R. v. C.J.J., 2020 BCPC 201

Citation: R. v. C.J.J. 2020 BCPC 201 Date: 20201016 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.J.J. Publication Ban pursuant to s. 486.4(1) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Paradis, D. Counsel for the Defendant: Thompson, S. Place of Hearing: [Omitted for publication] , B.C.

Dates of Hearing: August 26 and October 16, 2020 Date of Judgment: October 16, 2020 Introduction [ 1 ] On January 8, 2020, after a three day trial, I found C.J.J. guilty of sexually assaulting J.P. between December 1, 2017, and February 28, 2018, at or near [omitted for publication], BC. At the time of the offence, J.P. was 14 and 15 years old; C.J.J. was 20. They had a brief intimate relationship until J.P.’s mother learned of it and complained to the police. J.P. was a willing participant in the sexual

activity and a reluctant participant in these criminal proceedings. Because she was five years and two months younger than C.J.J., J.P.was statutorily unable to consent to the sexual activity. [2] C.J.J. is now before me for sentencing. He is a youthful first offender who lives a pro-social lifestyle. The Crown seeks asentence of four to six months incarceration followed by a period of probation. The defence asks for a conditional discharge or asuspended sentence. C.J.J. poses no danger to the public or risk of reoffending.

But for the sentencing principles of general denunciationand deterrence, C.J.J. would be not facing a custodial sentence. If C.J.J. is to be incarcerated, no matter how briefly, he will have to beremoved from the remote northern community in which he now lives and works, and transported to a regional correction facilityelsewhere in the province. This province is now in month seven of a state of emergency as a result of the COVID-19 pandemic.Transitioning C.J.J. to and from correctional facilities imposes risks and stresses on C.J.J., his community and the correctional facility.

Itinvolves two 14-day isolation periods, one when C.J.J. arrives at the correctional facility, and one when he returns to his community. Theinduction process for new inmates strains the resources of the correction facilities, which was never designed to maintain physicaldistancing among its staff and inmates. It also increases the health risks to C.J.J. and his community as he is moved about the province.The issue I must consider is whether a non-custodial sentence in these circumstances is still proportional to the seriousness of the offenceor to the moral culpability of the offender.

Issue: [3] The salient issue before the Court is whether C.J.J. ought to receive a custodial or non-custodial sentence. A probation periodand the ancillary orders the Crown seeks are not in dispute. [4] This matter came before me for sentencing on August 26, 2020.

I heard submissions of counsel and received into evidence thePresentence Report (“PSR”) dated May 13, 2020, authored by Probation Officer Nicole Fuerst, which I asked be marked as Exhibit 1 inthese sentencing proceedings. [5] At the conclusion of the August 26, 2020, I invited counsel to provide further written submissions on the constitutionality ofthose provisions of the Criminal Code, namely ss. 741.1(

c) and 741.1(f)(iii), which prohibit the Court from imposing a conditionalsentence. On October 6, 2020, I received further submissions from the Crown, and from the Defence Counsel on October 16, 2020.These are my reasons for sentence. Circumstances of the offence [6] C.J.J. and J.P. met in December 2017, through a mutual friend over Facebook. At the time of their meeting C.J.J. was 20 yearsold, having being born on [omitted for publication]. J.P., having been born on [omitted for publication], was 14 years old, just [omitted for publication] shy of her 15th birthday.

C.J.J. and J.P.’s mutual friend H., was 16 or 17, and worked in a store on C.J.J.’s [omitted forpublication] delivery route. [7] At the time of the offence, C.J.J. lived in [omitted for publication], a small community [omitted for publication] of [omitted forpublication], BC. J.P. lived in [omitted for publication] with her mother, C.R. In 2017, J.P. was in Grade 9, and attended school throughan on-line learning centre. [8] After their initial contact through Facebook, C.J.J. and J.P. met in person.

Their relationship quickly became intimate and sexual.C.J.J. and J.P.’s relationship continued until January 19, 2018, when C.R. demanded it terminate because of their age disparity. [9] The facts relevant to this conviction are set out in my Reasons for Judgment of January 8, 2020, indexed as R. v. C.J.J., 2020BCPC 2 . In a nutshell, I was satisfied beyond a reasonable doubt that C.J.J. knew J.P.’s actual age and therefore did not believeshe was at least 16 years old while they were sexually active.

In any event, even if C.J.J. did honestly believe J.P. was at least 16 yearsold, which I did not find, he did not take reasonable steps to ascertain her actual age. Circumstances of the offender [10] C.J.J. is now 23 years old. He was born in [omitted for publication], but has lived in [omitted for publication] area since he wasthree. He has a close and loving relationship with his parents and sibling. His childhood, although happy, was not without its troubles, asis the norm. [11] Both before and after his relationship with J.P., C.J.J. has had intimate relationships with females his own age.

He is now in astrong and happy relationship with a former classmate, K.N. C.J.J. and K.N. cohabitate in a duplex in [omitted for publication]. [12] C.J.J. is a hard worker and has been gainfully employed since high school. He worked delivering [omitted for publication] tovendors at the time of the offence. For the past year and one-half C.J.J. has worked on a vacuum truck for [omitted for publication], asdoes his brother. His employer describes C.J.J. as an excellent employee, who is punctual, respectful and who “gets along witheveryone.” C.J.J.’s has recently been promoted to a supervisory role.

C.J.J. has a number of vocational certification and aims to obtain hisClass 1 licence driver’s licence. [13] C.J.J. does not suffer from any mental illness or addiction issues. Nevertheless, he has expressed his willingness to participate inany sex offender program or counselling condition as the Court may impose. Criminal record [14] C.J.J. does not have any criminal record. Impact on the victim [15]

Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for “the purpose of

determining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 , the Court of Appeal held (at para. 12) that victimimpact statements play an important role in the sentencing process. At para. 13, the appellate court states, “the content of the statement isrestricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.” [16] In my Reasons for Judgment, I noted at para. 66: [66] J.P. did not demonstrate any animus toward C.J.J. It was apparent she was not fanning the prosecutorial flames.

J.P. testified shereally did not want to go to the police; she wanted to be left alone and for her and C.J.J. to move on and live their lives. She did not wantanything bad to happen to C.J.J. J.P.’s reluctant participation in prosecuting C.J.J. is evident from her repeatedly denying recollection ofdetails which might have exacerbated C.J.J.’s legal predicament. [17] J.P. did not provide the Court with a Victim Impact Statement and refused to participate in the PSR process. She told PO NicoleFuerst she wanted to keep the incident ‘in the past’. PO Fuerst also interviewed the victim’s mother, C.R.

C.R. admitted her daughter wasangry at her for reporting the offence to the police. C.R. asserts the offence had a profound impact on multiple areas of J.P.’s life. Sheclaims that prior to the offence J.P. was a ‘perfect kid’ who earned good grades in school and did not get into trouble.

C.R. asserts theoffence negatively impacted J.P.’s mental health, her performance at school and her ability to create and maintain friendships with herpeers. [18] C.R. asks the Court to order C.J.J. pay her $1,270 in compensation for lost wages and relocation costs arising from the offence.She also seeks an ongoing order prohibiting C.J.J. from contacting J.P. Parties’ positions on sentencing [19] Based on the New Brunswick Court of Appeal decision indexed as R. v.

Peterson 2012 NBCA 67, the Crown seeks a sentencecomprising of four to six months incarceration, followed 12 – 18 months’ probation on the terms and conditions set out in PSR, and threeancillary orders (DNA, a SOIRA order, and mandatory weapons prohibition under s. 109 (a)). The Crown submits this sentence is anincrease over that imposed by the New Brunswick Court of Appeal in Peterson in accordance with the Supreme Court of Canadadirection in R. v. Friesen, 2020 SCC 9. [20] The defence seeks a suspended sentence for a period of six to 12 months’ with conditions.

The Court can impose punitiveconditions ordinarily associated with a conditional sentence such as a curfew, counselling, community work service, drug and alcoholabstention during the probationary period. The defence takes no position with respect to ancillary orders the Crown seeks. The defenceargues this sentence is appropriate given: (

a) C.J.J.’s youth; (

b) he presents no risk to reoffend; (

c) the offence occurred three years ago;(

d) given the COVID-19 pandemic, incarceration is more perilous and more punitive than it was previously; and (

e) s. 718.2 of theCriminal Code requires the court to consider all available sanctions, other than imprisonment. Legal parameters and principles [21] In this case the Crown has proceeded by indictment and s. 271(

a) of the Criminal Code governs. It states: 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; [22] The statutory minimum sentence of one year incarceration where the Crown has proceeded by indictment has been struck downas unconstitutional. In R. v. E.R.D.R., 2016 BCSC 684 the offender pled guilty to one count of sexual assault (s. 271) and theCrown stayed the charge of sexual interference (s. 151).

Justice Beames declared the one-year mandatory minimum sentence in s. 271(a)violated s. 12 of the Charter of Rights and Freedoms and to be of no force and effect. Mr. Justice Blok declined to revisit that issue in R.v. Plehanov, 2017 BCSC 2176 , aff’d in 2020 BCCA 249 . More recently in R. v. Lafferty, 2020 NWTSC 4 ,Justice Charbonneau, also concluded that s. 271(

a) of the Criminal Code contravenes

Section 12 of the Charter and declared the words“and to a minimum punishment of imprisonment for a term of one year” in

Section 271(

a) to be of no force and effect pursuant to s. 52(1)of the Constitution Act,

Section 271(

a) was also successfully challenged in R. v. MacLean, 2018 NLSC 209. Legislative framework [23] I have set out the relevant sentencing portions of the Criminal Code below. Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Proportionality [24] Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender: R. v. Friesen, 2020 SCC 9. The gravity of the offence refers towhat the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm tosociety and its values: R. v. Lacasse, 2015 SCC 64 , at para. 130. Proportionality is determined both on an individual basis andby comparing the case before the court with similar cases, while taking into account the sentencing objectives set out in ss. 718 and718.2 of the Criminal Code: Lacasse at paras. 53-54. A sentence will be demonstrably unfit if it is disproportionate to the conductunderlying the offence and constitutes a marked departure from sentences imposed for similar conduct.

Denunciation and deterrence [25] In Friesen the Supreme Court of Canada held the paramount sentencing objectives for sexual offences against children aredeterrence and denunciation. Denunciation communicates society’s condemnation of the impugned conduct: R. v. Proulx, 2000 SCC5 , at para. 102 citing R. v. M (CA), (SCC). Deterrence "refers to the imposition of a sanction for the purposeof discouraging the offender and others from engaging in criminal conduct”: R. v. BWP; R. v. BVN, 2006 SCC 27 .

Where theprinciples of denunciation and deterrence have priority, the focus of the sentencing judge is more on the offence committed (the conduct)than on the offender. While factors personal to the offender, such as rehabilitation and Gladue factors remain important, they necessarilytake on a reduced role: Friesen, paras.104-105.

This priority focus on conduct reflects the gravity and wrongfulness of the conduct andthe serious harm it causes. [26] In Lacasse, Wagner J. (as he then was), stated: [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases ... in all cases in which generalor specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting theseobjectives, which are essential to the maintenance of a just, peaceful and law-abiding society. [27] In Proulx, the Supreme Court of Canada held that where objectives such as denunciation and deterrence are particularly pressing,incarceration will generally be the preferable sanction.

Mitigating, Aggravating and Neutral Factors and Collateral Consequences [28] Sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyondconsidering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances andcollateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favourof a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, (SCC).

The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(

d) of the CriminalCode: R. v. Dreger, 2014 BCCA 54 . [29]

Section 718.2(

a) of the Criminal Code states a "sentence should be increased or reduced to account for any relevant aggravating

or mitigating circumstances relating to the offence or the offender.” For the most part, aggravating and mitigating factors relate to two categories: a. the gravity of the offence regarding the culpability of the offender and the consequential harm which was caused; and b. how the offender’s character, past conduct, and post-offence conduct implicate a particular sentencing objective. [ 30 ] The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: R. v.

Pham , 2013 SCC 15 and R. v. Suter , 2018 SCC 34 . The collateral consequences are not necessarily aggravating or mitigating factors under

section 718.2 (

a) of the Criminal Code as they do not relate to the gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal or occupational implications. They sometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction.

Collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: Suter . [ 31 ] In an effort to promote a uniform application of the law of sentencing to sexual offences against children, the Supreme Court of Canada has identified a list of non-exhaustive significant factors for the sentencing judge to consider in determining a fit sentence.

I have set out below the factors and others I have considered in this case. [ 32 ] The first factor the Supreme Court recognized as significant in determining a fit sentence for sexual offences against children is the likelihood the offender will reoffend: Friesen , paras. 122 to 124 . In this case I find the following mitigating: a. C.J.J.’s prosocial lifestyle, in that he has obtained vocational training, works full-time and is self-supporting; b. C.J.J. has no criminal record; c. Although not a young person, C.J.J. is a youthful offender; d.

Other than J.P., C.J.J.’s intimate partners have been age-appropriate. He is now in a stable relationship with K.N., a woman his own age; e. C.J.J. does not suffer from any mental illness; f. C.J.J. does not suffer from any substance misuse; g. C.J.J. has expressed remorse which I accept is genuine; h. C.J.J. has indicate his willingness to engage in sex-offender counselling; i. C.J.J. has the support in the community, his parents, sibling and employer; and j.

C.J.J. has excellent prospects for rehabilitation. [ 33 ] Although not necessarily mitigating, it is noteworthy that C.J.J. has been on bail now for over two years without any breaches. [ 34 ] Considering the above mitigating factors, I find C.J.J. presents a very low, if any, risk to reoffend. This reduces the Court’s need to emphasize the sentencing objective of separating C.J.J. from society to protect vulnerable children from wrongful exploitation and harm. [ 35 ] The second Friesen factor in determining a fit sentence for a sexual offence against a child is whether the offender abused a position of trust.

The presence of this factor increases the harm to the victim and thus the gravity of the offence, and it also increases the offender’s degree of responsibility: Friesen , paras. 125-130 . In this case, C.J.J. was not in a position of trust or authority vis-à-vis J.P. He met her through a mutual friend. C.J.J. was not a family member or trusted friend or neighbour and the sexual activity did not occur in her home.

It cannot be said the sexual activity damaged J.P.’s sense of security in her home environment. [ 36 ] The third Friesen factor is the frequency and duration of the sexual abuse: Friesen , paras. 131 - 133 . The Courts have held that sexual violence against children over a long period of time and repeated on multiple occasions should attract significantly higher sentences to reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility.

In the case, in the Admissions of Fact filed as Exhibit 1 at trial states, “Between December 7, 2017 and February 1, 2018, C.J.J. and J.P. engaged in sexual intercourse approximately once per week.” At trial, the evidence was C.J.J. and J.P.’s relationship ended on January 18, 2018. In this case, I find aggravating the fact that C.J.J. continued the sexual relationship after he learned J.P. was under the age of 16. [ 37 ] The fourth Friesen factor is the age of the victim. Children who are particularly young are even more vulnerable to sexual violence, thereby enhancing the offender’s moral blameworthiness.

In this case, had J.P. being two months older, C.J.J. would not have been charged by operation of s. 150.2.1 which holds that for a 14 or 15 year old complainant, consent is a defence to a charge of sexual assault if she was less than 5 years younger than the offender. [ 38 ] The Courts recognise that a sexual relationship between an adult and youth are “inherently exploitive” because of the victim’s lack of maturity, judgment, and experience: Friesen , para. 53 . I pause here to mention that although a young adult, C.J.J. presents physically and emotionally as someone much younger than his biological age.

Beyond their age difference, I did not discern a significant power imbalance between C.J.J. and J.P. There is no evidence of manipulation, grooming, coercion, threats, demeaning behaviour or gratuitous violence. C.J.J. and J.P. struck me as two young people who, immediately after meeting, became enthralled with each other. C.J.J. does not impress me as someone who treated J.P. as a sexual object. Be that as it may, J.P. was too young to be his intimate partner.

[39] The fifth Friesen factor is the degree of physical interference. In the Admissions of Fact, filed as Exhibit 1 at the trial, C.J.J.admits that when engaging in sexual intercourse, he would insert his penis into J.P.’s vagina. The Supreme Court recognizes thatrelevant to sentencing in these types of cases is the sexual nature of the touching and its violation of the victim’s sexual integrity. Penilepenetration can create a risk of disease and pregnancy, particularly if unprotected.

Nevertheless, Friesen cautions the sentencing courtsagainst establishing a hierarchy of physical acts or treating penetration as the most egregious conduct. The modern focus is not so muchon bodily integrity, but rather on the psychological and emotional harm to the child: Friesen, para. 135. These harms include damage tothe victim’s personal autonomy, bodily and sexual integrity, dignity and equality, to their relationships with their families andcommunities, and harms to the families, communities and society. [40] In this case, C.J.J. had sexual intercourse with J.P.

Given J.P.’s reluctance to participate in the prosecution or sentencing of thismatter, it is difficult to weigh with any precision the impact of the offence on her physical, psychological and emotional well-being. [41] C.R. maintains the offence had a significant adverse impact on her daughter. This is a sentencing hearing, and the rules ofevidence are relaxed. Section 723(5) allows the Court to admit and consider hearsay evidence. In Friesen, the Supreme Court held (atpara. 85) that a Victim Impact Statement presented by a parent will typically provide the “best evidence” of the harm that the child hassuffered.

I note, however, J.P. was an adolescent who kept the sexual nature of her relationship with C.J.J. a secret from her mother. I amnot convinced C.R.’s description of her daughter’s behaviour before and after her relationship with C.J.J. accords with the evidence attrial. In my Reasons for Judgment, at para. 69, I found C.R.’s evidence as to when various events occurred somewhat unreliable.

I noteC.R.’s comments to PO Fuerst suggest her daughter was attending a bricks and mortar school at the time of the offence when in fact shedid so virtually. [42] In Friesen, the Court recognizes (at para. 83) in cases where the victim is still a child at the time of sentencing, it may beimpossible to determine the nature and extent of the harm that the victim will experience during childhood, since particular forms ofharm may materialize following the date of sentencing.

Still, even if an offender commits a crime does not result in any actual harm, thesentencing judge must consider the potential for reasonably foreseeable harm when imposing sentence. [43] J.P. was 14 and 15 years old at the time of the offence. One harm that has been actualized was the damage to J.P.’s relationshipwith her mother. C.R. objected to her daughter having a sexual relationship with C.J.J.

J.P. was angry with her mother for disclosing thisrelationship to the police thus initiating these proceedings. [44] When they analyze the gravity of the offence, sentencing judges must always take into account forms of potential harm that haveyet to materialize at the time of sentencing but are a reasonably foreseeable consequence of the offence and may in fact materialize laterin childhood or in adulthood. Were J.P. much younger, the emotional and psychological impact would be evident.

In this case, I assumethere was some emotional and psychological harm to J.P. as a result of her relationship with C.J.J. and its termination, albeit notcomparable to cases such as Friesen involving a breach of trust against a much younger child. [45] The sixth Friesen factor is the victim’s participation. As J.P. was five years and two months younger than C.J.J., she could notlegally consent to their sexual activity. Accordingly, her participation in that activity is not a mitigating factor, nor even a legally relevantconsideration at sentencing.

As indicated previously, despite his pro-social lifestyle and strong work ethic, C.J.J. presents as muchyounger than his biological age. Nevertheless, he was the adult and therefore responsible to refrain from engaging in sexual activity withJ.P., notwithstanding her willing participation. Neutral Circumstances [46] In this case, J.P.’s willing participation in the sexual activity is a neutral factor, as is the fact that if she had been two monthsolder, J.P. could have legally consented to the sexual activity.

In Friesen, at para. 150, the Supreme Court cautioned: [150] Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevantto determining a fit sentence (see Scofield, at para. 39; Caron Barrette, at para. 56). This is an error of law: this factor is not a legallyrelevant consideration at sentencing. The participation of a victim may coincide with the absence of certain aggravating factors, such asadditional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor. [47] In R. v.

Hajar, 2016 ABCA 222 , the Alberta Court of Appeal’s opening remarks are apposite: [1] This case raises fundamental questions arising from Parliament’s decision to raise the age of consent in Canada from 14 to 16 yearsof age. Who has the right to determine the age at which a child is capable of consenting to sexual activity with an adult: Parliament or thecourts? The answer: Parliament. Does what is sometimes called a child’s de facto consent to sexual activity constitute a mitigating factorin sentencing for sexual interference under s 151 of the Criminal Code? The answer is no, it does not.

Do the courts have the right todecide that, even though Parliament has determined that sexual interference is inherently harmful to both children and society, that harmcan be rebutted in an individual case? Again, the answer is no, the courts do not have this power. Finally, does Parliament’s decision toallow a close-in-age exception for the crime of sexual interference mitigate the gravity of the offence or the degree of responsibility of anoffender not within the exception? In our view, it does not. [48] In R. v.

Lafferty 2020 NWTSC 4 , Justice Charbonneau cautioned sentencing judges against trivializing sexual assaultinvolving the ostensible consent by a victim, although close-in-age to the offender, does not have the legal capacity to consent to sexualactivity: Justice Charbonneau states at para. 13: [13] "Ostensible consent", as I pointed out when I sentenced Mr. Lafferty, is generally not a mitigating factor on sentencing. Lafferty, pp.12-13 and 16-23. See also R v Hajar, 2016 ABCA 222. As for attributing a mitigating effect to closeness in age, I find it problematic aswell.

The line has to be drawn somewhere as to when a person has the legal capacity to consent to sexual activity. Outside the close-in-age exceptions specifically set out in the Criminal Code, placing significant mitigating weight on the age difference between the parties,or on how close the situation was from being captured by those exceptions, could considerably dilute Parliament's decision as to wherethe line should be drawn in the first place.

[49] I also consider neutral the fact C.J.J. was found guilty after a trial not as a result of a plea. As a general rule, a guilty plea ismitigating but never aggravating. A guilty plea can bring finality to the criminal proceeding, spare judicial resources, and reduce thetrauma and inconvenience to the witnesses. It is particularly mitigating in sexual offences where the victim is still a child. A guilty pleais an indicia of remorse.

It is often a sign the offender has “come to realize the gravity of the conduct, and as a result has achieved achange in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending”: Friesen, para. 165. [50] C.J.J. did not plead guilty to any of the offences. He has a constitutional right to make full answer and defence and to require theCrown to prove its case beyond a reasonable doubt. To consider a “not guilty plea” as aggravating would in effect punish those whochoose to rely on their constitutional right to a trial: R. v. Courson, 2013 BCSC 2163.

Moreover, to punish an accused for exercising hisconstitutional rights risks fostering false confessions. Still, C.J.J. cannot benefit from the leniency which attaches to a guilty plea as ademonstration of remorse, as reflected in the sentencing authorities. Collateral Consequences [51] A collateral consequence of incarceration is the COVID-19 pandemic which has resulted in significant mobility restrictions topersons detained in correctional facilities. In R. v. Stevens, 2020 BCPC 104 , Judge Malfair canvassed the law on collateralconsequences, exceptional circumstances and detention in the time of COVID-19.

These authorities included: Voong, Pham, Suter, R.v. Morgan, 2020 ONCA 279 ; R. v. Lemmen, 2020 BCPC 67, R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ; R. v.Day, 2020 NLPC 1319A00658; R. v. T K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020 ONSC 1611 R.v. McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No.1982 (ONCJ); R. v. Myles, 2020 BCCA 105. Judge Malfair states at para. 44: [44] It was submitted that one of the rationales for the joint submission of time served was to remove Mr.

Stevens from jail in light of theCovid-19 pandemic, which is present in some correctional institutions. In support of this position the Crown adduced a letter to officialsin the criminal justice system from the Assistant Deputy Minister of Public Safety and Solicitor General. The letter explains that inmatesare likely more vulnerable than the general population of contracting or transmitting Covid-19 due to the confined conditions of jail.

B.C.Corrections is taking a number of steps to mitigate this risk through the imposition of a number of protocols, but seeks cooperation fromother participants in the criminal justice system to reduce the prison population by considering alternatives to incarceration forindividuals who are not a public safety risk. [52] Judge Malfair found Mr. Stevens was an individual who did pose a public safety risk. In that case, Mr. Stevens was already incustody and the issue before the Court was whether he ought to be released with a time-served sentence due to the pandemic.

JudgeMalfair held (at para. 66) the collateral impact of COVID-19 on an offender sentenced to a further period of custody “is not of sufficientforce to warrant a significant reduction of custody to maintain proportionality.” Judge Malfair concluded the fundamental principle ofproportionality prevails and the indirect consequences of COVID-19 cannot be used to reduce a sentence to the point where it is nolonger proportional to the seriousness of the offence or to the moral culpability of the offender. [53] In R. v.

Lariviere, 2020 ONCA 324, the offender appealed his sentence arguing that the impact of COVID -19 justified reducinghis sentence. The appeal was dismissed and in dealing with the issue, the Court took judicial notice of the pandemic; however, theylimited it to the pandemic generally and not specifically to a prison population. The Court then went on to observe that there was nothingunique to the offender's situation that justified reducing an otherwise fit sentence.

At para. 17, the court stated: However, there is nothing about the particular circumstances of the appellant's incarceration, nor any indication of a unique or personalvulnerability, that would justify shortening the fit sentence that was imposed. [54] In this case, the evidence does not establish anything unique to C.J.J.’s particular circumstances of incarceration, or personalvulnerability, that would justify reducing an otherwise fit sentence. C.J.J. is not in-custody.

What is unique, however is the impact of theCOVID-19 pandemic on the community and the provincial correctional centres’ ability to safely manage inmates. I understand thatprovincial correctional facilities are straining to maintain proper cohorting and COVID mitigating induction processes, which includeisolation protocols. [55] In Stevens, Judge Malfair references R. v. Parasmothy, 2020 ONSC 2314, wherein the Ontario Superior Court commented that.“there has been a move towards decreasing the inmate population as a result of the pandemic by release on bail and creative sentenceswhich avoid incarceration.

However, those measures should not be confused as meaning the default position will be for all people toremain out of custody where custody is necessary and warranted (para. 140). Parity [56]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparitybetween sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but alsoprobation and ancillary orders. [57] In Friesen, the Supreme Court held at, that parity is an expression of proportionality. The Court states at para. 33: [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [58] In order to impose a proportionate sentence, the Court must reconcile both individualization and parity of sentences.

Assessingparity requires me to determine the appropriate sentencing range for the offence for which C.J.J. is convicted. Sentencing ranges areguidelines and not hard and fast rules. I am mindful, however, that in Friesen, the Supreme Court of Canada indicated that two of itsthree objectives in that case was to (

a) to explain the role of starting points and sentencing ranges in sentencing, and (

b) to “send a strong

message” that sexual offences against children are serious violent crimes, and that sentences for these crimes must increase to “accuratelyreflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families,and society at large”. [59] C.J.J. was not charged with sexual interference. In my view the authorities for sentencing offenders convicted of sexualinterference under s. 151 of the Criminal Code can be relevant and helpful.

Recently, the Supreme Court held the principles it outlined inFriesen for sexual interference had relevance to “closely related offences” such as sexual assault (s. 271 of the Criminal Code). I note themaximum penalty for a s. 151 offence, when prosecuted by indictment is the same as a s. 271 offence, namely 14 years imprisonment. [60] In R. v. Williams, 2019 BCCA 295 , the offender was convicted of sexual assault and sexual interference. The sexualassault charge was judicial stayed pursuant to the rule against multiple convictions as interpreted in R. v.

Kienapple, .The BC Court of Appeal held (at para. 71) that in this province, sentences for sexual interference will generally fall within a range of 1 to3 years’ imprisonment. In confirming this range, the Court referenced ss. 718.2 and 718.01 of the Criminal Code, and enduring andsignificant emotional, psychological, and often physical harm to the victim. Justice D. Smith, for the appellate court, held at para. 71: [71] In sum, sentences for sexual interference in this jurisdiction generally fall within a range of one and three years’ imprisonment.

Inrare circumstances, they might attract a conditional sentence order (e.g., Scofield) or a sentence above three years (e.g., Yanulik). Themore invasive the sexual activity and the more significant the aggravating factors, the higher the sentence. However, a proportionatesentence must also give weight to attenuating personal circumstances and mitigating factors that may reduce the offender’s moralblameworthiness. [61] In Williams, Justice Smith, references Justice Marchand’s decision in R. v. Angel, 2018 BCSC 1751, wherein he reviewed therange of sentence for sexual interference and stated: [61] I agree with Mr.

Angel that it is difficult to define the range of sentence appropriate in cases of sexual interference because thecircumstances vary so widely and because of the introduction of, increases to and setting aside of mandatory minimum sentences.However, after reviewing the cases provided, barring exceptional circumstances, the low end of the range of sentences for an offenderwith no record having intercourse with a child on one occasion, where there is no grooming and where the offender did not know thecomplainant was below the age of consent but failed to take reasonable steps, is, in my view, somewhat below the 15-month sentenceimposed in P.D.W. and Lithgow, and below the 20-month sentence in Lowney.

Based on Leger and Aimee, in my view, the high end ofthe range is three years’ imprisonment. [62] On May 7, 2020, the Supreme Court of Canada in Her Majesty the Queen v. Kyler Ryan David Williams, (SCC), was remanded to the BC Court of Appeal for disposition in accordance with R. v. Friesen, 2020 SCC 9. [63] In R. v. G.M., 2015 BCCA 165, the BC Court of Appeal held that the range of sentence for sexual assault involving intercourse istwo to six years' imprisonment.

Exceptional Circumstances [64] In considering a fit sentence for C.J.J., I have to consider the case attracts the application of the principle of “exceptionalcircumstances”. In R. v. Voong, 2015 BCCA 285, Madam Justice Bennett defined exceptional circumstances as follows: [59] . . .

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable stepstowards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result ofthe offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day,there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that wouldlead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. [65] Recently, in R. v. L.S.N., 2020 BCCA 109 , the BC Court of Appeal, allowed the Crown appeal from a suspendedsentence imposed on an Indigenous offender for sexual interference of his 11 year old step-daughter.

In substituting a prison sentence oftwo years less one day, the appellate court held (at para. 54), that exceptional circumstances do not justify a departure from theproportionality principle: [54] Exceptional circumstances do not, however, oust the proportionality principle. They simply permit the taking into account ofcase-specific considerations that could conceivably justify departure from a conventional sentencing range in order to craft aproportionate sentence. As this Court noted in R. v.

Padda, 2019 BCCA 351 at para. 36, characterizing an offender’s circumstances asexceptional “is simply a shorthand means of identifying the kind of personal circumstances which justify going outside a conventionalrange in order to craft an appropriate individualised proportionate sentence.” [66] I do not consider the fact the Crown has proceeded by indictment in this case justifies an increase in what would be a fit sentencehad it proceeded summarily. In R. v.

Solowan, 2008 SCC 62 , the Supreme Court of Canada held this was not the correctapproach: [15] A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crownelected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaleddown" from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum hadhe or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from the sentence that theaccused might well have received if prosecuted by

summary conviction. [67] I have considered a number of decisions which pre-date the Supreme Court of Canada’s decision in Friesen, which include R. v.Peterson 2012 NBCA 67, R. v. Alfred, 2019 BCSC 1452 , and R. v. L.J.H., 2018 BCPC 413 .

[68] In R. v. Peterson 2012 NBCA 67, the 22 year old offender pleaded guilty to sexual assault of a 14-year-old co-worker who toldhim she was 18. The sentencing judge granted Mr. Peterson a conditional discharge on the basis the sex acts were consensual and theaccused had committed a “crime in law but not in fact.” The Brunswick Court of Appeal allowed the Crown appeal substituting a threemonth custodial sentence for the conditional discharge but stayed the execution of sentence given the passage of time and absence ofpublic interest in incarcerating the offender.

The majority found the sentencing judge erred in a number of ways, including failing to giveprimary consideration to the principles of denunciation and deterrence as required by s. 718.01: [17] The sentencing judge dealt with specific deterrence, that is, imposing a sentence which would deter Mr. Peterson from committingthis same offence again, succinctly but not unreasonably. He was convinced Mr. Peterson accepted his mistake, had learned from it, wasnot a danger to reoffend, and did not require any further deterrence.

The problem lies not with specific deterrence, but with generaldeterrence and denunciation. [69] The majority also found the trial judge made a clear error in determining Mr. Peterson was guilty of a criminal in law, but not infact. Justice Green for the majority commented (at para. 23) there was no such legal construction. He states: [23] . . . It is the law, when applied to the facts of a given case, which determines guilt. One cannot be guilty in law, but not guilty infact.

The use of such terminology only serves to confuse the general public, and suggests that perhaps certain acts are not really worthy ofguilt, but are rendered so by the application of an overly rigid or unreasonable law. If one is guilty in law, one is by definition guilty infact. As well, such phraseology may serve to undermine the seriousness of the offence. [70] In R. v. Alfred, 2019 BCSC 1452 , the offender was charged indictably with sexual assault and sexual interference. Hewas convicted after trial of both offences.

Justice Williams found that on two or three occasions between August 1, 2017, and December31, 2017, Mr. Alfred had sexual intercourse with the 13 year old victim. Mr. Alfred was an indigenous first time offender withsignificant Gladue factors, which involved a dysfunctional family unit, foster care, physical, sexual and substance abuse, and socialisolation. On the other hand, Mr. Alfred had long term employment and lived a relatively prosocial lifestyle. Justice Williams foundaggravating the fact that (

a) Mr. Alfred was 13 years older than the victim and he knew her age; (

b) the offence included multiple acts ofsexual intercourse; and (

c) as statutorily prescribed under 718.2(ii.1), the victim was under the age of 16 at the time of the offences. [71] In Alfred, the Crown sought an incarcerative sentence in the range of three to four years for the offence of sexual interferenceand various ancillary orders. Mr. Alfred sought a non-incarcerative sentence and did not oppose the ancillary orders.

At para. 24, JusticeWilliams explains why he rejected the defence’s submissions for a non-custodial sentence: [24] Despite defence counsel's sincere and passionate submissions, it is clear beyond dispute that the offence at bar is serious,particularly in that it entails sexual offending of a serious nature, that is sexual intercourse, by an adult then 26 against a person 13 yearsold. That is a child. At the time he knew her age. The law denies a defence of consent in those circumstances for real and valid reasons.

Itis intended to protect children from serious conduct at the hands of adults in light of those children's state of immaturity and vulnerability.The submission advanced on behalf of Mr.

Alfred, an insistence to the effect that this conduct is benign, and that society will come to seethe errors of its way in criminalizing such conduct is, in my respectful view, wrong and misguided. [72] Justice Williams imposed a sentence which included nine months’ incarceration followed by two years’ probation, a 20-yearSOIRA order (s. 490.013(2)(b)), a mandatory DNA order (s. 487.051), a five-year s. 161(1) order, a 10 year mandatory firearmsprohibition (s. 109(1)(a)), and a non-communication order with the victim (s. 743.21).

I note that Alfred predates the Supreme Court ofCanada’s release of its decision in Friesen. [73] I have also considered R. v. L.J.H., 2018 BCPC 413 , a decision of PCJ Jahani. At the time of the offence, the offenderwas 23 and the victim 14. He had no criminal record, although subsequent to his arrest for sexual interference, L.J.H. was charged withmultiple breaches of his bail condition prohibiting contact with the victim. L.J.H. was not in a position of trust vis-à-vis the complainant.In the past, he had more age-appropriate intimate partners.

The Court had no evidence of manipulation or coercion, threats of violence orother forms of extortion or psychological manipulations, or that the sexual acts involved violence. Judge Jahani accepted that L.J.H. wasemotionally immature and suffered from the effects of ADHD, and possibly depression and anxiety, which impacted his decision-makingabilities and coping mechanism. In the absence of detailed medical reports or cognitive assessments, the Court could not apprehend theextent of L.J.H.’s cognitive impairment or his emotional and intellectual age level.

Consequently, Judge Jahani could not find L.J.H.’simmaturity and lack of insight and understanding warranted a sentence below the range, such as was done in Scofield. Judge Jahaniimposed an 11 month time served sentence for both the substantive charge of sexual interference and the breaches of bail. Conditional sentence [74] A conditional sentence order is not available for the offence of sexual assault (s. 271) prosecuted by way of indictment byoperation of s. 741.1(

c) which precludes a CSO for offences attracting a maximum sentence of 14 years and by s. 741.1(f)(iii)specifically excluding a s. 271 offence. [75] Recently, the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478 struck down the constitutionality of that

section of theCriminal Code (s. 742.1(c)) which restricts the availability of a conditional sentence for offences prosecuted by way of indictment, forwhich the maximum term of imprisonment is 14 years or life, and s. 742.1(e)(ii) of the Code, which restricts the availability of a CSO foroffences prosecuted by way of indictment that involved the import, export, trafficking or production of drugs, with a maximum term ofimprisonment for 10 years. [76] In Sharma, the 20-year-old Indigenous offender pled guilty to importing cocaine contrary to s. 6(1) of the Controlled Drugs andSubstances Act, S.C. 1996.

She had no prior criminal record and committed the offence in order to pay her rent and avoid homelessnessfor herself and her young daughter. The sentencing judge characterized Ms. Sharma as “an intergenerational survivor of thegovernment’s residential school effort to eradicate the cultural heritage of her people.” Nevertheless, the judge rejected Ms. Sharma’sapplication for a CSO and her constitutional challenge to s. 742.1(

c) which statutorily restricted its availability in that case. Ms. Sharmareceived a custodial sentence of 17 months.

[77] On appeal, Ms. Sharma, argued that ss. 742.1(

c) and 742.1(e)(ii) infringe s. 7 of the Charter because they are overbroad andarbitrary and s. 15 because of their discriminatory effect on Indigenous offenders on the basis of race. The Court of Appeal overturnedthe custodial sentence, agreeing that ss. 742.1(

c) and 742.1(e)(ii) of the Code infringe s. 7 and 15 of the Charter and could not be savedby s. 1. The appropriate sentence would have been a CSO of 24 months less a day. The appellate court reasoned: First, that Parliament enacted s. 742.1 to address the over-incarceration of Indigenous offenders (para. 33). In Gladue, the Supreme Courtof Canada held that s. 742.1 is connected to s. 718.2(

e) of the Criminal Code; and Second, the impugned provisions may not “create” a distinction, but perpetuate the over-incarceration of Indigenous offenders – whichwas intended to be alleviated by the remedial conditional sentence option; and Third, Indigenous offenders “face a unique legacy of dislocation cause by government policies of cultural genocide through colonialexpansion and residential schools” (at para. 86). [78] Although they did not find the impugned provisions arbitrary, the majority did find them overbroad because they deny CSOs foroffenders convicted of an offence with a high maximum penalty even when the appropriate sentence is less than two years in prison.Feldman J.A., for the majority, found the impugned provisions were not saved by s. 1 of the Charter.

She states at para. 179: [179] There is also no basis to find that the deleterious effects of the impugned provisions on Aboriginal people are outweighed by thesalutary effect of the provisions. The deleterious effects are serious. These provisions as enacted take no account of the specialcircumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the over-incarcerationof Aboriginal people. The breach of s. 15 is not saved by s. 1. [79] In the result, the majority declared that ss. 742.1(

c) and 742.1(e)(ii) of the Criminal Code unjustifiably infringe ss. 7 and 15 ofthe Charter and are, therefore, of no force or effect. [80] The Crown rightly submits the impugned provisions have not been struck in British Columbia and remain valid and in force. Assuch, a Notice of Constitutional Question is required in order to address the constitutionality of those provisions: Guindon v. Canada,2015 SCC 41, paras. 15-19. I understand that no such notice was filed or served on the Attorneys General of British Columbia andCanada.

Hence, this Court has no jurisdiction to consider the constitutionality of the provisions prohibiting a conditional sentence orderin the case before me. [81] I also note that s. 741.1(f)(iii) was not before the appellate court in Sharma. I further note the Ontario Court of Appeal’s decisionin Sharma is now under appeal to the Supreme Court of Canada. Defence counsel has advised this Court, however, there are twoconstitutional challenges to the prohibition against conditional sentences before the Provincial Court at this time, although no decisionshave been rendered.

Conclusion on sentence [82] The Crown seeks a sentence which includes incarceration and the defence advocates for a non-custodial sentence. Given theparamountcy of denunciation and deterrence mandated by s. 718.01 of the Criminal Code, I accept a jail sentence is ordinarily mandated.In my view a suspended sentence, absent exceptional circumstances, is not an option for the reasons set out in Peterson.

Although it canprovide significant denunciation and deterrence when onerous conditions are imposed, a conditional sentence, absent a constitutionalchallenge, is not available in this case. [83] C.J.J.’s incarcerated is unnecessary for the protection or safety of the public. He has no criminal record, he is pro-social andposes no risk of reoffending. At the time of this sentencing, this Province has been in state of emergency for seven months as a result ofthe COVID-19 pandemic. I understand that the provincial correctional facilities are struggling to safely manage inmates as the pandemicpersist.

In these circumstances, I query whether adding C.J.J. to the prison population during a pandemic may actually increase the riskto the public by further straining the correctional facilities’ ability to maintain proper COVID mitigating processes to ensure the inmatessafety. [84] The question I must answer is whether the impact of the ongoing pandemic constitute an exceptional circumstance? In Voong,Justice Bennett set out a non-exhaustive list of factors personal of the offender which might constitute “exceptional circumstances”; shedid not address the societal effects of a pandemic on sentencing regime.

Justice Bennett further stated (at para. 39) that “a suspendedsentence has been found to have a deterrent effect in some cases”. Having said that, I recognize Voong was involved drug traffickingoffences which do not have denunciation and deterrence as statutorily-mandated primary considerations: see R. v. Plehanov, 2020 BCCA249 , para. 16. [85] I am not convinced the Court should simply turn a blind eye on the impact of COVID-19 on the community and correctionalsystem, when considering whether to impose a custodial sentence given C.J.J. is not now nor has he ever been in custody.

It is not justthe length of time C.J.J. would remain in custody which is relevant, it is also the fact he would present a new intake into the prisonpopulation and contribute to the stresses on the induction process that requires physically separating him to allow for a 14-day isolationperiod.

For a relatively brief period of incarceration, C.J.J. would have to be churned out of [omitted for publication] and into thecorrectional facility, isolated, and a few months later, churned out the correctional facility and back into [omitted for publication]. [86] As the courts have often said in the past seven months, these are “unprecedented times”, “exceptional times”, “challengingtimes”, “difficult times”, “unusual times” and “uncertain times.” In R. v.

LeClair, 2020 ONCJ 260, in which Justice Kwolek stated inpara. 102, that Covid-19 is a factor that the court ought to consider in sentencing: The court recognizes and acknowledges the additional risk that those individuals incarcerated in our institutions face as a result of Covid-19. That risk is not only a risk to themselves but also to the community at large as a possible site of infection, incubation andtransmission and release of the virus into the community and society at large. There is a benefit to society, therefore in reducing thepopulation of our jails.

That benefit must be balanced against the court’s consideration as to the interests of the administration of justice

as a whole and the need to tailor an appropriate sentence for the offender. [ 87 ] In my view, because of the impact of COVID-19 on this Province’s ability to manage the ingress and egress of inmates to and from correctional facilities, the public would be better served by keeping C.J.J. confined in the remote northern community in which he now lives. I am satisfied a non-custodial sentence in the circumstances of this offence and for this offender is still a fit sentence. If a conditional sentence had been available at law, I likely would have imposed one.

As it is not, I am going to impose a suspended sentence which will also give effect to the principles of denunciation and deterrence through punitive sanctions. Disposition [ 88 ] C.J.J., on Count 1 of Information [omitted for publication] charging you with sexually assaulting J.P. between December 1, 2017 and February 28, 2018, at or near [omitted for publication], BC, I am suspending the passing of sentence and placing you on probation for 24 months. Probation order [ 89 ] You will be subject to a probation order for 24 months and you must comply with the following conditions: a.

You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. d. You must report by telephone to a probation officer at [omitted for publication] Community Corrections, at [omitted for publication] , BC [omitted for publication] , at telephone number [omitted for publication] by 3:00 PM today.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report. After that, you must report as directed by your officer. e. You must have no contact or communication, directly or indirectly, with J.P. without further order of this Court. f. You must not go to any place where J.P. lives, works, attends school, worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures. g.

When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without providing written notice to your probation officer. h. For the first six months of this Probation Order; i. You must obey house arrest by being inside your residence 24 every day. ii. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends or calls to check on you during the house arrest; iii.

You may be away from your residence during the house arrest with the written permission of your probation officer. Such permission is to be given only for employment or other compelling reasons. You must carry the permission, which can be in electronic format, with you when you are outside your residence. i. You may also be away from your residence during the house arrest hours: i. while at, or going directly to, or returning directly from a healthcare facility because of a medical emergency.

If asked, you must provide your probation officer with proof of your attendance at the facility. ii. while at, or going directly to, or returning directly from your place of employment. If asked, you must provide your probation officer with proof of your employment. j. You must not have any contact, communication directly or indirectly, or be in the presence of any person under the age of 16. The exceptions are as follows: i. With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons.

You must carry the permission, which can be in electronic format, with you at all times ii. They are your children. iii. In the immediate presence of the child’s guardian. k. For the first six months of this Probation Order you must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription. l. You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to: sexual offence prevention. m. You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including:

i. firearms and ammunition; ii. cross-bows, prohibited or restricted weapons or devices, or explosive substances; iii. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; iv. any imitation of all the above, including any compressed air guns or BB/pellet guns; or v. any related authorizations, licences and registration certificates, and you must not apply for any of these. Ancillary Orders [ 90 ] Sexual assault is a primary designated offence. Pursuant to

section 487.051(1) of the Criminal Code , I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank. You must attend at the RCMP police station in [omitted for publication], BC, during regular business hours, on or before November 30, 2020, and submit to the taking of the samples.

This order is valid until executed. [ 91 ] Pursuant to s. 490.012 of the Criminal Code , you to comply with the requirements of the Sexual Offender Information Registration Act for 20 years. [ 92 ] Pursuant to 109 of the Criminal Code you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for life. Victim fine surcharge. [ 93 ] As the offence occurred before July 22, 2019, there is no Victim Fine Surcharge under s. 737 of the Code . ______________________________ The Honourable Judge J.T.

Doulis Provincial Court of British Columbia