R. v. Schuil, 2021 BCPC 103

Citation: R. v. Schuil 2021 BCPC 103 Date: 20210414 File No: 88845-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GREGORY LEO OPIE SCHUIL BAN ON PUBLICATION -

SECTION 486.4(2.2) C.C.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: C. Kemble Counsel for the Defendant: C. Arnason Place of Hearing: Abbotsford , B.C. Date of Hearing: December 18-19, 2019 Date of Judgment: April 14, 2021 [ 1 ] THE COURT: Fifty-seven-year-old Gregory Leo Opie Schuil is before the court today for sentencing in relation to Count 3 of Abbotsford Court Information 88845-1.

[ 2 ] On December 19, 2019 I convicted Mr. Schuil in relation to Count 3, which reads: Gregory Leo Opie Schuil, on or about the 21st day of July, 2018, at or near Mission, in the Province of British Columbia, did break and enter a dwelling house at [omitted for publication] with intent to commit an indictable offence therein, contrary to s. 348(1) (

a) of the Criminal Code . I found that the prosecution had proven beyond a reasonable doubt that on July 21, 2018, Mr. Schuil did break and enter into his former intimate partner's residence with intent to commit the indictable offence of sexually assaulting Ms. K. Position of the Parties [ 3 ] Break and enter into a dwelling house with intent to commit an indictable offence carries a maximum sentence of life imprisonment. [ 4 ] The BC Prosecution Service is seeking a one-year jail term, followed by a two-year term of probation.

The BC Prosecution Service is also seeking a 10-year firearms and weapons prohibition per s. 109 of the Criminal Code and a DNA order per s. 487.051(2) of the Criminal Code . [ 5 ] Defence counsel is seeking a sentence of a conditional sentence order, a suspended sentence or, if the court is of the opinion that a traditional custodial sentence is required, that the jail term be significantly less than that requested by the BC Prosecution Service. Significantly, a conditional sentence order is now available to Mr.

Schuil in this case as a result of Justice Schultes’ April 7, 2021 decision in R v Chen , 2021 BCSC 697 , holding the prohibition in s. 742.1 (

c) of the Criminal Code to the use of conditional sentence orders in these type of cases as invalid. [ 6 ] In Chen , Justice Schultes suspended the resulting declaration of invalidity until April 13, 2021, to permit counsel for the Attorney General to decide whether to seek to justify the violation under s.1 of the Canadian Charter of Rights and Freedoms . Yesterday, April 13, 2021, Justice Schultes held that s. 1 of the Canadian Charter of Rights and Freedoms did not save s. 742.1 (

c) of the Criminal Code , and therefore s. 742.1 (

c) of the Criminal Code was of no force and effect . The Facts [ 7 ] Mr. Schuil and Ms. K. had been intimate partners for approximately seven years from 2009 to 2016. They had lived with each other and have two children together, now approximately six and nine years of age. Ms. K.'s two older children also resided with them. [ 8 ] As of the offence date of July 21, 2018, the romantic relationship between Mr. Schuil and Ms. K. had been over for two years and Mr. Schuil had not lived at Ms. K.'s dwelling house since June of 2016. After Mr. Schuil moved out of the dwelling house, Ms.

K. had the locks on the dwelling house doors changed. Ms. K. changed the locks on the doors of her dwelling house a second time approximately six months later. [ 9 ] While still sometimes spending time socially with Mr. Schuil after their breakup in June of 2016, Ms. K. described her relationship with Mr. Schuil as "shitty". Mr. Schuil had a drinking problem. He drank alcohol to the point of blacking out. He was an alcoholic. She stated that she was under a lot of stress and mental trauma due to Mr. Schuil. Furthermore, by July 21, 2018 Ms.

K. was in a romantic relationship with someone else. [ 10 ] On July 21, 2018, while intoxicated by alcohol, Mr. Schuil entered Ms. K.'s dwelling house through an open window. He did not have a key to Ms. K.'s residence and he was unwelcome in Ms. K.'s residence. [ 11 ] Ms. K. was asleep in her upstairs bedroom. She was wearing blue jeans and a t-shirt. Mr. Schuil went upstairs to Ms. K.'s bedroom, got into bed with her, lied on top of her face-to-face and was in the process of undoing her pants when Ms. K. awoke. Ms. K. immediately noticed that it was Mr.

Schuil on top of her, his face to her face, and that he smelled like booze. She could also clearly see her alarm clock at the end of the bed, which stated it was 7:00 a.m. in the morning. [ 12 ] Ms. K. freaked out at Mr. Schuil and pushed him off her. She yelled at him, "There's a thing called consent." Mr. Schuil replied, "You can't rape willingly." Ms. K. then threw Mr. Schuil into the wall and said, "Does that look willing?" Mr. Schuil then fled out the bedroom and down the stairs, with Ms. K. following.

He went to the front door, where he had to unlock the latches on the door in order to leave the dwelling house. While Mr. Schuil was in the process of unlatching the door, Ms. K. freaked out and screamed at Mr. Schuil, "How'd you get in my house?" She then assisted Mr. Schuil in his departure from the dwelling house by shoving him through the door once the door was open. [ 13 ] Once Mr. Schuil was outside, Ms. K. again screamed at him, "How'd you get into my house?" She then slammed the door shut. Mr.

Schuil went to an exterior window, pushed the curtain open, and said, "Hey, dumbass, your window's open." The window was a slider and large enough for a person to pass through. Ms. K. then went to open the door. As she did so, she could see that Mr. Schuil had placed a green plastic patio chair up against the door. Mr. Schuil then left the exterior area of the dwelling house, cursing Ms. K. as he went down the street. [ 14 ] Ms. K. did not suffer any physical injuries during her interaction with Mr. Schuil on July 21, 2018.

She did suffer, and continued to suffer at least as of the date of the Pre-Sentence Report, mental and psychological injury as a result of Mr. Schuil's actions. Case Law Provided [ 15 ] The BC Prosecution Service has provided the court with five cases: R. v. Pangon , 2005 NWTSC 57

R. v. T.L.G. , 2006 ABPC 2 R. v. Reid , 1996 ABCA 404 R. v. Hill , 2011 ABPC 27 R. v. Phillips , 2018 BCSC 2077 [ 16 ] Defence counsel has provided the court with four cases: R. v. Rousseau , 2019 BCPC 187 R. v. Furtado , 2014 BCSC 405 R. v. Perusini , 2019 BCPC 254 R. v. Forner , 2020 BCCA 103 [ 17 ] I have read and considered the cases provided to me by the BC Prosecution Service and defence counsel, Mr. Arnason. [ 18 ] In addition to R. v. Chen and the cases provided by the BC Prosecution Service and defence counsel, I have also reviewed and considered the cases of: R. v. Voong , 2015 BCCA 285 R. v.

Pham , 2013 SCC 15 R. v. Milne , 2020 BCSC 2101 R. v. Greer , 2020 BCSC 1131 R. v. Hearns , 2020 ONSC 2365 R. v. Zhao , 2020 BCSC 1552 R. v. McKibbin , 2020 BCCA 337 R. v. Stevens , 2020 BCPC 104 R. v. Bernier , 2003 BCCA 134 R. v. Powis , 2007 BCCA 108 R. v. Lacasse , 2015 SCC 64 R. v. Shoker , 2006 SCC 44 R. v. Parsons , 2010 BCCA 377 R. v. Kasokeo , 2009 SKCA 48 R. v. Slobbe , 2011 BCCA 107 R. v. Friesen , 2020 SCC 9 R. v. Badhesa , 2019 BCCA 70 and R. v. Adu-Bekoe , 2021 ONCA 136 .

The Pre-Sentence Report [ 19 ] Mandip Kalirai of the Abbotsford Community Corrections Office prepared a Pre-Sentence Report on February 27, 2020. Three people were interviewed as part of the preparation of the Pre-Sentence Report: Mr. Schuil, his sister V.H. and Ms. K. [ 20 ] The Pre-Sentence Report is not long or complex. I have not received an update to it, although 14-and-a-half months have gone by since its preparation. The Pre-Sentence Report sets out: i. Mr. Schuil has a short criminal record. Four driving offences related to alcohol from 1985 to 2002, plus a conviction on March 23, 2017, for assaulting Ms.

K. on June 26, 2016. ii. Mr. Schuil successfully completed the “Respectful Relationships Program” through B.C. Community Corrections from July 2017 to September 2017. iii. Mr. Schuil’s parents separating when he was 14 years of age. iv. Despite his parent’s separation, Mr. Schuil had a stable upbringing, including a healthy relationship with his parents and

siblings. v. Mr. Schuil has a grade ten education. vi. Mr. Schuil’s one significant relationship as an adult was with Ms. K., the mother of his two children, now approximately ages 8 and 11. vii. Mr. Schuil has had no contact with his two children due to court orders. viii. Mr. Schiul and Ms. K. see their relationship much differently. Mr. Schuil remembers that “things just did not work out”, while Ms. K. described an unhealthy relationship which consisted of mental and emotional abuse, which escalated over the years to physical and sexual violence within their relationship. ix. Mr.

Schuil was unemployed at the time the Pre-Sentence Report was prepared. When he does work, it is usually in the construction industry. x. Mr. Schuil is physically healthy. He has never been diagnosed with a mental illness. xi. Mr. Schuil struggles with alcohol. Approximately ten years ago, he had a one-year history with cocaine. He has been a regular user of marijuana for the past 30 years. xii. Despite the conviction at trial, Mr. Schuil has apparently not taken responsibility for his actions on July 21, 2018. xiii. Mr.

Schuil is willing to abide by conditions of a probation order and he is motivated to address his substance misuse. Previous Conviction for Assaulting Ms. K. [ 21 ] As mentioned in the Pre-Sentence Report, Mr. Schuil was convicted on March 23, 2017 of assaulting Ms. K., contrary to s. 266 of the Criminal Code . The offence occurred on June 26, 2016 in Mission, B.C. The presiding judge sentenced Mr. Schuil to a suspended sentence with one year probation, a $100 victim fine surcharge, a requirement to provide his DNA, and a two-year firearms and weapons prohibition per s. 110 of the Criminal Code .

In addition to the expected no communication with Ms. K. condition, Mr. Schuil was ordered to "take such counselling as directed by the probation officer and this will include counselling for Respectful Relationships or for alcohol abuse". Victim Impact Statement [ 22 ] Ms. K. did not provide a victim impact statement; however, I have the benefit of her evidence at trial. The Purpose and Principles of Sentencing (as of July 21, 2018) Purpose -

Section 718 [ 23 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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 acknowledgement of the harm done to victims or to the community. Fundamental Principle -

Section 718.1 [ 24 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles [ 25 ] I am going to highlight some of the other sentencing principles set out in s. 718.2 of the Criminal Code , which I have taken into consideration: 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 offence or the offender and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner; (iii.1) evidence that the offence has a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

Both of those “shall be deemed to be aggravating factors.” (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Current Province of British Columbia Health Emergencies [ 26 ] There are currently two public health emergencies in British Columbia that may have an impact on Mr. Schuil, given his history of cocaine usage and the COVID-19 pandemic that is currently engulfing the Planet Earth: 1. On April 14, 2016, Provincial Health Officer Dr.

Perry Kendall declared a public health emergency under the Public Health Act pursuant to the provisions of s. 52(2) of the Public Health Act . He declared and provided notice that the increasing availability of highly toxic, illegally produced opioid fentanyl analogues and the resulting increase in people overdosing from fentanyl and fentanyl mixed with other drugs, including cocaine, had caused a health emergency in British Columbia. 2. On March 17, 2020, Provincial Health Officer Dr. Bonnie Henry declared a public health emergency under the provisions of s. 52(2) of the Public Health Act .

She declared and gave notice that the transmission of the infectious agent SARS-CoV-2, which has caused cases and outbreaks of the serious illness known as COVID-19 among the population of British Columbia, had caused a health emergency in British Columbia. Unintentional Illicit Drug Toxicity Deaths in British Columbia [ 27 ] According to the BC Coroners Service Illicit Drug Toxicity Deaths in British Columbia Report dated March 25, 2021, in 2019 British Columbia suffered 985 deaths from unintentional illicit drug toxicity and there was a death rate of 19.4 per 100,000 population.

In 2020, B.C. suffered 1,724 deaths from unintentional illicit drug toxicity and there was a death rate of 33.5 per 100,000 population.

Fast- forwarding to 2021, in January and February of 2021, the two months that the BC Coroner has published data for, there were a total of 329 illicit drug overdose deaths in B.C. [ 28 ] The illicit drug toxicity category includes the following: • Street drugs (illicit fentanyl, cocaine, methamphetamine, MDMA, heroin, etc.). • Medications not prescribed to the decedent but obtained/purchased on the street, from unknown means or where origin of drug not known. • Combinations of prescribed medications with illicit fentanyl, cocaine, methamphetamine, MDMA, heroin, etc. [ 29 ] I note that in the period of 2018 to 2020, 87 percent of unintentional illicit drug toxicity deaths in B.C. involved fentanyl with 48.7 percent of the deaths in B.C. also involving cocaine.

COVID-19 Pandemic [ 30 ] According to the World Health Organization’s Coronavirus disease (COVID-19) website, people age 60 years and over and those with underlying medical problems like high blood pressure, heart and lung problems, diabetes, obesity or cancer are at higher risk for developing serious illness. However, anyone can get sick with COVID-19 and become seriously ill or die at any age.

Accordingly, people of all ages who experience fever and/or cough associated with difficulty breathing or shortness of breath, chest pain or pressure or loss of speech or movement are counselled by the World Health Organization and the BC Centre for Disease Control to seek medical care immediately. COVID-19 Statistics [ 31 ] According to the COVID-19 Dashboard created by the BC Centre for Disease Control, as of April 12, 2021 there have been 111,919 laboratory-confirmed cases of COVID-19 in British Columbia, including 1,513 confirmed deaths.

Of the B.C. laboratory- confirmed COVID-19 cases, 64,118 have been in the Fraser Health Region of British Columbia with 5,081 active cases, 51 people currently in the intensive care unit and 806 deaths. [ 32 ] As of April 12, 2021 the Government of Canada Epidemiological

Summary of COVID-19 Cases in Canada reports that the total number of COVID-19 cases in Canada is 1,071,016 with 23,356 deaths. Of significance, Ontario and Quebec continue to report the majority of the cases (67.1 percent) and deaths (78.4 percent) in Canada. [ 33 ] Globally, as of April 12, 2021 the World Health Organization Dashboard sets out that worldwide there have been 136,291,755 confirmed COVID-19 cases with 2,941,128 deaths attributed to COVID-19. COVID-19 Vaccines [ 34 ] Health Canada has approved four COVID-19 vaccines for use in Canada according to the BC Centre for Disease Control.

As of April 13, 2021 the COVID-19 vaccines are available free of cost for everyone in British Columbia who is eligible to receive one of the vaccines.

Collateral Consequences [ 35 ] The potential affect of the COVID-19 pandemic on Mr. Schuil is not, in my opinion, a mitigating factor. In my view, mitigating factors generally relate to the character of the offender, the nature of the offence and the circumstances surrounding its commission. Furthermore, I do not accept that the COVID-19 pandemic is an exceptional circumstance as contemplated in R. v. Voong as it is irrelevant to the rehabilitation of Mr. Schuil. Overall, in my view, the potential risk posed by the COVID-19 pandemic in Mr.

Schuil's case is best described as a collateral consequence as contemplated in R. v. Pham . [ 36 ] On December 3, 2020 in R. v. Milne , Justice Ker provided an update to the case law regarding the impact of COVID-19 on sentencing. She opined that in British Columbia four decisions inform the impact of COVID-19 on sentencing and determining an appropriate sentence: R. v. Greer , R. v. Hearns , R. v. Zhao and R. v. McKibbin .

I note in particular Judge Ker's teaching regarding the McKibbin decision at paragraph 134 : [ 134] The import of McKibbin is that, in the absence of concrete evidence of significant risk to an offender's physical health, the fact of COVID-19 on its own does not result in a reduction of the length of a custodial sentence to be imposed, or count as a factor in reducing a sentence below the range otherwise supported by the case authorities. Rather, the matter is best left to the parole authorities to assess as outlined in Greer and Zhao. [ 37 ] In R. v.

Hearns , Justice Pomerance said at paragraph 23: [23] Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day , 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K. , 2020 ONSC 1935 , at para. 74 : In

summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public. [ 38 ] In R. v. Greer at paragraphs 51 to 54 , Justice Crabtree provided the following guidance: [51] In my consideration of this matter, I have reflected upon the comments set out in Hearns .

Here, I note that there was no evidence introduced to show the current impact of COVID-19 upon the federal or provincial institutions; and, more importantly, with respect to Mr. Greer himself, in terms of whether or not he suffers a suppressed or compromised immune system. Mr.

Greer, in his comments to the court, did provide some insight into his personal situation and the restrictions in movement, programming, and visitation that he has experienced while at the Pretrial Centre; and I accept the fact that there are certainly some restrictions imposed, as a result of the current circumstances. [52] Any sentence imposed must be guided by the statutory and common law principles of sentencing.

That said, it was suggested that COVID-19 may reduce the requirement of parity with previously established ranges, or may justify a departure from the usual range of sentence in certain circumstances; and here, I refer to R. v. Lacasse [citation omitted]. The defendant requests the court grant a reduction in what would otherwise be an appropriate sentence, based on the potential prospect of difficulties posed by the current pandemic that the defendant may be subject to. [53] While I have considered this, I am not inclined to do so in these circumstances for the following reasons.

I do not know for how long such restrictive conditions may continue and in what form. Not enough is known at this point, as to whether conditions may improve, worsen, or remain the same. As a result, it appears to me to be speculative to assess the impact. Again, as I noted previously, there is no specific evidence concerning the particular health issues or risks, if any, that are faced by Mr. Greer; and finally, I would draw upon the comments in the Ontario Court of Appeal case of R. v.

Morgan , 2020 ONCA 279 , discussing the impact of COVID-19 at para. 12, where the Court states: [12] That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole.

If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure. [54] Based on the circumstances and information that I have before me at this juncture, it strikes me that any impact that COVID-19 may have upon Mr. Greer and the sentence received is best left in the hands of the parole authority in this province. [ 39 ] Following Greer , Justice Schultes set out in R. v. Zhao at paragraph 134 : [134] On the effects of COVID, Mr. Zhao's counsel cited the thoughtful reasons of Justice Pomerance, a well-known criminal law authority, in R. v. Hearns , 2020 ONSC 2365 .

In that decision, Pomerance J. concluded that the current pandemic and the conditions that it will create in prisons, whether through the risk of infection or the kind of restrictive lockdown that Mr. Zhao has experienced, may justify a departure from the usual range of sentence in appropriate circumstances.

In her analysis, Pomerance J. drew an analogy to the principles that can lead to the reduction of sentences for state misconduct, or for collateral consequences that would make a sentence harsher for the offender than it might otherwise have been. [ 40 ] Justice Schultes then quoted paragraphs 51 to 54 of Greer and concluded by stating in paragraph 136: [136] I adopt that approach here and would not give specific effect to the impact of COVID on Mr. Zhao's correctional experience, either thus far or prospectively. I note that in a subsequent decision - R. v. Costello , 2020 BCSC 1206 , at para. 76 - Justice G.P.

Weatherill appeared to endorse Hearns , but he did so only generally and in passing, and so if a conflict between these two authorities actually exists, I would adopt the more extensive reasoning in Greer .

Aggravating Factors [41] As a result of s. 348.1 of the Criminal Code and my having convicted Mr. Schuil of an offence under s. 348 in relation to adwelling house, I am required to consider as an aggravating circumstance the fact that the dwelling house was occupied at the time of thecommission of the offence and that Mr. Schuil, in committing the offence: (

a) knew that or was reckless as to whether the dwelling house was occupied, and (

b) used violence or threats of violence to a person or property. I find that Mr. Schuil knew or was reckless as to whether or not Ms. K.'sdwelling house was occupied at the time he broke into it. I consider sexual assault to be

an act of violence. I consider Mr. Schuil's act ofgetting into bed with Ms. K., lying on top of her and undoing her pants, to be

an act of violence. [42] Mr. Schuil gets the benefit of the law as it stood on July 21, 2018. Nevertheless, in my opinion it is an aggravating factor that Ms.K. is Mr. Schuil's former intimate partner and the mother of his two children. This is true even though the September 19, 2019amendments to the Criminal Code, four of which I set out below, had not come into effect yet. [43] The September 19, 2019 Criminal Code amendments include:

Section 2 defines the term “intimate partner” as: with respect to a person, includes their current or former spouse, common-law partner and dating partner; (partenaire intime)

Section 718.2(a)(ii) states: evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’sfamily … shall be deemed to be aggravating circumstances;

Section 718.201 states: A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increasedvulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Section 718.3(8) states: If an accused is convicted of an indictable offence in the commission of which violence was used, threatened or attempted against anintimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatenedor attempted against an intimate partner, the court may impose a term of imprisonment that is more than the maximum term ofimprisonment provided for that offence but not more than (

a) five years, if the maximum term of imprisonment for the offence is two years or more but less than five years; (b) 10 years, if the maximum term of imprisonment for the offence is five years or more but less than 10 years; (c) 14 years, if the maximum term of imprisonment for the offence is 10 years or more but less than 14 years; or (

d) life, if the maximum term of imprisonment for the offence is 14 years or more and up to imprisonment for life. [44] It is an aggravating factor that Mr. Schuil was convicted on March 23, 2017 of assaulting Ms. K.

Lack of Remorse [45] In Slobbe at paragraphs 44 to 48 the Court of Appeal clarified that a lack of remorse is not an aggravating factor: [44] The appellant claims that the sentencing judge's reference (in para. 120) to "lack of remorse" as an aggravating factor is an errorin principle. [45] This Court has said that it is an error for a sentencing judge to take lack of remorse into account as an aggravating factor: see R.v. Muhammad, 2004 BCCA 396; R. v. Zeek, 2004 BCCA 42; R. v. Haj-Ahmed, 2007 BCCA 143.

In Haj-Ahmed, Hall J.A. cited hisearlier reasons for judgment in Muhammed, where he explained the appropriate manner in which to treat lack of remorse on sentencing(at para. 16): The matter was referred to by myself in the case of R. v.

Muhammad (2004), 2004 BCCA 396 , 187 C.C.C. (3d) 14 (B.C.C.A.),where I had occasion, in considering an appeal from sentence involving a sexual assault with a weapon on a sex-trade worker, to makethe following observation: 9 I had occasion, recently in a case, to refer to the Zeek case and other cases that dealt with this difficult question of how remorse isto be treated in questions of sentence. The principle that I gleaned from the cases is that lack of remorse is not an aggravating factor, butif an accused displays remorse that is something that can work in favour of an accused person.

The way I would put it is that lack ofremorse is a somewhat neutral factor in sentencing, but if an accused demonstrates remorse, it may lead the court to conclude that theaccused has begun on the road to rehabilitation by recognizing that the conduct he or she engaged in was unacceptable. To that extentremorse can be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particular offence. 10 In the instant case, I consider that the learned trial judge fell into error when she stated that lack of remorse could be anaggravating factor.

That however, leaves the question at large as to whether or not that particular error should lead to the allowance ofthis appeal. I note that in the Zeek case, although it was found to be error to treat lack of remorse as an aggravating circumstance, that

appeal was dismissed because the court was not persuaded that the sentence imposed was an unfit one. [46] In Haj-Ahmed, Hall J.A., in reasons for the Court, considered the sentencing judge's comment that the appellant's apology "wastoo little too late and it lacked sincerity" in a paragraph beginning with the words "There are a number of aggravating factors".

Heconcluded (at para. 18): I acknowledge that the comment has about it a degree of ambiguity, but it seems to me that when the matter is put in context, that thelearned sentencing judge was simply taking account of that as one factor in deciding whether or not the appellant had acknowledged theerror of his ways and was on the way to appreciating and realizing the enormity of what he had done and, hopefully, resolving never todo it again or anything like it.

In that sense, it cannot be said that he was, in fact, in error with what he said on that occasion. [47] In this case, the sentencing judge first referred to the appellant's lack of remorse in the context of his consideration of mitigatingcircumstances (at para. 89). He then included it, after concluding that the range suggested by the Crown was too low, in his

summary ofthe "most significant of the aggravating circumstances that take this sentence beyond the Crown range" (at para. 120). [48] Based on the law, the appellant's lack of remorse was not an aggravating factor, and if the sentencing judge increased hersentence on that basis, it would be an error in principle. In this case, like Hall J.A. in Haj-Ahmed, I am not persuaded that he made thaterror.

In the context of the sentencing judge's analysis of all of the relevant factors and circumstances, and of his conclusion that theCrown's suggested range was too low, in my opinion, the sentencing judge was in effect distinguishing this case from those relied on bythe Crown where an expression of remorse had been taken into account as a mitigating factor. Accordingly, I do not consider Mr. Schuil's refusal to take responsibility for his actions on July 21, 2018 and his accompanying lack ofremorse to be an aggravating factor on sentence. Mitigating Factors [46] The mitigating factors are as follows: i.

I was told that there has been one breach charge laid for contacting Ms. K. after Mr. Schuil was convicted at trial. However,other than that one incident, I am told that he has been largely compliant with the conditions of his bail. More importantly, there havebeen no issues for the past almost 14 months. ii. As alcohol played a definitive role in the commission of the offence, Mr. Schuil is motivated to address his alcohol abuse issue. Discussion of Fact Pattern Case Law [47] Given the facts in Mr. Schuil's case, it has been challenging to find case law with the same fact pattern.

Nevertheless, there areseveral cases that provide guidance and insight. [48] Two leading cases of the British Columbia Court of Appeal with respect to the sentencing range for residential break and enteroffences are R. v. Bernier and R. v. Powis. Both decisions establish or adopt a broad sentencing range for residential break and enter.Midway through paragraph 29 in R. v.

Powis, Justice Ryan adopts a range of nine months to five years. [29] … I will not review the victim impact statements because they demonstrate only what one might expect – a sense of violationand fear in the victims left in the aftermath of the crimes of Mr. Powis. There is no need to canvass the case law to find the proper rangeof sentence for this type of case. The range is a broad one. In R. v.

Bernier (2003), 2003 BCCA 134 , 177 CCC (3d) 137Madam Justice Southin identified an approximate sentence range for residential breaking and entering as 9 month to 5 years. . . [49] In Rousseau, a case that involved a break and enter into a dwelling house by a former intimate partner, albeit the intruder wasmotivated by wanting to confront his former intimate partner's new boyfriend, Judge Blake sentenced the offender to a global sentence of21 months plus one year probation.

Judge Blake noted that in the classification of offences for sentencing purposes, breaking into adwelling house with the intent to commit an indictable offence ranks on par with the offences of armed robbery and the most aggravatedforms of sexual assault. Judge Blake made two observations at paragraphs 8 and 9 that deserve repeating in Mr. Schuil's case: [8] It is not difficult to understand why the law treats so seriously the offence of breaking into a private residence for purposes ofcommitting some further offence while inside. As my colleague Caryer, PCJ said in R. v.

Crittenden, [2010] BCJ No. 2672 (BCPC): [A] break and enter into somebody's private residence is an extremely serious offence. It is an offence that caries with it a tremendousimpact on the victims of the offence not only on the specific victims who own the property or may even be residing or occupying thepremises at the time, but it also has a significant impact on the community in that it shakes even the neighbours' sense of security. Itshakes the community sense of safety in their own residences and in their own neighbourhoods.

These sorts of crimes go a long way toimpact what the community feels about the quality of life in their community. [9] I would venture one further comment, which has particular relevance to the present case. A break-in not infrequently causesthose inside the residence to respond by resisting the intrusion. When that happens, there is no way of predicting what sort of negativeconsequences may occur, but the possibilities certainly include property damage, serious physical injury or even death.

And it is noanswer at all for the intruder to later maintain that if the occupier of the property had not resisted, the negative consequences would nothave occurred. Resistance in the face of intrusion is an instinctive and easily anticipated human reaction to criminal behaviour. [50] In Furtado, Justice Brown made use of the conditional sentence order provisions, a sentencing option that was not, beforeTuesday of this week, available to Mr. Schuil (as a result of R. v. Chen, a conditional sentence order is now available to Mr. Schuil herein British Columbia).

Justice Brown noted that the break-in took place at around 4:30 a.m. in a rural farmhouse which was unoccupied atthe time. Mr. Furtado and Ms. Taylor parked some distance away and entered the property with a penlight to avoid detection. The policearrived shortly thereafter. Nothing was taken and nothing was damaged. Crown counsel conceded that the offence was at the least

serious end of the spectrum of break and enter a dwelling house. Both offenders were sentenced to a combination of conditional sentence order plus probation: Mr. Furtado received a 12-month conditional sentence order plus one year probation, while Ms. Taylor received a nine-month conditional sentence order plus one year probation. [ 51 ] In Perusini , the offender entered guilty pleas to six separate counts of breaking and entering committed at six different addresses over a period of six months, and to one count of driving while prohibited during the same period.

All of the break and enter offences were committed at a dwelling house. No one was at home when the offences were committed. Five of the six break and enter offences were committed during daylight hours. In each case, property of a value between $1,000 and $10,000 was stolen. In several cases, heirloom property whose value to its owner greatly exceeded its market value, was taken. Ms. Perusini did not have a criminal record. Judge Gouge sentenced Ms.

Perusini to sentences of 60 days jail with credit for 60 days served, each count concurrent to the other, and a term of three years probation. [ 52 ] In Forner , which was a sentence appeal and is best known for its teachings in relation to the use of banishment of an offender from a particular community, Ms. Forner appealed her sentence in relation to one count of break and enter into a dwelling house to commit the indictable offence of assault with a weapon. As pointed out by the Court of Appeal, the circumstances were bizarre and involved psychological and psychiatric components.

The facts are briefly described at paragraph 2: [2] … On August 8, 2018, the appellant, visibly intoxicated, and wearing a long dark wig and dish gloves, knocked at the door of the house of Katherine Rinas in Osoyoos, BC. Ms. Rinas was at home with her four-year-old daughter and newborn baby, and answered the door. The appellant asked to see the baby. Ms. Rinas shut the door on her. The appellant then re-opened the door and entered the home, wielding a large butcher knife over her head. She did not get very far. Showing considerable fortitude, Ms.

Rinas grabbed the appellant, pushed her out the door, and called 911. The police tracked the appellant down quite quickly. The Court of Appeal reduced the custodial sentence to 20 months less credit for time served and removed the banishment clause from the terms of the three-year probation. [ 53 ] In Pangon , Justice Richard of the Northwest Territories Supreme Court sentenced Mr. Pangon, an Indigenous man with a significant criminal record related to intimate partner violence, to two years less one day of jail, followed by two years of probation. The offence was committed at a time when Mr.

Pangon was intoxicated from alcohol consumption and he told the court that he had no memory of the event. The victim of the offence was a woman who had had an eight-month relationship with Mr. Pangon. The relationship had ended one or two months prior to the break and enter. The victim was asleep in her home in Yellowknife with her four- year-old son. At 1:00 a.m. Mr. Pangon unlawfully entered her home through a window. He accosted the victim, yelling and swearing at her, pushed her onto a chair and confined her there.

She was eventually able to get to the front door and leave her residence, carrying her four-year-old. Mr. Pangon pursued her, hauled her and her son to the ground. The victim was able to escape and walked to a gas station and telephoned the RCMP. The police found Mr. Pangon hiding in the victim's residence and arrested him. [ 54 ] In T.L.G . , 34-year-old T.L.G., who had mental health and substance abuse issues, pled guilty to two charges: 1) break and enter a dwelling house and committing a sexual assault, and 2) sexual interference with a person under 14 years of age. T.L.G. was a neighbour of the victim.

He was intoxicated by a combination of alcohol and cocaine. He entered the victim's home at approximately 4:00 a.m. through an unlocked door in the middle of the night, went into the master bedroom where the adult victim was sleeping with her 10-year-old daughter. After removing all his clothes, T.L.G. got into the bed and put his hands on the adult victim's body, touching her everywhere.

He said to her, "Be quiet." He then asked the adult victim, "Why don't you want to have fun?" and "Let's have sex." T.L.G. also said to the 10-year-old girl, "Let's have a great time." T.L.G. rubbed the adult victim's stomach and back and tried to kiss her on the mouth but she pushed him away. T.L.G. called both the mother and her daughter by their first names during this incident. The incidents took place over a short period of time and the victims eventually screamed for help. Upon hearing the screams, the other residents of the house came to offer assistance.

T.L.G. grabbed his clothes and fled when the other residents came to the bedroom. He was sentenced to a two-year-less-a-day term of imprisonment, followed by three years probation. [ 55 ] In Reid , the Alberta Court of Appeal considered a sentence appeal by Mr. Reid. He had been sentenced to five months jail plus probation after being convicted at trial. Mr. Reid was convicted of two offences: break and enter and commit and sexual assault. The circumstances were that Mr.

Reid used a key, which had been made available to him only for emergency use, to enter the dwelling house of the victim who lived in the same building. The victim was sleeping and Mr. Reid touched her in a sexual manner. It was agreed by all parties that it was a case of a relatively minor sexual assault. Mr. Reid was intoxicated at the time. He had a not insignificant previous record.

The Alberta Court of Appeal rejected a conditional sentence order and held the sentence imposed was fit. [ 56 ] In Hill , at approximately 6:30 a.m., the 16-year-old victim woke up with hands around her throat and she could not breathe. She did not know who the assailant was. The assailant was wearing gloves, smelled of alcohol and “…seemed kind of… out of it.” The victim was uncertain whether she hit or pushed her assailant, but he loosened his grip and she was able to scream. The victim's mother heard the scream and went to the victim's bedroom.

The door to the victim's bedroom was blocked momentarily by the intruder who pushed past the mother and fled the residence. The assailant's hands were around the victim's throat for substantially less than 15 seconds. The mother called the police. The mother discovered a full bottle of beer on the floor at the end of the victim's bed, a pair of leather gloves on the end of the bed, and a pair of shoes sitting in the downstairs living room by the basement door. A day or two later, Mr. Hill turned himself in to the police and provided them with a statement admitting that he had entered the residence in question.

As a result of the assault, the victim suffered a sore throat which went away on its own within a couple of days. The 28-year-old Mr. Hill was charged with break and enter a dwelling house and committing assault. He entered a guilty plea. Mr. Hill had no criminal record and told the sentencing judge that he was too drunk to remember the incident. He received a very favourable Pre-Sentence Report. The sentencing judge held at paragraph 68 that “ Intoxication is not a mitigating factor but it may provide an explanation for misconduct.” Mr.

Hill was sentenced to a term of imprisonment of six months, followed by a period of probation of two years. [ 57 ] In Phillips , Justice Block concluded that for a residential break and enter of an occupied home involving a level of violence at

the lower end of the scale by an offender who is neither youthful nor first-time offender, the sentencing range is perhaps three months totwo years in jail. [58] In Friesen, although dealing with sexual offences against children, the Supreme Court of Canada teaches that: [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.

Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the "fundamental principle" of sentencing in s. 718.1 of theCriminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similarcircumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is nowcodified in s. 718.2(

b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, atparas. 78-79). [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.

Then at paragraphs 97, 108 and 118: [97] Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted suchoffences to be punished more harshly" (Lacasse, at para. 7). An increase in the maximum sentence should thus be understood as shiftingthe distribution of proportionate sentences for an offence. … [108] Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence.Sentencing ranges are not "straitjackets" but are instead "historical portraits" (Lacasse, at para. 57).

Accordingly, as this Courtrecognized in Lacasse, sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence foran offence and when society's understanding of the severity of the harm arising from that offence increases (paras. 62-64 and 74). … [118] We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offencesagainst adult victims or as a bar against increasing sentences for sexual offences against adult victims.

As this Court recently held, ourunderstanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, atpara. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courtsshould correct this error by increasing sentences for sexual offences against children — not by decreasing sentences for sexual offencesagainst adults. [59] In Shoker, the case involved a conviction for break and enter a dwelling house with intent to commit an indictable offence,sexual assault.

The trial judge gave Mr. Shoker eight months credit for four months pre-trial custody and sentenced him to an additional12 months imprisonment, followed by two years’ probation. The B.C. Court of Appeal upheld the sentence of imprisonment. TheSupreme Court of Canada denied a Crown appeal related to probation terms, but did not interfere with the 20-month jail term. The factswere that shortly after midnight on September 7, 2003, the victim was awakened when a naked stranger was getting into her bed. Theintruder, Mr.

Shoker, followed her when she fled to the kitchen to telephone the police, but he did not attempt to leave the dwellinghouse. Police arrived and arrested Mr. Shoker. He told the police that he had been using a narcotic the previous day. [60] In Parsons, the B.C. Court of Appeal dealt with a sentence appeal from a sentence of five years imposed upon the 40-year-oldappellant who was convicted of break and enter a dwelling house with intent to commit an indictable offence therein, contrary to s.348.1(

a) of the Criminal Code, sexual assault pursuant to s. 271 of the Criminal Code, and knowingly uttering a threat to injure ananimal pursuant to s. 264.1(1)(

c) of the Criminal Code. The five-year sentence was imposed on the break and enter offence. Mr. Parsonshad a number of health issues, including the ongoing effects of a kidney transplant, and he was on disability at the time of the offence.Mr. Parsons and the victim had been in a previous relationship. Mr. Parsons went to the house of the victim when he knew that her newpartner would be at work and not in the house. Mr. Parsons broke down a barricaded door and sexually assaulted the victim. During theassault, Mr. Parsons threatened to kill the victim's cat in order to force her to comply with his wishes.

The Court of Appeal found thathaving been in a previous relationship was an aggravating factor that the court was entitled to take into account when sentencing. Thesentence appeal was dismissed. [61] In Kasokeo, the Saskatchewan Court of Appeal allowed a Crown sentence appeal in relation to a 24-year-old First Nations manand substituted 30 months jail. The facts are that on the night of October 7, 2006, a group of young people gathered for a house party onPoundmaker First Nation. Among those present were Mr. Kasokeo and the victim, an 18-year-old woman.

As the night wore on, thevictim, feeling a little bit intoxicated, lay down on a bed and fell asleep. In time, she awoke with her pants and underwear at her anklesand Mr. Kasokeo behind her, engaging in a sexual act with her. He was thrusting against her though it is not entirely clear whether penilepenetration occurred, but it probably did. She sat up, covered herself with a pillow and blankets, pulled her pants up, told the other mennot to look at her and made her way out of the house. She was upset and reported the incident to police. The Saskatchewan Court ofAppeal noted midway through paragraph 5:

[5] … As these cases demonstrate, the Court has consistently stressed not only the gravity of these offences when committed in circumstances such as these, but the level of moral culpability of the offender and the need to effectively denounce and strive to deter criminal conduct of this nature. Sexual assault upon a woman asleep constitutes a substantial and gross violation of her sexual and personal integrity and most often results in lasting, serious harm to the victim.

As these cases also demonstrate, sentences in the range of 30 to 36 months are regularly imposed for similar offences committed in similar circumstances by similar offenders. Decision [ 62 ] In reaching my decision today I have reminded myself that I must impose a just sanction that is proportionate to the gravamen of the offence for which Mr. Schuil is being sentenced and his moral blameworthiness per s. 718.1 of the Criminal Code .

Suspended Sentence Available [ 63 ] Where no minimum sentence is required, the Criminal Code permits the court to suspend the passing of sentence rather than impose a sentence, s. 731(1)(a), and to place a person on probation for a maximum of three years, per s. 732.2(2)(b). If an offender who is on probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before the court for sentencing.

At that point the judge may impose any sentence that would have been imposed at the time the sentence was suspended, per s. 732.2(5)(d). [ 64 ] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may impose optional conditions as per s. 732.1(3)(

a) through to (g.2). Under s. 732.1(3)(h), the court may also impose any other “reasonable conditions … for protecting society and for facilitating the offender's successful reintegration into the community.” Conditional Sentence Order Available [ 65 ] As a result of a conditional sentence order now being available to Mr. Schuil, in addition to considering a suspended sentence for Mr. Schuil, I have also, as part of my decision today, considered whether he would be a suitable candidate for a conditional sentence order.

Other Considerations [ 66 ] In Badhesa , a case that dealt with manslaughter, the Court of Appeal at paragraphs 39 and 40 noted that: [39] Intoxication by alcohol or drugs often figures prominently in manslaughter cases. While relevant to moral culpability, self- induced intoxication that leads to violence is typically the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy. In such circumstances, the offender is held fully accountable for his or her condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence.

This is because the offending conduct encroaches on our society's basic code of values and warrants condemnation and punishment: Green at paras. 16, 19, 23. [40] However, an offender's volitional and decision-making capacity in connection with self-induced intoxication and related violence may stem, at least in part, from mental illness or other cognitive disability. Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offender's moral culpability.

The criminal law views individuals as autonomous and rational beings and seeks to impose criminal liability solely on those who are responsible for the state they were in when an offence is committed: R. v. Bouchard-Lebrun , 2011 SCC 58 at paras. 48 , 68. Similar concerns animate the determination of a fit sentence: R. v. Friesen , 2016 MBCA 50 at para. 18 . Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fully accountable offenders for sentencing purposes: R. v. Ayorech , 2012 ABCA 82 at para. 12 .

Where an offender is found to be criminally responsible, but suffering from a serious mental illness or disability, a more lenient disposition than would otherwise be called for may well be appropriate to reflect a diminished level of criminal responsibility: R. v. Ramsay , 2012 ABCA 257 at para. 21 . [ 67 ] I am of the view that the same can be said for break and enter a dwelling house with intent to commit sexual assault cases. Substitute the phrase "break and enter a dwelling house with intent to commit sexual assault" for "manslaughter" in paragraph 39 of Badhesa and you have Mr. Schuil's situation. Mr.

Schuil's self-induced intoxication by alcohol no doubt triggered his decision to break and enter into Ms. K.'s dwelling house and the subsequent violence. There is no indication of mental illness in Mr. Schuil's case and, in fact, Mr. Schuil denied a history of mental illness to the author of the Pre-Sentence Report. [ 68 ] While the sexual assault aspect of the present case may be on the minor side, it does not change the fact that for Ms. K. it was a traumatic and horrible experience. The sanctity of her body and her home were shattered.

It is hard to imagine many more difficult situations than being on your own, finding oneself fighting off an intruder in your own home, who openly expresses his desire to sexually assault you. Perhaps even more difficult for Ms. K., given her acrimonious relationship with Mr. Schuil, which includes Mr. Schuil's conviction in 2017 for assaulting Ms. K. [ 69 ] Having heard the submissions of counsel today and having considered the applicable facts, case law and the purpose and principles of sentencing, I am of the opinion that denunciation and deterrence are to be the primary consideration in Mr.

Schuil's case. [ 70 ] General deterrence for others considering breaking into their former intimate partner's dwelling house. The cycle of violence by men towards women, including sexual assault, needs to be broken. [ 71 ] Specific deterrence for Mr. Schuil, who clearly did not learn his lesson the first time he was convicted of assaulting Ms. K., for on July 21, 2018 he escalated the level of violence. [ 72 ] I have considered all available sanctions for Mr. Schuil, as I indicated earlier, including a suspended sentence, a conditional sentence order, or a significant jail term with probation to follow.

I have considered how best to provide for the protection of Ms. K., psychologically and physically, while providing for the rehabilitation of Mr. Schuil going forward.

[ 73 ] I have also considered the so-called “third wave of COVID-19” that is currently making its way through British Columbia and the rest of Canada, as well as the fact that people are getting vaccinated for COVID-19 regularly now here in British Columbia. [ 74 ] Finally, as per R. v. Adu-Bekoe , and while the decision is not binding on this court, it is nevertheless persuasive, I have taken into consideration that in relation to Count 3 of court Information 88845-1, Mr. Schuil has been waiting since December 19, 2019, that is 471 days from guilty verdict at trial to today, for his sentencing to take place.

I also acknowledge the passing of 931 days since the swearing of court Information 88845-1 on September 27, 2018 and the passing of a total of 1,003 days since the offence date of July 21, 2018. Some, but not all, of the delay attributable to the COVID-19 pandemic, and some of the delay attributable to Mr. Schuil, who failed to attend court on his original sentencing date of December 1, 2020. Sentence Imposed [ 75 ] Mr. Schuil, will you please stand? [ 76 ] In R. v.

Lacasse at paragraph 12 , the Supreme Court of Canada has instructed that the overarching principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness.

The principle of parity, which requires a consideration of sentences imposed on similar offenders in similar circumstances, informs the proportionality analysis, ensuring that the sentence is both individually proportionate and proportionate in relation to sentences given to offenders in similar circumstances. [ 77 ] That said, we are cautioned at paragraph 54 in Lacasse : [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, [on which the Court of Appeal relied], is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92] [ 78 ] At paragraph 58 of Lacasse , with respect to the applicability of sentencing ranges, the court explained: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. … [ 79 ] In all the circumstances, including factoring in the time that has passed since I convicted Mr. Schuil on December 19, 2019, I am of the view that a period of incarceration, followed by probation, is the appropriate fit sentence. [ 80 ] Accordingly, Mr.

Schuil, in relation to Count 3 of Abbotsford Court Information 88845-1, I sentence you to a term of imprisonment of one year, to be followed by one year of probation. [ 81 ] The terms of the probation in relation to Count number 3 of Abbotsford Court Information 88845-1 will be as follows: [ 82 ] 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. [ 83 ] You must report in person to a probation officer at Abbotsford Community Corrections 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 timeframe. After that, you must report as directed by your officer.

The address and telephone number for the Abbotsford Community Corrections office will be placed into this probation order for you. [ 84 ] When first reporting to your probation officer, you must provide them with the address were you live and your telephone number. You must not change your address or telephone number without prior written permission from your probation officer. [ 85 ] You must have no contact or communication, directly or indirectly, with K.K. or X. If you see one or both of them, you must leave their presence immediately without any words or gestures. The exceptions are as follows: (

a) As allowed by a family court order or a protection order made by a judge or master who has been given a copy of this probation order. You must immediately file a copy of this order in any family or child protection proceeding in which you become a party or are a party. (

b) Through or in the immediate presence of a lawyer who is a member in good standing of the Law Society of British Columbia and who has been given a copy of this probation order. (

c) Through court documents served through a third party and during scheduled court appearances or case conferences, but only with a sheriff present unless a master or a judge waives this requirement.

[ 86 ] You must not go to or be within 300 metres of any place where either K.K. or X live, work, attend school, worship or happen to be. If you see one or both of them, you must leave their presence immediately without any words or gestures. The exceptions are as follows: (

a) As allowed by a family or protection order made by a master or judge who has been given a copy of this probation order. You must immediately file a copy of this probation order in any family or child protection proceeding to which you become a party or are a party. (

b) Through or in the immediate presence of a lawyer who is a member in good standing of the Law Society of British Columbia and who has been given a copy of this probation order. (

c) Through court documents served through a third party and during scheduled court appearances or case conferences, but only with a sheriff present, unless a master or a judge waives this requirement. [ 87 ] You must not possess or consume alcohol except while inside your residence or while you are transporting it in a sealed container directly to your residence. You must not be intoxicated by alcohol in a public place. [ 88 ] You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer.

Ancillary Orders [ 89 ] Pursuant to s. 109(1) of the Criminal Code which reads: Where a person is convicted, or discharged under s. 730 of (

a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more, (a.1) an indictable offence in the commission of which violence was used, threatened or attempted against (

i) the person's intimate partner . . . the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be. [ 90 ] Subsection (2) says: An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that (

i) begins on the day on which the order is made, and (ii) ends not earlier than ten years after the person's release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person's conviction for or discharge from the offence; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 91 ] Accordingly, Madam Clerk, the order I am making is pursuant to s. 109 of the Criminal Code . Mr. Schuil is 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 10 years following his release from prison. [ 92 ] Mr.

Schuil is also prohibited from possessing any prohibited firearm or restricted firearm, prohibited firearm, prohibited device or prohibited ammunition for life. [ 93 ] Mr. Schuil, do you presently possess a Canadian Firearms Licence, otherwise known as a Possession and Acquisition Licence? [ 94 ] THE ACCUSED: No. [ 95 ] THE COURT: Do you currently have any firearms, ammunition or weapons in your possession? [ 96 ] THE ACCUSED: No. [ 97 ] THE COURT: Is anybody holding onto any firearms, weapons or ammunition for you? [ 98 ] THE ACCUSED: No. [ 99 ] THE COURT: Counsel, I am not making a surrender condition.

DNA Order [ 100 ] Count 3 on Abbotsford Court Information 88845-1 is defined as a primary designated offence pursuant to the definition of primary designated offence in s. 487.04( a.1 )(ix) of the Criminal Code , therefore I make the following order, Madam Clerk. Pursuant to s. 487.051(1) of the Criminal Code I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples.

Victim Fine Surcharge [ 101 ] There will be no victim fine surcharge in relation to Count 3 of Abbotsford Court Information 88845-1 due to the date that the offence occurred. (DISCUSSION) [ 102 ] THE COURT: Madam Clerk, there will be a further order of the court that Mr. Schuil will have no contact, directly or indirectly, with K.K. or X. (DISCUSSION) [ 103 ] THE COURT: I am in agreement with Ms. Kemble, I believe it is a secondary consideration and given that I did find specifically that Mr. Schuil committed the break and enter for the purpose of sexually assaulting Ms.

K., and in fact began to unclothe her, I am going to, pursuant to s. 490.012 of the Criminal Code , require that Mr. Schuil comply with the Sex Offender Information Registration Act for life as per s. 490.013(2) (

c) of the Criminal Code . [ 104 ] That is my order. (REASONS FOR SENTENCE CONCLUDED)