R. v. J.O.B.B., 2021 BCPC 74

Citation: R. v. J.O.B.B. 2021 BCPC 74 Date: 20210408 File No: 86290 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.O.B.B. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(2.2) of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. HARVEY Counsel for the Crown: S. Simpson Counsel for the Accused: L. Shelling Place of Hearing: Nanaimo , B.C.

Dates of Hearing: December 17, 2020 & February 22, 2021 Defence Further Written Submissions: March 15 and 31, 2021 Crown Further Written Submissions: March 19, 2021 Date of Judgment: April 8, 2021 Introduction & Background [ 1 ] The accused, J.O.B.B., is before the Court for sentencing, having previously elected to be tried by a Provincial Court Judge. The

accused pled guilty on October 8, 2019, to the following offence: Count 1 alleges that from the 1 st day of September 1978 to the 30 th day of June 1979, inclusive, at or near Nanaimo, in the Province of British Columbia, did indecently assault a female person, C.C., contrary to section 149(1) of the Criminal Code . [ 2 ] It is not disputed that at the time of this offence the accused was 28 or 29 years of age.

It is also not disputed that he has a prior criminal record for unrelated offences at that time. [ 3 ] The Court was provided with a pre-sentence report for this accused along with two psychological reports, a victim impact statement of C.C., now known as C.A., as well as several other filed documents, along with numerous case precedents provided during sentencing submissions. Counsel subsequently provided additional written submissions after oral submissions were concluded. [ 4 ] This Court must now determine an appropriate and fit sentence for this offence.

Circumstances of the Offence [ 5 ] Briefly, the facts are as follows. Back in 1978 or 1979, the accused was friends with A.C. and his family in Nanaimo. A.C. had a daughter, namely the complainant, C.C. In any event, the accused spent one evening at A.C.’s residence partying. Whilst at A.C.’s residence, the accused then entered the complainant’s bedroom and found C.C. in bed. The complainant pretended to be sleeping when the accused began to grope her in her underwear area and digitally penetrated C.C.’s vagina.

At some point the accused got up out of the bed to turn off a stereo and returned to find the complainant curled up into a corner of the bed. The accused then returned to the bed and continued to digitally penetrate her. At one point, the complainant believed the accused was also touching himself and possibly masturbating.

C.C. was 9 or 10 years of age at that time. [ 6 ] It was also alleged that during C.C.’s adolescent years, the accused engaged with her in a sexual nature by trying to kiss or touch her. [ 7 ] In 2019, the complainant came forward to file a complaint with the local police and, in November of the same year, the accused gave a statement to the police and recalled “touching her in some way” that was inappropriate. Circumstances of the accused [ 8 ] The accused is presently 71 years of age and comes before the Court with a prior criminal record which pre-dates the alleged offence of indecent assault.

The Court has had the benefit of a detailed pre-sentence report, as well as a court-ordered forensic psychological report prepared by a Dr. Ferguson, and another one prepared by Dr. Monkhouse at the request of the Defence. Both reports outline, in some detail, the accused’s background. [ 9 ] This accused contracted polio when he was approximately seven years of age, which he was apparently hospitalized for almost two years as a result. As a consequence of that disease, the accused’s one leg is approximately 8 cm shorter than his other leg. As well, he suffered significant lower back issues.

The accused has not been prescribed medication, but does self-medicate using marijuana for pain. [ 10 ] In addition to contracting polio at a young age, this accused was also the subject of sexual abuse by an older youth over approximately two years. As a result of that abuse, and as a result of bullying at school, this accused developed a difficulty trusting individuals. At approximately age 17, his mental state started to deteriorate; that resulted in him engaging with some anti-social behaviours within his peer group.

This, the accused alleges, was primarily due to ongoing conflict with his step-father. [ 11 ] It was at this time that the accused began to use alcohol which then led to the subsequent abuse of illicit drugs, including cocaine. That cocaine use, the accused indicated, ceased in 1980 and the alcohol consumption ceased approximately 30 years ago. [ 12 ] The accused, when he committed this particular sex offence was drinking heavily and, as well, was using cocaine on a regular basis.

The accused attributes all of his anti-social behaviours as a result of being under the influence of alcohol and/or drugs. [ 13 ] In terms of his educational background, the accused struggled academically and left school in grade 9. After school, the accused moved to Vancouver in 1971 and then moved back to Vancouver Island the following year. [ 14 ] The accused has primarily been employed in short-term, unskilled labour positions and, regrettably, the illicit drug trade. The accused’s criminal record was set out page 4 of his pre-sentence report.

It commences in 1967 in Cooksville, Ontario with a conviction for an assault causing bodily harm. The following year, he has a conviction for break and enter from the same community. The following year, in Mississauga, Ontario, he was convicted of assaulting a peace officer. The last offence, which pre-dates the index offence before this Court, was a conviction in Ottawa in 1970 for possession of a narcotic for the purpose of trafficking. On the latter two offences, he received jail sentences, 60 days and 10 months respectively.

The accused then has a break in his record until 1984, when he received an impaired driving conviction. In 1995, he was convicted of possession of stolen property and possession of narcotic. Those three convictions resulted in fines. More recently, his last convictions were in 2018 for driving offences which resulted in further fines. [ 15 ] The accused acknowledges responsibility and accountability for the offence. However, his recall of the offence is particularly limited.

In the pre-sentence report, the accused describes his offending behaviour as “opportunistic” and associated it to his previous substance misuse. Whilst on bail on this particular matter, the accused was noted as to be generally compliant with respect to his prescribed reporting direction. [ 16 ] Both psychologists opined that this accused is now at low or below-average risk to re-offend. This accused has not used illicit drugs allegedly since the mid-1980s; now he only consumes marijuana as a way to manage chronic pain. The accused spends most of his time by himself as he is a self-described loner.

Moreover, the accused stated he has no interest whatsoever in establishing an intimate relationship with anyone and seldom finds himself in a situation around children. Dr. Monkhouse recommended a non-custodial sentence

in part because of the COVID-19 pandemic, but also because of the large gap in time. In his opinion, going to jail would cause more psychological distress. [ 17 ] Ultimately this accused takes responsibility for his offending behaviour and the Defence provided, and filed as exhibit, a handwritten note dated February 18, 2021. That brief note is addressed “to whom it may concern”. The accused apologized for his behaviour and wrote, “Sorry for my mistake”, before signing his name. As mentioned by his counsel during submission, he confessed early and has expressed some remorse for his behaviour.

Whilst there was a delay in sentencing due to the COVID-19 pandemic, the accused never set the matter for trial. Therefore, there was an early guilty plea and reports were ordered after full disclosure was made to the Defence. Impact on the victim [ 18 ] The Court has also reviewed the victim impact statement of the victim, C.C. now known as C.A., filed as exhibit 3 in this matter. It is quite evident from her comments that she has been deeply impacted by this accused’s actions, including misuse of alcohol by herself. She is tired of revisiting and remembering the hurt.

She still has feelings of guilt or self-harm. She unfortunately relives the trauma from these incidents involving the accused. She is still terrified and anxious when she sees the accused in public. Through her victim impact statement, she seeks restitution the amount of $28,100.00 representing the following: • Treatment: $23,100; and • Medication, missed work and counselling: $5,000.00. Position of the Crown [ 19 ] The Crown seeks a jail sentence of 12 months’ imprisonment to be followed by a two-year probation coupled with the following ancillary orders: 1. A primary DNA order under

section 487.051 of the Criminal Code ; 2. A 10 year Sex Offender Information Registration Act (S.O.I.R.A.) order pursuant to

section 490.012 of the Criminal Code ; and 3. A non-communication order with the complainant pursuant to

section 743.21 of the Criminal Code . [ 20 ] The Crown stressed the seriousness of this matter, namely the indecent assault on an innocent young girl who has been haunted and seriously scarred by the accused’s conduct. [ 21 ] The Crown also stressed that Dr. Monkhouse’s opinion goes well beyond his area of expertise in the psychological field by opining that this accused would be at a greater risk for potentially contracting COVID-19 in jail, should such a sentence be imposed.

However, the Crown acknowledged that both psychological reports opined that this accused is either low or below-average risk to reoffend. [ 22 ] However, the Crown, in coming to its position, stressed the aggravating factors of

section 718.01 of the Criminal Code along with the type of indecent contact with the complainant, who was still very young. Moreover, this complainant was also somebody known to him and he took advantage of an opportunity that he likely had the ability to avoid given the close family connection. [ 23 ] In mitigation, the Crown acknowledged the guilty plea which saved a trial and person(s), including the complainant, C.C., from having to testify.

The accused is without any related criminal history, has done reasonably well on bail and has showed some signs of remorse in his brief written statement. [ 24 ] In support of the Crown’s position on sentence, a book of authorities contained the following cases: • R. v. Friesen , 2020 SCC 9 ; • R. v L.S.N., 2019 BCSC 1619 ; • R. v. L.S.N ., 2020 BCCA 109 ; • R v. E.M.Q., 2015 BCSC 201 ; • R. v. Rich , 2014 BCCA 24 . [ 25 ] The Crown also provide, by way of reply to the accused’s cases, the following additional authorities: • R. v. Rutter , 2017 BCCA 193 and; • R. v.

T.L.P . 2021 BCCA 36 . [ 26 ] I do not purport to review in any detail all of the paragraphs reviewed by the Crown, but the Court has taken the necessary time to review all of the authorities in their entirety. [ 27 ] However, in dealing with the Friesen decision from the Supreme Court of Canada last year, our highest Court stressed that offences involving sexual abuse to children need to have longer sentences applied to them than have traditionally taken place. In particular, the Crown in this case at bar stressed paragraphs 5, 50, and 103-105 from that decision.

Of course, the Friesen decision involved much more serious set of circumstances involving guilty plea to offences of sexual interference with a young child and attempted extortion against the child’s mother. After a successful appeal to the Supreme Court of Canada, the sentence imposed by the

sentencing judge of 6 years’ imprisonment for sexual interference was restored. [28] The Crown also re-iterated that at the time of this alleged offence, the potential maximum sentence under

section 149 of theCriminal Code was 5 years. Position of the Defence [29] The Defence concedes that there has been a direction given from the Supreme Court of Canada, but nevertheless submitted that anon-custodial sentence by way of a suspended sentence could be imposed.

Failing that, either a conditional sentence of imprisonment ofa short jail sentence of 30 to 60 days to be served intermittently could also be appropriate. [30] In submissions, the Defence stressed this particular accused’s circumstances, his guilty plea, the lapse in time along with the factthat he is low risk to re-offend, should militate in favour of a more favourable sentence to him.

The Defence reiterated that the accusedaccepts responsibility for his actions and has conceded that Friesen from the Supreme Court of Canada has indicated that these mattersmust be dealt with seriously. [31] Counsel for the accused spent some time distinguishing the cases of the Crown to the case at bar. Defence counsel also stressedthat other accused have received much lighter sentences than this accused and, to that end, the Defence initially provided the following11 authorities in support of its position: • R. v. Greer, 2020 BCSC 1131; • R. v. Putt, 2017 BCPC 415; • R. v. B. 2014 BCPC 94; • R. v.

Galway, (NL SC); • R. v. Robertson, [1979] O.J. No. 831; • R. v. T.(D.), 2011 ONCJ 106; • R. v. A.E.S., 2018 BCCA 478; • R. v. Poulin, 2019 SCC 47; • R. v. Nasogaluak, 2010 SCC 6; • R. v. Voong, 2015 BCCA 285; and • R. v. D.E.S.M., 24 B.C.A.C. 305. [32] Counsel also provided further written submissions on the issue of whether a conditional sentence is an available option forsentence, along with an adjournment to allow Bill C-22 to perhaps come to fruition. I dismissed that Defence request based, in part,because this matter has been before this Court on at least four occasions for sentencing now.

Moreover, any further adjournment,although waived by the accused, would inevitably require this case to be put on hold an indeterminate period of time. In my view, thatwould be both inappropriate and unacceptable. Both the complainant, and society as a whole, have an interest to have matters concludedat this stage. Given the seriousness of this matter, and the necessary adjournments to date to provide full submissions, both orally and inwriting, militates in favour of this Court proceeding to sentence completion today.

Moreover, it would not be in the interests of justice toadjourn this matter, essentially an indeterminate period of time given this Bill is at its infancy stage and whether the legislation would beapproved as was initially put forward, or whether any amendment(

s) will be proffered. Finally, Bill C-22, if passed without anymodification(s), would ultimately still need Royal Assent before coming into effect. [33] Before ultimately coming to my decision in this matter, I have reviewed each and every one of those cases presented by theDefence and I will not review the facts in each and every one. Suffice it to say that all but the Greer decision of Mr. Justice Crabtree ofthe B.C.

Supreme Court, pre-date the Friesen decision from the Supreme Court Canada on April 2, 2020. [34] There was no substantial argument against any of the probation terms other than the ongoing need of counselling given theaccused’s reference letters which were filed as exhibits on sentence. None of the other orders sought by the Crown were objected to bythe defence. Principles of sentencing [35] The Court is guided by

section 718, 718.01, 718.1 and 718.2 of the Criminal Code. [36] I do not purport to review all those sections, but suffice it to say that in cases such as indecent assault, the Court must denouncethis type of conduct, and deter this accused and others from committing such offences. The Court also must bear in mind rehabilitationfor this offender. However, it’s a statutory aggravating factor when the offence occurs against a child as stipulated in

section 718.01 andthe Court must consider the other sentencing principles set out in

section 718.2 and account for any relevant aggravating and mitigatingcircumstances regarding to the offence of the offender. Aggravating and mitigating circumstances [37] The aggravating factors in this case are as follows:

• Firstly, the very nature of the offence, which by virtue of

section 718.01 of the Criminal Code is a statutory aggravating circumstance; • Secondly, the location of the offence occurred when he was visiting with C.C.’s family, when he was very close to them at the relevant time; • Thirdly, the very young age of the complainant at the material time; • Fourthly, the harm done to the complainant who suffered decades of loss, shame and alcohol abuse in order to try to come to terms with the accused’s actions. [ 38 ] The mitigating factors are as follows: • Firstly, the relatively young age of this accused, being 28 or 29 years of age at the time of the offence; • Secondly, the accused is before the Court without a prior related criminal record; • Thirdly, the accused was abused himself, sexually, prior to this offence which resulted in him abusing alcohol and illicit drugs around the time of this offence; • Fourthly, the accused’s admission of guilt by way of a guilty plea thereby saving witnesses from having to testify and the necessary time for a trial in this matter; • Fifthly, the expression of remorse by way of his comments set out in the reports as well as to this court after sentencing submissions by counsel.

So what is a fit and appropriate sentence in this case? [ 39 ] Notwithstanding all of the mitigating factors I have outlined in this case, I find that the moral culpability of the accused to be very high. There is no question in my mind that he knew that he was dealing with a very young, namely a 9 or 10 year old, girl at the time of this offence. At that time, he was a full grown adult.

Moreover, it is very troubling that he would choose to take advantage of a young, vulnerable girl when he was friends with her family at the relevant time period in question. [ 40 ] What is particularly concerning was that the accused, an adult male, was dealing with a young child and his actions have caused her a great deal of harm.

Offences such as these can cause great damage, not only physically, but psychologically, as was apparent in this case. [ 41 ] The Supreme Court of Canada in Friesen makes it abundantly clear that even if the child victim participates in a sexual offence, that has no bearing to the degree of harm suffered by the child nor does it mitigate against the culpability of the offender. Of course in this case, C.C. could not have consented to any sort of sexual contact with the accused.

I find the following two paragraphs of Friesen apropos in coming to my decision with respect to this matter: [1] Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. … [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurate really reflect the wrongfulness of sexual violence against children and the far- reaching and ongoing harm that causes to children, families, and society at large. [ 42 ] I am mindful that I must consider the accused’s rehabilitation, but I am satisfied that based on the Friesen case from the Supreme Court of Canada, the main factors of concern in this case are those of general deterrence and denunciation.

These are the overriding objectives and concerns that I have with respect to the facts and circumstances involving this accused. [ 43 ] During day two of submissions, I also brought to counsels’ attention the decision of my brother Judge Wolf in R. v. S.R.,

(2020) BCPC 227. In that case, an ultimate sentence of 1 year imprisonment was imposed for historic offence involving S.R.’s daughter. The abuse in that case took place over a year. That accused had no criminal record. My brother Judge Wolf indicated that he would have granted that accused a conditional sentence, if one was available, because of the otherwise exemplary background and treatment of the accused since the offence. Ultimately, my brother Judge chose not to do so. He also declined to suspend the passing of sentence. [ 44 ] Initially in S.R ., the defence sought a conditional sentence of imprisonment.

Ultimately, counsel in that case were adamant that a conditional sentence, or C.S.O., was unavailable given the current state of the law. I agree with the position of my brother Judge Wolf, notwithstanding the B.C. Court of Appeal in R. v. A.E.S. , in 2018 reduced the 6 year sentence that was imposed for a number of historical sexual offences to one of a sentence of 2 years less a day, to be served conditionally in the community. However, that decision, and the decision of R. v.

Cadman , 2018 BCCA 100 referenced at paragraph 31 in the Supreme Court of Canada decision of Poulin , pre-date Poulin , which has now confirmed that a conditional sentence order is a sentence that was, and still is, not available for this accused at this time.

[ 45 ] As well, I brought to counsels’ attention the case of R. v. R.O., 2021 BCPC 29 after the last date of submissions and invited further written submissions, which counsel kindly provided. [ 46 ] As in S.R ., the R.O. case also held that a conditional sentence was not available for the cognate and similar offence as involving this accused in the case at bar. [ 47 ] In R. v. R.O. , my brother Judge Harrison noted that counsel for the accused in that case properly advised the judicial case manager in writing that in light of the Poulin decision, counsel was no longer seeking a conditional sentence.

Judge Harrison, at paragraph 78, then went on to quote from 3-5 of the Poulin decision, which I also adopt for the purposes of these reasons. Ultimately, Judge Harrison sentenced R.O. to a 4 year penitentiary sentence, however that accused had a far more serious and related criminal record that this accused at bar, Mr. B. [ 48 ] Sentencing is a very individualized process. No two cases are identical. One only has to look at the cases put forth by counsel in this case to grasp the range.

Ranges of sentences are a useful guide, but ultimately the sentence must be tailor-fit to every single accused as every accused is different from those involved in other cases. Therefore, the sentence must be crafted with this particular offender in mind having regards to all the circumstances along with the principles of sentencing that I must follow. [ 49 ] I am also extremely mindful of the comments that have been recently stated by the highest court in this land in Friesen .

It is my view that a suspended sentence would not meet the principles of sentencing in that I cannot find anything out of the ordinary that would justify a finding of “exceptional circumstances” as referenced in Voong . I recognize that in some cases, where appropriate on the facts of the case and the considering the personal circumstances of the offender, it may be appropriate. However, this is not one of those cases.

It is ultimately my view that, in this particular case, an actual jail sentence is not only appropriate, but necessary. [ 50 ] It would further be my view that a conditional jail sentence is not available in any event as per the Poulin, S.R. and R.O. If it was an available sentence, I do not find that such a sentence would be fit and appropriate in any event.

The facts of this case coupled with the accused’s circumstances would not, in my view, justify the imposition of a conditional sentence. [ 51 ] In my view, there must be a clear message sent that this type of behaviour is despicable and will be denounced in the strongest terms. Persons who choose to commit serious offences against young, innocent children must know there will be serious consequences. Balanced against that, of course, is the accused’s present circumstances and, of course, the age of this matter. [ 52 ] In this case it is also my view that Dr.

Monkhouse has opined well beyond his area of expertise as a Psychologist with respect to this accused. Dr.

Monkhouse opined that this accused would suffer negative consequences if he were to receive a custodial sentence given his significant risk of contracting COVID-19; Moreover he also opined that this accused’s physical limitations could be exacerbated due to being confined in a jail setting as well as the risk that, because the accused uses THC and that would likely not be available to him whilst in custody, thus this accused would be at further risk for returning to his previous unhealthy lifestyle regarding illicit drugs.

I attach no weight to his opinions in this regard. [ 53 ] Lastly, in relation to the restitution request by the complainant via her victim impact statement, it is my view, because I had no supporting documentation to substantiate her request, coupled with the fact that the accused may choose to challenge some of those costs, this venue is not the appropriate one to make such an order today. That issue should be left with a civil action, should one be brought against this accused in due course.

Disposition [ 54 ] Taking all the factors into consideration, it is therefore my view that the appropriate sentence for the offence of indecent assault to which this accused has pled guilty to is as follows: [ 55 ] On Count 1, there will be a 9 month jail sentence. That jail sentence will be followed by a period of probation of 2 years. [ 56 ] The terms of your probation are as follows: 2001 - You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

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. 2104 - You must report in person to probation officer at 101 - 17 Church Street, Nanaimo, British Columbia within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your officer. 2203- You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number. You must not change your residence or phone number without prior written permission from your officer. 2002 - You must have no contact or communication, directly or indirectly, with C.A. 2005-1 You must not go to any place where C.A. lives, works, attends school, worships, or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. 2303 - You must not go to any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, school or playground. 2304 - You must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 16. 2401-1 You must not possess or consume alcohol.

2401-2- You must not possess or consume drugs except with a medical prescription. 2501 - You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer, including counselling or programming for sexual offending to the Forensic Psychiatric Services Commission. [ 57 ] In addition there will be the following ancillary orders: • Count 1 is a primary designated DNA offence and therefore, pursuant to

section 487.051 of the Criminal Code , there will be a mandatory DNA order that the accused must comply with whilst in custody. • Secondly, pursuant to

section 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registry Act (S.O.I.R.A.) for a period of 10 years. • Lastly, pursuant to

section 743.21 of the Criminal Code , you are prohibited from contacting the complainant, C.C., now known as C.A., directly or indirectly, during the period of time whilst you are in custody. _____________________________ The Honourable Judge B. Harvey Provincial Court of British Columbia