R. v. R.J.H. Date:, 2013 BCPC 139

Citation: R. v. R.J.H. Date: 20130403 2013 BCPC 0139 File No: 88862-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION Pursuant to s. 486.4(1) Criminal Code of Canada REGINA v. R.J.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: R. Browning Counsel for the Defendant: L. Farmer

Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: December 5, 19, 2012; March 27, 28, 2013 Date of Judgment: April 3, 2013 [ 1 ] THE COURT : RJH pleaded guilty to Count 2 on Information 88862-1 that between the 19th day of September, 2001, and the 19th day of September, 2005, inclusive, at or near Maple Ridge, in the Province of British Columbia, being a person in a position of trust or authority towards a young person, K.H., or a person with whom that young person is in a relationship of dependency, did for a sexual purpose touch directly or indirectly with a part of his body, the body of that young person, contrary to s. 153 of the Criminal Code . [ 2 ] This is an offence that is often referred to as sexual exploitation of a minor. [ 3 ] For the circumstances of the offence I will read directly from the Statement of Facts that was filed and which is part of Exhibit 1: The complainant, K.H., was born [DOB].

In September, 2001, K.H. was 14 years of age. RJH was born [DOB]. In September, 2001 RJH was 33 years of age. In September, 2001 K.H. lived at an address in Maple Ridge, B.C. K.H. moved to that address together with her mother and twin sister, M.H. in October, 1997. The family had moved into the residence of a Mr. B. and became members of a blended family together with Mr. B. and his three daughters. In approximately March, 1997, D.G. moved into the residence located on Stevens Street. This residence is located kitty corner from K.H.'s residence.

D.G. was pregnant when she moved into her residence, ultimately giving birth to her son, J., in November, 1998. RJH is the father to D.G.'s son. When born, D.G.'s son had some medical complications. This resulted in D.G. and her son only residing in her home on a full-time basis as of January, 1999. After their return, K.H. and her sister would frequently visit D.G.'s residence to play with J. Over time, D.G.'s residence became a refuge to K.H. spending considerable time there. D.G. remained on maternity leave until June, 1999 at which time she returned to her employment.

At that time, RJH began to live at the D.G. residence for the purposes of looking after his son while D.G. was at work. RJH had met both K.H. and her sister prior to residing at D.G.'s residence. RJH continued to reside at the D.G. residence until June 2000 when he moved out of the residence. During that period, K.H. and her sister continued to regularly visit J. From 1999 and forward, D.G.'s employment involved shiftwork of four days on shift, four days off shift, each shift lasting 12 hours. In 1999 D.G. believed that K.H. and her sister were two young to babysit J.

However, by the age of 12 K.H. and her sister had started to babysit J. Initially, the girls would babysit together, however, by the age of 13 K.H. was babysitting on her own. This would include babysitting during D.G.'s nightshifts. K.H. continued to babysit for D.G. on a regular basis for a period of three or four years (15 or 16), as well as spending time at D.G.'s residence when not babysitting J. It was known to RJH that K.H. was the babysitter of J. When RJH had moved out of the residence in June 2000, he continued to visit his son.

RJH's visits were usually random and most often he would not call before attending. RJH moved back to the D.G. residence in the fall of 2001. He continued to reside at the D.G. residence until approximately 2003. In 2003, RJH moved to a basement suite across from Thomas Haney Secondary School. This was a five-minute walk from the D.G. residence. RJH remained resident at this location for approximately six to seven months. He subsequently moved to a basement suite on 240th Street in Maple Ridge. He remained at this residence until K.H. ceased having contact with him.

In September 2001, K.H. and RJH were involved in a sexual relationship. K.H. was 14 years of age and RJH was 33 years of age in September 2001. K.H. had not been involved in a sexual relationship with anyone else prior. This relationship continued until K.H. was 18 years of age and RJH was 37 years of age (four years). The relationship involved numerous instances of sexual intercourse. K.H. describes the intercourse as occurring whenever there was the opportunity, ranging from daily to multiple times per day.

The relationship continued while RJH lived at the D.G. residence, at the residence across from Thomas Haney Secondary, and the residence at 240th Street. K.H. does not remember in detail all of the incidents of intercourse however does remember the following: (

a) K.H. describes RJH having torn a hole in the crotch area of a pair of pyjamas she wore to enable access and avoid surprise detection by others. (

b) RJH having sexual intercourse with K.H. on her 14th birthday. K.H. describes RJH's desire to always have sex on her birthday. (

c) At the age of 14 or 15, K.H. snuck out of her father's residence in East Vancouver. RJH picked K.H. up and took her to a storage garage in Vancouver where they had intercourse. (

d) While attending a bonfire at a neighbour's house in Maple Ridge, K.H. accompanied RJH to the shed in D.G.'s backyard where they had intercourse. (

e) On an occasion when K.H. was 15 years old and suffering from severe stomach pain, K.H. was asked to babysit for D.G. D.G.'s work shift started in the early morning hours. K.H. attended D.G.'s residence and got into D.G.'s bed to get some rest. RJH came home and insisted they have intercourse. Later that day, K.H. was admitted to Ridge Meadows Hospital for a period of three days for testing and remained in hospital for three days.

During the time K.H. and RJH were involved in a sexual relationship, RJH would provide K.H. and her friend Laura with cigarettes and alcohol. The relationship also involved the use of drugs such as cocaine and ecstasy, often occurring in conjunction with sexual relations. RJH would drive K.H. wherever she wanted to go. K.H. describes times where RJH would phone her school posing as her father to advise that K.H. would not attend school that day to enable continuation of the relationship.

K.H. describes the sexual relationship initially started as a "consensual" relationship and at times could be described as a "boyfriend/girlfriend" type of relationship. Over time, she felt it to be more of an obligation to which she would accede. K.H. describes continuing her

part in the relationship as the result of RJH indicating he would disclose the relationship to her mother and K.H.'s fear of her mother knowing of the relationship. The relationship ended when K.H. was 18 years of age at the instance of K.H. After the end of the relationship, RJH continued to contact K.H. seeking reconciliation. Ultimately, K.H. contacted the Maple Ridge RCMP seeking their assistance in dissuading RJH from contacting her.

K.H. has since moved to another jurisdiction in an attempt to put the past and this relationship behind her. [ 4 ] So those are the circumstances of the offence. [ 5 ] RJH does have a criminal record. There is a conviction in 1989 for possession of a narcotic under s. 3(1) of the Narcotic Control Act ; however, I note there was an absolute discharge given for that matter. [ 6 ] On April 13th, 2012, there are convictions for sexual assault and assault.

The sentences were one day and time served being five months, plus two years' probation for the sexual assault and a suspended sentence being two years' probation for the assault. I am told that the dates of the offences for sexual assault and assault were after the matters before me. [ 7 ] I have the benefit of a victim impact statement that was filed by the complainant. That also is part of Exhibit 1. Just to summarize what she wrote, the complainant stated that she has not been able emotionally to have a real relationship without feeling used or being taken advantage of.

She has a hard time trusting men in general. She suffers from anxiety attacks and those have affected her attendance at work. She wrote: I have definitely carried around a lot of guilt and embarrassment because of this issue. I still find that I blame myself for it. [ 8 ] Over time, she has moved and changed her telephone numbers to avoid seeing RJH and has worried about what would happen should she run into him. [ 9 ] I will read further from the victim impact statement: I have encountered many obstacles in my life but this has to be the most impacting.

I lost my childhood, my pride, my dignity, my self- confidence, my time, and my sense of self, things that are the main essence of life and some of which I will never get back. I struggle with life on a daily basis, emotionally, physically, and financially, raising my daughter on my own because I couldn't make the relationship with her father work because of my issues. I can't fix that. I have no emotional connection sexually with any of my relationships, something that I have not been able to overcome. I am not happy. I am never fulfilled.

I feel like there is always an ulterior motive like I know I am not enough, but I am useful in some ways. That's why I'm kept around. But in the end my thoughts and feelings are always what finishes it in the end because I am broken on so many levels and I am unable to just be happy with what I have. I wish I never met him. He ruined my life. I know I would have been a completely different person than what I am today. I wouldn't have suffered all of this. I would have been in a different place in my life. I had to try to start my life over again because of him, which feels as though it will never happen.

I have had to pay for moving expenses to get away from him, cancelling phone numbers, lost time at work due to emotional issues, and doctors' appointments related to this issue and medication. This has made it a daily struggle to keep a steady job. [ 10 ] Turning now to the offender, RJH. [ 11 ] RJH was born in November 1966, so he is 46 years old. I note for the record he has been in custody since May 8th, 2012.

I have had the benefit of a pre-sentence report which was marked as Exhibit 2 and a Gladue Report that was marked as Exhibit 5. [ 12 ] Going from those reports and submissions from counsel, I can glean the following: RJH's family history is somewhat incomplete. I understand, however, that his older sister, Marilyn, now is doing some research into the family background in Ontario and perhaps even further east. [ 13 ] Mr. H., Sr. was of Ojibway, Micmac, and French background. Mr. H., Sr. was the youngest of 13 children. He was educated by nuns who "hit their students with rulers". Mr.

H., Sr. suffered physical abuse at home as well. [ 14 ] RJH 's mother was non-native. His mother and father moved from Ontario to British Columbia before his older sister Marilyn was born. Both of his parents had children from other relationships and those children came to British Columbia too. So the H. family left behind any extended family that they had and whatever supports they may have had in Ontario. [ 15 ] Mr. H., Sr. was a plumber by trade. RJH's mother was a homemaker. RJH has an older sister, Marilyn; she is two years older than he is, and he has a total of four other half or stepbrothers.

He has what I would call distant relationships with those half-brothers and stepbrothers.

[ 16 ] Both of RJH's parents were alcoholics and they drank daily. They did so until they passed away. RJH and his sister witnessed both physical and verbal abuse between their parents. When Mr. H., Sr. drank, he could become verbally abusive to his son. There were drinking parties at the home on a regular basis. Drinking and partying became the priorities over child-rearing and a healthy lifestyle. [ 17 ] When RJH was about five years old one of his parents' male friends would come into his bedroom at night. He tried to fondle him or perform fellatio on him. However, RJH was able to fend off this man.

These intrusions continued for over a year. Throughout, RJH kept his eyes closed so he was never able to identify whoever this man was. There have been no criminal charges laid against the perpetrator. [ 18 ] RJH and his family had no real connection to the Aboriginal community and Aboriginal resources in Vancouver. Really, the only connection he had to his Aboriginal background and heritage was hearing his sister being called racist names. [ 19 ] RJH 's parents separated in 1977. All the children went with Mrs. H. They lived – and barely lived, I might add – on welfare. After the separation, Mrs.

H drank even more. The children were neglected by their mother. As a result, RJH was raised by his sister. She was the one that made sure that he got to school. She was the one that made sure he had food to eat. Their mother just simply was not capable of doing this. [ 20 ] RJH still had contact with his father off and on however RJH did not have any strong positive male role models except for his "big brother" who was a big brother through the Big Brother agency. [ 21 ] Mr. H., Sr. passed away in 1999. One of RJH's brothers passed away in 2007.

His mother passed away in 2010. [ 22 ] Because the family moved often, RJH attended about four different elementary schools. He experienced difficulties learning, especially mathematics, but generally speaking he was a well-behaved student. He left school when he was in Grade 8 and went to work for his father who was a plumber. RJH worked on a variety of construction sites and he learned many different types of construction and plumbing skills. However, he was never in any type of an apprenticeship program. [ 23 ] RJH stayed out of trouble, much to his credit.

This was so primarily because he saw his half-brothers and stepbrothers getting into trouble with the police and he just simply did not want to follow in their footsteps. [ 24 ] In 1996, RJH suffered a back injury that required surgery. Since then, he has done some work when he is physically able to do so. When he is not working, he collects income assistance, or in more recent years, disability pensions.

He has been treated with anti- depressants more recently. [ 25 ] I will refer to the pre-sentence report for his substance misuse and sexual history: [RJH] states he started smoking marihuana when he was 12 years old. He explains he tried alcohol for the first time in his early twenties and started experimenting with cocaine in his mid-twenties. He admits his alcohol misuse worsened upon his father's death. It was at this time he started drinking on a daily basis and might have consumed up to 26 ounces of vodka in a day. He began misusing cocaine socially and using ecstasy on weekends.

He experimented with both heroin and methamphetamines on one occasion. In 2003, he admits he was having difficulty with his son, [B.], and became incapable of dealing with the stress. It was at this time his cocaine use progressed to crack cocaine use. He states this intense misuse/abuse of drugs and alcohol continued for about five years. He states he quit using crack "cold turkey" after attending Vancouver Detox but continued drinking alcohol until roughly one-and-a-half years ago; the length of time he has been sober. He states quit drinking upon being charged with a criminal offence.

He currently expresses no desire to use drugs or alcohol stating that is all in the past. [ 26 ] Turning now to sexual history: When asked about his first sexual experience, [RJH] states he lost his virginity to his girlfriend when he was 17 years old. When asked where he learned about sex, he explains his family never talked openly about it so most likely from his friends and learning on his own. [RJH] advises that he has had about 15 sexual partners, five of them being serious long-term relationships. He states he did not have any deviant sexual interests and has never had any sexual thoughts that disturb him.

RJH identifies as a heterosexual male with adult females being his primary object of sexual desire. He claims that he does not utilize sexual paraphernalia and reports that he has never utilized the services of a prostitute and denies attending strip clubs. [RJH] denies using sex as a coping mechanism for stress. He admits around the time of the offence that his sexual drive was higher and when in a relationship he would have sexual intercourse on a regular basis. [ 27 ] RJH has never married but he has three children with three different mothers. He does have some contact with his son, B., who is now an adult.

I understand that he has not seen his other children for almost two years. [ 28 ] While in custody, RJH has completed some programming and I will read that into the record. I have a letter from the Chaplain from North Fraser dated May 13th, 2013: To The Honourable Court: While incarcerated at North Fraser Pre-trial Centre, he [being RJH] has participated in AA meetings. His participation has been greatly appreciated. [ 29 ] There is a Certificate of Completion for RJH for the Criminal and Addictive Thinking Workbook dated March 6th, 2013 and

then a Certificate of Completion for RJH for Criminal and Addictive Thinking Workbook and Socialization Workbook that is dated March 14th, 2013 and those documents together are marked as Exhibit 8. [ 30 ] There was some media coverage of RJH's court appearance in December of 2012. As a result of that coverage, other prisoners found out about the offence. RJH had to be put in segregation for his own protection. Additionally, members of his family have received threats to their own safety. [ 31 ] RJH wants to have sex offender treatment. He also wants to have substance abuse counselling.

He also wants to address some other mental health issues including depression. [ 32 ] I will read directly from the pre-sentence report

section on attitude and understanding regarding the offence: [RJH] expresses full responsibility for the offence before the courts. He states that the offence "really encompassed" what occurred throughout 2001 to 2005, hence the guilty plea. [RJH] also expressed regret and remorse for his actions. He states he feels like he took a lot of the victim's life away, believing she should have been dating people her own age. He feels she may have lost a lot of her youth. He states he was feeling lonely; he was bored and had nothing to do.

He explains that alcohol impaired his judgment, however states he knew it was wrong at the time. He states she was fulfilling a need; fulfilling something that was missing in his life. He states they were in a relationship so he did not think anything of it at the time. Now, looking back, he states it never should have happened. He says he feels bad for the victim and hopes she can move forward once this is over with. He went on to say he has also lost a lot of his life and wished he did things differently.

Being in custody for an extended period of time has "allowed him [me] to reflect back" on what he has done and attributes everything to his alcohol use. [ 33 ] I have had the benefit of some letters of reference for RJH. One is from a Christine Upton. It is dated March 10th, 2013 and it is Exhibit 7. She writes: My name is Christine Upton and I was born and raised in Vancouver, B.C. I met RJH in 1972 when our brothers were friends. Our family has known RJH for a long time. We went to elementary and high school together. We have occasionally hung out through the years.

To the best of my knowledge, RJH is a kind, thoughtful, trustworthy person who is very likeable. In my opinion, spending more time locked up will not be therapeutic for RJH. Counselling and rehabilitation would be beneficial outside. [ 34 ] I have also a letter from Mr. Tony Niles, the Native Liaison and Spiritual Advisor at North Fraser. The letter is Exhibit 6. It is dated March 25th: Regarding [RJH]: This letter is written in order to confirm that [RJH] has regularly attended the Sacred Circle.

The Sacred Circle/Talking Circle is provided to the Aboriginal inmates on Alpha N on Tuesday evenings between 6:15 and 7:30. After each inmate has been brushed off (cleansed spiritually) we pass an eagle feather around the room. This is a time for the participants to show their respect for the sacred medicines carried within a sacred bundle. [RJH] has attended all of the Sacred Circles provided to his unit since he arrived here at NFPC. He has always been very respectful and has at times shared some of the native teachings that he has learned along the way.

As I have informed this client, as long as he continues to seek out the Sacred Circles and ceremonies in the community, he will no doubt learn the teachings that will guide him to the healthy and balanced life he wishes to find. [ 35 ] Then I have a letter from a Mr. George Rush. It is dated October 27th, 2012 and it is Exhibit 3. Mr. Rush was RJH's "big brother". I will read that letter into the record: Re: [RJH] My name is George Rush. I have lived at the above address for the last approximately 25 years where my wife, a school teacher, and I raised our two sons. I am now retired.

I graduated from UBC law school in 1975 and was called to the Bar in September 1976 after articling at a downtown law firm. In approximately 1979, I became [RJH's] big brother through the Big Brothers Program. At that time [RJH] was in Grade 6 living at 225 East 17 th in Vancouver in a rental house with his mother, [Mrs. H.], his older sister, Marilyn, and an even older half-brother. [RJH's] mother was on social assistance and remained on social assistance until her death about 18 months ago. [Mrs H.] had named me as the executor of her estate and I administered her estate which was of nominal value.

As prescribed by the Big Brothers Program, I initially met with [RJH] once a week, usually Saturday for three to four hours. He was a surprisingly good kid who I learned had not had many of the opportunities others would take for granted. His mother was trying her best to raise her children with no assistance from [RJH's] father, no income other than social assistance, and no assistance from her family. In fact, [Mrs. H.] did not know who her parents were as she and her sister were raised mostly in church-run orphanages. I have a great deal of respect for [Mrs. H.].

She tried her best under very difficult circumstances. As I got to know [RJH] better, we soon began to connect and look forward to our outings. We would always begin and end our visits with a big hug. Neither his father nor older half-brother spent any time with him at all. I went to [RJH's] sports days in Grade 6 and 7, met his teachers, and would often see him mid-week to help him with his homework. We always went to each other's birthdays. On a couple of occasions [RJH] would accompany my then girlfriend, now wife, and I on weekend trips as he had never had the opportunity to

travel outside Vancouver, had never been on a B.C. ferry, never been on a plane, et cetera. I introduced [RJH] to tennis and snow skiing, the latter of which he adapted to quickly and enjoyed. One summer when he was 13, I took [RJH], my sister, and my brother-in-law on a client's 170-foot ocean going tug up the inside passage to Alaska. He would often come to my parents' home where we enjoyed their backyard pool. His favourite hobby or sport was and still is fishing. There were never any problems whatsoever with [RJH] as a youth.

He never got into fights, never was a problem with his teachers, and I never saw him even get into an argument. The one trait I did notice was that he would always avoid conflict with everyone. It was almost to the point of being a fault. He did well in school in Grades 6 and 7, less well in Grade 8 which was the first year of high school. I remember seeking the assistance of the Big Brothers Program when [RJH] seemed to be drifting away from school and was told that I was not the parent and a big brother's rule was to offer support and advice but not to be interventionist.

For a variety of reasons in his mid and later teens, our contact diminished. I got married. After four years I left the downtown law firm I articled in and started up my own law firm in North Vancouver with two colleagues which required a longer commute and lots of overtime trying to build up the practice. As a 14-year-old, it wasn't always "cool" for [RJH] to spend weekend time with a big brother rather than his friends.

My wife and I had two babies, 14 months apart, and unfortunately she suffered from post-partum depression which became serious after the second birth. [RJH] and I stayed in occasional contact, however, and about eight years ago re-established our relationship. I have met his children, stayed at his house in Maple Ridge for a week while attending a course, and we have spent a great deal of time together. [ 36 ] He goes on: In the last eight years, [RJH] has volunteered in excess of 15 times to help me with charitable cruises which represents over 30 days of his time.

He is the most able of the approximately eight volunteer crew members I have. [RJH] never finished high school and he has repeatedly said that that was the biggest mistake of his life. He is a plumber by trade although not certified or licenced. He at one time tried to get certified but his math skills were too limited. Over the last eight years or so, I have attended some of the projects he was working on as a plumber and have seen the sinks, showers, and toilets, et cetera that he has installed while working for plumbing contractors. [ 37 ] Mr.

Rush goes on to make some comments about the relationship between RJH and the complainant that really I should not read into the record. They are not appropriate in my view. [ 38 ] Mr. Rush ends with the following: The absolute last thing [RJH] is is a violent or mean person. He is a follower, not a leader, and would never do anything to deliberately hurt anyone ever. [RJH] has expressed his regret and remorse to me over this matter.

I think he has learned from this experience and I don't think he will re-offend in the future. [ 39 ] I have also received a letter from RJH and it is Exhibit 4: It is to the Provincial Court of British Columbia To The Provincial Court of British Columbia Dear Madam: My name is [RJH]. I have been a resident of British Columbia my entire life. I am the son of [Mrs. H.] and [Mr. H.] who are no longer here with us. I have one sister, Marilyn. We were brought up in a good family raised by my mother. My father left us at an early age but he remained in our lives. I grew up in an alcoholic setting.

It was mostly my sister and myself so we had to fend for ourselves cooking our own food, laundry, things like that. I was a good kid growing up; did not get in too much trouble. I had good friends. I had girlfriends, not a lot, but I was shy talking to them. I had an older half-brother but he was never there for us much. My Mom got me a big brother. He and I are still good friends to this day. We go out on occasion. He is a captain of a yacht and we go out on it sometimes. I help him as a deckhand. So that is a little about me.

I never got anyone to talk about my mother, father or brother passing and so I started doing drugs and drinking a lot over the years and this has affected my judgment in making decisions. I was very lonely so I found myself in a time of my life that was hanging around K.H. I was living with my ex, [D.G.], not working, and was spending a lot of time alone with K.H. This is where it all went wrong. I crossed the line as an adult with this young lady.

We were spending a lot of time together and I know how wrong this is and I know as an adult I am to protect and guide young people in a positive way and I failed to do this. I am so ashamed of myself. There is absolutely no excuse for my actions. I feel I have severely altered this young lady's life. I think about this all the time and just hope that she may have a better future and that she can have some closure from this as can her family and friends. I want everyone to know that I take complete and full responsibility for my actions and no one else's. This is something that has never happened in my past.

All the women I have been with have always been my own age and since this one isolated incident my recent girlfriend is 53 years old. This has never happened before nor will happen again. This was over a decade ago and has affected a lot of people and families. I apologize and I am so sorry to K.H. from the bottom of my heart and just hope that this can be put behind her and she can move forward in raising her family. I also want to apologize to the courts and my family and friends for putting all this before you. I am so very sorry to all.

I just want to move forward now and reunite with my sister and my son [B.], to get back to my family, and I can get the required resources and counselling to get back to work and into the community

Respectfully yours, [RJH] [40] In considering the circumstances of the offence and the offender there are, of course, some very obvious aggravatingcircumstances. [41] The offence a serious one and it involved a child 14 to about 17 or 18 years old at the time. RJH certainly was in a position oftrust and authority. The offence lasted over a four-year period. There were numerous instances of sexual intercourse, sometimes daily,and sometimes multiple times per day. RJH insisted on sexual intercourse on at least one occasion when K.H. was sick and later went tothe hospital.

RJH provided cigarettes, alcohol, and drugs, including ecstasy and cocaine to K.H. RJH knew at the time that what he wasdoing was wrong but managed to instill a fear in K.H. that if K.H. told anyone, he would tell her mother and she would get into trouble. [42] The relationship ended on the initiative of K.H. Nonetheless, RJH continued to contact her. She had to seek the assistance ofthe police to stop him. Also, the victim impact statement sums up the damage that was done to K.H. and still suffers from. [43] There are some mitigating circumstances. RJH did plead guilty, albeit on the first day of trial.

I understand that the guilty pleawas on the first day of trial because of ongoing and somewhat delayed discussions between Crown and defence. It is also a mitigatingcircumstance that RJH has shown considerable remorse for what he did do to K.H. He has in my view a real understanding of the effectsof his actions on her. He in no way minimizes his responsibility or his involvement. He takes full responsibility for what he did do. [44] RJH does have some community support through his sister and his son, but also through the people whose letters I have readinto the record.

In my view, it is also mitigating that RJH wants treatment and has taken some programming while in custody. [45] He has been in custody since May 8th, 2012 and because of the timing of the offence, he is entitled to double credit, and I notehe has been in segregation since December 2012. [46] Crown's original position on sentencing was time served plus two more years followed by probation for three years, with ofcourse some required ancillary orders.

However, Crown on a more recent occasion has said that a provincial sentence would beappropriate. [47] Crown provided several authorities for their position on sentence. I will read the citations into the record: R. v. R.D.B. (1993), (NS SC), 124 N.S.R. (2nd) 302 (S.C.); R. v. G.T.F. (1992), (ON CA), 11 C.R. (4th) 221 (Ont.C.A.); R. v. D.R. (2003), (ON CA), 169 O.A.C. 55; R. v. M.P. (2002), 249 N.B.R. (2nd) 162 (Q.B.); R. v. P.T.M.,2005 BCSC 1431; R. v. H.T.A., 2006 ONCJ 418; R. v. Hood, 2010 ABPC 353; R. v. Hood, 2011 ABCA 169; R. v. A.D.W., 2011 MBQB6; R. v. M.D., 2011 ONSC 3183; and R. v. St.

Michael, 2011 ONSC 449. [48] I will not go into those cases in detail as they are somewhat distinguishable on the facts. I do take from them as I do fromdefence counsel’s authorities that deterrence and denunciation are very important principles of sentencing. Remorse, or lack thereof, hasbeen an important consideration in sentencing. [49] Defence asks me to consider time served followed by probation, or if jail, something less than what Crown suggests. [50] Defence provided the following authorities: HMTQ v. Bowman, 2000 MBCA 94; R. v. D.E.R., 2000 BCCA 472; R. v. F.L.J.,2001 BCCA 474; R. v.

R.E.M., 2005 BCSC 698. [51] Again, those cases are somewhat distinguishable on their facts but do provide authority for the importance of deterrence anddenunciation and the impact of amongst other things remorse on sentencing. [52] Turning now to the principles of sentencing and the law. [53] In this matter, I am sentencing an Aboriginal offender which brings s. 718.2(

e) of the Criminal Code into effect. Thatsubsection states: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders. [54] Of course, the other sentencing principles in ss. 718, 718.1 and the remainder of 718.2 of the Code apply. [55] In my view, there must be a jail sentence, given the nature and seriousness of the offence. There must be jail in my view toadequately address deterrence and denunciation. Anything less than that in my view would not be fit.

I accept the submissions that ifthere is to be jail it should be in the provincial range. [56] Turning now to the Supreme Court of Canada decision in R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13. At para.60 the Court wrote: ... courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how thathistory continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuseand suicide, and of course higher levels of incarceration for Aboriginal peoples.

These matters, on their own, do not necessarily justify adifferent sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

[ 57 ] So with that as a context or the background, the Court went on at para. 81 in pointing out errors made by courts in the past: [81] First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge. [ 58 ] Further, the Court stated at para. 83: ... Systemic and background factors do not operate as an excuse or justification for the criminal conduct.

Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [ 59 ] In Ipeelee , supra , the Court went on to restate the Gladue analysis at para. 72. The first step is to identify the unique systemic and background factors which may have played a

part in bringing the offender to court. Then the second part of the analysis is the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his Aboriginal heritage or connection. Both steps of the analysis bear on the ultimate question of what is the fit and proper sentence. [ 60 ] Turning now to the first step of the analysis and determining the unique, systemic and background factors in this case.

Of course, these factors go to the culpability of the offender, RJH, but to the extent that they shed light on his level of moral blameworthiness. [ 61 ] In his unique circumstances it is abundantly clear that he has lived a life of poverty, abuse, and neglect. He has experienced generational substance abuse. Because of poverty and neglect as a young man he led a chaotic life. He has a lack of formal education and training. RJH was a victim of sexual abuse and significant losses. He has not resolved those issues.

RJH has at times required treatment for depression and has self-medicated. [ 62 ] Other than one big brother, he has had no real strong positive males in his life. He was raised by a sister just two years older than himself. His connection to his Aboriginal culture and traditions was limited to a great degree to hearing his sister being called racist names. He has suffered from social isolation.

RJH and his family were not connected to the Aboriginal community in Vancouver, so they were not able to access the support and services as they were then and there is no extended family in Vancouver. [ 63 ] At the time of the offence, RJH was unemployed and on disability. I do point out though, very much to RJH's credit, when he was a young teenager he did not get into trouble with the police.

RJH would be the first to say that these factors are not an excuse or a justification however these are factors that in my view go to moral blameworthiness. [ 64 ] Turning now to the second step in determining the types of sentencing procedures and sanctions which may be appropriate in the circumstances due to RJH's Aboriginal heritage or connection. [ 65 ] This raises the issue of programming for Aboriginal sex offenders. As far as I am aware, there is no programming specifically for Aboriginal sex offenders in either federal or provincial institutions.

As far as I am aware from the reports that were filed, there is no programming specifically for aboriginal sex offenders in the community. I am aware that there is programming for sex offenders at the Ford Mountain Institution for prisoners there and through Forensics. [ 66 ] In my view, given the mitigating and aggravating circumstances and considering the analysis required for sentencing an Aboriginal offender, it is appropriate that the sex offender treatment start while RJH is in custody.

There certainly is a strong private interest that he start this; he has indicated that himself, but also there is a strong public interest in his rehabilitation too. In my view, starting sex offender treatment in the community would not adequately address rehabilitation nor would the sentence adequately address deterrence, denunciation and protection of the public. [ 67 ] The sentence will be time served which in my view is 11 months. Doubling that, time credited is 22 months. There will be a further 18 months in jail that will accommodate the sex offender treatment at the Ford Mountain Institution.

I see no usefulness to anyone being RJH or society in general to have a longer sentence. That jail sentence of course will be followed by probation for three years: 1. RJH, you will keep the peace and be of good behaviour. 2. You will report within 72 hours of your release from custody to a probation officer in this building and you will report thereafter as directed by your probation officer. 3. You will reside daily in a residence approved of by your probation officer and you will not move from that address unless you have prior written permission from your probation officer. 4.

Under the direction of and to the satisfaction of your probation officer, you will take counselling and programming which may include, but is not limited to, sex offender treatment and substance abuse. 5. Under the direction of and to the satisfaction of your probation officer, you will attend at a Forensic Psychiatric Outpatient Clinic for assessments and treatment. 6. You will have no contact, directly or indirectly, with the complainant, K.H., or any member of her immediate family and you will

not go to any residence of K.H. or any residence of her immediate family. [ 68 ] Then there are ancillary orders. [ 69 ] There will be a firearms prohibition under s. 110 of the Criminal Code for ten years. [ 70 ] This is a primary designated offence so there will be a DNA sample. [ 71 ] Further, under s. 743.21 of the Criminal Code , RJH, while you are incarcerated you will have no contact with K.H. or any member of her immediate family. [ 72 ] Because I know, sir, you have been in custody and will be in custody, I will waive any surcharges. [ 73 ] And the outstanding counts, please. [ 74 ] MR.

BROWNING: The Crown directs a stay of proceedings on Counts 1, 3 and 4. [ 75 ] THE COURT: Thank you. [ 76 ] MR. BROWNING: If I might just address a couple of things for clarification, please. [ 77 ] The firearms prohibition is pursuant to s. 110? [ 78 ] THE COURT: Yes. [ 79 ] MR. BROWNING: Yes. With respect to the non-attendance at residence of K.H. or family, might Your Honour consider including or any place of employment or educational institution known to him to be that of K.H. or family member please? [ 80 ] THE COURT: Yes, certainly, thank you. We will add that. [ 81 ] MR.

BROWNING: I think that is all. [ 82 ] THE COURT: Okay, thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)