R. v. B.A.B. Date:, 2016 BCPC 451

Citation: R. v. B.A.B. Date: 20161221 2016 BCPC 451 File No: 84082-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.A.B. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GARDNER BAN ON PUBLICATION s. 486.4(2) CCC

Counsel for the Crown: E. Sabourin Counsel for the Accused: G. Gill, Q.C. Place of Hearing: Abbotsford , B.C. Date of Hearing: December 21, 2016 Date of Judgment: December 21, 2016 [ 1 ] THE COURT: B.A.B. has pled guilty to Counts 1 and 6 on the Indictment. Count 1 involves touching for a sexual purpose of his step-granddaughter, who is under the age of 16, and these events occurred over a period of several years.

He has also pled guilty to sexual assault encompassing a pattern of criminal behaviour between 1990 and 1993. [ 2 ] Crown counsel has laid out these offences in detail and I need not repeat that narrative. [ 3 ] Defence counsel has asked the court to consider numerous factors prior to imposing a custodial sentence, recognizing that the minimum sentence is one year incarceration. B.A.B. is now 64 years of age, he has no criminal record and it is submitted he has lost everything, including his family. He has pled guilty to these charges, which has been his intention from the outset.

He never wanted to see the victims have to come before the court and relive the tragic circumstances in detail. [ 4 ] After being formally charged, he was admitted to the psychiatric ward at the Abbotsford Hospital for a period of 28 days. He is now taking eight separate medications, including antidepressants. He has moved away from the community and knows now that he has destroyed his family; he acknowledges that they hate him. He is now separated from his wife of almost 40 years and has become completely alienated from his children.

He has attended group therapy and has openly admitted his wrongdoing. [ 5 ] The psychiatrist, Dr. Kulwant Riar, has prepared a report for sentencing purposes. He had a difficult upbringing. His father committed suicide when he was only 28 years old, as did one of his brothers.

At page 7 of the report, it states: He believes that he destroyed the lives of the victims and is at a loss for explaining himself as to why he could not control it. [ 6 ] He has apologized to them in open court this morning. [ 7 ] In his sessions with the psychiatrist, he did not deflect blame on the victims and was quite candid about his grooming of the victims, especially his step-granddaughter. [ 8 ] The Crown is seeking a custodial sentence of two-and-a-half years. [ 9 ] Crown counsel points to a number of aggravating factors.

First of all, the fact that there were two victims over a period of more than two decades, the prolonged period of sexual behaviour towards each victim, there were multiple incidents of sexual touching over a period of years in the case of both victims; furthermore, that the accused abused a position of trust towards both victims, which is a specifically listed aggravating factor under the Criminal Code .

The accused abused two people who at the time of the offences were under 18, which is also a specifically aggravated factor. [ 10 ] The Crown has also submitted the court should consider the serious emotional and psychological harm not only to the two victims but to the extended family. [ 11 ] The Crown has referred the court to a number of cases, including Her Majesty the Queen v. A.H. , a decision of the Ontario Superior Court of Justice dated November 5th, 2013. In that case, the accused had no prior criminal record.

The offences were offences of sexual interference against his two youngest female grandchildren. The aggravating factor in that case was the fact that the accused did not accept responsibilities for his actions, as he pled not guilty, and was found guilty to the court and he had no insight into the damage he had done.

The other aggravating factor that the justice spoke of is that the accused's conduct was a gross breach of trust that continued over a number of years. [ 12 ] In that case, the court considered the principles of sentencing, as set out in s. 718 of the Code, and I quote: [27] I must consider the purposes and principles of sentencing enunciated in s. 718 of the Criminal Code . I must consider the objectives of sentencing, namely denunciation, deterrence, separation from society, rehabilitation, reparation, and promotion of responsibility and acknowledgement of harm.

I must consider the fundamental principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] The court goes on to say at paragraph 29: Case law suggests that the main principles in this case must be denunciation, deterrence, and separation of the offender from society... [ 14 ] She quotes from the decision of the Ontario Court of Appeal in R. v.

D.D. : To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. The Court of Appeal has "repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum"...

She quotes from R. v. W.C.C., [2009] O.J. No. 4705 (S.C.) [15] I have also been referred to a decision of His Honour Judge Harris of the Vancouver Provincial Court in R. v. I.A.F.M.,judgment dated April 4th, 2016. In that case, the accused was convicted of sexual assault and touching a person under the age of 14 for asexual purpose. The accused was 70 years old and did not have a criminal record. In his decision, His Honour Judge Harris said atparagraph 30: [30] The purposes and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code.

In this regard, the fundamentalpurpose of sentencing is the imposition of a just sanction that contributes to respect for the law and the maintenance of a just, peacefuland safe society. [31] The fundamental purpose of sentence is achieved by the imposition of a sentence that has specific objectives; such as denunciation,deterrence, rehabilitation, reparations and a promotion of a sense of responsibility.

For those cases involving the abuse of children, s.718.01 declares that the primary sentencing objectives must be denunciation and deterrence. [16] At paragraph 32, he states: In addition to the above, s. 718.1 of the Code, also requires that the sentence imposed must be proportional to the seriousness of theoffence and the degree of offender responsibility. [17] In that case, he pointed to the aggravating circumstances that were before him, and I quote: [35] I find the following to be aggravating. The offender took advantage of B.G.'s vulnerabilities.

Specifically, he took advantage ofB.G.'s age and her emotional state. He also took advantage of the trust that B.G. had in him and the trust that the Ministry had when theyplaced B.G. in his care. A further aggravating factor is the acts committed were repeated and involved various types of sexual violations. [18] He then quoted from a decision of Mr. Justice Romilly who had relied on a Supreme Court of Canada decision in R. v. Stone, (SCC), [1999] 134 CCC (3d) 353, where the Supreme Court of Canada stated: [239] It is incumbent on the judiciary to bring the law into harmony with prevailing social values.

This is also true with regard tosentencing. To this end, in M.(C.A.), supra, Lamer C.J. stated, at para. 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. ... Our criminal law isalso a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. Inshort, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [19] His Honour Judge Harris also quoted from the Alberta Court of Appeal decision in R. v.

S. (W.B.), (AB CA),where the court was commenting on a case with similar facts, that being the sexual assault of a young child, and I quote: When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in seriouspsychological harm to the victim. When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it isreasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or brokenbones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship withanother adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or herrather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim'semotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse.

We haveonly the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationshipsto their having been abused sexually when they were children. [20] I have had the benefit of both the victims in this case addressing the court. In her victim impact statement, the step-granddaughter talks about the suffering that she has endured and asks, "Why didn't I tell anyone?

I can't answer that entirely but themain reason being that I was scared no one would believe me and just say, 'Oh, no, he didn't,' or, 'He just wants what's best for you.'" She has suffered severe emotional trauma as a result of these crimes and she has stated that she has already tried to end her life on threeseparate occasions. She says in her victim impact statement, "He robbed me of a normal life. Nobody will ever understand my hatredfor him. He took away my childhood.

He took away my body." [21] I have also had the benefit of the victim impact statement being read by his daughter and she has stated in a very articulate waywhat she has suffered, and I quote: Now, 20-plus years later, I can clearly see the damage you have done and the damage that will continue to stay with us in my life andespecially in J's life. I have the advantage of hindsight. She is living it every day. She still has the difficult periods of her life to getthrough and you have singlehandedly made her life a living hell.

We wondered why she started cutting when she was younger, why shestarted smoking pot with her friends at school. You sat back and watched it all happen and continued to abuse her anyway. What youdid is unforgiveable. [22] I have considered the facts of this case, the submissions of counsel, the case law that has been cited, the sentencing provisionsof the Criminal Code, the personal circumstances of B.A.B., the aggravating and mitigating factors and have concluded that a fit and

proper sentence in Count 1 is two years and six months. There will be a similar period imposed on Count 6 to run concurrently. [ 23 ] Also, at this point, I need to speak to the matter of restitution. Clearly, both victims are entitled to be compensated for their injuries but in the limited time we have today and without the benefit of a fulsome inquiry, I am simply unable to arrive at a monetary figure that would be fair in the circumstances.

This, of course, does not extinguish what other remedy they may choose, as there are other forums that would allow them to pursue their need for compensation. [ 24 ] In addition, I am going to order that he provide a DNA sample for inclusion in the National DNA Databank. [ 25 ] You shall not possess any firearms, ammunition or explosive substance for a period of ten years following your release, pursuant to s. 109. [ 26 ] I am also signing the SOIRA order which will be for a lifetime. [ 27 ] Pursuant to s. 743.21, you will not communicate or attempt to communicate with J.S. or S.B. [ 28 ] You were seeking an order of prohibition pursuant to s. 161 which is? [ 29 ] MS.

SABOURIN: Which is the pools/parks clause. [ 30 ] THE COURT: Yes. I neglected to look at that prior to coming in. [ 31 ] MS. SABOURIN: I think the language is set out in the section. I'm sorry, Your Honour. [ 32 ] THE COURT:

Section 151? [ 33 ] MS. SABOURIN: Yes. [ 34 ] THE COURT: Is that mandatory? [ 35 ] MS. SABOURIN: It is not mandatory. However -- [ 36 ] THE COURT: The problem I have, and I am not trying to diminish his conduct in any way, but this happened within the confines of the family unit and all seemed to occur within a residence or near to it. [ 37 ] MS. SABOURIN: Yes. [ 38 ] THE COURT: Go ahead. [ 39 ] MS. SABOURIN: No, I'm sorry, Your Honour, it is not mandatory but the court must consider whether -- the court shall consider making this order so it needs to be addressed in some form, of course. [ 40 ] THE COURT: Yes.

Well, as I said, this all occurred within the family dynamics and given his age, given the period of incarceration he is about to serve, given that this is, to my knowledge, his only criminal offence and there is no suggestion this has happened to other people other than members of his immediate family, I do not find it necessary in these circumstances to make an order under s. 161 and I decline to do so. [ 41 ] The victim fine surcharge is payable forthwith, in default one day, to be served concurrently. [ 42 ] There is already an order under s. 486.4 restricting publication of the victims' names. [ 43 ] Anything further from the Crown? [ 44 ] MS.

SABOURIN: The order for the release of the report, I know that hasn't been addressed, Your Honour, under s. 743.2, so releasing the reports to Correctional Services. [ 45 ] THE COURT: I will deal with that afterwards. I do not think I have to deal with it at the moment. [ 46 ] MS. SABOURIN: And I believe that covers the rest. [ 47 ] THE COURT: I am going to be ordering a transcript before I sign a report. [ 48 ] MS. SABOURIN: Okay, thank you. [ 49 ] THE COURT: All right. Thank you. (REASONS FOR SENTENCE CONCLUDED)