R. v. L. et al. Date:, 2012 BCPC 503

Citation: R. v. L. et al. Date: 20120704 2012 BCPC 0503 File No: 8116-3-C Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act BAN ON PUBLICATION PURSUANT TO S. 486.4(2) CRIMINAL CODE OF CANADA AND 1980-81-82, c. 110 YOUNG OFFENDERS ACT AND S. 110 and S. 111 , S.C. 2002, c.1 YOUTH CRIMINAL JUSTICE ACT REGINA v. P.E.L., D.B.L, and S.C.L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. ROHRMOSER Counsel for the Crown: C. Hawes/C. Elliott Counsel for the Accused, P.E.L.: F. Kaatz Counsel for the Accused, D.B.L.: K. Sommerfeld

Counsel for the Accused, S.C.L.: D. Campbell Place of Hearing: Lillooet , B.C. Dates of Hearing: May 30 - June 2; June 6 - 9, June 13 - 15, June 20 - 22, 2011; May 4 and 8, 2012 Date of Judgment: July 4, 2012 1. INTRODUCTION: [ 1 ] Persistent rumours that bad things had happened to young children have circulated around the T’it’q’et Reserve for decades. Eventually, there was a belated and intensive police investigation that led to the trial of this matter, which started over a year ago, and is now finally going to conclude. The process has been very difficult for the people involved.

The accused, who were in their early to mid teens when they offended in the 1980’s, were themselves also victims of abuse and neglect. Today these three accused men are to be sentenced for terrible acts of sexual abuse that have caused tremendous, lifelong pain that the victims continue to live with. Some victims have done so with more success than others, but they have all carried the scars into their adulthood.

This long and sad episode has also been hanging over the community like a bad diagnosis. [ 2 ] The main issue is this: what could possibly be a just outcome, where the lives of victims and accused alike have been warped by such a maladjusted environment in which the casualties of abuse became predators in their turn, in an atmosphere where the adults who suspected what was going on did nothing to stop it.

P.E.L. and S.C.L. have bought into the prevailing conspiracy of silence and denial to such an extent that even to this day, and even after being found guilty on the testimony of so many witnesses, many of them relatives, they reject the court’s findings altogether.

D.B.L. acknowledges his wrongdoing and has tried to apologize for it over the years to some of the victims, and has continued to do so through the probation officer and Gladue report author. [ 3 ] Charged under the Young Offenders Act , which was in effect when the offences were committed between 1981 to 1987, all three accused were young persons, as defined by that Act , when the offences were committed.

However, they are now grown men who must still be sentenced under the Youth Criminal Justice Act ( Y.C.J.A. ), pursuant to s. 160 of the Y.C.J.A., which came into force April 1, 2003. [ 4 ] Sentencing requires consideration of several sections of the Y.C.J.A. as well as the principles set out in R. v. Gladue and R. v. Ipeelee . The Crown seeks a two year jail sentence, plus one year probation for all three accused.

Defence counsel ask for non-custodial sentences ranging from probation to doing nothing further, on the assumption that the finding of guilt itself is enough of a sanction. [ 5 ] S.C.L. and P.E.L. have no criminal records. D.B.L. does, but it is relatively minor. [ 6 ]

Section 3 of the Y.C.J.A. emphasizes rehabilitation and reintegration into society, respect for societal values, meaningful consequences, fair and proportionate accountability, reparation of harm done to the victims and the community and the need to "respond to the needs of aboriginal young persons". Based on the emphasis on "timely intervention that reinforces the link between the offending behavior and its consequences” in

section 3, the normal operating presumption would seem to be that the person convicted is still relatively youthful at the time of sentencing. That is not the case here, and the lengthy period of time that has passed since the offences occurred is a significant factor that has to be considered.

The principles set out in sections 3 and 38 may be have to be considered in any case where a person is being sentenced under the Y.C.J.A., but those sections shed little light on how sentencing principles contained therein are to be applied in historic sexual abuse cases where a person is being sentenced a quarter century or so after the event. Neither Crown or Defence were able to find any cases that dealt with that situation. [ 7 ]

Section 38 promotes accountability and meaningful consequences as well as rehabilitation and integration into society as a means of contributing to the long-term protection of the public. As counsel for P.E.L. and S.C.L. point out, where much time has passed between offence and sentencing, with no reoffending in between, the need to hold a “young person” accountable for the long-term protection of the public is diminished considerably, if it does not disappear altogether. [ 8 ] In various ways,

section 38 emphasizes proportionality of youth sentences, which are not to result in a greater punishment than would be appropriate for adults. Of particular importance to Defence counsel are subsections (

d) and (

e) of

section 38. These provide that "all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons", and, "the sentence must be the least restrictive sentence that is capable of achieving the purposes of meaningful consequences, rehabilitation and reintegration into society”, set out in subsection (1) of

section 38”. [ 9 ] Section 38(3) requires the court to also take into account the degree of participation, the harm done to victims and whether it was intentional, reparations made to the victim or community, previous findings of guilt, and any other aggravating and mitigating circumstances of the young person. [ 10 ] On the question of a custodial sentence,

section 39 is more specific, in that it prohibits committing a young person to custody unless, among other factors listed that have no relevance here, "the young person has committed a violent offence", or "in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a noncustodial sentence would be inconsistent with the purpose and principles set out in

section 38”. Even in the case of a violent offence, a youth court "shall not impose a custodial sentence unless the court has considered all alternatives to custody raised at

the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combinationof alternatives, that is in accordance with the purpose and principles set out in

section 38". Subsection (3) goes on to list a number ofother factors the court must consider in determining whether there is a reasonable alternative to custody, one of which is "the likelihoodthat the young person will comply with a noncustodial sentence". [11] On a reading of all the sections together, the Crown submits, on the basis that all three accused committed violent offences, thatthe appropriate disposition in this case for every one of them is, pursuant to

section 42(n), the making of a custody and supervision orderfor two years, followed by probation for one year. [12] Pursuant to section 42 (9) of the Y.C.J.A. the Crown seeks a judicial determination that all three accused have committedserious violent offences within the meaning of that subsection, and requests, accordingly, an endorsement on the information to thateffect. "Serious violent offence" is defined in

section 2 as "an offence in the commission of which the young person causes or attempts tocause serious bodily harm". “Bodily harm" under the Criminal Code “means any hurt or injury to a person that interferes with the healthor comfort of the person and that is more than merely transient or trifling in nature". That

section applies to the Youth Criminal JusticeAct by virtue of

section 140 of that Act. In R. v.

McCraw (SCC), the Supreme Court of Canada defines serious bodilyharm as "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychologicalintegrity, health or well-being of the complainant". [13] There was no argument by Defence counsel that the facts as found on the convictions that were entered could not constitute a"serious violent offence". [14] It is not necessary, at this stage, to repeat in detail all of the findings made in relation to each victim, which have already beenset out in my lengthy judgment which resulted in convictions for each of the accused.

I would only summarize portions of those findingswhere they support the conclusion serious violent offences were committed, thus opening one of the so-called "gateways" under section39 (1)(

a) for the possibility of a jail sentence. The other gateway whereby a jail sentence might be justified is under section 39(1)(d), thatis, if this is found to be an exceptional case where the young person has committed an indictable offence, the aggravating circumstancesof the offence being such that the imposition of a noncustodial sentence would be inconsistent with the purpose and principles set out insection 38. [15] The discussion about the interplay between sections 39(1)(

a) and (d), the “gateways to custody” , and the operation of section38 dealing with rehabilitation, reintegration and the least restrictive sentences and the consideration of all other sanctions, in theprovincial court decision of R. v. S.S., 2010 B.C.P.C. , has relevance here for two reasons. First, a case is cited within thatdecision that supports the proposition that sexual intercourse with a child can be a serious violent offence even in the absence ofaggravating features such as threats with weapons, and the use of masks as occurred in R. v. S.S. Reference is made to R v.

B. 2005NBCA 96 , 2005 N.B.C.A. 96 , where the New Brunswick Court of Appeal considered a case where a 15 year oldaccused was convicted of sexual assault of an intoxicated and passed out 15 year old girl, were the accused was assisted by anotheryoung person. This was held to be a serious violent offence.

"Violent offence" means an offence in the commission of which a youngperson causes, attempts to cause or threatens to cause bodily harm: R v D.(C.);R v K. (C.D.), 2005 SCC 78 , [2005] 3 S.C.R.668. [16] In the case of P.E.L., convicted of indecently assaulting G.T. and sexually assaulting L.J. and C.J., the sexual acts in Count 1and 2, involving the last two mentioned victims, were serious violent offences. [17] L.J. (J.) was only six when she was placed in the foster care of the L. and repeatedly raped by P.E.L. when he was around 15.L.J. found herself in great distress, pain and fear, and sometimes suffocatingly confined, and often humiliated by being abused in thepresence of relatives or playmates. [18] P.E.L.'s assault on C.J., as related by C.J., did not result in full intercourse, but it still involved his inveigling both girls into aroom for a sexual purpose and physically assaulting C.J. after an obscene display.

Even if there is some debate about whether thoseactions by themselves, in the case of C.J., constitute a serious violent offence, the circumstances in which they occurred suggest theywere. Both girls were young foster children in P.E.L.'s home, and thus extremely vulnerable.

There was a significant difference in age,as well as other features referred to in the evidence, including the multiple nature of these assaults, which suggest that with respect toC.J., a finding is also warranted that the aggravating circumstances are such that the imposition of a noncustodial sentence will beinconsistent with the purpose and principles set out in

section 38, pursuant to section 39(1)(d). [19] It was precisely that issue, namely, whether section 39(1)(

d) can be used as a gateway to custody where the offence committedby the young person falls into one of the other situations described in section 39(1)(

a) through (c), that concerned Judge Wingham in R.v. S.S. I adopt his conclusion that the provisions of section 39(1)(

a) through (

d) are not mutually exclusive, and that there can be caseswhere the offence which was committed was a violent offence, so as to fall within section 39(1)(a), and at the same time be an indictableoffence, the aggravating circumstances of which are such that a noncustodial sentence would be inconsistent with the purposes andprinciples of sentencing set out in

section 38. [20] I am prepared to direct that the Information be endorsed that the offences committed by P.E.L. as set out Counts 1 and 2 areserious violent offences, but that the circumstances of the case against P.E.L. with respect to those two counts also brought all of hisconvictions within the type of case contemplated by section 39 (1)(d), the more so when I consider that in R. v. B., cited above, one ofthe aggravating circumstances was that the accused was assisted in the sexual assault by another person.

Even though P.E.L. has onlybeen convicted on three counts, his involvement, presence, and encouragement to his brothers when they were assaulting multiplevictims at once, when he was clearly the dominant one of the three brothers, is a factor that justifies the endorsement on the basis ofsection 39(1)(d), if it is necessary to make a choice. [21] The situation is the same with D.B.L. and S.C.L. [22] D.B.L. was convicted of five counts of sexual assault against L.J., B.C., S.C., D.J., and A.S.

Rapes occurred against L.J. (Count4), B.C. (Count 7), and D.J. (Count 9).Those counts on the Information should be endorsed as serious violent offences, pursuant to

section 39 (1)(a). With respect to S.C. (Count 8), who did not actually recall the physical penetration, there was nevertheless evidence that D.B.L. lured her and another girl to a building to which he had the keys and proceeded to assault S.C. in the presence of another girl. In the case of A.S. (Count 10), who was somewhat older when she was caring for her little sisters, after luring the girls into his trailer and serving them ice cream, D.B.L. then took A.S. into a room, pulled down her pants and licked her vagina while she was there.

While there might be grounds to question whether the circumstances in the case of S.C. and A.S. amounted to the commission of a violent offence, the assaults on both were consistent with a pattern of enticing vulnerable young girls into situations where their physical integrity could be compromised, heedless of their protests.

The fact that these assaults form part of a pattern of sexual assaults where victims were sometimes assaulted simultaneously and subjected to humiliating behaviour, like comparing the sizes of their vaginas, persuades me that there is no reason why any of the counts relating to D.B.L. should be exempted from a finding and an endorsement under section 39(1) (d).

Accordingly, with respect to D.B.L., all charges for which he was convicted would be endorsed accordingly. [ 23 ] In the case of S.C.L., convicted of a violent attempted rape on B.C. (Count 11), and A.S. (Count 12), whom he was entrusted to babysit, the endorsement is warranted on the basis of section 39(1)(a). It is also clearly warranted in respect of the acts of buggery against L.L. (Jr.) (Count 14) on the basis of section 39(1)(a).

With respect to T.L., and the evidence he gave concerning S.C.L.’s encouragement to have him and his little brother touch him sexually and then witnessing S.C.L.’s rough treatment of B.C., and his obscene displays, all of these things form an overall pattern of persistent and relentless abuse, opportunistically inflicted upon available and vulnerable children. That is so for all three accused, so I really see no reason not to endorse every count for which they have been convicted, even if an endorsement under section 39(1)(

a) might be questioned in relation to some of the acts or some of the victims. The patterns of abuse and the interrelated circumstances, multiple victims and, occasionally, and the periodic mutual encouragement among the accused, all justify making the endorsement on the basis of section 39(1)(

d) in respect to all counts for which convictions have been recorded, even where some of those could be separately justified under section 39(1)(a). Accordingly, I find that the gateway to incarceration is open with respect to all three accused on all counts for which they have been convicted. [ 24 ] With the finding that each accused has been found guilty of offences that are serious violent offences, a deferred custody and supervision order under section 42(2)(

p) is, by operation of section 42(5), unavailable. [ 25 ] The Crown agrees with the Defence position that absent from the considerations this court may apply in this sentencing proceeding, under the Youth Criminal Justice Act, are the principles of deterrence and denunciation. [ 26 ] It should be noted that t he Crown also seeks banishment orders in this case. 2. DEFENCE POSITION: S.C.L. [ 27 ] Mr. Campbell argues that jail for Mr. S.C.L. is neither called for, in all the circumstances, or permissible under the Youth Criminal Justice Act, when one takes out of the equation deterrence and denunciation.

He says that this is a multigenerational situation, perpetuated by a conspiracy of silence, of which the court received just a microscopic view of a cultural epidemic that has affected this community for so many years, and that if everyone who had been involved in activities similar to what these brothers committed had been brought before the courts, and jailed, the jails would be filled to overflowing. The Crown's approach, Mr. Campbell argues, altogether ignores the principles laid down in Gladue and Ipeelee . Mr.

Campbell further argues that the case is unprecedented, especially with the amount of time that has passed since the offences have occurred. The proper

interpretation of the sentencing principles in the Youth Criminal Justice Act , which requires the least onerous sanctions, should not result in jail, Mr. Campbell urges. This is especially so considering the "maladaptive community" in which S.C.L. was raised, one that had been severely culturally deprived through the systemic abuses of residential schools and colonization.

It was submitted that the dysfunction in the entire L. family was a result of those influences, which S.C.L. has been largely successful in overcoming over the past 28 years of his struggle, by dedicating his life to his own personal healing journey. S.C.L. is someone, Mr. Campbell says, who is "firmly planted on the red road", someone who has been sober for 25 years, has become a sun dancer and a mentor in the community. Sending him to jail at this stage would be an unfair outcome, Mr.

Campbell argues, also pointing out that S.C.L. has been vilified, sadistically bullied, discredited and ignored by his own community, and yet he has come back to care for his recently deceased father and to reconnect with his community in a hopeful process of reintegration, which he also hopes will be the first step of a catharsis and healing not just for himself, but for the community as a whole. Mr.

Campbell argues that the best possible result that can come from all of the victims coming forward and "engaging in the cathartic process" can be the healing of the victims and the community that was rent asunder by the ravages of what Mr. Campbell termed the "cultural genocide" inflicted on aboriginal peoples by the colonizers through the residential schools. The offending, it is argued, is part of the victimization, and by a proper application of the principles in Gladue and Ipeelee, this, Mr. Campbell says, is where we can stop the cycle of offending through the imposition of a probation order and no jail.

P.E.L. [ 28 ] Mr. Kaatz has waived the need for a separate Gladue report being prepared for his client, P.E.L., on the stated grounds that the other Gladue reports prepared in respect of his brothers will sufficiently inform the court of the backgrounds of all three men. [ 29 ] On behalf of P.E.L. Mr. Kaatz adopted Mr. Campbell’s submissions where they touched on Gladue and Ipeelee issues. [ 30 ] Mr. Kaatz stresses that 9 times out of 10, young persons who are sentenced for sexual crimes as young persons, receive probationary terms with counseling.

The lack of timely intervention, for which the accused cannot be faulted, has resulted in this strange situation, where we are now actually dealing with adults whom we have to pretend we are sentencing as young persons, a hopelessly dubious exercise, at best. The submission is that the only sense in which we could deal with these accused as adults is by taking into account what they have done or not done since these offences occurred, up to the present time. Mr. Kaatz also stresses that the least

restrictive sentence should be imposed, which would be, taking into account Mr. P.E.L.'s background and accomplishments, "no sentence at all." It would have no use. It would achieve nothing because Mr. P.E.L. is already reintegrated into society, in fact, is a contributing and accomplished member of mainstream society. It was suggested that the Crown was "pounding the table" for deterrence and denunciation on the erroneous assumption that there was a lack of remorse and on the basis of a danger to the public that is non- existent.

Society is not in need of protection from P.E.L., a person who has demonstrated, by his behaviour over the last 30 years, not to present any kind of risk to anyone. It is also submitted that a criminal conviction would hamper Mr. P.E.L.'s business travels to the United States. Moreover, it was pointed out that Mr. P.E.L. was fully compliant with his bail order for the lengthy time over which it has been in effect, which, of itself, obviates the need for further court supervision. Mr. P.E.L. has no criminal record, needs no rehabilitation or counselling, and, in fact, is a counselor himself, it is stated.

He has no drug or alcohol problems, is happily married, has the strong support of his family, and supports them in turn. Mr. P.E.L. has done good works within the aboriginal community for the assistance and to the benefit of young people. D.B.L. [ 31 ] Mr. Sommerfeld also adopts the submissions of Mr. Campbell on behalf of his client, D.B.L. [ 32 ] D.B.L. is before the court on a quite a different footing from his brothers P.E.L. and S.C.L., who both have refused to acknowledge any guilt whatsoever. D.B.L. made attempts in the past to apologize to some of his victims.

Nothing of that sort has ever happened with S.C.L. and P.E.L. D.B.L. has remained in the community, and will, ultimately, continue to live in Lillooet, whatever happens here. [ 33 ] P.E.L. has, and continues to live, in the Lower Mainland since he left at the age of about 16. S.C.L. left at the age of about 14 and has only recently returned, but he wishes to stay in Lillooet. [ 34 ] P.E.L. and S.C.L. are in relatively good health, but D.B.L. is not.

He suffers from a number of maladies that would make a jail sentence much harder on him that it would be on any able-bodied person. [ 35 ] D.B.L. is said to have been ostracized by his family, in particular by his brothers, because he has broken the code of silence by admitting to his wrong doing, all in the face of pressure coming from his family to present a solid front of denial against any and all accusations. The rest of the family maintains that position. D.B.L. did for a while, because he did not want to be kept apart from his father in the last months of his life, but D.B.L. did not take the stand, Mr.

Sommerfeld informs us, because he did not want to put the victims through cross-examination on his behalf. Mr. Sommerfeld says that D.B.L.’s willingness to admit these accusations is seen by the other members of his family, especially his brothers, as a disloyal betrayal that has split their ranks and undermined the insistent repudiation of all allegations and the court’s findings. [ 36 ] Mr.

Sommerfeld has gone into some detail as to how his client’s life was marked by chronic neglect by his parents, particularly his mother, who showed much more affection for the other boys, and by alcoholism and sexual abuse committed against him. D.B.L. has been described as the "black sheep" of the family by his parents. Mr. Sommerfeld points out that D.B.L. fears that a jail sentence will result in the loss of his home in Lillooet, which offers him a certain level of comfort in a community in which he has been largely rejected by its members.

It was also pointed out that D.B.L. has suffered from the loss of contact with his daughters, which was brought about by these allegations and charges. Also, his early onset of osteoporosis, besides being chronic and painful, will be very difficult to manage in jail. [ 37 ] Mr. Sommerfeld points out that D.B.L. does not deny the assault on A.S., but that he simply does not remember it, perhaps, because on the scale of things, it was relatively less serious, and also because, at that time both he and A.S. were considerably older than when he victimized the other girls.

He would also not be surprised if his memory of that offending was obliterated by his heavy alcohol consumption in those days. I accept those submissions, because in light of his ready admissions to the much more serious offences, there is simply no other reason for him to deny that charge. Although D.B.L. does have a few entries on a criminal record, Mr. Sommerfeld said that when one understood the context in which those came about, particularly the weapons charges, that record is not serious. In the context of rural life in a sparsely populated area, Mr.

Sommerfeld submits, long guns were casually regarded, like any other tool, notwithstanding the criminalization of careless storage and use of firearms that has come about in recent years through stricter firearms laws, which have tended to criminalize behaviour that was previously normative in these areas. 3. PRE-SENTENCE AND GLADUE REPORTS [ 38 ] To a considerable extent each of the reports prepared for each of the accused contains overlapping information relevant to all three of them because they all were part of the same family and community for most of the time covered by the offence dates.

Nevertheless, the individual profile of each accused differs significantly on some aspects of their development and personality, and these differences must be considered. [ 39 ] A key and contested issue, not just between the Crown and Defence, but among the accused themselves, is the nature and quality of the care provided to each of the accused by their mother when they were boys. Probation officer Christian Petersen of Williams Lake Community Corrections prepared the pre-sentence reports for both S.C.L. and D.B.L.

David MacArthur of Vancouver Court Community Corrections prepared the pre-sentence report for P.E.L. [ 40 ] The pre-sentence report for P.E.L. is of very limited usefulness, and the end product did not justify the delay that occurred in these sentencing proceedings, awaiting its preparation. Why I say that is evident from its opening paragraph, which reads:

Prior to commencing the interview for the pre-sentence report, Mr. L. informed the writer that, while he was willing to participate in aspects of the interview, under legal advice he would not be responding to questions regarding the circumstances surrounding the offences, the offences themselves, sentencing and possible conditions or the related potential interventions.

As a result this report will not be able to provide all the desired information. [ 41 ] Moreover, the only collateral sources contacted for the preparation of that report, besides members of P.E.L.’s family, were two friends and Kevin Whitney, the Community Chief of T’it’q’et. Undoubtedly, had Mr. P.E.L. participated in the preparation of a Gladue report, his position would have been no different. Because the pre-sentence report for Mr.

P.E.L. reflects his unwillingness to participate in the process, except on his terms, and because he rejects all of the findings of this court, as well as the lack of independent investigation of collateral sources, this pre-sentence report cannot be viewed as a positive report, or in any sense reflecting an attitude of remorse on his part. [ 42 ] What is clear from this pre-sentence report is that P.E.L. has close ties with his mother B.

He defends her in the way she raised him, and his favourable portrayal of B.L. as a good parent is at significant odds with the findings of Christian Petersen who said in his report: Mrs. L. was a willing and valuable contributor to this report. She provided an overview of family history, spoke about her husband, and each of her children, as well as the matters that brought her three sons before the court. Collateral information had suggested that B.L. may well have been abusive to the boys during their upbringing, and her own words left little doubt that this was true.

That is not her perspective of course, in fact she is proud of how she and W. raised their family. S.C.L. [ 43 ] The opinions expressed in the pre-sentence about how S.C.L. and D.B.L. fared in the L. family environment contrast sharply with the how P.E.L. grew up. The reports are replete with references to the oldest son, P.E.L.’s favoured status in the family, which the other two less athletically and scholastically accomplished younger brothers did not enjoy.

What emerges from the pre-sentence report and the more detailed Gladue report prepared for S.C.L. is a much less sanguine picture of the life of all three boys on the T’it’q’et Reserve, than was described by P.E.L. to the probation officer. For P.E.L., because of his personality, abilities and talents, life at home was better than it was for D.B.L. and S.C.L. He did have a leadership, or dominant role vis-a-vis the other boys. [ 44 ] The Gladue report shows that life on the T’it’q’et Reserve was extraordinarily dysfunctional for not just the accused, but their victims and for many members of that community.

The Gladue report makes it clear, in the case of S.C.L. and D.B.L., at least, that they were victims as much as they were abusers. The report details the history of the community going back to the late 1700’s and some of the family histories as well, of which some originated in other aboriginal communities. Mr. Cadwallader’s report discusses in some depth the unique systemic and background factors which may have played a

part in bringing all three offenders before the courts. It provides the information which the Supreme Court of Canada, in R. v. Ipeelee , said the courts must note. This includes such matters as the history of colonial displacement and residential schools, and how that history continues to translate into a plethora of social ills such as have been documented with some particularity in the reports in relation to life on the T’it’q’et Reserve over the generations.

One can follow the ill effects of these things on its community members, with respect to such things, mentioned in the Gladue and Ipeelee , as lower educational attainment, substance abuse, suicide, conflict with the law and disadvantaged financial circumstances.

When the antecedents of those things are traced through the generations, as the report has attempted to do, the effects of the negative historical influences on aboriginal life, as discussed in those Supreme Court cases, become more than a theoretical discussion, especially when considering the particulars of S.C.L.’s own victimization and background, as well as his offending. [ 45 ] Mr.

Cadwallader talks about "S.C.L., his paternal and maternal grandparents, his father and his father siblings all being direct survivors of the forcible assimilation undertaken by the government of aboriginal children into Indian residential schools”. There are horrible details contained in the report about the nature of the abuse and its aftermath suffered by their father W.L., which included life on Vancouver skid row and time in the British Columbia Penitentiary until he rediscovered himself and became a community leader.

The life of the L. brothers’ mother, B.L. appeared also to have been very traumatic and tragic. B.L. described to Mr. Cadwallader her vulnerability growing up on the Musqueam Reserve, after her mother was disabled in a car accident, where drunken men would kick in the door or climb through her bedroom window and sexually assault her, with her mother unable to protect her. The report says that S.C.L. "demonstrates many of the common aspects of an intergenerational residential school survivor".

The report lists the considerable efforts S.C.L. has made over a long time to come to terms with his past, bringing about his own recovery. Very significant among those achievements has been S.C.L.’s achievement of sobriety as a result of attendance at Round Lake and the Maple Ridge Treatment Centre, the results of which produced "therapeutic benefits of this healing journey and releasing his destiny to a higher power".

He has been sober for the past 21 years and continues to be a sponsor in the community of the 12 step and other programs. [ 46 ] S.C.L.’s journey however may not be complete, in that he, like his brother P.E.L., adamantly and absolutely denied any and all offences, taking the position that the findings of this court were wrong and that he would be filing an appeal.

That stance finds its reflection in how resolutely he stood up to the two G.I.S. members who interviewed him and got nowhere until after he was released from the police station and one of them showed some sympathy for his own sufferings, whereupon he mentioned, on his way out, that he may have hurt B.C. S.C.L. is just as adamant as P.E.L. about denying any wrongdoings, but, unlike his brother P., he was more than willing, on the stand and with the probation officers and Gladue writers, to discuss the wrongs he had suffered.

They were of the same sort as those he inflicted on others. [ 47 ] What S.C.L. has always been prepared to discuss at considerable length, and in considerable detail, is his own victimization. He told the court about it when he was on the witness stand and gave even more details to Mr. Cadwallader. The level and kind of abuse S.C.L. suffered at the hands of his own brothers, other children in the community, teachers, parents, and other adult members of the community, some of them respected and holding important positions, were indeed, shocking, if it is all true. Although that proviso has to

be added when one is dealing with a situation where he might see it as advantageous to minimize his own culpability and maximize everyone else's, I have no doubt now, as I did not during the trial, that S.C.L. suffered a great deal when he was young, through neglect and abuse.

The Cadwallader report goes on, in some detail, to discuss how he dealt with his anger, and one of the ways, I find, was in forcing himself, sometimes brutally, on powerless victims who were as helpless to prevent their own abuse as he was to prevent his. [ 48 ] The details of what caused S.C.L., in his formative years, to become so introverted, subordinate, traumatized, fearful, bullied and victimized are all set out, starting at page 3 of the Gladue report, and thus there is no need to relate those in detail here, particularly since some of the people that he claims abused him are still living in the T’it’q’et community.

Just what an entanglement of abusive relationships existed around S.C.L. and the other boys, as they were growing up, is made clear by this

section of the report. It talks about the parent of victims he later abused abusing him, being hung from a tree and being struck in the testicles by his brother, D.B.L., and friends, being forced to perform fellatio on some of those friends and also being forced to engage in cunnilingus with the mother of a friend, to the point of suffocation as he felt it. It talks about his being sexually assaulted in a gully regularly, being threatened, sometimes with weapons, or forced to engage in oral sex. These sorts of abuses contain hallmarks of the barbaric mistreatment he forced on some of his victims.

One notes similarities between what S.C.L. complained happened to him, and some of the victims’ accounts, particularly where they spoke of being suffocated, forced sex in rough places, and the paraphilia involved in some of his activities. It is not illogical to question whether S.C.L., in his turn, acted out some of his rage and frustration for what he was helpless to prevent against himself, towards other helpless victims.

In any case that is what I find, that he did just that, and his refusal to accept that he was not just a victim but an abuser as well, makes a disposition that is purely restorative problematic, considering that admitting the truth might be a necessary first step on the path of reconciliation and restoration. That has not occurred in the case of either S.CL. or P.E.L. D.B.L. [ 49 ] If S.C.L. was described by his parents as the “loner” among the children in the L. family, D.B.L. was the “black sheep”. He was the only one of the three that has acquired a criminal record. Mr.

Peterson said in the pre-sentence report that B.L. described her son D.B.L. as "the black sheep of the family" and in another terms that were unusual coming from a parent. B.L. spoke about him in a less favourable light than she did of his brothers, P.E.L. and S.C.L. At one point she commented that D.B.L. was "always away from us". Mr. Peterson was of the view that D.B.L. got very little parental care, although he was close to his father, particularly after the latter quit drinking, when D.B.L. was six. However D.B.L. reported that his relationship with his mother was "fraught with verbal and physical abuse”.

Despite B.L. also gaining sobriety when D.B.L. was six, she continued to be a harsh disciplinarian “who physically abused D.B.L. and his siblings". P.E.L., who has a close relationship with his mother to this day, may disagree with this, but it is a fact that is accepted by more than one report writer, and has been confirmed in my findings dealing with what went on in the home.

Gladue writer, Hailey Bruce interviewed collateral sources which said much the same thing, one being A.L., a cousin who was "startled by the physical, emotional, and verbal abuse he witnessed in the L. home", which he described as being such a stark contrast from his own environment. This person also observed "that his Aunt B. favoured P.E.L.”, and that "S.C.L." was coddled and spoiled. D.B.L. on the other hand, reportedly stood out as being distinctly disfavoured, although both W.L. and B.L. were in recovery at the time. According to A.L., W.L. basically left the parenting, including discipline, to B.L.

The L. home was characterized as "abusive in sobriety", in which all three boys "were subjected to regular physical discipline by his aunt for the slightest infraction". These views were reiterated to Ms. Bruce by N.L., a former Chief and also a cousin of the accused and a witness at the trial. A.L. observed that P.E.L. had what appeared to be “a great degree of influence over the younger boys". D.B.L.’s statement "that P.E.L. was his mother's favorite child, and S.C.L. “her baby” accords with their profiles as related by collateral sources.

Those sources also confirm D.B.L’s complaint that he was the least favoured child and the most frequently subjected to emotional and verbal abuse. So does the fact that by his mid teens, D.B.L. was living outside of his family home, sometimes under serious deprivation for the basics in life, such as food. D.B.L. told the probation officer that the three things that affected him greatly in his life were the abusive treatment from his parents and the uncaring family environment, the sexual abuse he suffered as a child and finally, his commission of the offences, which have weighed heavily on his conscience.

On that last point he stands well apart from his brothers, and it is his own willingness to acknowledge his wrongdoing and his expressions of remorse that have caused his brothers and his mother to now shun him. [ 50 ] Besides those estrangements, since being charged with these offences, Mr. D.B.L. has been prohibited contact with his two daughters, who are in their early teens. Mr. Christiansen reports that D.B.L. "would have pled guilty in 2010 had it not been for pressure from his brothers and parents. His father was terminally ill, and Mr.

L. did not want to sever that relationship in the final months of his father's life”. W.L. passed away in July, 2011. In

summary, the report says, D.B.L. has been experiencing extreme levels of stress in recent years. [ 51 ] The report goes on to say that Mr. D.B.L. developed osteoporosis to the point that he now walks with two canes and a brace, and that since 2008 he has broken his back four times as a result of this condition. He is sometimes confined to a wheelchair and takes Codein Contin twice a day for pain. He is also a diabetic. [ 52 ] It was abundantly clear to me during the course of this long trial that D.B.L. was often in serious discomfort or pain. [ 53 ] D.B.L. has been cooperative under supervision in the past.

He was described as polite and forthcoming with information by his probation officer, who noted that during interviews Mr. L. became emotional when discussing the offences and the history of their investigation. He accepts responsibility for four of the five counts he is charged with. As noted in the Reasons for Judgment, he has apologized to some of the victims over the years. He reported that he has always had a guilty conscience due to the offences.

As someone who was sexually abused himself as a child, by more than one adult, he expressed understanding of the humiliation and resentment the victim may feel, and told the report writer that he declined to take the stand or have the victims questioned in detail because he did accept responsibility and did not want the victims to endure more trauma. He repeatedly expressed his remorse, which struck the writer as genuine.

With respect to the assault against A.S., for which he was convicted, I accept the Defence submission that he may not remember it due to his excessive drinking and drug taking then, a point corroborated in the pre-sentence report. He does not deny the offence against A.S. He just does not remember it. That cannot be construed, in the circumstances where he has admitted worse offences, as indicating a lack of remorse.

[ 54 ] Based on his acknowledgment of responsibility, his good record on probation in the past, a stable residence and disability income, and his attitude and cooperation while on bail, Mr.

L. is considered by the probation officer to be a good candidate for community supervision. [ 55 ] The Gladue report for D.B.L. was prepared by a different person than prepared the one for S.C.L., but both reports are consistent with respect to the main events that came up in the life of this family, including the sorts of abuse that S.C.L. talked about at considerable length. [ 56 ] In D.B.L.'s case, the sexual abuse by extended family members began when he was four or five years old, and the abuses included anal penetration and being forced into a closet by abusers to avoid detection.

Interestingly, Hailey Bruce reported that "D.B.L. told his mother after approximately a fifth or sixth incident; B.L. responded by beating him and telling him not to ‘tell lies.’” I have noted in my findings of fact in my judgment, similar reactions by B.L. to abuses occurring to foster children under her care, that she was or should have been aware of. Ms. Bruce says of D.B.L., that "he did not disclose his abuse again “until he admitted himself to Edgewood Treatment Centre in Nanaimo when he was 27 years old", which he paid for himself.

Previously he had attended Round Lake Treatment Centre twice, but was unable to reveal his own abuse there because his father worked there. [ 57 ] D.B.L. was ejected from the family home at the age 13 for drunkenness, Ms. Bruce reports. He camped for a while, went hungry, and got no assistance from his father, who told him that he should have gone fishing. Ms. Bruce notes what I have already found, that D.B.L. had attempted to apologize to some of his victims over the years when he found himself in their company.

"Based on his own victimization, he did not expect that they would forgive him, but he did hope it would aid in their healing to know the remorse he felt for hurting them.” In fact, as their testimonies revealed, he correctly predicted their negative reactions to his apologies. [ 58 ] Ms. Bruce states that "D.B.L. reported that half of the small community of T’it’q’et supported him for accepting responsibility for his behaviour as a youth, while the other half shunned him.

He acknowledged his loneliness and desire to have people in his life; however, social interaction in the community has been minimal…" [ 59 ] D.B.L. is open to participating in any psychological counselling, community healing and/or restorative justice program, and his only concerns about residential treatment are as to his fragile health and for the care of his dog and house. Ms. Bruce reports that "D.B.L. made no attempt to minimize, obfuscate, or justify his behaviour as a youth.

Rather, he was intensely emotional when acknowledging the pain he caused his victims” and is "prepared to face the historical and ongoing trauma that resonates with his victims today and to fully participate in any programs the court deems appropriate in the circumstances". [ 60 ] It is apparent from the several reports and submissions that I have before me that D.B.L. has had difficulty in forgiving himself for what he has done, and it is possible that if there is a recognition by other community members, through restorative and community- based initiatives, that D.B.L. today may come to be accepted by some members of his community as not being the same person as the one who committed the offences.

That could help him as well as some of the victims. [ 61 ] Ms. Bruce is clearly mistaken in stating that D.B.L. "has no previous history of involvement with the criminal justice system", as a glance at the court history of the pre-sentence report would show, but I am not persuaded, as Crown has argued, that this, and a few other minor errors, suggest that Ms. Bruce’s report cannot be relied upon. Granted, the conditional sentence Ms.

Bruce recommended is not available in this circumstance, but I interpreted that recommendation as merely an expression of the writer’s advocacy for a community-based sentence, which the Crown opposes in any case. 4. ANALYSIS & LAW [ 62 ] Around 80 pages of single-spaced text have been published by the Supreme Court of Canada over the past 12 years in the combined decisions of R. v. Gladue , [1991] 1 S.C.R. and R v. Ipeelee , 2012 S.C.C. 13 (Can LII), dealing with the vexing difficulties of sentencing aboriginal people who are overrepresented in the Canadian criminal justice system.

In those judgments the Supreme Court recognized that unique systemic and background factors may have played a

part in bringing a particular aboriginal offender before the courts. Given the foregoing discussion of the evidence in this case and the contents of the several reports prepared by probation officers and the Gladue writers, those factors, which have already been touched on do not require a great deal of further elaboration at this point. Nevertheless, the problem still remains of determining what is a just sentence for an aboriginal person, disadvantaged to a considerable extent by some or all of these factors, as all three accused in this case were.

Were these factors are all to be properly taken into account, as they must be, the question of whether these factors would justify a different sentence for these aboriginal offenders as would occur for anyone else who committed similar, serious crimes, is still there. "Proportionality is the sine qua non of a just sanction" says the Supreme Court in Ipeelee , and the sentence must reflect the gravity of the offence in order to promote justice for victims and ensure public confidence in the justice system. The court in Ipeelee adopts the views expressed in Gladue that s. 718.2 (

e) which says that particular attention must be given to aboriginal offenders, should not be taken as requiring an automatic reduction of sentence or remission of the warranted period of incarceration simply because the offender is aboriginal. The case goes on to say that that

section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders, and that it is simply to be recognized that a sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. The Ipeelee decision says that there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other non-aboriginal offenders.

A point made by Justice Rothstein’s minority decision in Ipeelee , that no one would disagree with, is that aboriginal communities are not a separate category entitled to less protection because the offender is aboriginal. [ 63 ] The Supreme Court in Ipeelee , was critical of previous cases which took the approach that the more violent and serious the offence, the more likely it was, as a practical reality, that the terms of imprisonment for aboriginals and non-aboriginals would be close to each other or even the same.

The court said "numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences. In doing so, the Supreme Court quoted the commentary of an author who had written,

"statutorily speaking, there is no such thing as a ‘serious’ offence and that the criminal code does not make a distinction between seriousand non-serious crimes and that there is no legal test for determining what should be considered serious, and that trying to carve out anexception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence".

The fact that the statutorylanguage does not import the word ‘serious’ in the context of sexual assaults might be seen as a logical outcome of the wide range ofpossible ways such an offence can be committed with varying degrees of severity. Whatever the technical language of the Criminal Codeis, one recognizes that there are also charges like aggravated sexual assault which carry higher penalties because they are more serious.

Iinterpret the discussion as to the distinction between serious and non-serious offences as meaning only that in either case, the courts mustalways be prepared to consider the factors in Gladue and Ipeelee when dealing with an aboriginal offender.

There is no doubt that thecrimes committed against the victims in this case were very serious, indeed, and that the seriousness of those offences has to be weighed,along with all other sentencing considerations, statutory as well as those mandated by Ipeelee and Gladue. [64] Neither the Gladue and Ipeelee cases, or any statutory language specifically addresses the question of how to factor into thesentencing equation the fact that these offenders have not gone on to perpetuate further similar offences over the very long time sincethey committed these offences, and have since established adult lives, and in some cases, families with children who are also nowapproaching adulthood.

To jail them now, after all that time and in these circumstances, tends to make one ponder the meaning of thewell known expression, ‘justice delayed is justice denied’. It is an expression relevant to the interest of the victims as well as theaccused. The various case authorities that have been cited by Crown and Defence in their submissions do not tackle that issue squarely,and, in fact, I was told that no cases could be found on that point. [65] Crown and Defence are agreed that denunciation and deterrence are not sentencing principles under the Youth Criminal JusticeAct, and rely on R. v. C.T., 205 C.C.C.

Manitoba Court of Appeal, as authority in support of that proposition. That case was not a sexualassault but it was a serious assault nonetheless, involving confinement where the accused, who was having difficulty with his mother'sdeath, and being motivated by the belief that the victim had stolen his deceased mother's jewellery, forcibly confined, interrogated andassaulted the victim with the intention of making him confess.

Justice Hamilton pointed out that denunciation and deterrence are notsentencing principles under the Youth Criminal Justice Act, in that denunciation is not referred to in any of the sentencing provisions orthe

section of the Youth Criminal Justice Act that imports the application of the Criminal Code adult sentences. He went on to say thatthe act of convicting a young person of a criminal offence is, of itself, a denunciation of the young person's conduct, as is the judicialprocess itself and the ultimate sentence.

That effect, however, is to be distinguished from the specific application of the principle ofdenunciation when sentencing a young person under the Youth Criminal Justice Act. “The focus of the Youth Criminal Justice Act is topromote rehabilitation and reintegration, in the context of accountability through meaningful consequences for the young person. Therequired focus of sentencing under the Youth Criminal Justice Act is on the rehabilitation of the young person. A sentence premised onthe principle of denunciation is a sentence intended to communicate a symbolic statement to the public.

This would be “at odds with thefocus”. Justice Twaddle, in his concurring judgment points out that the consequence of the omission of any reference to denunciation asan objective of sentencing under the Youth Criminal Justice Act, is that it can be argued that denunciation is an impermissibleconsideration.

He does not go that far, however, and implies that denunciation of criminal conduct by young persons can and is achievedwithout running afoul of the Youth Criminal Justice Act by means other than increasing the severity of the sentence specifically as ameans of denunciation. “The act of convicting a young person of a criminal offence is, of itself, a denunciation of the young person'sconduct. So, too, the verbal reproof of a young person by the sentencing judge is a form of denunciation which need not involve anincreased sentence.

These are but two forms of denunciation which, in my view, are unaffected by the Youth Criminal Justice Act. Otherforms of denunciation will no doubt come to mind in future cases involving young persons.” The case does not rule out altogether thatelements of denunciation may be perceived to arise from the process as a whole. It just seems to say that increasing the severity of thesentence as a means of denunciation is not permitted under the Youth Criminal Justice Act.

It does not go so far as to say thatincarceration, because it might be perceived to have an element of denunciation is always unavailable under the Youth Criminal JusticeAct. Clearly that is not the case on a plain reading of the Act, in particular, s. 39 and where the gateway requirements have been met.There are, however, greater limits and restrictions on the use of incarceration under the Youth Criminal Justice Act to what there areunder the Criminal Code. [66] Defence relies on the B.C. Court of Appeal's decision in R. v.

Bremner, 2000 BCCA 345 , 2000 B.C.C.A. 345 insupport of the proposition that a lack of expressed remorse ought not to result in a more severe sentence. That case involved an officercommitting indecent assaults by way of fondling and masturbation of several sea cadets under his charge, who were between the ages of13 and 16. Mr. Bremner was not convicted under the Youth Criminal Justice Act, so his conviction and an 18 month jail sentence werepremised significantly on the principles of denunciation and deterrence.

The court found in that case that he was not a pedophile and thatthe assaults were not serious physically, but emotionally, and that they were traumatic and continued to be, and that it was a breach oftrust situation. Mr. Bremner was said to have an impressive personal history and record of community service and to be at low risk ofreoffending, but he was found to be unremorseful because he continued to insist that he was not guilty.

The real issue in that case waswhether a conditional sentence order might have been appropriate, and the impugned portion of the trial judge's Reasons relating to thatpoint, read: If I allowed Mr.

Bremner to simply walk away from this court on the conditional sentence order, proclaiming to the world that he wasthe real victim, himself, would this send the correct message of general deterrence to the community? [67] That passage, together with the severely criticized misuse of the victim impact statements by the trial judge, were the focus ofthe Court of Appeal’s judgment and the heart of the difficulty with this case.

The Court of Appeal said that “the statements submittedcontained much that… was not appropriately before the court, particularly with regard to recommendations for sentence…” The Court ofAppeal made it clear that sentencing was not a “tripartite proceeding”, in which victims had the status of parties to the proceedingsagainst the accused, with the right to make representations independent of those put forward by the Crown, representations whichincluded the attitude of the victim towards the length of sentence sometimes based on restated facts, and criticisms of the offender.

Thecourt said, "when taken together, the statements before the trial judge contained all of those matters…", and, "more than one statementsought to achieve personal revenge, something that is not appropriate in the sentencing process”. The Court of Appeal went on to say"the need for fairness is related to the dangers of a runaway model of victims participating in the sentencing process, detracting from thereasoned, proportionate response that Mr. Justice Hill in R. v. Gabriel, supra, articulated so clearly".

[ 68 ] In fact, this decision, submitted by Mr. Kaatz on behalf of P.E.L., is a very important case even when one ignores many of the elements in that decision which have no bearing on this proceeding under the Youth Criminal Justice Act, wherein the discussion was around deterrence, denunciation and the applicability of conditional sentence orders. However, this trial has been a highly emotional one, with victims on the witness stand often in extreme states of distress while testifying. The impact on the victims in this case was often readily apparent just from that.

Only three victim impact statements were filed, but they were representative of the kinds of effects most of the victims would have suffered, and it is appropriate now to deal with the issue of victim impact as it has been revealed in the testimony of the victims and through the reports of probation officers and Gladue writers, as well as the victim impact statements themselves. [ 69 ] The court must guard against misusing victim impact statements in the way that happened in R. v.

Bremner , but must be mindful, at the same time, that where they described the harm done or the loss suffered by the victim, the court shall, pursuant to

section 50 of the Youth Criminal Justice Act , consider victim impact statements "for the purpose of determining the sentence to be imposed on the offender”. [ 70 ] In one of the statements, one of the victims writes: I would prefer to have S.C.L. convicted and incarcerated for his crimes against so many children. I want his crimes to be known by Lillooet, all reserves and included on the children's sexual offenders list. I would now also recommend he be removed from T’it’q’et Reserve and even Lillooet.

We are all a community and because he hurt so many children I feel it will help all of victims live a better, healthier and happier life to not ever have to worry about running into him in the same checkout line when purchasing groceries. I do not want this evil memory driving by my home or by my family on Main Street. [ 71 ] Given what that particular victim suffered, the foregoing sentiment that he expresses is entirely understandable, but it may run afoul of what the Court of Appeal said in Bremner , that the victim does not have a role in suggesting the length or kind of sentence to be imposed.

However, in Bremner the court also recognized that it is the role of Crown counsel to speak to the severity of the penalty to be imposed, and in this case, Crown counsel is asking for exactly what was stated by the victim above, namely, a banishment order, and I will deal with that later. Aside from that, there is nothing else in any of the victim impact statements that falls outside of what is mandated by

section 722 of the Criminal Code and

section 50 of the Youth Criminal Justice Act, and those statements, with the exception of the passage quoted, have relevance to this proceeding. [ 72 ] There are a number of common themes, which I will not belabor simply because they are so obvious just from the testimonies and the victim impact statements, but also from the Gladue and pre-sentence reports.

The victim impact reports speak of self disgust, embarrassment and lives being ruined by the nightmares of memories of vile molestations that drove victims to alcohol, anger and self- loathing expressed through suicidal ideation and attempts, and hatred toward close family members for failing to protect them. It is clear that the emotional impact was enduring and often unbearable and chaotically destructive of elements of the core personality of these people, who became dominated by feelings of anger, shame, denial and aggression.

There have been intensive and difficult bouts of counseling in the struggle on the road back to a reasonable life, but they spoke of lives, even in adulthood, which would never be completely rid of some of the devastation caused by the abuse. Time was spent in jail for the assaultive behaviour by one victim, who said she counteracted the pain of the abuse by developing "a sense of power and control through the power of a punch". She felt like she had to dominate other people through acts of violence, which only produced more misery until "I began my healing journey through constant therapy".

The trial itself was consequential to the victims because it dredged up all those traumatic memories and the horrors of being raped. During the period of the trial, one victim said she would "wake up crying, fighting, and struggling to breathe as if it was all happening”. More than one victim spoke of the temptation to return to the use of alcohol to deaden the pain that had been caused by the resurfacing of all those memories through the trial process itself.

One of the victims spoke of how people that had come to depend on her felt that she had failed them by showing signs of weakness in the emotional struggle that saw her turning again to alcohol to help her get through the trial. The victims that are now parents have been profoundly affected in their relationships with their own children, and are constantly haunted by a pervasive fear that something similar might happen to them. Consequently, they mistrust all caregivers and are afraid to ever let their young children out of their sight.

Given all that has been revealed, that may be a hard but necessary vigilance until things really do change. Maybe that is starting now, with the victims having taken the difficult step of coming forward and being heard. [ 73 ] The issue of restoration and reconciliation of victims and abusers brings me to the issue of banishment, which the Crown seeks, especially in the case of S.C.L. It is to be noted that under the Youth Criminal Justice Act, reintegration with the community remains a stated goal of sentencing, one with which banishment is generally at odds.

Being such a small community, it is inevitable that the presence of offenders will cause discomfort to the victims. That fact has to be acknowledged. So must it be acknowledged that no victim can or should be forced to engage in restorative justice initiatives, however good the intentions behind such processes might be. That ‘healing journey’ that one victim spoke of is likely always going to be an arduous and long one, with no even progress guaranteed.

The process often involves therapeutic interventions, and everyone travels on this path at their own speed, occasionally taking a step back for every couple forward. It is not for me to say that victims must engage in a restorative process. That is to be left up to them.

If such processes are available, they will be through the probation department, and they may, possibly, do some of the victims or the accused some good. [ 74 ] I am not going to impose a banishment order and I am not persuaded by the cases cited by the Crown, or by their submissions, that it is necessary, or even appropriate, however understandable the victim's wishes in that regard might be. [ 75 ] The Provincial Court decision in R. v R.H.G.M. , [2010] B.C.J.

No. 2678 , did impose a banishment order that prevented an aboriginal offender from returning to the Squamish Nation lands on the basis that "the connection between his offending behaviour and his presence in the community is sufficiently strong to provide a basis for such a restriction and that is a reasonable and desirable condition in order to secure his good conduct".

In that case the offender had a lengthy and recent criminal history for many serious offences against people, including causing life-threatening injuries to victims with multiple slashes to their neck, weapons offences, and threatening charges, among other things. As violent as the offences by the L. brothers were, they occurred a very long time ago, with

nothing of the same sort having been reported since. In fact, the reports all indicate that all three have been compliant with bailconditions that have now lasted two years. The courts have always tended to express judicial disapproval of banishment orders, in partbecause, as the Saskatchewan Court of Appeal noted, in R. v. Malboeuf (1982), 68 C.C.C (d): In Canada communities are interdependent and relations between them should be marked by mutual respect and understanding.

Apractice whereby one community seeks to rid itself of undesirables by forcing them off on another community violates this basic conceptof consideration for the rights of others and should not be tolerated… For a community to think in terms of unburdening itself of anundesirable individual by saddling a neighboring community with him smacks of a lack of civic responsibility and unthinking behavior,particularly where the individual grew up in, and was a product of, the first community.

Broadly speaking, judicial banishment decreesshould not be encouraged. [76] That case recognizes that banishment orders are not inappropriate in every case, as for instance, were a cultural backgroundexists for a form of punishment by banishment, or where an area restriction is considered a reasonable condition, desirable to secure thegood conduct of the defendant or to protect society or victims. The unease of certain members of the community and their having totolerate seeing these offenders within their community, are not factors, which, of themselves, establish the grounds for making suchorders.

I do not, in this case, given what has happened, find that there are no grounds at all for a banishment order. I say that theconnection of such an order to the objectives of protecting the public or securing the good conduct of the accused has not beensufficiently established, given the very long intervening period of time in which no further convictions have resulted for similarmisbehaviour. [77] The BC Court of Appeal decision in R. v.

D.J. 2000 BCCA 656 , 2000 B.C.C.A. 656, is one in which an 18 month jailsentence under the Young Offenders Act was reduced to 12 months for a 44 year old offender who committed a number of sexualoffences against his female siblings when he was a teenager in a home, described by Justice Hall in his decision, as “less than ideal”.

Thecase is offered by the Crown as an approximate guide to the length of sentence appropriate to a sexual offender in need of sexualoffender treatment where the offender has displayed “a measure of intransigence and perhaps a measure of failure to appreciate thefindings made by the learned trial judge concerning his conviction”. This is a short decision that does not deal with Gladue issues oroffer much background about that particular offender.

The Court of Appeal says, at paragraph 9, "the judge I think in this case rightlyconsidered that a sentence of incarceration was requisite having regard to the necessity for deterrence and denunciation and was alsomoved by the consideration that the term he imposed would allow for the treatment that he recommended". It was also the case that theaccused had already served a year in custody.

Said Justice Hall, "I am not of the view that there is much more to be gained fromcontinuing incarceration…" That case may serve to justify the imposition of a one to two year jail sentence for serious sexual offencescommitted in the past when the offender was a youth, but given the Gladue factors and other factual distinctions that one could point toin the case at bar, I do not view R. v. D.J. 2001 Carswell B.C. 2220, as representing a baseline for the length of custodial sentence thatought be imposed in a case of historical sex abuse. [78] The case of R. v.

Malcolm James Abbott, cited by the Defence, is an arson case where the Supreme Court imposed a minimaltype of intermittent sentence largely because conditional sentence orders were not available for that type of offence, and as such, it haslittle application to the facts of the case before me. [79] The appropriateness of imposing some form of probation order on the accused is challenged possibly only by P.E.L. Mr. Kaatzsays on his behalf, that the finding of guilt in this case is punishment enough, especially considering the impact it has on P.E.L., his lifeand his family's life.

It is apparent from the statements filed from his children and friends that they are incredulous about the convictionand have difficulty accepting the court's findings. That is understandable, given the solid front of denial that P.E.L. has presented to theworld, and the ties of friendship and love he has with those people.

However, it would be difficult to justify making no distinction at allin sentencing P.E.L. and S.C.L., who steadfastly maintain their denials, from their brother D.B.L., who has continually expressed hisremorse and accepted his culpability and paid a high price for doing so by being shunned by many members of the only community hehas ever lived in, and being ostracized, as well, by his brothers and his mother. [80] The community will not accept the attitudes of P.E.L. and S.C.L. as amounting to anything other than continued defiance andmight well wonder why that should earn them the same consideration on sentencing as might be given to the one, truly repentant brother.The two brothers saying that they respect the process of the courts cannot be taken as indicative of remorse when each of them whollyrejects all of the court’s findings as they relate to them.

The family has presented a unified front against all the accusations that haveswirled around them in the community for decades, and their continuing to do so, will be viewed by the victims, as well as a largecomponent of the community, as showing an arrogant lack of any sense of responsibility for the crimes committed, and the very oppositeof acknowledgment of the harm done to the victims and the community.

It is difficult to square the positions taken by P.E.L. and S.C.L.with the purposes of sentencing under the Youth Criminal Justice Act, which include holding a young person accountable to theimposition of just sanctions that should have meaningful consequences and which should promote rehabilitation and reintegration intosociety. How can there be reintegration into society, or rehabilitation, when the victims, who know that these offences have occurred,offences, moreover, which have been found to have occurred by a court, are faced with this kind of repudiation from the perpetrators?

Totreat all three offenders leniently and identically in light of these considerations would amount to a declaration that contrition does notcount and that a lack of acknowledgment or taking responsibility simply does not matter. I know of no other available sanction butcustody that can be used to refute any such suggestion. One has to recognize, as was the case in Bremner, that denials can be based onmixed motives, and that it would be very difficult for someone in the position of these accused men to admit to their families and theirfriends these terrible offences that they have always denied.

It is quite possible that the denials are not based so much on a desire to hurtthe victims as on the fear that to admit these things would destroy or seriously impair lifelong bonds of friendship or love, and thatadmission might well lead to a tremendous loss of status or admiration that had always been propped up on a foundation of denials.

Whatever motives are behind the denials, they do not alter the fact that they show defiance rather than acknowledgment, and rejection ofresponsibility. [81] Considering the difficulties this long and drawn out process has visited on the accused as well as the victims, and the factorsdiscussed in Gladue and Ipeelee, the two year custodial sentence being sought by the Crown, while not excessive if one considers only

the harm done to the victims, might still be seen, after 25 years or so have gone by, as emphasizing too much the principles of denunciation and retribution, which are said to play no

part in sentencing under the Youth Criminal Justice Act . [ 82 ] As one of the victims pointed out in his impact statement, "even though court was a success, my story was told and charges were laid; I did not feel any better. It wasn't a win for me. I did not feel whole as a person because my life was taken from me when I was so young". No sentence that a court delivers can take away what victims have lost, or erase their pain.

It is quite possible that any sentence imposed might fail to deliver all that a victim hopes for from the process, because the process cannot restore them to the innocence and wholeness that they had as children before they were abused and which they did not deserve to lose in the first place. The unfortunate reality is that work of recovery, if it is to succeed, will come about primarily from the efforts and strength of the victims themselves, aided by whatever supports and assistance are available to them.

That is not to say that the sentence given to the accused is irrelevant to that process or to the community. There must be an accounting, but there must be proportionality, that takes into account all of the factors discussed here. [ 83 ] I am persuaded, in the case of D.B.L., that his remorse is sincere and well-documented, and that his guilty conscience has pained him for years, and that his willingness to admit his guilt has resulted in his isolation from much of his community and from his own children.

Short of undoing what has happened, there is not much more that he can do to set things right, except comply with the terms of any orders this court might impose. He is accountable and amenable to any form of rehabilitation the court will require and is willing to be reintegrated into society if it will have him.

Considering also his fragile health and his severe osteoporosis, I see sanctions available other than custody that could achieve the purpose and principles of sentencing under the Youth Criminal Justice Act in his case, and those will be sent out under the terms of a probation order. [ 84 ] In addition, and as a term of the probation orders, each accused will be bound by, they will be required to provide DNA samples under

section 487.04 of the Criminal Code will be required. [ 85 ] The period of probation will be for one year. This order is in relation to all three accused. The t erms of the probation order are as follows:

a) D.B.L. and S.C.L. shall report by telephone to a probation officer at Williams Lake, forthwith, or within seven days of your release from custody, as the case may be, and then shall report thereafter as, when and where and in the manner directed by a probation officer. P.E.L. shall report in person forthwith upon his release from custody to a probation officer at Vancouver, BC and thereafter as, when and where and in the manner directed by a probation officer.

b) When first reporting to the probation officer, you shall inform him/her of your present residential address and telephone number and you shall not change your address or telephone number without first obtaining the written consent of the probation officer.

c) You shall attend, participate in and successfully complete any assessment, counseling or program as directed by the youth probation officer. Without limiting the general nature of this condition, such assessment, counseling or program may relate to, or may include, sexual offence prevention, attendance, participation and successful completion of individual and group therapeutic assessments or treatment programs for sex offenders, as directed by and to the satisfaction of the probation officer.

Such attendance may also include, as directed by the probation officer, participation and successful completion of therapeutic assessments specific to First Nations counseling including but not limited to Qul-Ann program offered by Tsow-Tun Le Lum. At the direction of your probation officer, you must also report to the Forensic Outpatient Clinic in your area of residence for intake, attendance, participation and completion of the Forensic Sex Offender Program followed by the Sex Offender Maintenance Program at whichever Community Corrections Office you may be reporting.

d) You shall have no contact or communication directly or indirectly with victims L.J.(J.), C.J., G.T., B.C., S.C., D.J., A.S., B.L.C., L.L. (Jr.), or T.L. except:

i) with the advanced written consent of your probation officer; or ii) through a third-party approved in advance by your probation officer; or iii) through legal counsel; or iv) if permitted by a probation officer, incidental contact while in the course of your employment during normal business hours only; or

v) where contact is initiated by any of the named victims. Such contact or communication shall cease immediately upon request that person; or, vi) during the course of any restorative justice programs where there is voluntary participation by any of the victims, provided that other adult persons are in attendance during the sessions. The accused must attend such programs as and when directed by a pro

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