R. v. W.J.P. Date:, 2016 BCPC 19

Citation: R. v. W.J.P. Date: 20160114 2016 BCPC 0019 File No: 8413-1-A; 40884-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.J.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCES Counsel for the Crown: M.L. Ahrens

Counsel for the Defendant: G. Whidden Place of Hearing: Prince George , B.C. Date of Hearing: January 14, 2016 Date of Judgment: January 14, 2016 [ 1 ] THE COURT: Mr. P. has pleaded guilty to sexually assaulting S.P. [ 2 ] Now, for everyone's benefit I am going to let you know I am going to use initials with respect to the young complainant and her family members so that there is nothing that will identify her while I give these reasons. [ 3 ] MS. AHRENS: Thank you, Your Honour. [ 4 ] THE COURT: Mr. P. has pleaded guilty to sexually assaulting S.P., the 11-year-old granddaughter of his best friend.

He has also pleaded guilty to breaching the terms of his bail. It is my job to sentence him for these offences and this is my decision. Circumstances of the Offence [ 5 ] Mr. P. is a relative of G.P. G.P. has been his best friend since 1969. Mr. P. was the best man at the wedding of G.P. to B.P. many years ago. He was trusted as a member of the family of G.P. and B.P., and a regular face in the household. When his washing machine broke, B.P. told him to come and do his laundry at their house. [ 6 ] S.P. and her younger siblings lived with, and were raised by their grandparents, G.P. and B.P. Mr.

P. regularly asked S.P. and her siblings to come over to his house and do chores. Their grandparents permitted them to go because they trusted him with the children. To the children, he was Uncle W. [ 7 ] On September 16th, 2014, S.P. was taken to the hospital by her grandmother B.P., because she was vomiting and her stomach hurt. Her grandmother was concerned she had appendicitis. [ 8 ] It turned out that S.P. was 8.5 weeks pregnant. S.P. was admitted to hospital. S.P. was questioned.

S.P. revealed that she had been sexually abused for several months by Uncle W. when she was asked to do chores at his house and when he visited her family home. [ 9 ] S.P. told police that Uncle W. locked her inside the house when she and her brothers went there to do chores. Her brothers confirmed that when they went to do chores at Uncle W.'s house, he told them they had to work outside and that girls' work was inside. When the boys went to the door to try to use the bathroom, they found the door locked.

Despite the fact that Uncle W. paid the children for the chores, I note he paid the boys $5.00 or $6.00 but gave S.P. only $4.00. The boys confirmed that S.P. did not want to go to Uncle W.'s to do chores, but she did not say why not. [ 10 ] S.P. later explained that in fact she never did chores inside Uncle W.'s house, that he just said she did. When S.P. was locked inside, Mr. P. repeatedly sexually assaulted her. S.P. said that he did it in the bathroom and in his bedroom. He put his penis in her vagina and he made her touch his penis with her mouth and her hands. He tried to put his penis in her bum once.

She was too scared to cry. She said she was horrified. She did not tell her grandma because she thought it was her fault and she would get grounded. [ 11 ] On Mr. P.'s version of events, S.P. initiated sexual contact by putting his hand on her breast and saying, "I love you." He says that he then put his hand down her pants and his fingers in her vagina. At some point, he told her he was too old for her and she should find someone her own age.

He said he told her she could say no if she wanted it to stop. [ 12 ] I note S.P. denied that he ever told her she could tell him to stop or that he said any such thing. [ 13 ] That sort of touching went on for two months, he said, until one night he laid down on her brother's bunk bed, and took her and laid her down and had intercourse with her. He said she said nothing and he took that to mean it was okay. He also said that she gave him oral sex under the kitchen table as he sat having coffee with her grandfather. [ 14 ] S.P. was particularly vulnerable to Mr. P. because she has intellectual disabilities.

Although she was 12 years old when she was assessed right after the abuse came to light, her mental age was about 7.5 years old and her ability to express herself verbally was in the extremely low range, about that of a six-year-old.

She functions generally at about the level of a Grade 1 child. [ 15 ] I infer that her cognitive difficulties made it particularly difficult for her to disclose the sexual abuse and to express what was done to her. [ 16 ] She is also particularly vulnerable to sexual abuse by an adult because she was previously sexually abused by her father's brother, then age 32, when she was seven years old. Circumstances of the breach of Bail [ 17 ] Mr.

P. was released on conditions that he not attend at any place where children under 16 might reasonably be expected to be such as parks, playgrounds, community centres, et cetera. [ 18 ] On June 15th, 2015, two off-duty police officers were in the local mall in [omitted for publication], B.C. It is one of the few gathering places in [omitted for publication], B.C. and there were many unattended children there as usual.

[ 19 ] Both officers saw Mr. P. come into the mall. He was alone. He later claimed that he was supervised by two persons, F.D. and C.I. Both of those individuals are well known to the [omitted for publication] police and the officers testified that neither of those individuals were there. In any event, neither of them had been or would ever have been approved as supervisors for him. Victim Impact [ 20 ] I have had the benefit of a report prepared by Dr. Rocha, a registered psychologist, who conducted an in-depth assessment of S.P. [ 21 ] S.P. suffers from anxiety in the clinically significant range.

She is afraid almost all of the time, afraid of men, and afraid that someone will take her away or kill her. She startles easily and is often angry. She is afraid of the space under her bed and afraid of the dark. [ 22 ] Dr. Rocha says her post-traumatic stress disorder symptoms are pronounced and she will require counselling by an expert. [ 23 ] S.P.'s grandmother prepared a victim impact statement for S.P. She says that S.P. is so afraid of males that she is afraid to take the school bus unless there is a female care worker with her.

Recently, she ran away screaming "Rape" during a game of tag because a boy was chasing her. She says that S.P. will not go to the laundry room of their home where some of the sexual abuse occurred without someone with her. She says that S.P. has missed school because of the hospitalization and appointments to deal with the trauma of this event and her studies have suffered. She becomes very angry over small things and with her siblings over small things. She points out that S.P. had an abortion three days after her twelfth birthday and that her birthdays will be forever shadowed by that memory.

Impact on the Family [ 24 ] S.P.'s grandparents have suffered terrible anguish as a result of this offence. S.P.'s grandmother, B.P., was herself a victim of childhood sexual abuse and this offence against her granddaughter has again torn the scabs off those old wounds. She says that this is the third generation of girls in her family who have suffered childhood sexual abuse because S.P.'s mother was also the victim of childhood sexual abuse and as a result gave birth to S.P. at the age of 12. [ 25 ] S.P.'s grandparents also faced a crisis of conscience in deciding to permit the termination of S.P.'s pregnancy.

They are both religious people whose faith disapproves of abortion, yet they had to make that decision in order to reduce further harm to their granddaughter. [ 26 ] B.P. feels particularly betrayed by Mr. P. who was a trusted friend and support for B.P. and her husband, G.P., when they went through the anguish of dealing with the previous sexual assault on S.P. when she was seven. She felt that Mr. P. was closer to her than her own brother. Now, she cannot look at her wedding pictures without being reminded of his betrayal. She says he was a wolf in sheep's clothing.

She feels that she has crumbled inside because she thought she was protecting her family but is afraid that she does not know how. [ 27 ] Although she does not want to be an overly-protective helicopter parent, she says her world has become smaller for she cannot trust anyone. She was too afraid to allow S.P. to go to summer camp and so S.P. missed out on that opportunity.

She asks, "How can I trust anyone when I can't even trust the one person that we felt we could rely on?" [ 28 ] As a result of this offence against her granddaughter, B.P. missed so much work she was required to take a leave of absence which has caused such financial difficulty that the family must return home to (omit). Since that small community does not have the resources needed for S.P.'s recovery, the cost of travel to Prince George for future counselling and medical appointments for S.P. will be a significant burden on the family.

Circumstances of the Offender [ 29 ] I have the benefit of a presentence report prepared by Paul Weisbrod and a psychiatric report prepared by Dr. Evan Lopes, both of whom interviewed Mr. P. and reviewed file material when preparing their reports. Personal Background [ 30 ] Mr. P. was born on the Reserve of [omitted for publication], B.C. on [omitted for publication]. He is from the [omitted for publication] Band. His mother was an alcoholic and he was placed into foster care at the age of six and he did not return home until he was 15. [ 31 ] He said he was beaten by his foster father and sexually fondled.

When he was 12 years old, he was moved to another foster home after his foster father was caught sexually assaulting his own daughters. At the second foster home, he reported he was treated well. [ 32 ] He reported that he began drinking alcohol at about age 12 and it was due to his drinking that he left his foster placement and returned to his father's home. He carried on drinking heavily until a doctor told him in 1983 that if he continued to drink for another week he would be dead so he went to St. Patrick's House, a treatment facility, and quit drinking.

I note that his criminal record ceases about that time. [ 33 ] As far as sexual development is concerned, he indicated he has had approximately 100 to 150 sexual partners and he started using prostitutes in the 1990’s. [ 34 ] Mr. P. started a successful silviculture business which he ran until 2007 which enabled him to own his own home where he has lived for the past 20 years.

Circumstances as an Aboriginal Offender [35] Mr. P. identifies as a member of the [omitted for publication] Band as his mother came from there, although his father wasMétis. He said members of his Band degraded him for being a "white man" and he felt he was not accepted by other children when hegrew up in Prince George because he was "native." He felt he did not fit in anywhere. He did not learn how to trap, hunt, skin animals,or speak his language because he was placed into foster care at a young age and to this day, he does not feel comfortable participating inany Aboriginal activities. Mr.

P. did not attend residential school. Psychiatric Report [36] Dr. Lopes found that Mr. P. showed no remorse and no real understanding that what he did was wrong. Mr. P. engaged in anumber of cognitive distortions including considering S.P. as an equal partner, as if she were capable of making decisions about thesexual activities and he engaged in grooming behaviour. [37] Dr. Lopes found that Mr. P. completely lacked any understanding of his risk factors, behavioural progression or any connectionbetween his emotions, thoughts, and behaviours. He appeared to Dr.

Lopes to operate on a low to very low average intellectual level andto be very interested in sexual activity without any emotional connection. He told Dr. Lopes that he had hundreds of sexual partners. Hehas not maintained any healthy emotional relationships with women. [38] Dr. Lopes noted that Mr. P. broke the trust of friendships and used this trust to access the victim. [39] Dr. Lopes diagnosed him as having pedophilic/hebephiliac interests and found him to be at moderate to high risk to re-offend. He recommended sex offender treatment in custody and had a number of recommendations to govern Mr.

P.'s behaviour in thecommunity after his release. Attitude toward the Offence [40] Mr. P. accepts that he was the adult so he is responsible. However, Mr. P. expressed to both Dr. Lopes and Dr.

Weisbrod thathe blames S.P. for initiating the sexual activity, and also, blames her grandmother for inviting him to come to the house so often to visither husband, his best friend, G.P. [41] He said he thought the sexual activity was okay with S.P. because she did not tell him to stop, despite the fact that she was only11 years old and that given his familiarity with her and her family, it would have been obvious to him that she functioned at the level of asix-year-old. Although he said he knew it was wrong and she was too young to consent, he nevertheless engaged S.P. sexually onmultiple occasions.

He said that she asked whether she should go into the trailer and he said "That is up to you." Once she came there,he said he gave it no thought and knew they would have sex. I should note that the trailer is Mr. P.'s home. [42] Mr. P. expressed no insight as to what impact these offences might have had on S.P., but he did appear concerned that thisoffence has ruined his friendship with G.P., her grandfather. Criminal Record [43] Mr. P. has a criminal record commencing in 1966 with two charges of common assault and carrying on with property offencesand impaired driving offences until 1980.

Legal Principles [44] The general principles of sentencing under s. 718 of the Criminal Code require that the Court weigh a number of considerationsto arrive at a fit sentence. These considerations include that a sentence ought to demonstrate that society denounces the offendingconduct and that the sentence ought to deter the offender and other people from committing such offences. The sentence may separatethe offender from society if that is appropriate and ought to attempt to rehabilitate offenders and provide reparations to the victim.

Itshould also promote a sense of responsibility in the offender and provide an acknowledgement of the harm done to the victim. [45] Where the victim of the offence is a person under the age of 18, as in this case, s. 718.01 of the Criminal Code requires that Imust give primary consideration to the objectives of denunciation and deterrence because children are the most vulnerable members ofsociety and deserve the greatest protection the law can provide.

Adults who harm children deserve the greatest condemnation. [46] Under s. 718.2 of the Criminal Code where the victim of the offence is a child, or the offender has abused a position of trust incommitting the offence, that is an aggravating factor deserving of a higher sentence.

That is certainly an aggravating factor in this case. [47] Additionally, where an offence has had a significant impact on the victim considering their age and any impact on their healthor financial situation, that will be an aggravating factor. [48] In all cases, the Court should consider alternatives to imprisonment, where that is appropriate, with particular consideration tothe circumstances of Aboriginal offenders.

Sentence Range [49] For this offence, the sexual assault of a person under the age of 16, the Criminal Code provides that the maximum sentence is14 years and there is a minimum sentence of one year. [50] Under s. 718.1 the fundamental principle is that the Court must impose a sentence that is proportionate to the gravity of theoffence and the degree of responsibility of the offender. A fit sentence must take into account the nature of the offence, the character ofthe offender, and the circumstances surrounding the commission of the offence, and that comes from R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227.

[ 51 ] Under s. 718.2(b), the sentence the Court imposes should be similar to sentences imposed on similar offenders for similar crimes, so I must consider previously decided cases to help arrive at a fit sentence. However, each case must be decided on its own facts and with regard to the particular offender before the Court. [ 52 ] I have considered the following cases provided to me to assist with the appropriate range of sentence as follows: 1. R. v.

B.C.M. , 2008 BCCA 365 [ 53 ] This decision provides that the imposition of a mandatory minimum sentence creates an inflationary floor, that is, the minimum one-year sentence is reserved for the best offender in the least serious, least aggravating circumstances. For all other offenders, the sentence will be higher. 2. R. v.

Worthington , 2012 BCCA 454 [ 54 ] In this case, the sentence of four years for sexual touching not including intercourse, against the offender's stepdaughter was upheld by the Court of Appeal. [ 55 ] The Court noted at paragraph 34 that the range of sentence drawn from a former era may not reflect the balance of principles now required from the Criminal Code in light of the enactment of s. 718.01 in 2005. The Court of Appeal noted that a recent useful decision, at that point in time, regarding abusive trust-breaking sexual offences against children was R. v. R.E.L. , 2010 BCCA 493 . 3. R. v.

R.E.L. [ 56 ] A sentence of five years was imposed on a stepfather after a guilty plea for sexual assault committed over a long period of time against his stepdaughter commencing when she was about six years old. The offending included fondling, oral sex and attempted intercourse. In that case, the offender had no criminal record, was remorseful and sought treatment. [ 57 ] The Court of Appeal noted in paragraphs 19 through 21 that the accepted range of sentence for repeated sexual assault of a child by an adult in a position of trust was five to eight or nine years with sentences in some cases up to 12 years.

The Court also noted that although some cases have imposed sentences of less than two years for sexual assault of children, such cases are exceptions to the accepted range of sentence. 4. R. v. D.G. , 2014 BCCA 84 [ 58 ] A sentence of four years was reduced to five months' time served for an Aboriginal offender who engaged in a "boyfriend/girlfriend relationship" with the complainant when he was 18 and she was 12. She became pregnant at 13 and gave birth at 14. They lived together as husband and wife for several years thereafter. The case was historical, the events having occurred approximately 30 years earlier.

The age of consent at that time was 14. [ 59 ] The Court of Appeal noted that the sentencing judge had taken into account facts which were not properly before him such as the fact that the sexual activity began when the victim was ten years old and carried on for years after she turned 14. As those facts both pre-dated and post-dated the time period of the offence as noted on the Information, which led to the imposition of an unfit sentence. [ 60 ] The Court also noted that the sentencing judge had failed to enquire about and apply Gladue considerations which were highly relevant to the circumstances.

The Court of Appeal had the benefit of a Gladue report in which the elders said that as a result of colonization and residential school there was a horrendous degree of alcoholism and violence in some families in their community and "some girls became promiscuous and behaved like adults in their early teens." It also reported that in the offender's family, one of the largest in their community, there were a number of relatives who had sexual relations with their cousins which was disapproved of in the larger Aboriginal community. [ 61 ] Contrary to the findings of the sentencing judge, the Court of Appeal held that the fact the victim and offender were cousins, was not an aggravating factor.

Rather, the Court of Appeal found that the offence occurred "because of the milieu in the community" which included that in the offender's family "there were few boundaries" and there were "sexual relations between relatives." As a result "on the facts actually proved," the Court of Appeal found in that context the offender's moral blameworthiness "was at the very low end." [ 62 ] With the greatest of respect, I struggle to understand or find guidance from these remarks.

On the facts actually proved, the offender had sex with the victim throughout the entire period of the Indictment, a period of two years, as a result of which she became pregnant, all of which while she was well under the age of consent. [ 63 ] With respect, I fail to see how the acceptance by the offender's family in the face of community disapproval of sexual relationships between cousins has anything to do with reducing the moral blameworthiness of having sexual relations with a 12-year-old girl causing her to become pregnant and produce a child. [ 64 ] Whether she was the offender's cousin or not has nothing to do with the criminal behaviour which was to have sex with a 12- year old.

Presumably, the remarks of the Court of Appeal are not to be interpreted as a direction that having sex with a 12-year-old is at the very low end of moral blameworthiness, wherever such sexual offending is part of "the milieu of the community" because that would render illusory the protection of the law for young girls in communities where they need that protection the most. [ 65 ] Similarly, the remarks in the Gladue report regarding sexual promiscuity among some young girls in the community cannot be interpreted to be a mitigating factor for the offender, because to do so would place the responsibility for the sexual offending on the victims of it, the female children. [ 66 ] With regard to the treatment of cultural norms in sentencing, I am assisted by the remarks of the Ontario Court of Appeal in the

recent decision of R. v. H.E., 2015 ONCA 531 in which that Court of Appeal increased a sentence to four years from a sentence of 18months imposed on an offender for the serial rape of his wife. [67] The sentencing judge had noted that in the offender's community and in his homeland, Iran, such domestic violence wascommonplace and acceptable.

The Court held at paragraph 30 that cultural norms that condone or tolerate conduct contrary to Canadiancriminal law must not be considered a mitigating factor on sentence and added at paragraph 33: [33] A cultural practice that is criminal in Canada does not mitigate the perpetrator's conduct for sentencing purposes. Culturaldifferences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and underthe law, a crucial Charter value. It would also create a second class of person in our society - those who fall victim to offenders whoimport such practices.

This is of particular significance in the context of domestic violence. All women in Canada are entitled to thesame level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct isthe product of cultural beliefs that render women acceptable targets of male violence.

If anything, cultural beliefs may be an aggravatingfactor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintainthose views at the time of sentencing. [68] I find that it should make no difference whether the obnoxious attitude is one that is imported from outside Canada or is homegrown. If it is a view which condones behaviour contrary to our law, it must be denounced and deterred in sentencing.

It seems to methat the remarks of the Court with respect to attitudes condoning domestic violence apply equally well to attitudes condoning sexualoffences against children. [69] This decision is, in any event, distinguishable from the case at bar because it is historical.

The Court noted that in the 30 yearssince the offence the accused had not committed similar offences. [70] The Court also pointed out that s. 718.01 of the Criminal Code which requires the Court to give primary consideration to theobjectives of denunciation and deterrence where the victim is under 18 years of age was not in force when the offence occurred and doesnot have retrospective application. 5. R. v. S.S.E., 2012 BCSC 1223 [71] A sentence of 6.5 years was imposed on a stepfather who sexually abused his stepdaughter from the age of 12 until she was 17.

The sexual assaults progressed from digital penetration to anal and vaginal intercourse. 6. R. v. R.A.J., 2010 BCCA 304 [72] An eight-year sentence was upheld for an offender for the repeated sexual assault and physical assault of his daughter startingwhen she was seven. The sexual offending included touching, digital penetration, forced masturbation, oral sex, and anal intercourse. 7. R. v. T.B.M., 2012 BCSC 286 [73] A sentence of four years less credit for time served was imposed on an Aboriginal man who was the boyfriend of the victim'smother. The victim was a three-year-old boy.

One night when the mother was out, the offender attempted to penetrate the child with hispenis causing tearing and bruising in his anal area, and put his penis in the child's mouth. He admitted he was sexually aroused when hecommitted the offence against this little boy, but also claimed he was exclusively heterosexual. I note this offence was a single incident,unlike the case at bar. 8. R. v. O.M., 2009 BCCA 287 [74] A sentence was increased on appeal from two years less one day to five years for the sexual assault of the offender's daughterstarting when she was three years old and continuing for 13 years.

The assaults included digital penetration and sexual intercourse bythe time she was six. 9. R. v. D.D., (Ont. C.A.) [75] A sentence of nine years and one month less credit for time served was upheld by the Ontario Court of Appeal for sexualoffending against four children while the offender was in a position of trust. He groomed, bribed, coerced, and threatened the children toensure compliance over several years.

The Court stated at paragraph 44: [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, stillhigher penalties will be warranted. (See, for example, R. v. M.(C.A.), [I will omit the citation] in which the Supreme Court restored the25-year sentence imposed at trial and R. v. W.(L.K.) [I will omit the citation] in which this court upheld a sentence of 18 and a half yearsimposed at trial.) 10. R. v.

R.E.M., 2004 BCPC 387 [76] A sentence of four years for each victim consecutive for a total of eight years was imposed on an offender who sexuallyoffended against his stepdaughters over a period of several years. In that case, the offender had no criminal record and had undergone avasectomy to ensure he would not impregnate the victims. 11. R. v. M.R.R., 2009 BCCA 578

[ 77 ] A sentence of two years was imposed on a 37-year-old Aboriginal man who pleaded guilty to forcibly sexually assaulting his 14-year-old stepdaughter on one occasion. He was also banned from the two First Nation reserves with which he had connections. [ 78 ] He appealed his sentence on the basis that the ban should have been considered a mitigating factor. The B.C. Court of Appeal agreed, but declined to reduce the sentence imposed commenting at paragraph 40 that: [40] … it is clear … that a custodial sentence of two years is at the low end of the range for a serious sexual assault of this nature. 12. R. v.

D.G. C. , 2009 BCSC 404 [ 79 ] A sentence of three years was imposed on a man who pleaded guilty to sexually touching his stepdaughter for a period of six years from the time she was five years old. The abuse went on despite her complaints to her mother until a 12-year-old neighbour complained that he had also attempted to sexually assault her. The sexual touching did not include intercourse. [ 80 ] I have also considered R. v. Wesley , 2014 BCCA 321 , CanLII, in which the B.C.

Court of Appeal upheld a sentence of five years imposed on an Aboriginal offender who sexually touched the victim, a child of seven or eight years old, on three occasions. The relationship of the offender to the child "was more than that of a mere acquaintance though it was less than a person in loco parentis . It was a familial type of relationship to the child through his relationship with the child's aunt." That is at paragraph 26. [ 81 ] The Court found that many of the Gladue factors applied to Mr.

Wesley and that he was of limited mental ability and that there was a possibility he had Fetal Alcohol Spectrum Disorder. The psychiatric report was pessimistic. Mr. Wesley had a criminal record of two prior assault offences but no sexual assaults. [ 82 ] I find this recent decision helpful as the circumstances are somewhat similar to the case at bar in terms of the quasi-familial relationship.

Although the child victim was younger than S.P., the circumstances were otherwise less serious than the case at bar being less invasive, not involving intercourse, and occurring on only three occasions in a briefer period of time than the case at bar, and in that case the offender has a less lengthy criminal record than Mr. P. Sentence position taken by the Crown and Defence [ 83 ] The Crown says that the range of sentence applicable to these circumstances is five to nine years and seeks a sentence of six to seven years for Mr. P. The defence is seeking a sentence of four years.

Aggravating Factors Age of the Victim [ 84 ] S.P. was only 11 years old with a mental age of approximately seven years old. She was too young to engage in any sexual activity of any kind with anyone, yet Mr. P. claims he told her he was too old "for her" and that she should "find someone her own age." This comment points, I find, to an extraordinary cognitive distortion on the part of Mr. P. He appears to think that a young child is an acceptable sexual partner and that if there is a problem with his having sex with a child, it is not that she is a child but that he is a bit too old.

Given that attitude on the part of Mr. P., I can have no confidence that he will refrain from the sexual victimization of other children in the future. Breach of Trust [ 85 ] Mr. P. was a trusted family friend and relative. He had access to S.P. only because of that status. On those occasions when he took S.P. to his home, he stood in loco parentis to her. He was able to take S.P. to his home and to have unfettered access to S.P.'s home and therefore S.P., only because her grandparents trusted him, beyond all other people, with their grandchildren. S.P. trusted and cared for him because her grandparents did. Mr.

P. violated that trust. [ 86 ] One of the particularly egregious things about Mr. P.'s abuse of S.P. is that he was well aware of S.P.'s vulnerable condition and history because he had supported her grandparents through the investigation and trial when S.P. was previously sexually assaulted. He had intimate knowledge of the trauma and anguish suffered by S.P. and her grandparents in going through that ordeal. Knowing all of that, Mr. P. sexually assaulted S.P. for months in her home, and while he was entrusted with her and her brothers at his home right under the noses of his close friends. Pregnancy [ 87 ] Mr.

P. got S.P. pregnant. Mr. P. was an adult who had fathered two children previously. He took no precautions to avoid getting her pregnant. He knew perfectly well, as does any adult, that pregnancy is the inevitable result of having repeated unprotected vaginal intercourse. He simply did not bother to protect S.P. from that inevitable result of his selfish behaviour. [ 88 ] Not only did S.P. have to learn that she had a baby growing inside her, she also has to live with the knowledge that that life was terminated. She had to undergo a surgical procedure to terminate that pregnancy.

The crisis of conscience and religious belief engaged in the decision to terminate her pregnancy caused S.P.'s grandparents terrible anguish. S.P. is still too young for anyone to know the impact of that decision on her, but it is reasonable to expect that it will trouble her in the future when she is mature enough to truly understand what happened. She and her grandparents will have to live with that decision for the rest of their lives. Risk of re-offence [ 89 ] Dr. Lopes was of the view that Mr. P. was of moderate to high risk to re-offend, despite his age. Mitigating Factors

Remorse [ 90 ] Mr. P. said in court that he is "sorry for everything" and he expressed his apologies to several parties including the City of Prince George and the people on the Reserve, S.P.'s grandparents and her mother, and several other relatives. Last, he asked those persons to tell S.P. he was sorry for the trauma he caused her. [ 91 ] To my ears, Mr. P.'s expressions of apology ring hollow. His apology to S.P. is given less or certainly no more importance that his apology to the City of Prince George which has nothing to do with this offence.

I am unable to find that he has much, if any, genuine remorse for his behaviour towards S.P. Age [ 92 ] Mr. P. is now 66 years old. While advancing age is sometimes viewed as a mitigating factor for sexual offenders due to reduced risk of offending as a result of declining libido, this is clearly not the case with Mr. P. His medical records indicate that he sought medication for erectile dysfunction in 2010 so that he could continue sexual activity and he has clearly engaged in repeated sexual activity with S.P. despite his age.

He maintained that had he not taken the medication that would not have prevented his sexual activity with S.P. In these circumstances, I do not find that Mr. P.'s age is a mitigating factor. Personal Circumstances [ 93 ] Mr. P. is a person of Aboriginal heritage from [omitted for publication] Reserve as is S.P. and her family. Mr. P. was removed from the Reserve and placed in foster care as a small child due to his mother's alcoholism and neglect. [ 94 ] Mr. P. says that he was sexually abused as a child by his foster father and he began drinking at the age of 12.

For many years, he drank heavily, but he quit drinking 20 years ago. [ 95 ] Alcoholism, the attendant neglect of children and the abuse of children are referred to again and again in these courts as being a part of life in Aboriginal communities, a part which perpetuates intergenerational dysfunction. It appears that Mr. P. was the victim of that dysfunction as a very small child which resulted in his placement into foster care where he was further victimized. [ 96 ] I am mindful that being victimized as a child can have lifelong deleterious effects.

That is why sexual offences against children are considered to be so egregious. Mr. P. has had 50 years to contemplate how vulnerable he was as a child, how devastated he felt at being abused in that way, and has observed close-up the anguish that his friends and S.P. went through when she was abused previously. Knowing all of that, he sexually violated S.P. [ 97 ] I acknowledge that Mr. P. has suffered disadvantages in his life connected with his heritage as an Aboriginal person and his life as a foster child and I have factored that into my assessment of his moral blameworthiness.

Nevertheless, for the reasons noted above, I find that his moral blameworthiness is high. Decision [ 98 ] I have considered all of the submissions of counsel and the case authorities. I have considered the impact of this offence on S.P. and her family which has been profound. I have considered the risk posed by Mr. P. to others in the community and I find that he has no insight into the reasons for his offending and he does not appear to think it was wrong.

Although he says he takes responsibility, his comments show that he really places the responsibility on S.P. [ 99 ] I am required by law to give primary consideration to the sentencing objectives of denunciation and deterrence. I denounce Mr. P.'s conduct. Children are the most vulnerable members of our society and deserve the most stringent protection the law can provide. Mr. P.'s conduct in sexually abusing S.P., a very simple child who was mentally half her calendar age, deserves the strongest condemnation.

His conduct in violating her trust and the trust of his friends, her family, deserves the strongest condemnation. Mr. P.'s sexual offending against S.P. was as serious and as invasive as it can possibly get, digital penetration, vaginal intercourse, fellatio, and attempted anal intercourse. [ 100 ] The impact on S.P. has already been profound in terms of the pregnancy, its termination, and the fear and anxiety she exhibits at present. There will doubtless be additional consequences in the future. [ 101 ] This is an offence for which deterrence is also a primary consideration. The attitude of Mr.

P., judging by his comments to Dr. Lopes and Mr. Weisbrod, is that S.P. was an acceptable sexual partner and she is to blame for his sexual offences against her. The sentence I impose must be sufficiently severe to deter him from such activity in the future. This is called specific deterrence. [ 102 ] The sentence I impose must also be sufficiently severe to deter people with attitudes like Mr. P.'s from committing similar offences.

This is called general deterrence. [ 103 ] The experience of S.P. and her mother and her grandmother is ample evidence that there are and have been, for generations, people with attitudes that support the sexual abuse of young girls in the communities to which they belong. S.P. was born as a result of the sexual abuse of her mother at age 12 by the man with whom she since resided and who is the father of her other children.

S.P. was sexually abused by her uncle, her father's brother, at age seven, and S.P.'s grandmother was also the victim of sexual abuse as a child. [ 104 ] If ever a situation called out for a sentence that demonstrates to the community that such offending is not allowed and will attract a severe sentence, this is it. [ 105 ] The case authorities amply support that only a substantial jail sentence will meet the sentencing objectives appropriate to this case. I accept that the range of sentence appropriate to Mr. P. in these circumstances is five to eight years.

[ 106 ] Mr. P., please stand. [ 107 ] I sentence you to six years' imprisonment. I sentence you to 60 days concurrent for the breach. [ 108 ] You can sit down now. I have some further orders to make. [ 109 ] All right, firstly Ms. Ahrens I do not think you mentioned to me a s. 161 prohibition order, but I was thinking it might apply to these circumstances. Do I have submissions from you on that regard or may I? [ 110 ] MS. AHRENS: That is the do not attend parks, playgrounds.

I did not make submissions in light of the long jail sentence I sought but if Your Honour sees fit to pronounce that order and for –- I would suggest a term of his life given what you have said of this man's proclivities and given his age, then it would be the Crown's position that that is appropriate. [ 111 ] THE COURT: All right. Mr. Whidden? [ 112 ] MR. WHIDDEN: I have no submissions on that matter either, other than to say that the length of jail sentence of six years would put Mr. P. at 72 years old and in my submission that is sufficient. [ 113 ] THE COURT: Thank you. All right.

So there will be a number of ancillary orders. I will get to the 161 afterward. [ 114 ] Another order that I contemplated but did not have submissions on is s. 743.2(1) it is the non-communication order from jail. I will ask firstly Ms. Ahrens if you have any submissions with respect to that. [ 115 ] MS. AHRENS: I have received no complaint from the family that there has been any attempted contact. In the circumstances of even Mr.

P. understanding that that friendship is irrevocably broken, I am not sure that there is a demonstrated need for the order, but since members of the family are here, perhaps the Court could ask them whether they desire such an order. [ 116 ] THE COURT: Okay. I thought of it in particular because of the recommendations in the psych reports to do with S.P., that she have no contact and be protected from any contact of any kind with Mr. P. So, family members? Would you stand please, ma'am? Any position on a no contact order? [ 117 ] UNIDENTIFIED FEMALE SPEAKER: I have no problem with a no contact order.

I would prefer that [indiscernible] [ 118 ] THE COURT: Okay, would prefer it? [ 119 ] UNIDENTIFIED FEMALE SPEAKER: Yes. [ 120 ] THE COURT: Okay. Very well. Then we will start. [ 121 ] Now, firstly this is a primary designated offence for DNA Database purposes and I will make an order in that respect. So Madam Clerk, it is Picklist No. 161.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from W.J.P. by February 28th, 2016. [ 122 ] With respect to a firearms prohibition, this is a case that involves a mandatory prohibition. Ms. Ahrens, I do not recall whether Mr.

P. has had any prior prohibitions and in that regard I request your submissions with respect to the length of a prohibition. [ 123 ] MS. AHRENS: I am not aware of that either. I am in several different courtrooms today and I had to travel with what I could carry. Perhaps my friend has a copy of his criminal record which in any event was filed I believe as an Exhibit on sentencing. [ 124 ] THE COURT: I will see if I have got it here. I do not see anything indicating a prior prohibition. [ 125 ] MS. AHRENS: That is my recollection, but I – I do not have the record at hand. [ 126 ] THE COURT: All right.

In that case, it will be ten years? [ 127 ] MS. AHRENS: Pursuant to s. 109. [ 128 ] THE COURT: Okay. So Madam Clerk, it will be Picklist No. 164. So Mr. P. you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 129 ] MS. AHRENS: And I can confirm and I thank Mr.

Whidden that he provided me with his copy of the record and we are correct that there has been no prior prohibition. [ 130 ] THE COURT: All right. Thank you, Ms. Ahrens. Okay. [ 131 ] Now, the SOIRA order. I do not believe a draft was handed up to me but I might be mistaken. [ 132 ] MS. AHRENS: It is on my desk upstairs. I neglected to bring it. The term will be because the maximum sentence is 14 years – [ 133 ] THE CLERK: We could just take the date off – [ 134 ] MS. AHRENS: -- I did prepare one for an earlier proceeding. If we can scratch out the date and that is acceptable, it is for a

period of 20 years because the maximum possible sentence was 14 years. [ 135 ] THE COURT: All right. [ 136 ] MS. AHRENS: I am simply going to alter the date with Your Honour's leave –- [ 137 ] THE COURT: That is fine. [ 138 ] MS. AHRENS: -- from November to January. It is the 14th today I believe. [ 139 ] THE CLERK: It is. [ 140 ] MS. AHRENS: Thank you, Madam Clerk. [ 141 ] THE CLERK: You're welcome. [ 142 ] THE COURT: All right. There is the SOIRA order. [ 143 ] Now, with – [ 144 ] MS. AHRENS: It needs to be signed by the offender perhaps Mr.

Whidden could present it to his client. [ 145 ] THE COURT: Yeah, it can be provided. Mr. Whidden, you can give that to Mr. Sheriff. He will take care of it. [ 146 ] MR. WHIDDEN: Thank you. [ 147 ] THE COURT: All right. Next, I will make an order under s. 743.21. That order will prohibit Mr. P. from communicating directly or indirectly with S.P., B.P., or G.P. during the period in which he is in custody. [ 148 ] All right. And then lastly, with respect to s. 161 –- [ 149 ] MS. AHRENS: May I just add with respect to that

section I had not earlier considered it, Your Honour, but I note in particular s. 161(2) which specifically gives you the jurisdiction to make that prohibition for life or any shorter period that you see fit, Your Honour. [ 150 ] THE COURT: Yes, thank you, Ms. Ahrens. [ 151 ] Okay, with respect to s. 161, I make an order that Mr.

P. is prohibited for life from attending at a public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a daycare centre, school ground, playground, or community centre and being within one kilometre of any place where S.P. resides, and from seeking, obtaining or containing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16. Okay, I think that will do it. [ 152 ] All right.

Is there anything further, counsel? [ 153 ] MS. AHRENS: May I just ask Your Honour whether you intend to publish your written reasons on the British Columbia Provincial Court website? [ 154 ] THE COURT: That was my intention. [ 155 ] MS. AHRENS: Thank you, Your Honour. [ 156 ] MR. WHIDDEN: I have nothing further, Your Honour. [ 157 ] THE COURT: Thank you, Mr. Whidden. [ 158 ] In that connection, Madam Clerk, I am going to ask that a transcript be prepared of these reasons. [ 159 ] THE CLERK: Certainly. [ 160 ] MS. AHRENS: Thank you very much, Your Honour. (REASONS FOR SENTENCE CONCLUDED)