R. v. P.E.L. and S.C.L. Date:, 2015 BCPC 299

Citation: R. v. P.E.L. and S.C.L. Date: 20151021 2015 BCPC 0299 File No: 8116-C3 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Criminal Justice Act) REGINA v. P.E.L. AND S.C.L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: Ms. Catrionia Elliott and Ms. Carol Hawes Counsel for the Accused, P.E.L.: Mr. Sheldon Tate Counsel for the Accused, S.C.L. : Mr. Dmytro Antonovych Place of Hearing: Lillooet , B.C. Dates of Hearing: June 10 and August 4, 2015

Date of Judgment: October 21, 2015 [ 1 ] The two offenders, whom I will refer to by their initials, were convicted of sexual assault charges, proceeded with by indictment, upon a retrial before me. Reasons for Judgment on the retrial, given March 5, 2015, are indexed at Regina v. P.E.L. and S.C.L. [2015] B.C.J. No. 444 ; 2015 BCPC 42 . [ 2 ] P.E.L., born [omitted for posting], was 14 years of age at the time of the commission of the two counts of which he has been convicted: Count 1 P.E.L., from the 13th day of January, 1983 to the 30th day of June, 1983, inclusive at or near Lillooet, Province of British Columbia, did sexually assault L.J. contrary to

Section 246.1 of the Criminal Code . Count 2 P.E.L., from the 13th day of January, 1983 to the 30th day of June, 1983, inclusive, at or near Lillooet, Province of British Columbia, did sexually assault C.J., contrary to

Section 246.1 of the Criminal Code . [ 3 ] His brother, S.C.L., born [omitted for posting], was 15 or 16 years old at the time of the commission of the one count upon which he stands convicted here: Count 15 S.C.L., from the 31st day of May, 1987 to the 31st day of May, 1988, inclusive, at or near Lillooet, Province of British Columbia, did sexually assault T.L. contrary to

Section 246.1 of the Criminal Code . [ 4 ] The Youth Criminal Justice Act , S.C. 2002, c. 1, ( YCJA ) took effect on April 1, 2003, and provided at s. 160 that: Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before the coming into force of this

section shall be dealt with under this Act as if the offence occurred after the coming into force of this section, except that (

a) paragraph 62(

a) applies only if the offence is one set out in paragraph (

a) of the definition “presumptive offence” in subsection 2(1) and the young person was at least sixteen years old at the time of its commission; ( b ) paragraph 110(2)(

b) does not apply in respect of the offence; and (c) paragraph 42(2)(

r) applies in respect of the offence only if the young person consents to its application. [ 5 ] These proceedings were commenced against P.E.L. and S.C.L. on January 20, 2010, with the swearing of information No. 8116-1 under the Young Offenders Act R.S.C., 1985, c. Y-1 ( YOA ). On February 18, 2011 a replacement Information was laid under the YCJA . These charges fall within the scope of s. 160 and have been dealt with under the YCJA . [ 6 ] It is to be noted that s. 160 was repealed on October 23, 2012 by operation of the Safe Streets and Communities Act , S.C. 2012, c. 1, ( SSCA ).

Counsel have urged, and I accept, that the YCJA procedures continue to govern the current proceedings, subject to two provisos: the general rule of construction that retrospective operation is not to be given to an amending statute so as to impair substantive rights, and s. 11(

i) of the Canadian Charter of Rights and Freedoms which provides as follows: 11. Any person charged with an offence has the right … (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Circumstances [ 7 ] The circumstances surrounding the commission of the offences in Counts 1, 2 and 15 are set out in the reasons for judgment at the citation provided above. For convenience, I will summarize those circumstances briefly here. The offences occurred on the T’it’q’et Reserve in Lillooet. The offenders and their victims are all First Nations individuals.

Counts 1: Sexual Assault by P.E.L. upon L.J. [ 8 ] L.J., the victim in Count 1, and C.J., the victim in Count 2, were sisters then aged five and eight years respectively. These two sisters and their brothers had been taken into care by Ministry social workers. [ 9 ] The J. children were placed in the foster home of Mr. and Mrs. L., the parents of P.E.L., S.C.L. and their brother D.B.L. P.E.L was the eldest son, D.B.L. the middle son and S.C.L. the youngest. D.B.L. was convicted of several sexual offences at the first trial. D.B.L. did not appeal his convictions and has taken no

part in the current proceedings. [ 10 ] L.J. gave evidence at this retrial. As set out in the reasons for judgment, I found her to be a reliable witness. L.J. described P.E.L. as the leader or boss of all the children in the L. home, including his siblings and the foster children. The children did what P.E.L. told them to do, she said. [ 11 ] L.J. testified that she was sexually assaulted regularly by P.E.L. while she lived in the L. home. “It happened all the time,” she testified. She described a number of incidents of rape by P.E.L.

She said that she tended to remember the most vivid or horrific events. [ 12 ] C.J. described one incident where P.E.L. sent the other children to play outside but took C.J. to her bedroom. He directed her to take her clothes off and then raped her despite her complaints that it hurt and that she didn’t want to do it. He told her to tell no one. [ 13 ] On another occasion, she said P.E.L. was with her in her bedroom. P.E.L. heard from S.C.L. that their mother had arrived home. P.E.L. told L.J. to get into the closet.

L.J. then overheard a brief conversation between P.E.L. and his mother about where the children were. When his mother had gone, P.E.L. took L.J. out of the closet and committed

an act of rape upon her. He didn’t stop when she told him he was hurting her. [ 14 ] L.J. recalled a third occasion when she had been asleep in her room. P.E.L. took her out of her room and down to his basement bedroom. He removed her nightclothes and underwear. Mrs. L.’s footsteps were heard on the stairs coming towards the bedroom. P.E.L. lifted his mattress, put L.J. under it and then lay upon it himself. L.J. struggled to breathe. [ 15 ] Mrs. L. asked about the noises coming from the room and P.E.L. told her he had been exercising. When Mrs.

L. left, P.E.L. took L.J. out from under the mattress, kissed her and raped her. When he had finished, he told her to put her clothes on and to return to her room. L.J. recalled that she was numb during this episode and couldn’t breathe. [ 16 ] Other sexual offences against L.J. took place in community buildings on the reserve, not far from the L. home, specifically the pre-school and the community hall known as Julianne Hall.

The local children frequently had access to these structures without adult supervision. [ 17 ] L.J. gave in evidence that she and other young children were lined up in the pre-school at the direction of P.E.L. She said D.B.L. and S.C.L. were also there. [ 18 ] L.J. was told to lie on a towel. She told P.E.L. that she had to go to the bathroom but he wouldn’t allow her to go. He then directed D.B.L. to get on top of L.J. and have sex with her. She described D.B.L. as being apologetic towards her and apparently reluctant to do as he was told by P.E.L.

P.E.L told D.B.L to “Come on, be a man” and called him “a pussy”. She said that on that occasion D.B.L. tried but could not obtain an erection. P.E.L. told him “Better luck next time.” [ 19 ] On another occasion, in similar circumstances P.E.L. directed L.J. to lie on the towel and told her brother, “Get over there.” The boy protested that L.J. was his sister. P.E.L. told him that he’d better do as he was told and offered a threat to the boy if he didn’t comply. L.J. said that her brother went through the motions as directed but without hurting her.

L.J. said that the abuse was frequent and that she and the other children accepted it as a normal feature of life. She said she learned to stop crying. [ 20 ] P.E.L. was convicted of sexual assaulting L.J. either as a principal or as a party to the various episodes of assault by him related in her evidence. Counts 2: Sexual Assault by P.E.L. upon C.J. [ 21 ] C.J. gave evidence that she was called into the basement office of Julianne Hall by P.E.L. Her sister L.J. was seated on a couch until P.E.L. excused her and she left. C.J. was eight. [ 22 ] P.E.L. told C.J. to undress. She didn’t.

P.E.L. removed his shorts and masturbated against a vertical support pole a few feet from her until he ejaculated. P.E.L. then took off C.J.’s pants or shorts and lay upon her, both of them naked from the waist down. There was genital contact between them. At some point P.E.L. stopped himself, told her he couldn’t do this and told her to leave. She did. [ 23 ] This was the only episode of sexual abuse related by C.J. at the hands of P.E.L. Counts 15: Sexual Assault by S.C.L. upon T.L. [ 24 ] T.L. and his younger brother were first cousins to P.E.L., D.B.L. and S.C.L.

T.L. gave evidence that when he was nine or ten years old, he and his little brother were at his aunt and uncle’s home, playing in the basement with S.C.L. T.L. recalled that he and his brother were naked. S.C.L. directed his two younger cousins to do things to him, including acts of a sexual nature: rubbing, caressing, kissing and fondling - “feeling him up,” as T.L. put it. T.L. recalled being on top of S.C.L., who was in a sitting position. T.L. said he

just remembered the chest and upper part of S.C.L.’s body. [ 25 ] T.L. said he had done this first. Then his little brother had to do the same thing. T.L. told him it was his turn. T.L. was struck by how tiny and skinny his brother looked on top of his bigger cousin, S.C.L. S.C.L was lying on his back. T.L. said his brother was doing what he was told, though he could not recall specifically what that was. [ 26 ] T.L. said that when he and his brother were off S.C.L., they were required by S.C.L. to watch him while he masturbated to the point of ejaculation.

Impact on the Victims [ 27 ] Observing the complainants L.J., C.J. and T.L. in the course of their evidence, it was readily apparent that the burden of these offences has impacted them greatly over the years and still does. [ 28 ] T.L., for example, related his own role in securing the involvement of his younger brother in the activities of S.C.L. I mentioned in the reasons for judgment the difficulty T.L. had in court in describing these events. At times in his evidence he struggled with his emotions.

It was evident that T.L. still feels a particular responsibility for his brother’s involvement despite the fact that he himself was only 9 or 10 years old while his cousin, S.C.L., was 15 or 16. [ 29 ] T.L. grew up abusing alcohol and has associated that aspect of his life with the bottling up of these painful events. He has required extensive drug and alcohol treatment over a period of years in order to achieve the sobriety he now maintains. [ 30 ] L.J. provided the only victim impact statement put before the court.

Counsel have properly agreed that I should leave aside those aspects of her impact statement which exceed the proper scope of a victim impact statement, including, for example, the victim’s view of the type and length of an appropriate sentence. [ 31 ] Nonetheless, L.J.’s statement details the impact of the sexual abuse she suffered in a place which should have been a safe harbour for her. She described the negative effects that P.E.L.’s sexual abuse has had on her and indirectly on those around her, including her own children.

L.J. linked this sexual abuse to her own struggles with substance abuse over the years and her conflicts with the law as a young person. At one point she was held in custody at Burnaby Youth Detention Centre, where she contemplated suicide with a sheet. [ 32 ] L.J. eventually sought help. After 15 years of culturally sensitive therapy, counselling and cultural ceremonies, she described how she now leads the best life she can. She is a qualified educator and an advocate who assists others who have suffered abuse.

She has a personal awareness of the consequences of child sexual abuse and the great harm it can inflict on victims. The Parties’ Positions on Sentence [ 33 ] For each of the two accused, the Crown has submitted that a custody and supervision order of 120 days is appropriate, consisting of 80 days’ custody followed by 40 days of community supervision, less credit for time already spent in custody on these charges.

The Crown also submitted that both offenders should be placed on a two year probation order with terms to include no contact with the victims. [ 34 ] Counsel for P.E.L. took the position that there were available sanctions that alone or in combination would be more appropriate in all the circumstances than a custody and supervision order.

These sentence options could include a fine, community service work, a deferred custody and supervision order and probation with a condition that P.E.L. have no contact with the complainants. [ 35 ] Counsel on behalf of S.C.L. submitted that given the nature of his offence and his personal circumstances, a probation order would be appropriate with none but the mandatory conditions attached to it. [ 36 ] Counsel on behalf of both offenders emphasized the great stigma that has attached to both as a result of the notoriety arising from the case. Rumours and allegations have festered in the community for decades.

A police investigation was commenced in 2007 and took approximately three years to complete. The extensive court history, commencing in January, 2010 and culminating in these 2015 convictions, is widely known in the community and has been regularly reported in the local newspaper. [ 37 ] The result has been the prolongation of hostility and divisions across family lines and into the wider community. This has impacted both accused significantly in their employment and community lives and is likely to continue to do so for some time to come.

S.C.L. [ 38 ] After the first trial and conviction appeal, S.C.L. stood convicted of one count of sexual assault - Count 11. That conviction on Count 11 stands as the only other entry on S.C.L.’s youth or adult record. [ 39 ] At the first trial, S.C.L. was sentenced to concurrent custody and supervision orders on each of the four counts upon which he then stood convicted (including Counts 11 and 15) of 120 days, being 80 days in custody followed by 40 days of community supervision. A probation order was to follow for one year. S.C.L. served 34 days in custody before being granted bail pending appeal.

[40] On appeal in December, 2013, three of those convictions, including that on Count 15, were set aside and new trials ordered. Thesingle conviction on Count 11 was upheld: R. v. P.E.L. 2013 BCCA 542. [41] The sentence imposed on Count 11 was also appealed by S.C.L. The trial judge had referred to the sexual assault reflected inthat conviction as “a violent attempted rape” (R. v. P.E.L. 2012 BCPC 503 at paragraph 23.) The Court of Appeal described thecircumstances as “egregious” and “unquestionably violent and serious” (R. v. S.C.L. 2014 BCCA 336, paragraph 6).

In accordance withthe common submissions of counsel on the appeal, the court reduced the 120 day custody and supervision order on that sole remainingcount to time already served, being 34 days. The one-year probation order was set aside as serving no useful purpose given S.C.L.’sapparent self-rehabilitation, what was described as his reintegration into his community and the absence of any discernible risk toreoffend. [42] In sentence submissions before this court on Count 15, S.C.L.’s background was put forward by counsel.

Further personal andhistorical detail was provided in a thorough Gladue Report compiled by Stuart Cadwallader in February, 2012. That report was placedbefore this court during sentence proceedings. [43] Although a pre-sentence report had also been prepared for sentence proceedings following the first trial, Crown and Defencecounsel agreed that this pre-sentence report should not be placed before the court on this sentence proceeding and that the relevantinformation in the report had been provided to the court through counsel.

Upon the application of s. 37(9) of the YCJA, the filing of thereport was dispensed with. [44] S.C.L. is now 43 years old. He was raised in Lillooet by his parents B.L. and W.L. The family are all status members of theT’it’q’et or Lillooet Band. S.C.L. left school in Grade 8 and worked a variety of jobs including seasonal work. From the age of 14 hetravelled as a carnival worker. At other times, he was employed at a saw mill in Lillooet and worked at other labouring jobs.

Later,S.C.L. worked as a bouncer and doorman and lived in Vancouver, Williams Lake and Kamloops. [45] From the ages of 17 to 19 years, S.C.L. lived in Vancouver with his mother, B.L., a member of the Musqueam Band. Heupgraded his education to a Grade 10 level. [46] In more recent years, S.C.L. has worked for an architect engaged in building a home, until that construction was completed in2013. S.C.L. has not had full-time employment since.

He has worked seasonally with the Ministry of Forests and attributes his difficultyobtaining employment, in part at least, to the continuing controversies in the community surrounding this case. S.C.L. lives in Lillooetwith his mother, now 63, whom he supports. His father passed in 2011. [47] S.C.L. began drinking at 8 years of age and described himself an alcoholic by age 12. S.C.L. found sobriety at 19 after attendingtwo treatment centres, Maple Ridge and Round Lake.

He has now been sober 25 years. [48] S.C.L. has been active in Alcoholics Anonymous and has been a sponsor to others, perhaps as many as 60 people. In the last 6½years, S.C.L. has not been able to attend AA in Lillooet due to the no contact conditions of his bail order. He has attended AA inWilliams Lake, Kamloops and Vancouver when he can. [49] Information was provided by S.C.L. to Mr. Cadwallader, who wrote at page 3 of his report: [S.C.L.] described his formative years growing up in Lillooet as being quite dysfunctional.

He characterized himself as the introvertedand subordinate child of their family who while insulated from harm while under his parents’ supervision and within their home, lived alife of fear, trauma and abuse when left unattended.

He reported incidents of victimization and constant bullying at the hands of his olderbrother [D.B.L.] and related numerous episodes of physical and sexual abuse by trusted members of his extended family, older cousinsand larger neighborhood children, as well as by notable respected leaders and elders within the T’it’q’et community. [50] S.C.L.’s description of his physical and sexual victimization as a child is reported in detail in the Gladue report and featuresallegations of a horrific nature. [51] In the report, Mr. Cadwallader recorded S.C.L.’s assertion that he was not guilty of any of the offences.

I take S.C.L.’s positionto be unchanged, and certainly with respect to his current conviction for the sexual assault of T.L. as set out in Count 15. [52] In the sentence appeal, R. v. S.C.L. 2014 BCCA 336, at paragraph 14, Madam Justice D. Smith said the following: The trial judge summarized the Gladue report in the context of the factors to be considered in sentencing an Aboriginal offender asestablished in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

At paras.44-45 he wrote: 44 The Gladue report shows that life on the T'it'q'et Reserve was extraordinarily dysfunctional for not just the accused, but their victimsand 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 werevictims as much as they were abusers. The report details the history of the community going back to the late 1700's and some of thefamily histories as well, of which some originated in other aboriginal communities. Mr.

Cadwallader's report discusses in some depth theunique systemic and background factors which may have played a

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

One can follow the illeffects of these things on its community members, with respect to such things, mentioned in the Gladue and Ipeelee, as lower educationalattainment, 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. [ 53 ] Caution must be exercised in relying on the reasons at sentence of the original trial judge, given the differences in the charges tried, the evidence heard, the findings of fact made and the results of the various appeals. Nonetheless, I agree with these remarks by the trial judge on the significance and value of the Gladue Report and his discussion of the impact of R. v. Gladue and R. v.

Ipeelee on the sentencing of P.E.L. and S.L.C. as aboriginal offenders. [ 54 ] S.C.L. has been active in practicing his culture and describes it as an important part of his life. He attends sweat lodge ceremonies and other ceremonial events in Lillooet when he can, but he has had to ensure that those persons listed in the no contact conditions on his bail order are not in attendance. P.E.L. [ 55 ] Counsel for P.E.L. set out the offender’s background and with the agreement of Crown counsel elected not to file the pre- sentence report prepared for the original sentence proceedings.

Counsel stated that counsel’s submissions have incorporated the relevant portions of the PSR. On that footing, the filing of the PSR was dispensed pursuant to s. 39(7) of the YCJA . [ 56 ] P.E.L. did rely upon the Gladue report prepared by Mr. Cadwallader in respect of S.C.L. as being reflective of the community in which P.E.L. was raised. However, P.E.L. asserted that the dysfunctional and abusive aspects of S.L.C.’s upbringing did not apply to him. He bears no resentment towards his mother. [ 57 ] P.E.L., now 46, was raised from the age of six in Lillooet.

He said through counsel he had good parents and a good childhood. His upbringing was described as strict but appropriate. [ 58 ] P.E.L. excelled at hockey and at age 16 left Lillooet to play junior hockey. He did not return to live in Lillooet thereafter. P.E.L. stated he drank to excess between 17 and 21 years of age but has been free of drugs and alcohol in the 25 years since. [ 59 ] P.E.L. stayed involved in hockey after he finished playing competitively, eventually becoming an agent for professional hockey players.

I am advised that P.E.L. has since earned a Bachelor’s degree in Business Management from BCIT. [ 60 ] P.E.L. and his wife have been married 24 years and they remain close. She has attended court proceedings in support of her husband. They have two adult children together who also support P.E.L., as do a number of his friends and colleagues as evidenced by the character letters filed on his behalf. P.E.L. has an older child from a previous relationship from whom he is estranged.

Gino Odjik, a former professional hockey player, wrote character references for P.E.L. attesting to his skills and qualities as a players’ agent, a life skills workshop facilitator for indigenous youth and as an individual. [ 61 ] P.E.L.’s mother is also supportive of her son but is well aware of the strong feelings in the community about this case. Consequently, she has decided not to attend court. [ 62 ] There has been a stigma associated to P.E.L. as a result of these charges and convictions. In 2011, as a result of the laying of these charges, P.E.L. found it necessary to close his player agency business.

He has suffered a consequent loss of income. [ 63 ] P.E.L. has other business interests. He has provided management consultant services to First Nations communities in British Columbia, Canada and the United States. [ 64 ] For eight years, P.E.L. has taught business courses through the Nicola Valley Institute of Technology, a post-secondary institution in Merritt with an aboriginal focus. He has also conducted workshops for indigenous youth groups with the participation of Mr. Odjik, focusing on developing life skills and role modelling. These are group sessions, counsel advised.

P.E.L. and his wife share a family income of about $100,000 per year. [ 65 ] P.E.L. is described as proud of his heritage and culture. He is an engaged participant in sweat lodges and longhouse ceremonies. He maintains a relationship with a spiritual advisor in Vancouver whom he sees one on one. The Provisions of the Youth Criminal Justice Act Relating to Sentence

[66] This matter poses an unusual and difficult combination of circumstances. Both offenders, now men in their forties, are youngpersons within the meaning of the Act. They stand convicted of serious offences committed approximately 30 years ago, when both wereteens. Neither individual has any convictions beyond those mentioned here. [67] The applicable YCJA principles which govern these proceedings are not those of the Criminal Code. These distinctiveprinciples recognize the lack of maturity and the diminished moral blameworthiness of young people who offend: R. v. D.B., [2008]S.C.J.

No. 25, 2008 SCC 25. [68] Persons governed by the YCJA are to be dealt with in accordance with the principles declared in

section 3 of the Act. Thoseprinciples include the rehabilitation and reintegration of offending young people into society as well as ensuring that they are subject tomeaningful consequences for the offences committed, that there is fair and proportionate accountability consistent with their greaterdependency and lack of maturity. [69] The s. 3 principles also call for “timely intervention that reinforces the link between the offending behaviour and itsconsequences”, a feature which would seem to have little application in cases of historical sexual assault.

No cases were referred toinvolving historical charges brought under either the YCJA or the YOA. [70] However in R. v. D.E.S.M. (BC CA), [1993] B.C.J. No. 702, 24 B.C.A.C. 305, an adult accused wasconvicted of rape and sexual intercourse with a female under 14 under the Criminal Code. The offender, a young adult, had committedthese offences upon his younger adoptive sister. The offending had started when he was a youth, though he was charged only withoffences committed when he was an adult.

The complaint was brought forward about 10 years after the acts complained of werecommitted. [71] Such a long passage of time without other convictions can stand to the credit of an offender and may be evidence of self-rehabilitation. In R. v. D.E.S.M., the offender had in the intervening time led a productive life, rehabilitated himself and worked tosupport his partner and their three children. The trial judge imposed a 45 day intermittent jail term and two years’ probation.

The Crownappealed. [72] A five judge division of our Court of Appeal agreed with the Crown submission that such convictions would have normallyattracted a minimum adult sentence of imprisonment for two years less a day, with probation to follow. Nonetheless, the Court of Appealfound these were exceptional circumstances and affirmed the intermittent sentence and the probation order with some modification to theterms.

A more conventional sentence in these circumstances, it was said, would have been less productive and would have riskeddehabilitation for very little benefit to society or the offender. [73] Paragraph (1)(

c) of s. 3 of the YCJA sets out the following: (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve theparents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young personswith special requirements…. [74] In

Part 4 of the YCJA, s. 38, as it stood, set out the specific purposes and principles of youth sentencing as follows: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principlesset out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has beenconvicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offencecommitted in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, withparticular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must

(

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 75 ] It will be noted that there was no provision in the YCJA establishing in that act the adult sentencing principles of denunciation or deterrence, either generally or specifically with respect to the young person before the court. Counsel are agreed, as am I, that the more recent substantive amendments now contained in s. 38(2)(

f) introducing denunciation and specific deterrence to YCJA sentencing principles, have no retrospective application to the proceedings at bar. [ 76 ] The Crown position on sentence is that both accused should receive a custody and supervision order. Such orders, made under s. 42(2) (

n) of the YCJA , are only available after consideration of s. 39 of the Act and upon being satisfied that the requirements of what has been called the gateways to custody have been met, in this case under s. 39(1)(

a) or (d). [ 77 ] The relevant portions of s. 39 of the YCJA read as follows : 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (b) … (c) … or (

d) 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 non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38.

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) 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 combination of alternatives, that is in accordance with the purpose and principles set out in

section 38 .

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

(6) Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre- sentence report and any sentencing proposal made by the young person or his or her counsel.

(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre- sentence report if the court is satisfied that the report is not necessary.

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in

section 38 , and shall not take into consideration the fact that the supervision portion of the sentence may not be

served in custody and that the sentence may be reviewed by the court under

section 94.

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it hasdetermined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, thereasons why the case is an exceptional case under paragraph (1)(d). The Appropriate Sentence - P.E.L. [78] The facts surrounding the commission of the offences reflected in Counts 1 and 2 by P.E.L. engage two of the s. 39 gateways toa custodial sentence, in my view. This is so firstly because these offences constitute a “violent offence” within the meaning of paragraph(1)(

a) of s. 39 of the YCJA, and secondly, because these circumstances also amount to “an exceptional case” under paragraph (

d) ofs.39(1). [79] As my brother Judge Wingham observed in R. v. S.S. [2010] B.C.J. No. 258, 2010 BCPC 19, at para 56, the provisions of s.39(1)(

a) through (

d) are not mutually exclusive and more than one gateway to custody may have application. [80] Dealing firstly with s. 39(1)(a), the expression “violent offence” was not defined in the YCJA until October 23, 2012 when theSafe Streets and Communities Act did so by virtue of subsection 167(3) of that Act.

Up to that point, and as a matter of the ordinaryusage of common words, it is hard to contemplate how sexual assault amounting to the rape of a young child would not fall within anyreasonable definition of violence. [81] The Oxford Concise English Dictionary, Tenth Edition, defines “violent” as “using or involving violence” and “violence” as“behaviour involving physical force intended to hurt, damage or kill.” On the evidence it is clear that L.J. has suffered serious emotionalharm at the hands of P.E.L. and that she has lived with this trauma for many years.

It is also clear that the physical and psychologicalpain caused to L.J. by the application of physical force by P.E.L. would have been apparent to him at the time the offences occurred.Indeed L.J. told P.E.L. as much at the time. [82] By reference to Nemetz, C.J.B.C., in R. v. M.P.P., [1982] B.C.J.

No. 804 (B.C.C.A.) para. 11, it has long been the case that inmatters involving the sexual abuse of children the courts need no psychiatric assistance to conclude that a victim has been seriouslyinjured emotionally and mentally and the trauma which has occurred to her will last for many years, if not for the rest of her life. [83] This observation was repeated by the Court of Appeal in subsequent cases of sexual abuse: see R. v. G.J.R., [1985] B.C.J. No.2141 and R. v. R.R.W., [1985] B.C.J.

No. 1869. [84] As mentioned above, subsection 167(3) of the SSCA amended subsection 2(1) of the YCJA in 2012 by including the followingdefinition: “violent offence” means (

a) an offence committed by a young person that includes as an element the causing of bodily harm; (

b) an attempt or a threat to commit an offence referred to in paragraph (a); or (

c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantiallikelihood of causing bodily harm. [85] The Crown submits that the Counts 1 and 2 against P.E.L. fall within definition (

c) above, as does the count against S.C.L..Counsel for P.E.L. did not agree that these more recent

definitions of “violent offence” were applicable to the offenders as a retrospectiveinterference with substantive rights. Counsel for S.C.L. agreed with that submission. [86] The Crown also relied upon R v. McCraw (SCC), [1991] 3 S.C.R. 72. In that case, the question was whether athreat to commit rape constituted a threat to cause serious bodily harm. The decision of the Supreme Court of Canada, given by JusticeCorey, held that a threat to commit rape was a threat to cause serious bodily harm. The threat of serious bodily harm is not restricted onlyto threats made to cause serious physical injury.

Any analysis should recognize that psychological harm is commonly suffered by rapevictims and that this trauma has been well-documented. [87] Justice Corey concluded at p. 88 that: For the purposes of s. 264.1(1)(

a) of the Criminal Code “serious bodily harm” means any hurt or injury, whether physical orpsychological, that interferes in a substantial way with the integrity, health or well-being of a victim. [88] Crown counsel took the view that all three counts in this case, involving both offenders, amounted to violent offences within themeaning of s. 39(1)(

a) of the YCJA as the offenders had endangered the life or safety of the victims by creating a substantial likelihoodof causing bodily harm based on the reasoning in McCraw. [89] Whether by reference to the ordinary meaning of words, those cases relating to the violence and serious harm inherent in therape or the sexual abuse of children or the more recent amendments to the YCJA defining “violent offence”, I am satisfied that Counts 1

and 2 relating to P.E.L. and Count 15 relating to S.C.L. are “violent offences” as contemplated by s. 39(1) (

c) of the YCJA . [ 90 ] The aggravating features of the offences committed by P.E.L. include the very young ages of the victims, L.J. and C.J., as compared with that of P.E.L., the evident vulnerability of those victims as foster children living in his home, the penetrative nature of the recurrent sexual assaults upon L.J., P.E.L.’s leadership role amongst all the children in the household, his actions in procuring the involvement of others in the offending, and the efforts made by P.E.L. to preserve his offending from discovery by his mother. [ 91 ] P.E.L.’s circumstances are markedly different than those of S.C.L.

S.C.L, as disclosed by the Gladue report was himself a victim of trauma, abuse and neglect by trusted members of his extended family and others in his community. His offending was preceded by his own abuse. That was not at all the case with P.E.L., who was not subjected to such abuse. [ 92 ] There are of course mitigating features applicable to P.E.L. and his circumstances. It appears that he has become self- rehabilitated if not fully reintegrated with his community. Beyond these current convictions, he has no record of convictions as youth or adult.

By all reports he has achieved success in his careers in business and education. He is a family man who has raised two children who are supportive of him and he is still with his spouse after 24 years. He has maintained sobriety for many years and has helped others along the way. There is no discernible risk to reoffend. [ 93 ] P.E.L. has not accepted responsibility for his offences.

That he has not accepted this responsibility is not an aggravating feature of the offence but it is a significant opportunity for mitigation missed and raises questions about the nature of his self-rehabilitation. [ 94 ] I have given particular consideration to the sentencing options urged for consideration by counsel, including a deferred custody and supervision order and a probation order.

I am bound to consider all alternatives to custody that are reasonable in the circumstances, however I have determined that there is not a reasonable alternative, or combination of reasonable alternatives to custody, that is in accordance with the purposes and principles set out in s. 38. [ 95 ] Taking into account all the circumstances of the case involving P.E.L., including the circumstances of his aboriginal background, I am satisfied that the non-custodial sentencing options available under s. 42 of the YCJA , including a deferred custody and supervision order and probation, alone or in combination, are simply not adequate to achieve the purposes set out in s. 38 .

The range of sentencing options available under s. 42, short of a custody and supervision order, would not in my view hold P.E.L. sufficiently accountable for the offences committed, and would not amount to just sanctions that have meaningful consequences for P.E.L. [ 96 ] Further, the aggravating circumstances including the extreme vulnerability and youth of both L.J. and C.J., the repeated sexual assault of L.J., P.E.L.’s marked domination and his involvement of others in L.J.’s humiliation makes this an exceptional case within the meaning of s. 39(1) (

d) of the YCJA .

The circumstances are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38 . [ 97 ] I am satisfied that the least restrictive sentence I could pass upon P.E.L. in all the circumstances would be an effective sentence of a custody and supervision order of 90 days, being 60 days in open custody and 30 days under supervision in the community. [ 98 ] Counsel have advised that P.E.L. served 18 days in custody in July, 2012 after his conviction on these matters (and upon another count) following his sentencing at the first trial and before he was granted bail pending his appeal.

P.E.L. is entitled to credit for that time served in custody in respect of Counts 1 and 2. [ 99 ] In the result, P.E.L. will receive a custody and supervision order with 42 days to be served in open custody to be followed by 21 days under supervision in the community. This will be the sentence with respect to both Counts 1 and 2. The sentences are to be served concurrently. [ 100 ] In addition, P.E.L. will be placed on a non-reporting probation order for a period of one year.

In addition to the mandatory terms, P.E.L. is to have no contact or communication directly or indirectly with any of the complainants named in the information nor is he to attend within 50m of any residence school or workplace of any of those named individuals save while in a moving motor vehicle in transit to somewhere else. [ 101 ] A DNA order will also go in Form 5.03. The Appropriate Sentence - S.C.L. [ 102 ] The circumstances involving S.C.L. and the commission of the offence reflected in the sexual assault of T.L. occur in circumstances somewhat different to those involving P.E.L.

It was, I’m satisfied, a violent offence within the meaning of s. 39(1) (

a) of the YCJA based on the analysis set out above. [ 103 ] While the sexual assault by S.C.L. against T.L. as reflected in Count 15 was a serious offence, it was a single event. It was not, on the evidence before me, abuse inflicted on a recurrent basis. S.C.L. was an abused child himself, turned abuser. [ 104 ] I am obliged by s. 38(3) (

d) of the YCJA to consider time spent in detention by the young person as a result of the offence. That will include the 34 days served by S.C.L. following his first conviction upon this offence, Count 15, and the other extant conviction on Count 11. [ 105 ] I’m satisfied that no further penalty is required by the purposes and principles of sentence beyond that time already spent in custody by S.C.L. There will also be a non-reporting probation order for a term of one year on the same terms as P.E.L. [ 106 ] There will be a DNA order in Form 5.03.

__________________________ S.R. Harrison Provincial Court Judge