful of the views expressed in Lequiere at paragraph 58 that the worst offender/worst offence principle is notapplicable to hybrid offences that proceed summarily. However, it does not negate the need to determine the range of an appropriatesentence with references to sentences imposed upon

summary conviction. The maximum sentence should be reserved for those casesthat fall within the worst category

summary conviction offences. In my view, this case can be characterized in that fashion. Hence, thehigher end of the available range is necessary. [78] In the case before me, the Victim was highly vulnerable at the time of the offence. She was subject to a serious violation of herpersonal safety while in her own home and while asleep. More significantly, she has endured a very egregious non-consensual sexualviolation and a violation of her personal dignity and bodily integrity.

It has had long-lasting and continuing negative effects andconsequences for her. [79] This type of offence requires a very significant amount of denunciation and an equal amount of specific and general deterrence. However, the Offender has demonstrated through his post-offending actions that he understands the need to accept responsibility for hisoffending behaviour, and very importantly, to achieve rehabilitation through his own concerted efforts, which continues on an ongoingbasis. He does accept the necessary responsibility.

He has on his own volition and with both professional support and guidance and withthe help of friends and family, proceeded well down the rehabilitation path. That is, and will be, an ongoing journey for him. I have nodoubt about the genuine remorse of the Offender for his behaviour and for his insight about the negative impact of that behaviour on theVictim. [80] Based on the evidence and submissions before me, I accept that the Offender is at a very low risk to reoffend and that he willcontinue to take the necessary steps to maintain his sobriety. Alcohol consumption puts him at a risk to reoffend.

The Offender realizesthat risk and that danger. He is also significantly motivated to avoid lapsing from his commitment to sobriety because of the positive

and important role he seeks to perform in the lives of his children. That role has been significantly disrupted by his offending behaviour. [ 81 ] The Offender's high level of compliance, while on court conditions for 19 months, is very encouraging, and suggests that he is an excellent candidate for a community disposition. [ 82 ] I have considered the appropriateness of a conditional sentence order in this case.

It is one of the sanctions, other than imprisonment, that is available and is reasonable in the circumstances and with particular attention to the circumstances of the Aboriginal Offender before me. [ 83 ] I am satisfied that a conditional sentence order in this case can and will address the necessary punitive and rehabilitative sentencing objectives that are required in these circumstances. I am also satisfied that in this case, the necessary level of denunciation can be achieved by a conditional sentence order.

I have concluded that with appropriate conditions, the safety of the community will not be endangered if the Offender is permitted to serve his sentence in the community. [ 84 ] A conditional sentence order will permit the Offender to achieve the sentencing objectives of rehabilitation and a promotion of a sense of responsibility.

I am also satisfied that the factors that militated against a conditional sentence order in the cases cited by Crown are not operative here, or where they exist, are not highly relevant to the matter at bar and are overweighed by other factors which support the use of a conditional sentence order. [ 85 ] It is appropriate that the conditional sentence order be of a duration longer than a custodial jail sentence, as noted in Proulx , and should be at the higher end of the range available for this offence.

A lengthy probation order, as is suggested by both parties, is appropriate as part of the continuation of the Offender’s rehabilitative path, and to provide him continued support and an incentive for the maintenance of that rehabilitative path, CONCLUSIONS: [ 86 ] This matter can and should be dealt with by way of a conditional sentence order with strict and appropriate conditions. A lengthy probation order is appropriate. The ancillary orders being sought by Crown are appropriate. [ 87 ] I am going to ask Mr. Hans to please stand and to come forward. [ 88 ] Mr.

Hans, you are going to be bound by court ordered conditions for several months. I must remind you, as I am sure your counsel has explained to you, court orders are things you must do. With respect to the conditional sentence order it is important, as I am sure has been explained to you by Mr.

Churchill, that a breach of that conditional sentence order may result in Crown applying to this court to have the conditional sentence order collapsed, in which case you may be required to serve the balance remaining, or a portion of your sentence in an actual custodial setting. [ 89 ] Similarly, you will be bound by the probation order for a significant period of time. The same thing holds true with respect to that. If you fail to abide by the terms and conditions of the probation order, you are at risk of facing charges for a breach.

Do you understand all that? [ 90 ] THE ACCUSED: Yeah. [ 91 ] THE COURT: Thank you. [ 92 ] Accordingly, I will now provide the terms that will attach to the 18-month conditional sentence order. I will reference the numbering in the standard conditions used on Vancouver Island, starting with number 300. [ 93 ] 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 4 p.m. on today's date, June 15th, 2016, at the address that will be provided to you and you shall thereafter report as and when directed by your supervisor, and in the manner directed by your supervisor. [ 94 ] You shall remain within British Columbia unless written permission to go outside the 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. [ 95 ] 305: On first reporting to the supervisor you shall inform him or her of your present residential address and telephone number. [ 96 ] 306: You shall not change your address or telephone number at any time, without first obtaining the written consent of the supervisor. [ 97 ] 308: You shall obey the rules and regulations of your residence. [ 98 ] 311: Curfew.

You shall obey a curfew by being inside your residence between the hours of 10 p.m. and 6 a.m. each day, except as follows: with the consent of the supervisor, such consent is to be given, however, only for compelling personal, family or employment reasons, or (

b) when travelling directly to or returning directly from your place of employment, or while in the course of your employment. You shall provide your supervisor with written details of your employment, including the name of your employer, contact particulars for your employer, and including hours of work, if requested to do so; or (

c) when travelling directly to or returning directly from an educational institution in which you are enrolled or while in the course of classes or extra activities, including counselling, approved in advance by the supervisor. The period of the curfew will be for the first six months of your conditional sentence order. [ 99 ] 315: You shall present yourself at the door to your residence when the supervisor or a peace officer attends there for the

purposes of determining your compliance with the curfew conditions of this order. [ 100 ] 319: You shall have no communication, directly or indirectly, with K.C., or any member of her immediate family. [ 101 ] 323: You shall not attend at, or be within 50 metres of any place which you know to be the residence, school or workplace of K.C., or any member of her immediate family. [ 102 ] THE CLERK: I'm sorry, Your Honour, that condition or what number was that? [ 103 ] THE COURT: That is 323. [ 104 ] THE CLERK: 323, thank you. [ 105 ] THE COURT: 327: You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a licenced physician. [ 106 ] 331: You shall not enter any liquor store, beer and wine store, bar, pub, lounge or nightclub. [ 107 ] 332: You shall not possess any pipes, syringes or other drug paraphernalia. [ 108 ] 336: You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 109 ] 338: You shall not possess any knife outside your residence, except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. [ 110 ] 351: You shall attend, participate in, and successfully complete any assessment, counselling or program as directed by your supervisor, which may include (

a) alcohol or drug abuse; (

b) spousal abuse prevention; (

c) sexual offence prevention, including any sex Offender treatment program as directed by your supervisor; (

d) forensic assessment, counselling or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia, or such other designated facility and including without limitation assessment by the Forensic Services sex Offender treatment program; (

e) life skills, and in any case you shall comply with all rules and regulations of any such assessment, counselling or program. [ 111 ] 353: Restorative justice community work service. Under the direction and supervision of the supervisor, you shall successfully complete 40 hours of community work service which shall be completed within the first six months of the conditional sentence order. [ 112 ] I am going to pause for a moment. Are there any terms and conditions that I have outlined or which I have either missed, or which either counsel consider to be problematic? [ 113 ] MR.

CHURCHILL: No, Your Honour. [ 114 ] MS. HAGEN: No, Your Honour. [ 115 ] THE COURT: Thank you. [ 116 ] MR. CHURCHILL: Your Honour, if I may ask, I didn't catch the term of the conditional sentence order. [ 117 ] THE COURT: Ah, it is a total of 18 months. [ 118 ] MR.

CHURCHILL: Thank you. [ 119 ] THE CLERK: Your Honour, the curfew was for the first six months? [ 120 ] THE COURT: Correct. [ 121 ] THE CLERK: Thank you. [ 122 ] THE COURT: Turning now to the terms of the probation order, which has a duration of 26 months. [ 123 ] THE CLERK: Can I just have a second, Your Honour. [ 124 ] THE COURT: Certainly. [ 125 ] THE CLERK: Okay, probation is 26 months? [ 126 ] THE COURT: Correct. [ 127 ] THE CLERK: Thank you. [ 128 ] THE COURT: Again, utilizing the standard conditions utilized on Vancouver Island and the numbering system attached to them. [ 129 ] Number 200, 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. [ 130 ] 202: Within seventy-two hours after completion of your conditional sentence order, you shall report in person to the probation

office in Nanaimo, British Columbia, at the address that will be provided to you, and after that you shall report as directed. [ 131 ] 205: When first reporting to the probation officer you shall inform him or her of your residential address and telephone number. [ 132 ] 206: You shall not change your address or telephone number without first obtaining the written consent of the probation officer. [ 133 ] 209: You shall have no communication, directly or indirectly, with K.C., or any member of her immediate family. [ 134 ] I am going to pause for a moment.

I believe I, on the non-attendance provision, I made that was it 50 metres? [ 135 ] MR. CHURCHILL: You did, Your Honour. [ 136 ] THE COURT: Thank you.

On condition 223, you shall not attend at or be within 50 metres of any place you know to be the residence, school or workplace of K.C., or any member of her immediate family. [ 137 ] THE CLERK: Sorry, Your Honour, what condition number? [ 138 ] THE COURT: 223. [ 139 ] THE CLERK: 223, thank you. [ 140 ] THE COURT: 227: You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 141 ] 231: You shall not enter any liquor store, beer and wine store, bar, pub, lounge or nightclub. [ 142 ] 232: You shall not possess any pipes, syringes or other drug paraphernalia. [ 143 ] 236: You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 144 ] 238: You shall not possess any knife outside of your residence except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. [ 145 ] The counselling condition as set out in the conditional sentence order will be replicated in the probation order. [ 146 ] Again, I will pause.

I believe I have outlined all the appropriate conditions. Are there any additional conditions or any problems posed by the conditions that I have outlined? [ 147 ] MR. CHURCHILL: Not from the defence perspective, Your Honour. [ 148 ] MS. HAGEN: No, Your Honour. [ 149 ] THE COURT: Thank you. Turning to the ancillary orders that are being sought by Crown. First of all, I will make the DNA order as requested. [ 150 ] THE CLERK: That's discretionary? [ 151 ] MS. HAGEN: No, it's -- [ 152 ] THE COURT: Mandatory. [ 153 ] THE CLERK: Mandatory. [ 154 ] MS. HAGEN: Yes. [ 155 ] THE COURT: Under 487.04.

And I am going to direct Mr. Hans attend at the local detachment of the RCMP within one week of today's date. [ 156 ] MR. CHURCHILL: Your Honour, I believe they go each Wednesday, if memory serves, between one and four. It's posted in 109. [ 157 ] THE COURT: I believe -- so the next day would be on or before -- I am going to make it on or before June 29, 2016 -- [ 158 ] MR. CHURCHILL: Thank you. [ 159 ] THE COURT: -- in order that he has the appropriate amount of time to complete that. [ 160 ] MR.

CHURCHILL: Thank you, Your Honour. [ 161 ] THE COURT: I am going to make the SOIRA order as being sought by Crown, pursuant to s. 490.012 of the Criminal Code and that will be for a duration of ten years. [ 162 ] I will make the order pursuant to s. 110 for a firearms prohibition for a period of five years. [ 163 ] I will impose a Victim fine surcharge pursuant to s. 737 of the Criminal Code , and I will provide Mr. Hans with a period of two months in order to pay the Victim fine surcharges.

[ 164 ] MR. CHURCHILL: Thank you, Your Honour. [ 165 ] THE COURT: Is there anything further that I need deal with? [ 166 ] MS. HAGEN: Your Honour, you did say 223 -- sorry, 209, no communication. direct or indirect, s. 732.1(2) is a mandatory non- communication order, so I think that's probably included in that but -- [ 167 ] I have included it in both the conditional sentence order and I have included it in the terms of the probation order also. [ 168 ] MS. HAGEN: All right, thank you very much. [ 169 ] MR. CHURCHILL: I see nothing further, Your Honour. Very thorough. [ 170 ] THE COURT: Thank you. Mr.

Hans, I wish you well in your continued recovery and in completing all the requirements of both the conditional sentence order and the terms of the probation order that I have imposed upon you. [ 171 ] THE ACCUSED: Thank you, Your Honour. [ 172 ] Thank you. Standing down. [REASONS FOR SENTENCE CONCLUDED]